DOCKET NO. _______ IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 2020 --------------------------------- ANTHONY JOHN PONTICELLI, Petitioner, vs. STATE OF FLORIDA, Respondent. --------------------------------- --------------------------------------- PETITION FOR A WRIT OF CERTIORARI TO THE FLORIDA SUPREME COURT --------------------------- MARTIN J. McCLAIN Florida Bar No. 0754773 Law Office of Martin J. McClain 141 N.E. 30th Street Wilton Manors, FL 33334 Telephone: (305) 984-8344 FAX: (954) 564-5412 [email protected] COUNSEL FOR PETITIONER QUESTIONS PRESENTED--CAPITAL CASE 1. Whether the Florida Supreme Court’s statutory construction in Hurst v. State constitutes substantive law, and if so, whether the Due Process Clause of the Fourteenth Amendment requires that this substantive law govern the law in existence at the time of Mr. Ponticelli’s alleged offense? 2. Whether the Due Process Clause of the Fourteenth Amendment permits State v. Poole to retroactively change Florida’s substantive law to Mr. Ponticelli’s detriment? 3. Whether McKinney v. Arizona governs the retroactivity of Hurst v. Florida and Hurst v. State as to Florida’s capital sentencing statute which is markedly different than Arizona’s statute? 4. Whether the Eighth Amendment requires a unanimous jury verdict on the elements required for a capital defendant to be sentenced to death? i NOTICE OF RELATED CASES Per Supreme Court Rule 14.1(b)(iii), the following cases relate to this petition: Underlying Trial: Circuit Court of Marion County, Florida State of Florida v. Anthony Ponticelli, Case No. 87-2719 CF Judgement Entered August 12, 1988 Appellate Proceedings: Florida Supreme Court (Case No. 60-73,064) Ponticelli v. State, 593 So. 2d 483 (Fla. 1991) Conviction and Sentence Affirmed: October 10, 1991 Petition for Writ of Certiorari: United States Supreme Court Ponticelli v. Florida, 506 U.S. 802 (1992) Vacated Judgement and Remanded: October 5, 1992 Proceedings on Remand to the Florida Supreme Court: Florida Supreme Court (Case No. 60-73,064) Ponticelli v. State, 618 So. 2d 154 (Fla. 1993) Death Sentence Affirmed: March 4, 1993 Initial Postconviction Proceedings: Circuit Court of Marion County, Florida State of Florida v. Anthony Ponticelli, Case No. 87-2719 CF Judgement Entered November 1, 2002 (denying motion) Appellate Proceedings: Florida Supreme Court (Case No. SC03-17) Ponticelli v. State, 941 So. 2d 1073 (Fla. 2006) Affirmed: August 31, 2006 Successive Postconviction Proceedings: Circuit Court of Marion County, Florida State of Florida v. Anthony Ponticelli, Case No. 87-2719 CF Judgement Entered November 1, 2003 (denying motion) Appellate Proceedings: Florida Supreme Court (Case No. SC03-1655) Ponticelli v. State, 879 So. 2d 623 (Fla. 2004) Affirmed: June 9, 2004 Second Successive Postconviction Proceedings: Circuit Court of Marion County, Florida State of Florida v. Anthony Ponticelli, Case No. 87-2719 CF Judgement Entered March 16, 2009 (denying motion) Appellate Proceedings: ii Florida Supreme Court (Case No. SC09-992) Ponticelli v. State, 49 So. 3d 236 (Fla. 2010) Affirmed: November 10, 2010 Third Successive Postconviction Proceedings: Circuit Court of Marion County, Florida State of Florida v. Anthony Ponticelli, Case No. 87-2719 CF Judgement Entered April 1, 2011 (denying motion) Appellate Proceedings: Florida Supreme Court (Case No. SC11-877) Ponticelli v. State, 90 So. 3d 823 (Fla. 2012) Affirmed: April 26, 2012 Appellate Proceedings: Eleventh Circuit Court of Appeals (Case No. 11-11966) Ponticelli v. Sec’y, Dept. of Corrs., 690 F.3d 1271 (11th Cir. 2012) Affirmed: August 16, 2012 Fourth Successive Postconviction Proceedings: Circuit Court of Marion County, Florida State of Florida v. Anthony Ponticelli, Case No. 87-2719 CF Judgement Entered May 9, 2017 (denying motion) Appellate Proceedings: Florida Supreme Court (Case No. SC19-607) Ponticelli v. State, 297 So. 3d 1292 (Fla. 2020) Affirmed: April 16, 2020 iii TABLE OF CONTENTS PAGE QUESTION PRESENTED--CAPITAL CASE. i NOTICE OF RELATED CASES . ii TABLE OF CONTENTS . iv TABLE OF AUTHORITIES. v CITATION TO OPINION BELOW . 1 STATEMENT OF JURISDICTION . 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED. 2 PROCEDURAL HISTORY. 2 FACTS RELEVANT TO QUESTIONS PRESENTED . 5 THE STATE COURT’S RULING. 7 REASONS FOR GRANTING THE WRIT . 7 I. THE FLORIDA SUPREME COURT ERRONEOUSLY APPLIED POOLE v. STATE AND McKINNEY v. ARIZONA, TO MR. PONTICELLI’S CLAIM THAT THE STATUTORY CONSTRUCTION IN HURST v. STATE, IDENTIFIED THE ELEMENTS OF CAPITAL MURDER AT THE TIME OF HIS SENTENCING IN 1988. 7 CONCLUSION. 20 CERTIFICATE OF SERVICE. 20 iv TABLE OF AUTHORITIES PAGE Apprendi v. New Jersey, 530 U.S. 466 (2000). 20 Bouie v. City of Columbia, 378 U.S. 347 (1964). 14 Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673 (1930). 14 Dixon v. State., 283 So. 2d 1 (Fla. 1973) . 12 Espinosa v. Florida, 505 U.S. 1079 (Fla. 1992). 3 Hurst v. Florida, 136 S.Ct. 616 (2016) . 5 Hurst v. State, 202 So. 3d 40 (Fla. 2016). 5, 7-8, 11-12 Lowenfield v. Phelps, 484 U.S. 231 (1988). 10-11 McKinney v. Arizona, 140 S.Ct. 702 (2020) . 16 Parker v. Dugger, 498 U.S. 308 (1991). 15 Ponticelli v. Florida, 506 So. 2d 802 (1992) . 3, 19 Ponticelli v. Sec’y Dept. Of Corrs., 690 F.3d 1272 (11th Cir. 2012) . 5 Ponticelli v. State, 593 So. 2d 483 (Fla. 1991). 3, 5, 6 Ponticelli v. State, 618 So. 2d 154 (Fla. 1993). 3 Ponticelli v. State, 879 So. 2d 623 (Fla. 2004) . 4 Ponticelli v. State, 941 So. 2d 1073 (Fla. 2006) . 3 v Ponticelli v. State, 49 So. 3d 236 (Fla. 2010). 4 Ponticelli v. State, 90 So. 3d 823 (Fla. 2012). 5 Ponticelli v. State, 297 So. 3d 1292 (Fla. 2020). 1, 5, 7 Porter v. McCollum, 558 U.S. 30 (2009) . 4 Porter v. State, 564 So. 2d 1060 (Fla. 1990). 11 Ramos v. Louisiana, 140 S.Ct. 1390 (2020). 18 Ring v. Arizona, 536 U.S. 584 (2002). 20 Rogers v. Tennessee, 532 U.S. 451 (2001). 15 Schiro v. Summerlin, 542 U.S. 348 (2004). 18 State v. Poole, 297 So. 3d 487 (Fla. 2020) . 13 Stringer v. Black, 503 U.S. 222 (1992). 9-10 White v. State, 415 So. 2d 719 (Fla. 1982) . 15 White v. State, 729 So. 2d 909 (Fla. 1999) . 15 White v. State, 817 So. 2d 799 (Fla. 2002) . 15 vi IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 2020 --------------------------------- ANTHONY JOHN PONTICELLI, Petitioner, vs. STATE OF FLORIDA, Respondent. --------------------------------- Anthony John Ponticelli respectfully petitions this Court for a writ of certiorari to review the decision of the Florida Supreme Court. CITATION TO OPINION BELOW The Florida Supreme Court’s decision appears as Ponticelli v. State, 297 So. 3d 1292 (Fla. 2020), and is Attachment A to this petition. The order denying rehearing is Attachment B to this petition. STATEMENT OF JURISDICTION Petitioner invokes this Court's jurisdiction to grant the Petition for a Writ of Certiorari to the Florida Supreme Court on the basis of 28 U.S.C. Section 1257. The Florida Supreme Court entered its opinion on April 16, 2020. Rehearing was denied on July 2, 2020. 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Sixth Amendment to the Constitution of the United States provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed .... The Eighth Amendment to the Constitution of the United States provides in relevant part: Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted. The Fourteenth Amendment to the Constitution of the United States provides, in relevant part: No State shall . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws PROCEDURAL HISTORY Mr. Ponticelli was indicted on January 4, 1988, with two counts of first-degree murder and one count of armed robbery (R. 1375-6). Mr. Ponticelli pled not guilty (R. 1385). Mr. Ponticelli’s capital jury trial commenced on August 9, 1988. After the State rested, the trial court granted the defense’s motion for judgment of acquittal as to the armed robbery count (R. 941). Guilty verdicts were returned on both counts of first degree murder on August 12, 1988. The penalty phase began on August 18, 1988. That same day, the jury recommended a death sentence by a vote of nine to three for each of the murders (R. 1371-2). A sentencing hearing was 2 held on September 6, 1988, at which time Mr. Ponticelli was sentenced to death for the two counts of first degree murder (R. 1849-51). On direct appeal, the Florida Supreme Court affirmed Mr. Ponticelli’s convictions and sentences. Ponticelli v. State, 593 So. 2d 483 (Fla. 1991). After filing a writ of certiorari, this Court vacated the judgment and remanded for further consideration in light of Espinosa v. Florida, 505 U.S. 1079 (1992). Ponticelli v. Florida, 506 U.S. 802 (1992). The Florida Supreme Court found Mr. Ponticelli’s challenge to his jury instructions procedurally barred. Ponticelli v. State, 618 So. 2d 154 (Fla. 1993). A motion to vacate sentence pursuant to Rule 3.850 was filed on April 11, 1995 (Supp. PC-R. 1-60). On July 10, 2000, an evidentiary hearing commenced. Following the hearing, the lower court entered an order denying all relief on November 1, 2002 (Supp. PC-R. 1736-60). Mr. Ponticelli appealed to the Florida Supreme Court. Simultaneously, with his appeal, Mr. Ponticelli filed a petition for writ of habeas corpus. The Florida Supreme Court denied all relief on August 31, 2006. Ponticelli v. State, 941 So. 2d 1073 (Fla. 2006). While Mr.