Petition for Writ of Certiorari — Michael H. Hunt, Petitioner v. Florida

Supreme Court briefJul 14, 2026

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No. 26-___

IN THE

MICHAEL H. HUNT,

Petitioner,

STATE OF FLORIDA,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Florida

PETITION FOR A WRIT OF CERTIORARI

Barbara J. Busharis

ASSISTANT PUBLIC DEFENDER

SECOND JUDICIAL CIRCUIT

Leon County Courthouse

301 South Monroe Street

Suite 401

Tallahassee, FL 32301

Jeffrey L. Fisher

Counsel of Record

Easha Anand

Brian H. Fletcher

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 724-7081

jlfisher@law.stanford.edu

CAPITAL CASE

QUESTIONS PRESENTED

Under a Florida law enacted in 2023, a judge may

impose the death penalty only if the jury first

“determine[s] that the defendant should be sentenced

to death.” Fla. Stat. § 921.141(2)(c). The questions

presented are:

1. Whether the Sixth or Eighth Amendment

requires that jury determination to be unanimous, or

whether it suffices—as provided in the statute—for

only eight of the twelve jurors to vote for death.

2. Whether the Ex Post Facto Clause forbids

applying Florida’s nonunanimity rule retroactively to

individuals whose crimes were committed when state

law required such jury determinations to be

unanimous.

PARTIES TO THE PROCEEDINGS

The petitioner is Michael H. Hunt. He was the

defendant below.

The respondent is the State of Florida. It was the

plaintiff below.

iii

RELATED PROCEEDINGS

State v. Hunt, No. 19-2281-CFMA (Fla. 14th Cir.

Ct. 2024)

Hunt v. State, 428 So. 3d 43 (Fla. 2025)

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................................... i

PARTIES TO THE PROCEEDINGS .......................... ii

RELATED PROCEEDINGS .......................................iii

TABLE OF AUTHORITIES ....................................... vi

PETITION FOR A WRIT OF CERTIORARI .............. 1

OPINIONS BELOW ..................................................... 1

JURISDICTION ........................................................... 1

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS ....................................... 1

INTRODUCTION......................................................... 2

STATEMENT OF THE CASE ..................................... 3

A. Legal background ........................................... 3

B. Factual and procedural background ............. 4

ARGUMENT ................................................................ 7

This Court should resolve whether

Florida’s nonunanimity rule violates the

Sixth and Eighth Amendments ............................ 7

II. This Court should resolve whether

applying Florida’s new rule to individuals

whose crimes were committed while

unanimity was required violates the Ex

Post Facto Clause .................................................. 8

A. State courts of last resort are divided over

whether changing the percentage of votes

needed to impose criminal punishment

triggers the Ex Post Facto Clause................. 9

B. The Florida Supreme Court’s decision

is incorrect .................................................... 12

C. The Court should resolve this

important question here and now ............... 21

CONCLUSION ........................................................... 23

APPENDICES

Appendix A, Corrected Opinion of the Supreme

Court of Florida (December 18, 2025) ................ 1a

Appendix B, Order of the Supreme Court of

Florida Denying Motion for Rehearing

(March 5, 2026) .................................................. 31a

Appendix C, Relevant Statutory Provisions ........... 32a

TABLE OF AUTHORITIES

Page(s)

Cases

Beazell v. Ohio,

269 U.S. 167 (1925) ............................................. 14

Barton v. S.C. Dep’t of Prob. Parole &

Pardon Servs.,

745 S.E.2d 110 (S.C. 2013) ........................... 10, 11

Birchfield v. North Dakota,

579 U.S. 438 (2016) ............................................. 23

Ex parte Bohannon,

222 So. 3d 525 (Ala. 2016) .................................. 10

Cal. Dep’t of Corr. v. Morales,

514 U.S. 499 (1995) ........................... 11, 12, 13, 14

Carmell v. Texas,

529 U.S. 513 (2000) ..................... 10, 13, 18, 19, 21

Clay v. Mass. Parole Bd.,

56 N.E.3d 145 (Mass. 2016) .................... 10, 11, 16

Collins v. Youngblood,

497 U.S. 37 (1990) ................................... 13, 19, 20

Crawford v. Mississippi,

146 S. Ct. 33 (2025) ............................................. 22

Dobbert v. Florida,

432 U.S. 282 (1977) ............................. 6, 17, 18, 19

Fernandez v. United States,

146 S. Ct. 1292 (2026) ......................................... 23

Garner v. Jones,

529 U.S. 244 (2000) ....................................... 13, 14

Hibdon v. United States,

204 F.2d 834 (6th Cir. 1953) ............................... 20

vii

Kian v. Florida,

No. 25-6623, cert. granted (June 15, 2026) ........ 20

Lindsey v. Washington,

301 U.S. 397 (1937) ....................................... 14, 17

Lynce v. Mathis,

519 U.S. 433 (1997) ....................................... 14, 16

Miller v. Florida,

482 U.S. 423 (1987) ................................. 14, 18, 21

Peugh v. United States,

569 U.S. 530 (2013) ................... 6, 12-14, 16-18, 21

State v. Poole,

297 So. 3d 487 (Fla. 2020) .................................... 7

Ramos v. Louisiana,

590 U.S. 83 (2020) ................................................. 9

Rutherford v. United States,

146 S. Ct. 1320 (2026) ......................................... 23

State v. Ardoin,

24 So. 802 (La. 1899) ............................................. 9

Jackson v. State,

430 So. 3d 64 (Fla. 2025) ...................................... 5

State v. Lobato,

394 So. 3d 1219 (Fla. 6th DCA 2024) ................. 16

Weaver v. Graham,

450 U.S. 24 (1981) ............................................... 17

Williams v. Florida,

399 U.S. 78 (1970) ............................................... 20

Constitutional Provisions

U.S. Const. art. I, § 9 (Ex Post Facto

Clause) ..................................... 1, 2, 5, 6, 8-13, 17-21

U.S. Const. amend. IV ............................................... 23

viii

U.S. Const. amend. VI ................................ 1, 2, 5-8, 23

U.S. Const. amend. VIII.................................. 2, 5-8, 23

Or. Const. Article I, § 11 (1934) ................................... 9

Statutes

28 U.S.C. § 1257(a) ....................................................... 1

First Step Act, Pub. L. 115-391 (Dec. 21, 2018)........ 23

Fla. Stat. § 921.141 ...................................................... 2

Fla. Stat. § 921.141(2) .................................................. 3

Fla. Stat. § 921.141(2)(b) ............................................. 4

Fla. Stat. § 921.141(2)(b)2 ........................................... 3

Fla. Stat. § 921.141(2)(c) .............................. 3, 4, 17, 21

Fla. Stat. § 921.141(3) ................................................. 3

Fla. Stat. § 921.141(3)(a)1 ............................... 3, 17, 21

Fla. Stat. § 921.141(4) ................................................ 21

Legislative Materials

Hearing on HB 555 Before the H. Crim.

Just. Subcomm., 2023 Leg., Reg. Sess. 16

(Fla. 2023) ......................................................... 4, 15

Tr. of Senate Floor Debate on SB 450, 2023

Leg., Reg. Sess. 2 (Fla. Mar. 29, 2023) ................ 15

Other Authorities

Death Penalty Information Center, Marking

a Decade Since Hurst v. Florida,

https://perma.cc/B2YY-93RH. ........................ 14, 15

Federalist No. 84 (Hamilton) (Clinton

Rossiter ed., 1961)................................................. 13

PETITION FOR A WRIT OF CERTIORARI

Petitioner Michael H. Hunt respectfully petitions

for a writ of certiorari to review the judgment of the

Supreme Court of Florida.

OPINIONS BELOW

The opinion of the Supreme Court of Florida (Pet.

App. 1a-30a) is reported at 428 So. 3d 43. The relevant

order of the trial court is unpublished.

JURISDICTION

The judgment of the Supreme Court of Florida

was entered on December 18, 2025. Pet. App. 1a. A

timely petition for rehearing was denied on March 5,

2026. Id. 31a. On May 5, 2026, Justice Thomas

extended the time within which to file a petition for a

writ of certiorari to and including July 6, 2026. See No.

25A1210. On June 17, 2026, Justice Thomas further

extended the time in which to file a petition to and

including July 21, 2026. Id. This Court has jurisdiction

under 28 U.S.C. § 1257(a).

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Ex Post Facto Clause, U.S. Const. art. I, § 10,

cl. 1, provides: “No State shall . . . pass any . . . ex post

facto Law.”

The Sixth Amendment provides in relevant part:

“In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury.”

The Eighth Amendment provides: “Excessive bail

shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.”

The statute at issue, Fla. Stat. § 921.141, is

reproduced in relevant part at Pet. App. 32a-36a.

INTRODUCTION

This is the second of two petitions for certiorari

challenging Florida’s statute, enacted in 2023, that

allows courts to impose the death penalty based on

nonunanimous jury determinations that the

defendant should be sentenced to death. The petition

in the other case, Jackson v. Florida, No. 26-___,

explains why this Court should grant review to

determine whether the new state law violates the

Sixth and Eighth Amendments. This petition raises

that issue too, but it focuses on another question not

presented in Jackson: Whether the Ex Post Facto

Clause forbids applying the new statute to persons

whose crimes were committed during the six years

while Florida required such jury determinations to be

unanimous.

That question is certworthy as well. The Florida

Supreme Court’s decision holding that the Ex Post

Facto Clause permits a state to move from unanimity

to a nonunanimity rule and apply the new rule

retroactively is unprecedented. It also conflicts with

decisions from other state high courts. On top of that,

the decision is wrong. The Ex Post Facto Clause

forbids applying new laws governing criminal

punishment retroactively when they create a

significant risk of more severe sentences. Florida’s

new nonunanimity rule, by design and actual

operation, meets that test. Finally, this case is an

excellent vehicle for resolving this important question.

It is procedurally clean and at the leading edge of other

capital cases raising the issue in Florida’s system.

Granting certiorari here would thus enable this Court

to bring certainty to this matter before other cases

start becoming final and the State relies on its new

statute to procure additional, constitutionally dubious

death sentences.

STATEMENT OF THE CASE

A. Legal background

1. Florida enacted its first modern death penalty

statute in 1972. Under that statute, a jury that found

a defendant guilty of a capital offense was asked (as

relevant here) whether it believed any aggravating

circumstances were present and, if so, whether the

defendant should be sentenced to death. Those

findings, however, were merely “advisory.” Fla. Stat.

§ 921.141(2) (1972). It was the judge, not the jury, that

decided whether an aggravating factor existed and, if

so, whether death was the appropriate sentence. Id.

§ 921.141(3).

2. In 2017—in the wake of court decisions detailed

in the petition for certiorari in Jackson—the Florida

Legislature amended the State’s capital punishment

regime. Under the amended system, a defendant could

be sentenced to death only if the jury unanimously

found (i) at least one aggravating factor; and (ii) that

the defendant should be sentenced to death. Fla. Stat.

§ 921.141(2)(b)2, (2)(c) (2017). If the jury did not

unanimously agree that the defendant should be

sentenced to death, the maximum sentence the judge

could

impose

was

life

imprisonment.

Id.

§ 921.141(3)(a)1.

3. In 2023, following a divided jury verdict in a

high-profile capital prosecution dictating a life

sentence, the Florida Legislature enacted the new

scheme at issue here. That scheme continues to

require the jury at the penalty phase of a capital case

to make two determinations before a court may

sentence the defendant to death: (i) that “at least one

aggravating factor” exists; and (ii) that, in light of

those factors and any mitigating factors found to exist,

“the defendant should be sentenced to death.” Fla.

Stat. § 921.141(2)(b). The first determination also still

“must be unanimous.” Id. But as to the second

determination, it now suffices if eight of the twelve

jurors agree. Id. § 921.141(2)(c). Supporters of this

change explained that it is designed to prevent “a

small handful of jurors [from] derail[ing] the true

administration of justice” by declining to vote for death

sentences. Hearing on HB 555 Before the H. Crim.

Just. Subcomm., 2023 Leg., Reg. Sess. 16 (Fla. 2023)

(statement of Rep. Berny Jacques, Member, H. Crim.

Just. Subcomm.).

The new regime has produced its intended effect.

A study of over 100 capital sentencing proceedings—

roughly half occurring between 2017 and 2023, and

the other half occurring from 2023 onward—shows

that “[t]he proportion of death sentences [under the

new nonunanimity regime] has doubled.” Death

Penalty Information Center, Marking a Decade Since

Hurst v. Florida, https://perma.cc/B2YY-93RH.

B. Factual and procedural background

1. According to the State, one day in 2019,

petitioner Michael H. Hunt and an accomplice set out

to murder sixteen-year-old P.O. Pet. App. 6a. The two

men entered P.O.’s home, where P.O. lived with her

boyfriend Gabe, his parents Jenna and Danny, his

sister Lexie, and two friends, Brentley and Izac. Id. 1a.

Mr. Hunt’s accomplice shot Lexie, Izac, and Brentley,

killing Lexie. Id. 2a-3a. Mr. Hunt shot Danny, who was

seriously injured but survived. Id. 2a-3a.

2. The State charged Mr. Hunt with first-degree

murder (under theories of accomplice liability and

felony murder), attempted murder, and other crimes.

Pet. App. 27a-29a. The jury found Mr. Hunt guilty of

all charges. Id. 10a.

The State then sought a sentence of death on the

murder charge. The State also moved to proceed at the

sentencing phase under the new statute—enacted four

years after the crimes at issue—providing that a vote

of eight of the twelve jurors is enough to determine the

defendant should be sentenced to death. Pet. App. 8a.

Mr. Hunt objected, arguing that the Sixth and Eighth

Amendments prohibit imposing a death sentence

pursuant to a nonunanimous jury verdict. Id. Mr.

Hunt also contended that applying the nonunanimity

rule against him would violate the Ex Post Facto

Clause because, when the crime here occurred, Florida

law required a jury determination that the defendant

should be sentenced to death to be unanimous. The

trial court rejected those objections. Id. 9a.

At the sentencing hearing, the jury unanimously

found several aggravating factors. Pet. App. 11a. It

then voted 10-2 that Mr. Hunt should be sentenced to

death—a sufficient tally under the 2023 law, but one

that would have required a life sentence under the

regime in effect when the crime was committed. Id.

12a. The trial judge then imposed a death sentence. Id.

3. Deciding this case in conjunction with Jackson

v. State, 430 So. 3d 64 (Fla. 2025), pet. for cert. filed

(No. 26-___), the Florida Supreme Court affirmed. Pet.

App. 1a. As elaborated in the Jackson petition, the

court first held that Florida’s new nonunanimity rule

comports with the Sixth and Eighth Amendments.

Pet. App. 19a-21a; see Jackson Pet. 10-11.

The Florida Supreme Court then turned to Mr.

Hunt’s ex post facto claim. It recognized that “to

determine whether there is an ex post facto violation”

when the prosecution seeks to apply a new law

governing criminal punishment, “the relevant inquiry

is ‘whether [the] given change in law presents a

“sufficient risk of increasing the measure of

punishment attached to the covered crimes.”’” Pet.

App. 25a (quoting Peugh v. United States, 569 U.S.

530, 539 (2013) (quoting Garner v. Jones, 529 U.S.

244, 250 (2000)). The Florida Supreme Court then

observed that, “in Peugh, the ‘detrimental change [in

law] virtually guarantee[d] an increase in the measure

of punishment.’” Id. 25a-26a (citation omitted). The

court then declared that “[t]he change to the statute

here does not have a similar guarantee.” Id. 26a.

Having purported to distinguish this Court’s “risk

analysis” jurisprudence, the Florida Supreme Court

concluded that Dobbert v. Florida, 432 U.S. 282 (1977),

“guid[ed its] analysis.” Pet. App. 24a-25a. In Dobbert,

this Court held that various changes to Florida’s death

penalty system did not trigger the Ex Post Facto

Clause because they “merely altered the methods used

to determine the applicability of a death sentence

rather than the ‘quantum of punishment’ attached to

the crime.” Pet. App. 23a (quoting Dobbert, 432 U.S.

at 293-94). The Florida Supreme Court asserted that

the same is true here: “The penalty remains death

regardless of how many jurors are required to make

the recommendation.” Id. 26a. Accordingly, the

Florida Supreme Court held that applying the 2023

statute to Mr. Hunt “does not constitute an ex post

facto law.” Id. 27a.

Justice Labarga concurred only in the result.

Pointing to his separate opinion in Jackson, he

maintained the Sixth and Eighth Amendments

prohibit imposing death sentences based on

nonunanimous jury verdicts. Pet. App. 29a-30a; see

also Jackson Pet. App. 53a.1 But he believed that the

Florida Supreme Court’s decision in State v. Poole, 297

So. 3d 487 (Fla. 2020), foreclosed such a holding. Pet.

App. 29a. Justice Labarga also lamented that “the

statutory amendment requiring only an 8-4 jury to

recommend that a defendant be sentenced to death

renders Florida’s requirement the least demanding

nationally.” Id.

ARGUMENT

This Court should resolve whether Florida’s

nonunanimity rule violates the Sixth and

Eighth Amendments.

For all of the reasons stated in the petition for

certiorari in Jackson v. Florida, which is being filed

simultaneously with this petition, the Court should

grant certiorari to decide whether Florida’s new

nonunanimity rule comports with the Sixth and

Eighth Amendments. In summary, about one of every

Mr. Hunt is filing this petition on the same day Mr.

Jackson is filing his petition for certiorari. Because the Florida

Supreme Court decided the two cases together and this Court will

presumably consider them in tandem, this petition cites directly

to the petition appendix in Jackson instead of the reported

version of the decision.

three death sentences in this country is now imposed

based on nonunanimous jury verdicts (all from either

Florida or Alabama). The Florida Supreme Court’s

holding that imposing death sentences based on

nonunanimous verdicts comports with the Sixth and

Eighth Amendments conflicts with decisions from two

other state high courts. Furthermore, the Florida

Supreme Court’s decision upholding the State’s new

nonunanimity rule contravenes history and tradition,

as well as multiple lines of this Court’s precedent. See

Jackson Pet. 11-32.

Because these arguments are thoroughly

elaborated in Mr. Jackson’s petition, Mr. Hunt will not

repeat them here. He will instead focus on his distinct

ex post facto claim.2

II. This Court should resolve whether applying

Florida’s new rule to individuals whose crimes

were committed while unanimity was required

violates the Ex Post Facto Clause.

Even if Florida’s nonunanimity rule comported

with the Sixth and Eighth Amendments, it would still

raise a serious ex post facto question as applied to

individuals whose crimes were committed between

2017 and 2023, when Florida precluded the death

penalty unless the jury voted unanimously that the

defendant should be sentenced to death. State courts

of last resort are divided over whether changes in the

percentage of votes required to enable heightened

Likewise, if the Court grants certiorari in both Mr.

Jackson’s case and this case, Mr. Hunt’s merits brief—unless the

Court directs otherwise—will focus on his ex post facto claim.

That would allow the Court to have thorough, nonduplicative

briefing on both of the questions presented here.

criminal punishment violate the Ex Post Facto Clause.

Furthermore, the Florida Supreme Court’s holding

that there is no ex post facto problem under these

circumstances is incorrect. And this case is an ideal

vehicle for resolving the issue.

A. State courts of last resort are divided over

whether changing the percentage of votes

needed to impose criminal punishment

triggers the Ex Post Facto Clause.

On two levels, the Florida Supreme Court’s

holding that retroactively applying the State’s new

nonunanimity rule does not violate the Ex Post Facto

Clause conflicts with precedent from other states.

1. Florida is only the third state in American

history to have gone from requiring unanimous jury

verdicts in criminal cases to a system in which

nonunanimity suffices. As this Court will recall from

Ramos v. Louisiana, 590 U.S. 83 (2020), Louisiana

abandoned its requirement of unanimity to convict in

noncapital cases in 1898, while Oregon did the same

in 1934. Id. at 87-88. The Louisiana Supreme Court

held that the Ex Post Facto Clause prohibited

applying its new nonunanimity rule “to offenses

committed prior to [the rule’s] adoption.” State v.

Ardoin, 24 So. 802, 803 (La. 1899). Oregon proactively

made its nonunanimity rule inapplicable in

“prosecutions for crimes committed before [the rule

took] effect.” Or. Const. art. I, § 11 (1934).

The Florida Supreme Court’s decision here breaks

from both of those antecedents. Granted, the

Louisiana Supreme Court applied a “substantial

right” approach to the Ex Post Facto Clause that this

Court has since abandoned. Compare Ardoin, 24 So. at

803, with Carmell v. Texas, 529 U.S. 513, 539 (2000).

And the Oregon antecedent is legislative rather than

judicial. But the fact remains that in the only two

other instances in which a state abandoned a

unanimity requirement for criminal punishment, the

state did not allow that change to apply retroactively.

The Florida Supreme Court’s holding here conflicts

with that judgment.3

2. If one widens the lens from juries to other actors

whose votes determine the severity of a defendant’s

punishment, the conflict deepens.

Recent legislative enactments in South Carolina

and Massachusetts changed state law from requiring

a majority vote to grant parole to requiring a

supermajority vote. See Barton v. S.C. Dep’t of Prob.

Parole & Pardon Servs., 745 S.E.2d 110, 112 (S.C.

2013); Clay v. Mass. Parole Bd., 56 N.E.3d 145, 147-48

(Mass. 2016). The high courts in both states then held

that the Ex Post Facto Clause prohibited applying

these changes to defendants who committed their

crimes before the new laws were enacted. See Barton,

745 S.E.2d at 114, 119-20; Clay, 56 N.E.3d at 152-53.

Start with South Carolina. The South Carolina

Supreme Court explained that the Ex Post Facto

Clause applies to changes to the availability of parole

because the Clause applies to laws governing the

length of imprisonment, and “the nature of parole is

early release from imprisonment.” Barton, 745 S.E.2d

Alabama also currently allows courts to impose the death

penalty based on nonunanimous jury determinations that the

defendant should be sentenced to death. See Ex parte Bohannon,

222 So. 3d 525, 532 (Ala. 2016) (upholding this law). Unlike

Florida, however, Alabama did not previously require unanimous

jury determinations to impose such sentences. So the ex post facto

question here does not arise in that State.

at 120 n.8. The court then explained that when it

comes to laws governing the length of imprisonment,

“[t]he relevant inquiry . . . is whether a legislative

amendment ‘produces a sufficient risk of increasing

the measure of punishment attached to the covered

crimes.’” Id. at 114 (quoting Cal. Dep’t of Corr. v.

Morales, 514 U.S. 499, 509 (1995)). Applying that test,

the court held that the new supermajority rule created

a sufficient risk of increased punishment because “[i]t

is clearly more difficult to convince a two-thirds

majority of the Parole Board to grant parole, than a

simple majority.” Id. at 120.

The Massachusetts Supreme Judicial Court

likewise held that a change from a majority to a

supermajority requirement for parole violated the Ex

Post Facto Clause as applied to a defendant who

committed his crime before the new law’s enactment.

Applying the same ex post facto framework as the

South Carolina Supreme Court, the Massachusetts

court explained the Commonwealth’s new rule

actually caused the defendant to suffer greater

punishment. Clay, 56 N.E.3d at 149, 152. Under the

old law, the parole board’s simple majority vote would

have resulted in the defendant’s term of imprisonment

being cut short, but the new law required him to

“remain[] in prison.” Id. at 152.

The Florida Supreme Court’s ex post facto holding

here cannot be squared with these decisions. As in the

South Carolina and Massachusetts cases, Florida’s

2023 nonunanimity rule increased the percentage of

votes required to avoid a harsher punishment. When

the crime in Mr. Hunt’s case occurred, a capital

defendant needed to convince only one of twelve jurors

to vote for a life sentence to avoid a sentence of death.

But under the 2023 law, a minimum of five votes are

needed—making a death sentence much more likely.

The Florida Supreme Court nonetheless held that the

new statute did not trigger the Ex Post Facto Clause,

reasoning that the statute did not “virtually

guarantee[]” that Mr. Hunt would receive a more

severe sentence. Pet. App. 25a. And the Florida

Supreme Court stuck to this reasoning even though in

Mr. Hunt’s own case, the change in state law was

unquestionably outcome-determinative: Before the

new enactment, the 10-2 jury vote here could not have

exposed him to a death sentence.

To be sure, this case involves a jury voting at a

sentencing proceeding, not a board voting for parole.

But as the Florida Supreme Court itself recognized,

this Court’s “risk analysis” jurisprudence applies in

both settings, and the “relevant inquiry” is the same.

Pet. App. 25a (discussing Peugh v. United States, 569

U.S. 530, 539 (2013)); see also Morales, 514 U.S. at

509. The Florida Supreme Court’s disagreement with

the high courts in South Carolina and Massachusetts

thus turns solely on whether changes in the

percentage of votes required to enable heightened

punishment create a “sufficient risk” of such

punishment under Peugh and prior cases—and, more

generally, on whether the touchstone for that inquiry

is a “significant risk” or a “virtual guarantee” of

increased punishment. Only this Court can resolve

that disagreement.

B. The Florida Supreme Court’s decision is

incorrect.

Certiorari is also warranted because the Florida

Supreme Court’s decision contravenes this Court’s

precedent.

1. The Ex Post Facto Clause, U.S. Const. art. I,

§ 10, cl. 1, guarantees “perhaps greater securities to

liberty and republicanism than any [the Constitution]

contains.” The Federalist No. 84, at 511 (Hamilton)

(Clinton Rossiter ed., 1961). Specifically, the Clause

guards against applying penal statutes enacted after

a crime occurred that “disadvantage the offender

affected by them.” Collins v. Youngblood, 497 U.S. 37,

41 (1990). This prohibition ensures that individuals

have fair notice of criminal law and that the

government cannot change the rules after the fact to

“make it easier” to convict or impose punishment.

Carmell v. Texas, 529 U.S. 513, 546 (2000).

Applying these general principles, this Court has

held that a new rule governing criminal punishment

triggers the Ex Post Facto Clause when the change in

law “presents a sufficient risk of increasing the

measure of punishment.” Peugh v. United States, 569

U.S. 530, 539 (2013) (internal quotation marks

omitted). To meet this standard, the defendant must

show that the change creates more than a “speculative

and attenuated possibility of producing the prohibited

effect of increasing the measure of punishment.” Cal.

Dep’t of Corr. v. Morales, 514 U.S. 499, 509 (1995); see

Garner v. Jones, 529 U.S. 244, 250-51 (2000). The new

law must instead “creat[e] a ‘significant risk’ of a

higher sentence.” Peugh, 569 U.S. at 550 (quoting

Garner, 529 U.S. at 251); id. at 541 n.4.

The Court has applied this test in a number of

different settings. It has held that increases in the

recommended or presumptive levels of punishment

under sentencing guidelines created a significant risk

of heightened punishment. See Peugh, 569 U.S. at 550;

see also id. at 541; id. at 541 n.4 (discussing Miller v.

Florida, 482 U.S. 423 (1987)). The Court has reached

the same conclusion regarding rules governing the

calculation of provisional “good time” credits and

making a permissible sentence mandatory. See Peugh,

569 U.S. at 546 (discussing Lindsey v. Washington,

301 U.S. 397 (1937)); Lynce v. Mathis, 519 U.S. 433

(1997). On the other hand, the Court has held that

laws changing the rules for trying co-defendants

jointly and the frequency of parole hearings for certain

inmates did not pose a sufficient risk of heightened

punishment to trigger ex post facto concerns. See

Beazell v. Ohio, 269 U.S. 167 (1925); Morales, 514 U.S.

499 (1995); Garner, 529 U.S. 244.

To determine whether a new law poses a

significant risk of increased punishment, this Court

looks to its “purpose” and “effect.” Lynce, 519 U.S. at

444. The effect of the law can be gleaned from its “own

terms” or “evidence drawn from the rule’s practical

implementation.” Garner, 529 U.S. at 255. And the

law’s practical implementation can be shown through

general “empirical evidence,” see Peugh, 569 U.S. at

543, or “the actual course of events” in the defendant’s

particular case, Lynce, 519 U.S. at 446.

2. Florida’s new nonunanimity rule has both the

purpose and effect of creating a significant risk of

greater punishment.

As to purpose, the Florida Supreme Court did not

dispute that the goal of the State’s nonunanimity rule

is to make it easier to sentence people to death. Nor

could it. The bill’s sponsor explained that the rule is

designed to “hinder the practice of activist jurors”—

meaning jurors who vote for life instead of death when

others believe a death sentence was appropriate. Tr. of

Senate Floor Debate on SB 450, 2023 Leg., Reg. Sess.

2 (Fla. Mar. 29, 2023) (statement of Sen. Blaise

Ingoglia). Other supporters likewise argued that

removing the State’s unanimity requirement was

necessary to prevent “a small handful of jurors [from]

derail[ing] the true administration of justice” by

declining to impose death. Hearing on HB 555 Before

the H. Crim. Just. Subcomm., 2023 Leg., Reg. Sess. 16

(Fla. 2023) (statement of Rep. Berny Jacques,

Member, H. Crim. Just. Subcomm.). Some legislators

even singled out particular capital defendants that

they believed deserved the death penalty and urged

colleagues to vote for the amendment to make that

more likely. See id.

It thus comes as no surprise that Florida’s 2023

shift to a nonunanimity system, in fact, increased the

likelihood that capital defendants receive death

sentences. On the new statute’s own terms, it is much

easier for the prosecution to obtain death sentences.

That is because a Florida court may impose the death

penalty only if the jury determines that the defendant

should be sentenced to death. And it is much easier to

persuade eight of twelve jurors to vote for death than

all twelve.

Statistics confirm that reality. Records of

sentences imposed on over one hundred capital

defendants before and after the 2023 law’s

implementation show that individuals sentenced

under Florida’s new nonunanimity rule are twice as

likely as before to receive a death sentence. Death

Penalty Information Center, Marking a Decade Since

Hurst v. Florida, https://perma.cc/B2YY-93RH.

Making heightened punishment twice as likely plainly

poses a “significant risk” of that punishment.

Finally, “the actual course of events” in this very

case, Lynce, 519 U.S. at 446, demonstrates that

Florida’s nonunanimity rule increased Mr. Hunt’s

punishment. His jury voted 10-2 in favor of death.

Under the old regime, that vote would have required a

sentence of life imprisonment. But under the new law,

that nonunanimous vote enabled a death sentence,

which is what the court imposed. The 2023

amendment thus increased Mr. Hunt’s actual

punishment. See id.; Clay, 56 N.E.3d at 152.

3. The Florida Supreme Court advanced three

reasons for rejecting this straightforward analysis.

None has merit.

a. The Florida Supreme Court asserted that the

“sufficient risk” test this Court applied most recently

in Peugh is not met unless the change in law “virtually

guarantee[s]” increased punishment. Pet. App. 25a26a (quoting State v. Lobato, 394 So. 3d 1219, 1226

(Fla. 6th DCA 2024)). Those words, however, appear

nowhere in Peugh, and that is not the applicable

standard. The constitutional question, as this Court

reiterated over and over in Peugh, is whether the new

law “create[s] a ‘significant risk’ of a higher sentence.”

Peugh, 569 U.S. at 550 (citation omitted); see also id.

(“significant risk”); id. at 541 n.4 (“The relevant

question is whether the change in law creates a

‘sufficient’ or ‘significant’ risk of increasing the

punishment for a given crime.”) (citation omitted); id.

at 541 (“significant risk”).

To be sure, some of the Court’s analysis in Peugh

suggested that the particular change to the guidelines

system at issue there might have created even more

than a significant risk of higher punishment. But that

just meant that the change met the governing

standard by a considerable margin. The Court did not

modify the constitutional standard itself.

Nor did Peugh circumscribe prior precedent

finding ex post facto violations in other cases where

there was no virtual guarantee of increased

punishment. For example, in Weaver v. Graham, 450

U.S. 24 (1981), there was nothing close to a guarantee

that defendants’ punishments would increase under

the changes at issue to rules for calculating good time

credits. Id. at 37-38 (Rehnquist, J., concurring in the

judgment). But this Court still found that the changes

triggered the Ex Post Facto Clause because they

“constrict[ed] [an] inmate’s opportunity to earn early

release.” Id. at 35-36 (emphasis added). Lindsey is

similar. The new law there made a sentence

mandatory that was already permissible—and thus

presumably regularly given. Lindsey, 301 U.S. at 401.

But retroactively applying the new rule still violated

the Ex Post Facto Clause because it removed “the

possibility” of a shorter sentence. Id.4

b. The Florida Supreme Court also maintained

that Dobbert v. Florida, 432 U.S. 282 (1977), insulates

the State’s new nonunanimity rule from ex post facto

infirmity. Pet. App. 24a. But Dobbert offers no refuge.

The dissenters in Peugh would have held that changes to

the federal sentencing guidelines do not satisfy the “sufficient

risk” test because they have “no legal effect on a defendant’s

sentence.” 569 U.S. at 551 (Thomas, J., dissenting). Even if such

an effect were required to trigger the Ex Post Facto Clause, the

Florida Supreme Court’s decision would still be wrong. A jury

determination in Florida that the defendant should be sentenced

to death has a legal effect (indeed, a very important one): It makes

an otherwise off-limits sentence permissible. See Fla. Stat.

§ 921.141(2)(c), (3)(a)(1).

In Dobbert, the Court held that various changes

to Florida’s capital sentencing procedures did not

trigger the Ex Post Facto Clause. The Court stressed

that the totality of the changes were “ameliorative,”

making it less likely than before that defendants

would be sentenced to death. Id. at 294; see also Miller,

482 U.S. at 431-32.

No aspect of the new law here is ameliorative.

Instead, it creates a significant risk that defendants

who would otherwise have received life sentences will

now be sentenced to death. See supra at 14-16.

The Dobbert opinion also noted the changes at

issue there were “clearly procedural.” That is, they

“altered the methods” used to determine the

defendant’s sentence, not the “quantum of

punishment” allowed for the crime itself. Dobbert, 432

U.S. at 293-94. But since Dobbert, the Court has made

clear that “a law can run afoul of the [Ex Post Facto]

Clause even if it does not alter the statutory maximum

punishment attached to a crime.” Peugh, 569 U.S. at

546; see Miller, 482 U.S. at 432 (“[O]ne is not barred

from challenging a change in the penal code on ex post

facto grounds simply because the sentence he received

under the new law was not more onerous than that

which he might have received under the old.”) (citation

omitted). Consequently, the question is not whether

the new rule is “procedural”; it is whether the new law

“creates a ‘significant risk’ of a higher sentence” that

the defendant otherwise would have received. Peugh,

569 U.S. at 550. And that test is met here.

This Court’s decision in Carmell underscores the

Florida Supreme Court’s error in relying on Dobbert.

In Carmell, the Court confirmed that it has

“eliminated [the] doctrinal hitch that had developed in

[Dobbert and other] cases, which purported to define

the scope of the Clause along an axis distinguishing

between laws involving ‘substantial protections’ and

those that are merely ‘procedural.’” Carmell, 529 U.S.

at 539 (discussing Collins, 497 U.S. 37). Procedural

changes that increase the risk of punishment can

violate the Ex Post Facto Clause just as laws directly

requiring higher sentences can.

Carmell also makes clear that, even when a new

law does not increase the defendant’s punishment, it

triggers the Ex Post Facto Clause if it “lower[s] the

burden of proof.” 529 U.S. at 532. Unlike procedural

changes that might sometimes help the prosecution

and other times help defendants, laws that “mak[e] it

easier to meet” the burden of proof implicate ex post

facto concerns because they “always run in the

prosecution’s favor.” Id. at 532, 546.

Florida’s new nonunanimity rule is just like a law

lessening the prosecution’s burden of proof. The

prosecution no longer needs to convince all of the

jurors to vote for death; it is now sufficient to persuade

eight of the twelve to do so. As such, the new rule

reduces the prosecution’s degree of persuasion

necessary to obtain death sentences—and accordingly

violates the Ex Post Facto Clause when applied

retroactively.

c. Lastly, the Florida Supreme Court relied on a

passage from this Court’s opinion in Collins v.

Youngblood explaining that a law reducing the

number of jurors from twelve to eight did not implicate

the Ex Post Facto Clause. See Pet. App. 25a

(discussing Collins, 497 U.S. at 51). The Florida

Supreme Court reasoned that if “reducing the number

of jurors needed to convict a defendant does not violate

the Ex Post Facto Clause,” then “surely reducing the

number of votes needed to provide a ‘recommendation’

of death” does not. Pet. App. 25a. That protestation

goes nowhere either.

Under the new law this Court referenced in

Collins, the eight-member jury still had to be

unanimous. That being so, the new law did not

necessarily make it easier for the prosecution to carry

its burden. See Williams v. Florida, 399 U.S. 78, 100

n.46 (1970). Seven jurors, for example, might

sometimes have a harder time convincing a single

holdout to vote to convict than a supermajority of

eleven jurors typically does. See id. at 101 n.49. By

contrast, jury unanimity “insur[es] that the

Government bear the heavier burden of proof.” Id. at

100 n.46; see also Hibdon v. United States, 204 F.2d

834, 839 (6th Cir. 1953) (describing the “far lighter

burden of persuasion in convincing a majority of the

jury than in persuading all of its members”). Florida’s

change to its nonunanimity rule therefore decreased

the prosecution’s burden and created a significant risk

of higher punishment.5

Insofar as the Florida Supreme Court also meant

to suggest by its comparison to Collins that the Ex Post

Facto Clause should not apply to mere jury

recommendations, that also provides no reason for

rejecting Mr. Hunt’s ex post facto claim. The

determination at issue here is not simply a

In its brief in opposition in Kian v. Florida, No. 25-6623,

cert. granted (June 15, 2026), the State itself distinguished laws

reducing jury size from those dispensing with unanimity,

emphasizing that “the requirement of unanimity” is “a device for

insuring that the Government bear the heavier burden of proof.”

Br. at 11 (citation omitted); see also id. at 14-17.

recommendation; it has the legal consequence of

enabling the death penalty to be imposed. Fla. Stat.

§§ 921.141(2)(c), (3)(a)(1).

Granted, even when the jury determines that the

defendant should be sentenced to death, the trial judge

can still “opt for a life sentence.” Pet. App. 26a. But

this Court has “ma[d]e clear that the presence of

[sentencing] discretion does not displace the

protections of the Ex Post Facto Clause.” Peugh, 569

U.S. at 546 (internal quotation marks omitted). In

Peugh itself, judges could still impose lesser sentences

under the new laws if they offered certain

explanations. Id. at 543-44. So too in Miller. 482 U.S.

at 432-33. But the Ex Post Facto Clause prohibited the

changes in both cases from applying retroactively. The

same is true here. See Fla. Stat. § 921.141(4).

C. The Court should resolve this important

question here and now.

For three reasons, this Court should use this case

to resolve the ex post facto question presented.

1. The prohibition against ex post facto laws is

among the most important constitutional protections

against governmental overreach. That is because the

prohibition ensures that the “government abide[s] by

the rules of law it establishes to govern the

circumstances under which it can deprive a person of

his or her liberty or life.” Carmell v. Texas, 529 U.S.

513, 533 (2000). Indeed, the prohibition against ex

post facto laws is especially critical where, as here, the

new law in question is being used to make it easier to

deprive someone of their life.

2. The legality of numerous current and

potentially future death sentences in Florida depends

on the question presented. The ex post facto question

here applies to every defendant on death row in

Florida who (i) committed the charged offense between

2017 and the 2023 enactment of the nonunanimity law

at issue; and (ii) whose jury determined by a

nonunanimous vote of between 8-4 and 11-1 that he

should be sentenced to death. So far, that set includes

about a dozen defendants. Moreover, unless this Court

weighs in soon, that number will continue to grow.

Capital charges are currently pending against about

four dozen other defendants who allegedly committed

their crimes between 2017 and 2023. And since Florida

has no statute of limitations on capital murder, future

charges could also be brought against still others for

committing crimes during this window of time. If the

State’s new nonunanimity rule remains in effect, these

future prosecutions will almost certainly produce more

death sentences raising the same ex post facto issue

that Mr. Hunt is asking the Court to resolve here.

3. This case is an excellent vehicle for resolving

the question presented. Mr. Hunt raised, and the

Florida Supreme Court squarely resolved, the issue.

See Pet. App. 21a-27a. This case is on direct review, so

the Court can address the question presented free

from legal complications that sometimes arise on

collateral review. And unlike many capital cases, this

case is not coming to the Court on an expedited

emergency application to stop a pending execution. Cf.

Crawford v. Mississippi, 146 S. Ct. 33, 39 (2025)

(Sotomayor, J., dissenting from the denial of

application for stay and denial of certiorari). This

Court can accordingly decide the weighty issue here

with the benefit of full briefing and oral argument.

Finally, this case tees up the ex post facto question

presented alongside the Sixth and Eighth Amendment

questions presented here and in Jackson. When new

legislation raises several difficult legal issues, this

Court has often granted multiple petitions to enable it

to consider the constellation of issues together. Just

last Term, for instance, the Court granted two

petitions to review distinct legal questions raised by a

provision of the First Step Act. See Fernandez v.

United States, 146 S. Ct. 1292 (2026); Rutherford v.

United States, 146 S. Ct. 1320 (2026). Similarly, in

Birchfield v. North Dakota, 579 U.S. 438 (2016), this

Court granted three petitions to consider distinct

Fourth Amendment issues raised by state laws

involving blood and breath tests.

Mr. Hunt respectfully suggests that this Court

should grant certiorari both in Jackson and this case

to best enable it to consider all of the serious

constitutional issues that Florida’s new nonunanimity

rule raises. But even if this Court does not wish for

some reason to consider whether the new rule violates

the Sixth and Eighth Amendments, certiorari is still

warranted—for all of the reasons described above—to

consider the ex post facto question presented here.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,