No. __ in the SUPREME COURT of the UNITED STATES DALE
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No. ___ IN THE SUPREME COURT OF THE UNITED STATES DALE GLENN MIDDLETON, Petitioner, V. ST ATE OF FLORIDA, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA PETITIONER'S PROOF OF SERVICE CAROL ST AFFORD HAUGHWOUT Public Defender 1 15 1, Judicial Circuit ofFlorida JEFFREY L. ANDERSON* Assistant Public Defender Counsel ofRecord Office of the Public Defender 421 Third Street West Palm Beach, Florida 3340 I (561)355-7600; (561) 624-6560 [email protected] [email protected] * Member of the United State Supreme Court Bar I HEREBY CERTIFY that I am a member of the Bar of the Supreme Court of the United States and represent Petitioner in this cause; that service has been made on all parties required to be served with the Petition for Writ of Certiorari, and with the Motion for Leave to Proceed In Fonna Pauperis; and that service was had pursuant to Rule 29.5, Rules of the Supreme Court of the United States, by sending a true and accurate copy thereof, by first class United States Mail, and by electronic service addressed to the following parties or their counsel, on October 26, 2017: Lisa-Marie Lerner, Esq. [email protected] [email protected] Counsel for Respondent, the State of Florida Office of the Attorney General, Criminal Appeals 1515 North Flagler Drive, Suite 900 West Palm Beach, Florida 3340 I 2 Respectfully Submitted, CAROL STAFFORD HAUGHWOUT Public Defender 1 15 1, Judicial Circuit of Florida /~~ JEFFREY L. ANDERSON* Assistant Public Defender Counsel ofR ecord Office of the Public Defender 421 Third Street West Palm Beach, Florida 33401 (561 )355-7600; (561) 624-6560 [email protected] janderso@pd1 5.org * Member of the United State Supreme Court Bar 3 No. ___ IN THE SUPREME COURT OF THE UNITED STATES DALE GLENN MIDDLETON, Petitioner, V. STATE OF FLORIDA, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA PETITIONER'S MOTION TO PROCEED IN FORMA PAUPERIS CAROL STAFFORD HAUGHWOUT Public Defender 1 15 1, Judicial Circuit of Florida JEFFREY L. ANDERSON* Assistant Public Defender Counsel ofRecord Office of the Public Defender 421 Third Street West Palm Beach, Florida 33401 (561)355-7600; (561) 624-6560 appcals@pd 15 .org [email protected] * Member of the United State Supreme Court Bar COMES NOW the Petitioner, DALE GLENN MIDDLETON and moves this Court, pursuant to Rule 39.1, Rules of the Supreme Court, to declare him indigent and allow him to proceed in forma pauperis in this cause, in particular to waive any filing fees. As grounds therefore, Petitioner says: I. Petitioner applies for a writ of ce11iorari to review the decision of the Supreme Court of Florida affirming his convictions and sentences for murder in the first degree and his death sentence. 2. Petitioner was declared indigent throughout the state court proceedings. 3. Petitioner has been incarcerated since his arrest in July 28, 2009 and has been indigent for all court proceedings since that time. 4. Petitioner is now indigent and without funds to pay any fees or costs in this action. The state court below appointed the office of undersigned counsel for Petitioner as an indigent pa11y pursuant to section 27 .51, Florida Statutes. 5. Federal law requires all courts of the United States to allow commencement and prosecution of any suit without prepayment of fees or costs upon the showing made above. 28 U.S.C. § l 915(a). 6. Refusal to allow Petitioner to proceed in forma pauperis would deny him equal protection of the law, meaningful access to the courts, and due process of law since he cannot otherwise get the review to which a more affluent defendant would be entitled. See Burns v. Ohio, 360 U.S. 252 ( 1959) (fees should be waived 2 for discretionary appeal by indigent); Smith v. Bennett, 365 U.S. 708 (1961) (fees should be waived for indigent prisoner seeking state habeas relief). WHEREFORE, Petitioner moves that this Court declare him indigent and allow filing and prosecution of his petition without payment of any fees or costs. Respectfully Submitted, CAROL STAFFORD HAUGHWOUT Public Defender h:J~ JEFFREY L. ANDERSON* Assistant Public Defender Counsel ofRecord Office of the Public Defender Fifteenth Judicial Circuit of Florida 421 Third Street West Palm Beach, Florida 33401 (561) 355-7600; (561) 624-6560 [email protected] [email protected] *Member of the United States Supreme Court Bar 3 Case No. -- IN THE SUPREME COURT OF THE UNITED STATES DALE GLENN MIDDLETON, Petitioner, v. STATE OF FLORIDA, Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF FLORIDA PETITION FOR A WRIT OF CERTIORARI CAROL STAFFORD HAUGHWOUT Public Defender 1 15 h Judicial Circuit ofFlorida JEFFREY L. ANDERSON* Assistant Public Defender Counsel ofRecord Office of the Public Defender 421 Third Street West Palm Beach, Florida 33401 (561)355-7600; (561) 624-6560 appeals@pd 15 .org [email protected] * Member of the United State Supreme Court Bar QUESTIONS PRESENTED Capital Case 1. Where a Florida jury gave an advisory recommendation without making the findings required by the Sixth and Fourteenth Amendments and Hurst v. Florida, 136 S. Ct. 616 (2016) -- (1) is the error automatically harmless because the advisory recommendation was unanimous and (2) was the jury's recommendation a verdict in order to conduct a valid harmless error analysis? 2. Whether the death-sentencing procedures used in this case failed to comply with the Eighth and Fourteenth Amendments where the jury was advised repeatedly by the court that its recommendation would be non-binding? 3. Whether the state court violated the Sixth, Eighth and Fourteenth Amendments by giving the jury an instruction that relieved the prosecution of its burden of proving that petitioner had a careful plan or prearranged design to commit murder before the crime began in order for the jury to apply the cold, calculated and premeditated aggravating circumstance when rendering an advisory sentence of death? 4. Where the appellate court held it was error for the sentencer to find one or more of the aggravating circumstances, are the Eighth and Fourteenth Amendments violated by automatically holding the error harmless because the sentencer indicated that it would still impose the death penalty if valid aggravating circumstances remained? 11 TABLE OF CONTENTS PAGE QUESTIONS PRESENTED ................................... ............................... i TABLE OF CONTENTS ........................................................ ............... iii TABLE OF AUTHORITIES ........................................................... ....... v PETITION FOR A WRJT OF CERTIORARI ............................................. 1 CITATION TO OPINION BELOW .........................................................2 STATEMENT OF JURISDICTION ......................................................... 2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............ 3 STATEMENT OF THE CASE ............................................................... 4 REASONS FOR GRANTING THE WRIT ............................................. 9 POINT ONE AN AUTOMATIC OR PER SE HARMLESS TEST BASED ON A JURY'S ADVISORY RECOMMENDATION VIOLATES THE SIXTH, EIGHT, AND FOURTEENTH AMENDMENTS AND THE JURY'S ADVISORY RECOMMENDATION IS NOT A VERDICT UPON WHICH TO CONDUCT AVALID HARMLESS ERROR ANALYSIS .................................................. 9 POINTTWO THE DEATH-SENTENCING PROCEDURES USED IN THIS CASE FAILED TO COMPLY WITH THE EIGHTH AND FOURTEENTH AMENDMENTS WHERE THE JURY WAS ADVISED REPEATEDLY BY THE COURT THAT ITS RECOMMENDATION WOULD BE NON- BINDING ........................................................... 15 111 POINT THREE THE STATE COURT VIOLATED THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS BY GIVING THE JURY AN INSTRUCTION THAT RELIEVED THE PROSECUTION OF ITS BURDEN OF PROVING THAT PETITIONER HAD A CAREFUL PLAN OR PREARRANGED DESIGN TO COMMIT MURDER BEFORE THE FATAL INCIDENT IN ORDER FOR THE JURY TO APPLY THE COLD, CALCULATED AND PREMEDITATED AGGRAVATING CIRCUMSTANCE WHEN RENDERING AN ADVISORY SENTENCE OF DEA TH ................................................................... 19 POINT FOUR THE APPELLATE COURT HELD IT WAS ERROR FOR THE SENTENCER TO FIND ONE OR MORE OF THE AGGRAVATING CIRCUMSTANCES --THE EIGHTH AND FOURTEENTH AMENDMENTS WAS VIOLATED BY AUTOMATICALLY HOLDING THE ERROR HARMLESS BECAUSE THE SENTENCER INDICATED THAT IT WOULD STILL IMPOSE THE DEATH PENAL TY IF VALID AGGRAVATING CIRCUMSTANCES REMAINED ............................................................................. 24 CONCLUSION ......................................................................... 27 INDEX TO APPENDICES APPENDIX A- OPINION OF THE FLORIDA SUPREME COURT ....... Al-A74 APPENDIX B - ORDER/OPINION DENYING MOTION FOR REHEARING .................................................................................................. Bl-B6 APPENDIX C-TRIAL COURT'S INSTRUCTIONS TO JURY ............. Cl-C15 APPENDIX D - TRIAL COURT'S INTRUCTION TO JURY ON CCP AGGRAVATING CIRCUMSTANCE ...............................................Dl-D2 IV TABLE OF AUTHORITES PAGE Cases Bollenbach v. United States, 326 U.S. 607 (1946) .................................................. 17 Boyde v. California, 494 U.S. 370 (1990) ............................................................... 17 Caldwell v. Mississippi, 472 U.S. 320 (1985) .................................................. passim Carella v. California, 491 U.S. 263 (1989) ........................................................ 22, 24 Clemmons