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Petitioner, V No. 17-___ IN THE Supreme Court of the United States ———— WILLIAM HAROLD KELLEY, Petitioner, v. STATE OF FLORIDA, Respondent. ———— On Petition for a Writ of Certiorari to the Florida Supreme Court ———— PETITION FOR A WRIT OF CERTIORARI ———— LAURENCE H. TRIBE SYLVIA H. WALBOLT Of Counsel Counsel of Record CARL M. LOEB UNIVERSITY CHRIS S. COUTROULIS PROFESSOR AND PROFESSOR E. KELLY BITTICK, JR. OF CONSTITUTIONAL LAW JOSEPH H. LANG, JR. HARVARD LAW SCHOOL* CARLTON FIELDS Hauser 420 JORDEN BURT, P.A. 1575 Massachusetts Avenue Corporate Center Three at Cambridge, MA 02138 International Plaza (617) 495-1767 4221 W. Boy Scout Blvd. Tampa, FL 33607 * University affiliation (813) 223-7000 noted for identification [email protected] purposes only Counsel for Petitioner May 25, 2018 WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002 CAPITAL CASE QUESTION PRESENTED In Hurst v. Florida, 136 S. Ct. 616 (2016) (“Hurst I”), this Court held that Florida’s capital sentencing scheme violated the Sixth Amendment because a jury did not make the findings necessary for a death sentence. In Hurst v. State, 202 So. 3d 40 (Fla. 2016) (“Hurst II”), the Florida Supreme Court further held that under the Eighth Amendment the jury’s findings must be unanimous. Although the Florida Supreme Court held that the Hurst decisions applied retroactively, it created over sharp dissents a novel and unprecedented rule of partial retroactivity, limiting their application only to inmates whose death sentences became final after Ring v. Arizona, 536 U.S. 584 (2002). Ring, however, addressed Arizona’s capital sentencing scheme and was grounded solely on the Sixth Amendment, not the Eighth Amendment. The Question Presented is: Whether the Florida Supreme Court’s novel and unprecedented decision to allow only partial retro- activity violates the Eighth and Fourteenth Amendments because it arbitrarily uses as the cutoff point for retroactivity an earlier decision invalidating Arizona’s capital sentencing scheme under the Sixth Amendment, and denies relief to the inmates who deserve it the most. (i) TABLE OF CONTENTS Page QUESTION PRESENTED .................................. i TABLE OF AUTHORITIES ................................ v OPINIONS BELOW ............................................ 1 JURISDICTION .................................................. 1 RELEVANT CONSTITUTIONAL PROVISIONS ................................................... 1 OVERVIEW ......................................................... 1 STATEMENT OF THE CASE ............................ 7 A. The Decisional Framework ...................... 7 B. Proceedings in Kelley’s Case .................... 12 REASONS FOR GRANTING THE WRIT .......... 18 I. AFTER DETERMINING THAT THE HURST DECISIONS MUST BE APPLIED RETROACTIVELY, THE FLORIDA SUPREME COURT CREATED AN UNPRECEDENTED RULE OF PARTIAL RETROACTIVITY THAT OFFENDS THE EIGHTH AND FOURTEENTH AMENDMENTS IN CAPITAL CASES ...................................... 18 II. THE RING-BASED DIVIDING LINE CREATES MORE ARBITRARY AND UNEQUAL RESULTS THAN TRADI- TIONAL RETROACTIVITY DECISIONS .. 22 (iii) iv TABLE OF CONTENTS—Continued Page III. THIS IS AN IDEAL VEHICLE FOR ADDRESSING WHETHER THE FLORIDA SUPREME COURT’S HURST RETROACTIVITY CUTOFF AT RING EXCEEDS THE LIMITS OF THE EIGHTH AND FOURTEENTH AMEND- MENTS ...................................................... 24 CONCLUSION .................................................... 25 APPENDIX APPENDIX A: OPINION, Supreme Court of Florida (January 26, 2018) ........................ 1a APPENDIX B: ORDER DENYING SUC- CESSIVE MOTION FOR POSTCONVICTION RELIEF, Ninth Judicial Circuit Court, Highlands County Florida (March 28, 2017) 4a APPENDIX C: HEARING TRANSCRIPT, Tenth Judicial Circuit Court, Highlands County Florida (April 2, 1984) ....................... 11a APPENDIX D: ADVISORY RECOMMEN- DATION, Tenth Judicial Circuit Court, Highlands County Florida (April 2, 1984) .... 25a APPENDIX E: FINDINGS OF FACT, Tenth Judicial Circuit Court, Highlands County Florida (April 2, 1984) .................................... 26a APPENDIX F: CASE MANAGEMENT CON- FERENCE, Ninth Judicial Circuit Court, Orange County Florida (March 15, 2017) ...... 32a v TABLE OF AUTHORITIES CASES Page(s) Asay v. Florida, 138 S. Ct. 41 (2017) ................................... 12 Asay v. State, 210 So. 3d 1 (Fla. 2016) ............................ 9, 10 Asay v. State, 224 So. 3d 695 (Fla. 2017) ........................ 12 Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002) ........................ 8 Brady v. Maryland, 373 U.S. 83 (1963) ..................................... 16 Evans v. State, No. SC17-869, 2018 WL 1959622 (Fla. Apr. 26, 2018) ................................... 3 Furman v. Georgia, 408 U.S. 238 (1972) ................................. 6, 7, 19 Godfrey v. Georgia, 446 U.S. 420 (1980) ................................... 19 Hannon v. State, 228 So. 3d 505 (Fla. 2017) ........................ 12 Hildwin v. Florida, 490 U.S. 638 (1989) ................................... 17 Hitchcock v. State, 226 So. 3d 216 (Fla. 2017) .................. 11, 12, 18 Hurst v. Florida, 136 S. Ct. 616 (2016) ................................passim Hurst v. State, 202 So. 3d 40 (Fla. 2016) .........................passim vi TABLE OF AUTHORITIES—Continued Page(s) Johnson v. State, 44 So. 3d 51 (Fla. 2010) ............................ 5 Kelley v. Crosby, 545 U.S. 1149 (2005) ................................. 16 Kelley v. Crosby, 874 So. 2d 1192 (Fla. 2004) ...................... 17 Kelley v. Dugger, 597 So. 2d 262 (Fla. 1992) ........................ 16 Kelley v. Florida, 479 U.S. 871 (1986) ................................... 15 Kelley v. Sec’y for the Dep’t of Corr., 377 F.3d 1317 (11th Cir. 2004) ................. 5, 16 Kelley v. Singletary, 222 F. Supp. 2d 1357 (S.D. Fla. 2002), rev’d, 377 F.3d 1317 (11th Cir. 2004) ... 5, 13, 16 Kelley v. State, 235 So. 3d 280 (Fla. 2018) ........................ 1, 18 Kelley v. State, 486 So. 2d 578 (Fla. 1986) .................. 13, 15, 25 Kelley v. State, 569 So. 2d 754 (Fla. 1990) ........................ 15 Kennedy v. Louisiana, 554 U.S. 407, modified on denial of reh’g, 554 U.S. 945 (2008) ......................... 20 Knight v. Florida, 528 U.S. 990, 120 S. Ct 459 (1999) ........... 6 Lambrix v. State, 227 So. 3d 112 (Fla. 2017) ........................ 12 vii TABLE OF AUTHORITIES—Continued Page(s) Linkletter v. Walker, 381 U.S. 618 (1965) ................................... 9 Mosley v. State, 209 So. 3d 1248 (Fla. 2016) ...................... 9, 10 Parker v. Dugger, 498 U.S. 308 (1991) ................................... 20 Ring v. Arizona, 536 U.S. 584 (2002) ..................................passim Schriro v. Summerlin, 542 U.S. 348 (2004) .................................. 19 Sireci v. Florida, 137 S. Ct. 470 (2016) ................................. 6 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) .................................. 20 Spaziano v. Florida, 468 U.S. 447 (1984) ................................... 17, 20 State of Florida v. Melendez, No. CF-84-1016A2-XX (10th Cir. Fla. Dec. 5, 2001) .............................................. 5 Stovall v. Denno, 388 U.S. 293 (1967) ................................... 9 Teague v. Lane, 489 U.S. 288 (1989) ............................... 9, 12, 19 Witt v. State, 387 So. 2d 922 (Fla. 1980) ........................ 9 viii TABLE OF AUTHORITIES—Continued FOREIGN CASES Page(s) Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General, [1993] 1 Zimb. L.R. 239 ........................................ 6 CONSTITUTIONAL PROVISIONS U.S. Const., amend. VI ................................passim U.S. Const., amend. VIII .............................passim U.S. Const., amend. XIV .............................passim STATUTES 28 U.S.C. § 1257(a) ....................................... 1 28 U.S.C. § 2101(d) ....................................... 1 28 U.S.C. § 2254 ........................................... 16 Fla. Stat. § 921.141 (2010) ........................... 8 Fla. Stat. § 921.141 (2017) ........................... 23 RULES Fla. R. Civ. P. 3.850 ...................................... 15 Fla. R. Civ. P. 3.851(e)(2) ............................. 17 COURT FILINGS Petition for Writ of Habeas Corpus, Kelley v. Crosby, No. SC03-1903, 2003 WL 23306615 (2003) ........................................ 16 ix TABLE OF AUTHORITIES—Continued OTHER AUTHORITIES Page(s) ABA Guidelines for Appointment and Performance of Defense Counsel in Death Penalty Cases (Rev. Ed. Feb. 2003), 31 HOFSTRA L. REV. 913 (2003) ................. 4-5 Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases, 36 HOFSTRA L. REV. 677 (2008) ........................................ 5 PETITION FOR A WRIT OF CERTIORARI Petitioner William Harold Kelley respectfully peti- tions for a writ of certiorari to review the judgment of the Florida Supreme Court. OPINIONS BELOW The trial court’s unpublished decision is reproduced at Pet. App. 4a-8a. The Florida Supreme Court’s ruling, available online as Kelley v. State, 235 So. 3d 280 (Fla. 2018), is reproduced at Pet. App. 1a-3a. JURISDICTION The Florida Supreme Court affirmed the trial court’s denial of Kelley’s post-conviction motion on January 26, 2018. Pet. App. 1a-2a. This Court has jurisdiction under 28 U.S.C. §§ 1257(a) and 2101(d). RELEVANT CONSTITUTIONAL PROVISIONS The Eighth Amendment provides: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
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