QUESTIONS PRESENTED-- CAPITAL CASE

I. Whether Walton v. Arizona, 497 U.S. 639 (1990), Hildwin v. Florida, 490 U.S. 638 (1989), and Spaziano v. Florida, 468 U.S. 447 (1984), and other cases which permit a judge, rather than a jury, to make the findings necessary to determine death eligibility in a capital case, survive the constitutional principle discussed in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000)?

II. Whether Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), invalidates the override provisions of Florida's capital sentencing scheme which allows a jury's recommended sentence of life to be overridden by a judge?

III. Whether Petitioner's override sentence of death is arbitrary and capricious in violation of the Eighth and Fourteenth Amendments due to the Supreme Court of Florida's acknowledged failure to evenhandedly apply its standards for analyzing judicial overrides?

IV. Whether the arbitrary application by the Supreme Court of Florida of the Tedder standard is so arbitrary or capricious as to constitute an independent due process or Eighth Amendment violation?

TABLE OF CONTENTS

QUESTIONS PRESENTED--CAPITAL CASE i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . .ii

TABLE OF AUTHORITIES iii

CITATION TO OPINION BELOW 1

STATEMENT OF JURISDICTION 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 1

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY 2

REASONS FOR GRANTING THE WRIT 5

A. THE OVERRIDE PROVISIONS OF FLORIDA'S CAPITAL SENTENCING SCHEME CANNOT SURVIVE THE REASONING OF APPRENDI. . . . . . . . . . . . . . . . . . . . . . .5

1. Apprendi's Application to Florida's Override Scheme. 8

2. Apprendi is a Watershed Change in Law. 18

B. PETITIONER'S OVERRIDE DEATH SENTENCE IS ARBITRARY AND CAPRICIOUS, IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS, FURMAN V. GEORGIA, SPAZIANO V. FLORIDA, AND FIORE V. WHITE. 21

1. Florida's Arbitrary Application of the Tedder standard to Petitioner's case. 25

C. CONCLUSION. 41

TABLE OF AUTHORITIES

Apprendi v. New Jersey,

120 S. Ct. 2348 (2000)4, 5, 8

Bertolotti v. Dugger,

883 F. 2d 1503, 1527-28 (11th Cir. 1989)15

Blanco v. State,

706 So. 2d 7, 13 (Fla. 1997)12

Brookings v. State,

495 So. 2d 135 (Fla. 1986)34

Brown v. State,

473 So. 2d 1260 (Fla. 1985)38

Buford v. State,

403 So. 2d 943 (Fla. 1981)14, 37

Buford v. State,

570 So. 2d 923 (Fla. 1990)37

Burr v. State,

466 So. 2d 1051 (Fla. 1985)37

Burr v. State,

576 So. 2d 278 (Fla. 1991)37

Cabana v. Bullock,

474 U.S. 704 (1986)15

Cochran v. State,

547 So. 2d 928 (Fla. 1989)28

Cochran v. State,

547 So. 2d 928, 933 (Fla. 1989)40

Coker v. Georgia,

433 U.S. 584 (1977)14

Craig v. State,

585 So. 2d 278 (Fla. 1991)24

Darity v. United States,

124 F. Supp.2d 355, 360 (W.D.N.C. 2000)19

Douglas v. State,

328 So. 2d 18 (Fla. 1976)37

Douglas v. Wainwright,

714 F. 2d 1532 (11th Cir.),

cert. granted and remanded, 104 S.Ct. 3575 (1983),

aff'd, 739 F. 2d 531 (11th Cir. 1984)37

Engle v. Florida,

102 S. Ct. 1094 (1988)25

Engle v. Florida,

485 U.S. 924, 928 (1988)40

Engle v. State,

510 So. 2d 881 (Fla. 1987)37

Enmund v. Florida,

458 U.S. 782 (1982)12, 14

Espinosa v. Florida,

505 U.S. 1079 (1992)20

Eutzy v. Dugger,

746 F. Supp. 1492 (N.D. Fla. 1989),

aff'd, No. 89-4014 (11th Cir. 1990)37

Eutzy v. State,

458 So. 2d 755 (Fla. 1984)37

Fiore v. White,

121 S.Ct. 712 (2001)4, 24, 35

Freeman v. State,

547 So. 2d 125 (Fla. 1989)24

Fuente v. State,

549 So. 2d 652 (Fla. 1989)34

Furman v. Georgia,

408 U.S. 238 (1972)28

Furman v. Georgia,

408 U.S. 238, 274 (1976)21

Gardner v. Florida,

430 U.S. 349 (1977)37

Gardner v. State,

313 So. 2d 675 (Fla. 1975)37

Grossman v. State,

525 So. 2d 833, 851 (Fla. 1988)28

Hawkins v. State,

436 So. 2d 44 (Fla. 1983)24

Heiney v. State,

447 So. 2d 210 (Fla. 1984)37

Heiney v. State,

620 So. 2d 171 (Fla. 1993)37

Hildwin v. Florida,

490 U.S. 638 (1989)5

Hoffman v. Arave,

236 F. 3d 523, 546-47 (9th Cir. 2001)7

Hoffman v. Arave,

236 F. 3d 523, 546-48 (9th Cir. 2001)19

James v. State,

615 So. 2d 668 (Fla. 1993)21

Jenkins v. State,

692 So. 2d 893 (Fla. 1997)24

Jones v. United States,

526 U.S. 227 (1999)8, 9

Keen v. State,

775 So. 2d 263 (Fla. 2000)30, 39

Kyles v. Whitley,

514 U.S. 419, 455-56 (1995)38

Lambrix v. Singletary,

520 U.S. 518 (1997)20

McCaskill v. State,

344 So. 2d 1276 (Fla. 1977)24

McCrae v. State,

395 So. 2d 1145 (Fla. 1980)37

McCrae v. State,

582 So. 2d 613 (Fla. 1991)37

Mills v. Dugger,

559 So. 2d 578 (Fla. 1990)3

Mills v. Moore,

So. 2d (Fla. 2001)1

Mills v. Singletary,

161 F. 3d 1273 (11th Cir. 1998)1, 4, 15

Mills v. Singletary,

606 So. 2d 622, 623 (Fla. 1992)4

Mills v. State,

476 So. 2d 172 (Fla. 1985)2, 15

Mills v. State,

476 So. 2d 172, 179 (Fla. 1995)26

Mills v. State,

603 So. 2d 482 (Fla. 1992)3

Mills v. State,

603 So. 2d 482, 486 (Fla. 1992)29

Minnick v. Anderson,

2000 US. Dist. LEXIS 12573 (D.C. Ind. 2000)41

Norris v. State,

429 So. 2d 688 (Fla. 1983)24

Parker v. Dugger,

111 S. Ct. 731 (1991)37

Parker v. Dugger,

498 U.S. 308, 323 (1991)24

Parker v. Dugger,

876 F. 2d 1470, 1474 (11th Cir. 1989),

rev'd on other grounds, 498 U.S. 308 (1991)40

Parker v. State,

458 So. 2d 750 (Fla. 1984)37

Parker v. State,

643 So. 2d 1032 (Fla. 1994)37

Pentecost v. State,

545 So. 2d 861 (Fla. 1989)34

Pentecost v. State,

545 So.2d 861, 863 (Fla. 1989)34

People v. Beachem,

740 N.E.2d 389, 397 (Ill. Ct. App. 2000)19

People v. Burns,

2001 WL 304090 at *8 (Ill. Ct. App. March 29, 2001)20

People v. Martinez,

2001 WL 360836 (Co. Ct. App. 2001)5

Porter v. State,

429 So. 2d 293 (Fla. 1983)38

Porter v. State,

564 So. 2d 1060, 1064 (Fla. 1990)15

Porter v. State,

723 So. 2d 191 (Fla. 1998)38

Proffit v. Florida,

428 U.S. 242 (1976)11

Reilly v. State,

601 So. 2d 222 (Fla. 1992)24

Reynolds v. Cambra,

2001 WL 314628 at *13 (C.D. Calif. Jan. 10, 2001)20

Richmond v. Lewis,

506 U.S. 40, 50 (1992)29

Rivers v. State,

458 So. 2d 762 (Fla. 1984)24

San Martin v. State,

717 So. 2d 462 (Fla. 1998)24

Sochor v. Florida,

504 U.S. 527 (1992)3

Spaziano v. Florida,

468 U.S. 447 (1984)5, 17, 23

Spaziano v. Florida,

468 U.S. 447, 483 (1984)15

Spaziano v. State,

433 So. 2d 508 (Fla. 1983)38

Spaziano v. State,

433 So. 2d 508, 511-12 (Fla. 1983)16

State v. Dixon,

283 So. 2d 1, 9 (FLa. 1973)12

State v. Spaziano,

692 So. 2d 174 (Fla. 1997)38

Stevens v. State,

613 So. 2d 402 (Fla. 1992)38

Stringer v. Black,

503 U.S. 222 (1992)3

Teague v. Lane,

489 U.S. 288 (1989)20

Teague v. Lane,

489 U.S. 288, 297 (1989)17

Tedder v. State,

322 So. 2d 908 (Fla. 1975)12, 22, 23

Tedder v. State,

322 So. 2d 908, 910 (Fla. 1975)27

Thomas v. State,

456 So. 2d 454 (Fla. 1984)37

Thomas v. State,

546 So. 2d 716 (Fla. 1989)37

Thompson v. State,

553 So. 2d 153 (Fla. 1989)37

Thompson v. State,

731 So. 2d 1235 (Fla. 1998)37

Tison v. Arizona,

481 U.S. 137 (1987)12, 14

Torres-Arboleda v. Dugger,

636 So. 2d 1321 (Fla. 1994)37

Torres-Arboledo v. State,

524 So. 2d 403 (Fla. 1988)37

United States v. Murphy,

109 F.Supp.2d 1059, 1063-64 (D. Minn. 2000)19

Walton v. Arizona,

497 U.S. 639 (1990)5

Weeks v. State,

761 A.2d 804 (Del. 2000)17

CITATION TO OPINION BELOW

The decision of the Supreme Court of Florida in this cause appears as Mills v. Moore, So. 2d (Fla. 2001) (Attachment A).

STATEMENT OF JURISDICTION

Petitioner invokes this Court's jurisdiction to grant the Petition for a Writ of Certiorari to the Supreme Court of Florida on the basis of 28 U.S.C. Section 1257.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of the United States provides in relevant part:

No persons. . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law.

The Sixth Amendment to the Constitution of the United States provides in relevant part:

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 . . . [and] to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

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.

Fla. Stat. section 921.141 (Florida's capital sentencing statute) sets forth Florida's capital sentencing scheme, and is also relevant to the questions presented by this petition.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

Mr. Mills was indicted in the Eighteenth Judicial Circuit, Seminole County, Florida, for first-degree felony murder and related offenses, and pled not guilty. Trial commenced before Circuit Judge J. William Woodson on Thursday, August 16, 1979, and the jury returned guilty verdicts the next day. After a penalty phase, the jury recommended that Mr. Mills be sentenced to life imprisonment without the possibility of parole for at least twenty-five (25) years. On April 18, 1980, the trial court overrode the jury's life recommendation and sentenced Mr. Mills to death, finding six (6) aggravating circumstances. Addressing only statutory mitigating factors, the court found that no mitigating circumstances had been established.

The conviction and sentence were affirmed in a 5-2 decision. Mills v. State, 476 So. 2d 172 (Fla. 1985), cert. denied, 475 U.S. 1031 (1986). The Court, however, vacated the aggravated battery conviction because "we do not believe it proper to convict a person for aggravated battery and simultaneously for homicide as a result of one shotgun blast." Id. at 177. The Court also struck three (3) of the aggravating circumstances found by the trial court.

A postconviction motion pursuant to Fla. R. Crim P. 3.850 was filed and, after a death warrant was signed, summarily denied. On appeal, the Florida Supreme Court remanded the case for an evidentiary hearing "in regards to counsel's failure to develop and present evidence that would tend to establish statutory or nonstatutory mental health mitigating circumstances." Mills v. Dugger, 559 So. 2d 578, 579 (Fla. 1990). The Court also denied a request for state habeas corpus relief. Id. Following the evidentiary hearing and the lower court's order denying relief, the Florida Supreme Court, in a 4-3 vote, affirmed. Mills v. State, 603 So. 2d 482 (Fla. 1992).

Subsequent to the decisions in Stringer v. Black, 503 U.S. 222 (1992), and Sochor v. Florida, 504 U.S. 527 (1992), Mr. Mills sought habeas corpus relief in the Florida Supreme Court challenging both the adequacy of that Court's harmless error analysis in his case as well as the application of the "during the course of a felony" aggravating circumstance. The Florida Supreme Court denied relief. Mills v. Singletary, 606 So. 2d 622, 623 (Fla. 1992).

Petitioner sought habeas corpus relief in the United States District Court for the Middle District of Florida. The district court entered judgment against Petitioner, and the Eleventh Circuit Court of Appeals affirmed. Mills v. Singletary, 161 F. 3d 1273 (11th Cir. 1998), cert. denied, 120 S.Ct. 804 (2000).

Following this Court's decisions in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), and Fiore v. White, 121 S.Ct. 712 (2001), Petitioner sought habeas corpus relief in the Supreme Court of Florida. While the petition was pending, Petitioner's death warrant was signed. Oral argument was conducted on April 2, 2001, and the decision denying relief was issued on April 12, 2001. This petition follows.

REASONS FOR GRANTING THE WRIT

A. THE OVERRIDE PROVISIONS OF FLORIDA'S CAPITAL SENTENCING SCHEME CANNOT SURVIVE THE REASONING OF APPRENDI.

I point out that a jury recommendation of life might, under a logical extension of the reasoning in Apprendi, preclude a trial court from overriding a jury's life recommendation.[]

In her dissent in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), Justice O'Connor predicted that there will be "a lengthy period of considerable confusion" emanating from the rule announced by the majority. Apprendi, 120 S.Ct. at 2395 (O'Connor, J., dissenting). In fact, "[t]here has been considerable discussion regarding the scope of Apprendi since it was announced in June 2000, it has already been cited in over 730 published decisions with varying results." People v. Martinez, 2001 WL 360836 (Co. Ct. App. 2001). This petition presents the question of whether the constitutional principle discussed in Apprendi impacts cases such as Walton v. Arizona, 497 U.S. 639 (1990), Hildwin v. Florida, 490 U.S. 638 (1989) ( per curiam), and Spaziano v. Florida, 468 U.S. 447 (1984); whether it invalidates Florida's capital sentencing scheme (either on its face or as applied to Petitioner) allowing a jury's recommended sentence to be overridden by a judge; and/or whether it is such a watershed change in constitutional law that its holding should be applied to Petitioner.

As noted by the 4-3 majority of the Supreme Court of Florida below, "[f]our justices stated in dissent that Apprendi effectively overruled Walton, and another justice in his concurring opinion stated that reconsideration of Walton was left for another day." Mills, slip op. at 9. Thus, the Supreme Court of Florida felt it was "not within [its] authority to overrule Walton in anticipation of any future Supreme Court action." Id. However, while the judgment in Apprendi was joined by a 5-member majority, the issue of whether the rule announced in Apprendi applies to capital sentencing schemes remains an open question, as Justice Thomas's concurrence explicitly stated that the issue of whether Apprendi overruled Walton is a question "for another day." Apprendi, 120 S.Ct. at 2380-01 (Thomas, J., concurring). In rejecting Petitioner's argument, the Supreme Court of Florida noted that "[n]o court has extended Apprendi to sentencing schemes, and the plain language of Apprendi indicates that the case is not intended to apply to capital schemes." Mills, slip op. at 9. Four members of this Court, however, did not agree that Apprendi's "plain language" excluded capital sentencing schemes from its reach; in fact, the distinction made by the Apprendi majority was labeled by the dissent as "baffling, to say the least." Apprendi, 120 S.Ct. at 2388. And Justice Thomas expressly left the question of the Apprendi rule's application to capital sentencing to "another day." Id. at 2380-81. It is thus far from clear that Walton, not to mention Hildwin and Spaziano, have survived Apprendi. Three members of the Supreme Court of Florida were clearly doubtful that these cases have indeed survived post- Apprendi, particularly Spaziano. See Mills, slip op. at 27 n.8 (Pariente, J., dissenting, joined by Anstead and Shaw, JJ.) ("I point out that a jury recommendation of life might, under a logical extension of the reasoning in Apprendi, preclude a trial court from overriding a jury's life recommendation"). See also Hoffman v. Arave, 236 F. 3d 523, 546-47 (9th Cir. 2001) (Pregerson, J., concurring) (noting the "absence of a majority position about the continuing viability of Walton" because "it appears that four justices considered Walton to survive Apprendi, one justice deferred the question, and four justices expressed the view that Apprendi overruled Walton").

Petitioner's life hangs in the balance, and he submits that the day has now come for this issue to be resolved.

1. Apprendi's Application to Florida's Override Scheme.

In Apprendi, the Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 2362-63. The constitutional underpinnings of the Court's holding are the Sixth Amendment right to trial by jury, as well as the Fourteenth Amendment right to due process. Id. at 2355 ("At stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without `due process of law,' Amdt. 14, and the guarantee that `[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,' Amdt. 6"). "Taken together, these rights indisputably entitle a criminal defendant to 'a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.'" Id. (quotation omitted). Petitioner submits that the override provisions under which he was sentenced violates Apprendi and the Sixth and Fourteenth Amendments.

The New Jersey statutory mechanism found unconstitutional in Apprendi is remarkably similar to the capital sentencing scheme under which Petitioner was charged and convicted. Apprendi concerned the interplay of four statutes. The first statute, N.J. Stat. Ann. § 2C:39-4(a) (West 1995), defined the elements of the underlying offense of possession of a firearm for an unlawful purpose. The second statute, N.J. Stat. Ann. § 2C:43-6(a)(2) (West 1995), established that the offense is punishable by imprisonment for "between five years and 10 years." The third statute, N.J. Stat. Ann. § 2C:44-3(e) (West Supp. 2000), defined additional elements required for punishment of possession of a firearm for an unlawful purpose when committed as a "hate crime." The fourth statute, N.J. Stat. Ann. § 2C:43-7(a)(3) (West Supp. 2000), extended the authorized additional punishment for offenses to which the hate crime statute applied. See Apprendi, 120 S.Ct. at 2351. Each statute is independent, yet the statutes must operate together to authorize Apprendi's punishment. The Court in Apprendi held that under the due process clause, all essential findings separately required by both the underlying offense statute and the statute defining the elements of punishment had to be charged, tried, and proved to the jury beyond a reasonable doubt.

The version of Florida's capital override statute in place at the time of Petitioner's trial also required the interplay of several statutes which operate independently but must be considered together to authorize Petitioner's punishment. Petitioner was sentenced in 1980 under the provisions of §775.082 (1), Fla. Stat., which provided:

A person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole unless the proceeding held to determine sentence according to the procedure set forth in §921.141 results in finding by the court that such person shall be punished by death, and in the latter event such person shall be punished by death.

Fla. Stat. §921.141 (1979), entitled "Sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence" provided:

Upon conviction or adjudication of guilt of a defendant of a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment as authorized by s.775.082.

Fla. Stat. §921.141(3) further provided in pertinent part:

Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death . . .

If the court does not make the finding requiring the death sentence, the court shall impose sentence of life imprisonment in accordance with §775.082.

§ 775.082, the statute which applies in this case, clearly sets out a scheme whereby the statutory maximum penalty for capital crimes is life imprisonment unless the court, after holding a separate and distinct proceeding under §921.141, makes findings of fact that establish the defendant is death-eligible. Florida's statute provides that the "narrowing" of death eligible persons occurs at the penalty phase. See Proffit v. Florida, 428 U.S. 242 (1976). Petitioner was not eligible for the death penalty simply upon his conviction of first-degree murder. If the court were to sentence Petitioner after the conviction, the court would only be able to impose life under Florida's capital sentencing scheme, which requires:

(1) the State to prove at least one aggravating factor beyond a reasonable doubt before the defendant is eligible for the death penalty, Blanco v. State, 706 So. 2d 7, 13 (Fla. 1997) (Anstead, J., concurring specially) ("Under Florida's death penalty scheme, a convicted defendant cannot qualify for the death sentence unless one or more statutory aggravators are found to exist in addition to the conviction for first-degree murder");

(2) the aggravating circumstance(s) must be sufficiently weighty to call for the death penalty, State v. Dixon, 283 So. 2d 1, 9 (Fla. 1973);

(3) because this case involved a jury recommendation of life, the facts had to have been so clear and convincing that no reasonable person could differ as to the penalty, Tedder v. State, 322 So. 2d 908 (Fla. 1975);

(4) because this case involved a conviction premised on felony murder, the eligibility requirements of Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987), also had to be established before Petitioner was death-eligible.

Thus, Florida's statute and capital sentencing scheme unambiguously "describe[s] an increase beyond the maximum authorized statutory sentence," Apprendi, 120 S.Ct. at 2365 n.19. The Supreme Court of Florida concluded, however, that it was "clear that the maximum penalty available for a person convicted of a capital felony is death" because Black's Law Dictionary and Merriam-Webster's Collegiate Dictionary define "capital" as "punishable by execution" or "involving the death penalty." Mills, slip op. at 12. This analysis premised on dictionary definitions is not dispositive here; "[i]t is highly doubtful that one could characterize [the Supreme Court of Florida's analysis] as a `binding' interpretation of the state statute." Apprendi, 120 S.Ct. at 2364 n.18. "[T]he relevant inquiry is one not of form but of effect -- does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" Id. at 2365. Given that the statute in question unmistakably states that "A person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole" unless additional proceedings are conducted, it is clear that Florida's statute "authorizes a maximum penalty of death only in a formal sense. In real terms, however, the [Florida] sentencing scheme removes from the jury the assessment of a fact that determines whether the defendant can receive the maximum punishment." Apprendi, 120 S.Ct. at 2389 (O'Connor, J., dissenting). See also Id. at 2388 ("A defendant convicted of first-degree murder in Arizona cannot receive a death sentence unless a judge makes the factual determination that a statutory aggravating circumstance exists. Without that critical finding, the maximum sentence to which the defendant is exposed is life imprisonment, and not the death penalty").

The "dictionary definition" method of interpretation employed below also ignores that a criminal defendant must be constitutionally eligible for the death penalty. For example, Florida law still provides that "[a] person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony, punishable as provided in ss. 775.082 and 921.141." See § 794.011 (2)(a), Fla. Stat. 2001. Under the dictionary definition method employed below, because capital sexual battery on a child is classified as a "capital" felony, "[t]he maximum possible penalty described in the capital sentencing scheme is clearly death." Mills, slip op. at 12. Of course there is no doubt that a defendant convicted under this statute could not, under the Eighth Amendment, be eligible for the death penalty. Coker v. Georgia, 433 U.S. 584 (1977). In fact, the Supreme Court of Florida has so stated. See Buford v. State, 403 So. 2d 943 (Fla. 1981).

Moreover, Florida law provides that felony murder is a "capital offense." Indeed, Petitioner was convicted of felony murder. However, a defendant found guilty under the felony murder rule cannot constitutionally be eligible for the death penalty unless the State establishes beyond a reasonable doubt that the defendant's mental state was sufficiently culpable to warrant the death penalty. Enmund v. Florida, 458 U.S. 782 (1982); Tison v. Arizona, 481 U.S. 137 (1987). Under Apprendi, a defendant's Enmund/ Tison eligibility must be a "factor" submitted to and found beyond a reasonable doubt by a jury before a defendant can be eligible for the death penalty. After all, "the life-or-death decision in capital cases depends upon its link to community values for its moral and constitutional legitimacy. Spaziano v. Florida, 468 U.S. 447, 483 (1984) (Stevens, J., concurring in part and dissenting in part) (emphasis added).

Thus, the mere fact that a dictionary defines "capital felony" as one punishable by death does nothing to the analysis of whether eligibility factors for the ultimate sentence must be submitted to and found beyond a reasonable doubt by a jury. Nor does it add anything to the analysis when, under Florida's scheme, a jury can return a life recommendation, thus finding the defendant ineligible for death for one reason or another, i.e. acquitting the defendant of death eligibility, yet a judge can overrule the decision of the jury. In fact, Justice Stevens, the author of Apprendi, found this aspect of Florida's sentencing scheme violative of the Sixth Amendment. Spaziano, 468 U.S. 447, 482-83 (1984) ("The same consideration that supports a constitutional entitlement to a trial by a jury rather than a judge at the guilt or innocence stage--the right to have an authentic representative of the community apply its lay perspective to the determination that must precede a deprivation of liberty--applies with special force to the determination that must precede a deprivation of life").

Thus, Petitioner submits that Apprendi's reasoning is even more potent in this case, which involves an override of the jury's recommendation of life imprisonment. Under Apprendi, as applied to Florida's unique capital sentencing scheme, the jury must determine death eligibility in order to not violate due process and the Sixth Amendment right to trial by jury. However, "[t]he Florida death penalty procedure is not based on a controlling jury recommendation concerning sentencing" but rather is "advisory only." Spaziano v. State, 433 So. 2d 508, 511-12 (Fla. 1983). See also Spaziano v. Florida, 468 U.S. 447 (1984). Contrary to the constitutional underpinnings of Apprendi, because Florida jury's sentencing decision is not binding on a court, a trial court's ability to override a jury's sentencing decision violates due process and the Sixth Amendment right to trial by jury. Once Mr. Mills' jury returned its life recommendation, Mr. Mills was acquitted of the death penalty under Apprendi and therefore must be sentenced to life at this time. Certainly, the Spaziano Court's conclusion that "[t]he Sixth Amendment never has been thought to guarantee a right to a jury determination of that issue" is in irreconcilable conflict with the Apprendi holding. The issue put to the forefront in Apprendi is who is constitutionally required to make the findings necessary to determine death eligibility. Apprendi holds that it must be a jury that makes the death-eligibility determination beyond a reasonable doubt.

The Supreme Court of Florida also held that this Court's denial of certiorari in Weeks v. State, 761 A.2d 804 (Del. 2000), cert. denied 121 S.Ct. 476 (2000), "indicates that the Court meant what it said when it held that Apprendi was not intended to affect capital sentencing schemes." Mills, slip op. at 10. This conclusion is bankrupt of any legal basis. It is one of the most fundamental tenets of jurisprudence that "the `denial of the writ of certiorari imports no expression of opinion upon the merits of the case.'" Teague v. Lane, 489 U.S. 288, 297 (1989) (citation omitted). Accord Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, 2d Ed. at §6.4d ("the denial of a certiorari petition has no precedential or legally binding significance in future postconviction proceedings").

2. Apprendi is a Watershed Change in Law.

Petitioner also submits that Apprendi is a watershed change in law that must be applicable to his case. The dissenting opinion in Apprendi, authored by Justice O'Connor and joined by Chief Justice Rehnquist and Justices Breyer and Kennedy, wrote that the majority decision cast "serious doubt . . . on sentencing systems employed by the Federal Government and States alike," and concluded that the decision was "a watershed change in constitutional law." Apprendi, 120 S.Ct. at 2380 (O'Connor, J., dissenting). A number of state and federal judges have agreed that Apprendi is a "watershed" change in the law requiring it to be applicable retroactively. See, e.g. People v. Beachem, 740 N.E.2d 389, 397 (Ill. Ct. App. 2000) ("We understand the implications of extending Apprendi to collateral review. But we do what we believe the law requires. Our constitutional history teaches us we best survive when we hew to the line drawn by the rule of law"); Darity v. United States, 124 F. Supp.2d 355, 360 (W.D.N.C. 2000) ("the undersigned concludes that Apprendi is also a substantive decision to which Teague's retroactivity rules do not apply"); United States v. Murphy, 109 F.Supp.2d 1059, 1063-64 (D. Minn. 2000) ("the Apprendi decision does implicate the second exception [to Teague], which applies to those `watershed rules of criminal procedure' which `alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding` and `without which the likelihood of an accurate conviction is seriously diminished'"); Hoffman v. Arave, 236 F. 3d 523, 546-48 (9th Cir. 2001) (Pregerson, J., concurring) ("the issue at stake in this case--the right to have a jury determine facts that increase the potential penalty from life imprisonment to death--is the kind of fundamental rule of criminal procedure that should be applied retroactively under the second Teague exception"); Reynolds v. Cambra, 2001 WL 314628 at *13 (C.D. Calif. Jan. 10, 2001) ("The rule announced in Apprendi falls within the second exception to Teague. The language of Apprendi itself recognizes that the holding was a `watershed rule' essential to the fundamental fairness of a criminal proceeding"); People v. Burns, 2001 WL 304090 at *8 (Ill. Ct. App. March 29, 2001) ("A detailed inspection of Apprendi leads us to the conclusion that it does fit into the narrow window of rules that fall under the second Teague exception").

The phrase "watershed change in law" derives from Teague v. Lane, 489 U.S. 288 (1989), which addresses when a new rule of constitutional law can be applied retroactively in the federal habeas corpus context. Petitioner's case is not before the Court in habeas corpus, but rather from the denial of state postconviction relief. Under these circumstances, Petitioner submits that, should the Court determine that the constitutional principle discussed in Apprendi impacts Walton, et. al, the Court should consider whether it would be more appropriate to remand to the Supreme Court of Florida in order to allow that Court to determine the effect of such a decision on Petitioner's case under Florida law.

B. PETITIONER'S OVERRIDE DEATH SENTENCE IS ARBITRARY AND CAPRICIOUS, IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS, FURMAN V. GEORGIA, SPAZIANO V. FLORIDA, AND FIORE V. WHITE.

"Over the years, the major concern expressed by courts, including the United States Supreme Court, as to the constitutionality of the application of the death penalty, as been the fear that the penalty may be applied arbitrarily. The arbitrary execution of Mills, whose case cannot be distinguished in any meaningful way from that of Cochran, Keen, and countless others where we have mandated adherence to Tedder, is that fear come true."[]

The Eighth Amendment prohibition against cruel and unusual punishment and the Fourteenth Amendment guarantees of due process and equal protection forbid a State to inflict "upon some people a severe punishment that it does not inflict upon others." Furman v. Georgia, 408 U.S. 238, 274 (1976) (Brennan, J., concurring). Because of the arbitrary application of the law by the State of Florida, Petitioner's override death sentence is arbitrary "in the same way that being struck by lightning" is arbitrary. Id. at 309 (Stewart, J., concurring). In fact, three justices below have concluded that to execute Petitioner would be an "arbitrary execution" and that the concern expressed by this Court in Furman that the death penalty not be imposed wantonly of freakishly is, in Petitioner's case, "that fear come true." Mills. slip op. at 26 (Anstead, J., dissenting). See also id. at 27-31 (Pariente, J., dissenting) (citations and internal quotations omitted) ("it would be a manifest injustice for Mills to be executed when, under identical circumstances, he would not be executed if this Court had reviewed his sentence at any time after 1985. . . [T]o apply the doctrine of law of the case to preclude consideration of this inconsistent application of Tedder rises to the level of manifest injustice, justifying a reconsideration of the jury override issue. To fail to do so would result in an anomalous and incorrect application of the capital sentencing statute"). As Justice Anstead wrote below:

We have recognized, time and time again, that the other branches of government, and especially the executive branch which has the responsibility to carry out the death penalty, relies on the judicial branch, and especially this Court, to get it right before a life is taken. We did not get it right here, and we should not hesitate to say so before Mills is put to death because of our mistake. Otherwise our message is clear: death is not so different after all.

Mills, slip op. at 27-27 (emphasis added).

In Spaziano v. Florida, 468 U.S. 447 (1984), this Court, looking at the Florida Supreme Court's application of the Tedder standard at that time, expressed its satisfaction that that court "takes that standard seriously and has not hesitated to reverse a trial court if it derogates the jury's role." Id. at 465. The Court noted its constitutional obligation to "ensure that the result of the [override] process is not arbitrary or discriminatory," id., and concluded, based on a review of the law at the time, that "nothing [] suggests that the application of the jury-override procedure has resulted in an arbitrary or discriminatory application of the death penalty, either in general or in this particular case." Id. at 466.

However, it is now patently clear that Petitioner's override death sentence has been arbitrarily imposed. The issue presented here is whether the failure by the Supreme Court of Florida to consistently apply its standards attendant to jury overrides to Petitioner's case results in a freakishly imposed sentence of death. Under Furman, Spaziano, and Fiore v. White, 121 S.Ct. 712 (2001), Petitioner submits his death sentence was arbitrarily imposed. Certiorari review is warranted to rectify this manifest injustice.

The manner in which the Supreme Court of Florida has assessed Petitioner's override is "invalid because it deprived [Petitioner] of the individualized treatment he is entitled to under the Constitution." Parker v. Dugger, 498 U.S. 308, 323 (1991). Petitioner is the only defendant in the State of Florida who was convicted of first-degree under the felony-murder rule and whose jury recommendation of life has been upheld by the Supreme Court of Florida. Put another way, in each and every case (excepting this case) in which the defendant was convicted of felony murder and had a jury recommendation of life overridden, the override death sentence was reversed by the Florida Supreme Court. In light of this situation, there can be no question that, despite the "significant safeguard" of the Tedder standard, the Supreme Court's failure to apply Tedder, "as properly interpreted" by that Court, Fiore, 121 S.Ct. at 714, results in a sentence of death which "smacks of little more than a lottery system." Furman, 408 U.S. at 293 (Brennan, J., concurring). See also Engle v. Florida, 102 S. Ct. 1094, 1098 (1988) (Marshall and Brennan, JJ., dissenting from the denial of petition for writ of certiorari) ("appealing a `life override' under Florida's capital sentencing scheme is akin to Russian Roulette").

1. Florida's Arbitrary Application of the Tedder standard to Petitioner's case.

On August 20, 1979, a Seminole County, Florida, jury recommended that Gregory Mills be sentenced to life imprisonment. On April 18, 1980, the trial court overrode the jury's recommendation. The trial court's written sentencing order merely listed the aggravators and mitigators that he found or rejected and concluded:

IT IS the finding of the Court after weighing the aggravating and mitigating circumstances that there are sufficient aggravating circumstances as specified in 921.141 and insufficient mitigating circumstances therein that a sentence of death is justified.

(R. at 642). The judge never discussed or made any findings regarding whether the jury's life recommendation could have been reasonably supported by the record. Instead, the trial judge's order reflects that he thought the jury got it wrong and as a result he inserted his own view of the facts. In fact, in the court's four page order, Tedder is never mentioned.

On direct appeal, Petitioner challenged the constitutionality and propriety of the override. Appellate counsel further discussed the mitigation that was presented which served as a reasonable basis for the jury's life recommendation, including the fact that the co-defendant, Ashley, received complete immunity. Four years and six months after oral argument, a divided Florida Supreme Court issued its opinion affirming the conviction and override death sentence. The entirety of the Court's analysis of the override issue was as follows:

We hold that the trial judge's findings in support of the sentence of death even without the finding of especially heinous, atrocious, and cruel, meet the Tedder standard. We find that the facts suggesting a sentence of death are so clear and convincing that virtually no reasonable person could differ. There are three valid statutory aggravating circumstances, and the trial judge has found that there are no valid mitigating circumstances. The purported mitigating circumstances claimed by Mills, but not found by the trial judge, are not sufficient to outweigh the aggravating circumstances nor do they establish a reasonable basis for the jury's recommendation. We conclude that the imposition of a sentence of death after a jury recommendation of life was proper in this case.

Mills v. State, 476 So. 2d 172, 179 (Fla. 1995).

Justice Overton dissented from the affirmance of the sentence, writing "the jury recommendation of life should have been followed for the reasons expressed by Justice McDonald in his dissent." Id. at 180 (Overton, J., concurring in part and dissenting in part). In dissent, Justice McDonald wrote:

I dissent only from the affirmance of the death sentence. Were it not for the jury's recommendation, I would have little difficulty in upholding the death sentence. Valid aggravating circumstances existed, and the defense established the existence of no statutory mitigating circumstances.

The jury, however, recommended life imprisonment. In such instances we have stated that "the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ." Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975). We should, therefore, review Mills' sentence in light of Tedder.

The jury's recommendation must have been predicated on the circumstances of this homicide and on nonstatutory mitigating evidence. The chief testimony against Mills came from Ashley. As previously indicated, Ashley received immunity from prosecution for this crime and other crimes in exchange for his testimony. Ashley said that Mills did the killing, but Mills has always denied this. The jury could have found the evidence sufficient to convict but still have had doubts about whether Mills intended to kill the victim. It could also have concluded that Mills and Ashley were being treated so disparately when their involvement was substantially the same that any such doubt should be weighed in Mills' favor. Mills was employed at the time of the crime and his employer thought well of him. Mills had a harsh and deprived youth, but his grandmother and sister were supportive of him. During prior incarceration he completed studies to the extent that he passed his G.E.D. tests.

Are these circumstances, considered collectively, adequate to find that reasonable persons could recommend life imprisonment? I think so. As previously indicated, adequate and reasonable grounds existed for the trial judge to impose death. For the death penalty to prevail when there is a jury recommendation of life, however, more than a disagreement with the jury's recommendation must be shown. "[T]he facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ." Id. This is a difficult test, and it has not been met in this case.

Id. at 180 (McDonald, J., concurring in part and dissenting in part).

Shortly after affirming Petitioner's override death sentence, the Supreme Court of Florida acknowledged that it was not consistently applying Tedder during the time period when it analyzed Petitioner's case. In Cochran v. State, 547 So. 2d 928 (Fla. 1989), both the majority and dissenting justices of the Supreme Court of Florida agreed that the Tedder standard had been inconsistently applied by the Court in cases reviewed prior to 1986. In dissenting from the reversal of the override death sentence in Cochran, Chief Justice Ehrlich cited several override cases which had previously been affirmed by the Court, and noted that a "mechanistic application" of Tedder "would have resulted in reversals of the death sentences in [several cases]." Cochran, 547 So. 2d at 935 (Ehrlich, C.J., dissenting in part). Though Chief Justice Ehrlich argued that the Tedder standard as construed today and as applied by the majority in Cochran was wrong, he correctly noted that the shift in the standard has resulted in an Eighth Amendment violation under Furman. Cochran, 547 So. 2d at 935. In response to the Ehrlich dissent, the majority in Cochran wrote:

Finally, we agree with the dissent that `legal precedent consists more in what courts do than in what they say.' However, in expounding upon this point to prove that Tedder has not been applied with the force suggested by its language, the dissent draws entirely from cases occurring in 1984 or earlier. This is not indicative of what the present court does, as Justice Shaw noted in his special concurrence to Grossman v. State, 525 So. 2d 833, 851 (Fla. 1988) (Shaw, J., specially concurring):

During 1984-85, we affirmed on direct appeal trial judge overrides in eleven of fifteen cases, seventy-three percent. By contrast, during 1986 and 1987, we have affirmed overrides in only two of eleven cases, less than twenty percent. This current reversal rate of over eighty percent is a strong indicator to judges that they should place less reliance on their independent weighing of aggravation and mitigation . . .

Clearly, since 1985 the Court has determined that Tedder means precisely what it says, that the judge must concur with the jury's life recommendation unless `the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ.' Tedder, 322 So. 2d at 910.

Cochran, 547 So. 2d at 933 (emphasis added).

In the words of the Supreme Court of Florida, in cases decided after 1985, " Tedder means precisely what it says." Tedder was decided in 1975, and was honored for a short period of time. However, by the time of Petitioner's direct appeal, by the court's own admission, Tedder did not mean what it said anymore. The Supreme Court of Florida's waxing and waning on the meaning of the Tedder standard is obviously arbitrary. "[T]he federal constitutional question is whether [the Supreme Court of Florida's ever-changing interpretation of Tedder] is `so arbitrary and capricious as to constitute an independent due process or Eighth Amendment violation.'" Richmond v. Lewis, 506 U.S. 40, 50 (1992). How was Mr. Mills to know that the Court would suddenly cease to apply Tedder properly to his case?

Finally, in November of 2000, the Supreme Court of Florida issued its decision in Keen v. State, 775 So. 2d 263 (Fla. 2000), which could not be clearer in its rejection of the interpretation of Tedder that it employed on Petitioner's direct appeal. In Keen, the Court was faced with a lower court overriding a jury recommendation of life and purporting to conduct a proper Tedder analysis. The Court concluded that the lower court had erred because "the standards for weighing aggravators and mitigators in a death recommendation case have been transposed with those applicable to consideration of a jury recommendation of life imprisonment." Keen, 775 So. 2d at 283. For example, the lower court's order had found that "[t]he mitigating evidence is wholly insufficient to outweigh the aggravating circumstances in support of a life sentence." Id. It was this sentence that the Court concluded demonstrated that "the wrong standard was ultimately applied in consideration of the jury's life recommendation." Id. As the Court acknowledged:

The singular focus of a Tedder inquiry is whether there is "a reasonable basis in the record to support the jury's recommendation of life," rather than the weighing process which a judge conducts after a death recommendation.

Id. (citations omitted). Because the trial court applied the wrong standard, the Court in Keen found error under Tedder:

Consequently, the focus of the analysis was not upon finding support for the jury's recommendation, i.e., determining if a reasonable basis existed for the jury's decision, but rather toward proving that the jury got it wrong and lacked any reasonable basis to recommend life. In other words, the trial judge disagreed with their recommendation based on his view of the mix of aggravators and mitigators, rather than through the prism of a Tedder analysis. This was error, because just as a Tedder inquiry has no place in a death recommendation case, the reciprocal holds true when a jury life recommendation is independently analyzed by the trial court and independently reviewed by this Court. In other words, the jury's life recommendation changes the analytical dynamic and magnifies the ultimate effect of mitigation on the defendant's sentence.

Id. at 284-85 (footnotes and citations omitted). As a result, the Court reversed the override, concluding that "[w]hile any of us might or might not have come to the same conclusion with regard to the imposition of a death sentence based upon the evidence presented in this case had we been jurors, that is not the legal standard by which we must evaluate the override of the jury's recommendation." Id. at 286 (emphasis added).

The Court's analysis in Keen and its express statement of "the legal standard" to be employed pursuant to Tedder, simply cannot be squared with its analysis of Petitioner's override on direct appeal. Mr. Mills' trial judge engaged in precisely the same Tedder error as did the judge in Keen. In fact, the error in Mr. Mills' case was even more egregious. In his sentencing order, all the trial court in this case wrote with respect to this issue was the following:

IT IS the finding of the Court after weighing the aggravating and mitigating circumstances that there are sufficient aggravating circumstances as specified in 921.141 and insufficient mitigating circumstances therein that a sentence of death is justified.

(R. 642). NO mention of Tedder was made. NO mention was made that the jury's recommendation of life was entitled to great weight. NO mention was made of why the jury's recommendation was unreasonable under Tedder. The remainder of the court's sentencing order consists simply of findings of aggravating and mitigating circumstances, with no mention of Tedder. Cf Keen at 284 n.20 ("Indeed, the second page of the sentencing order contains details of the aggravators, the mitigators, and supporting evidence as in a death recommendation case. It was not until the twelfth page of the sentencing order that Tedder is mentioned, which is the appropriate standard that should have guided the inquiry from the outset. In short, the analysis was concluded backwards"). From the face of the order in Mr. Mills' case, one would think that the jury had recommended death as opposed to life, since the trial court engaged in the weighing process that, as the Court made clear in Keen, does not apply when analyzing a jury life recommendation under Tedder.

The Supreme Court of Florida's analysis of Petitioner's override on direct appeal is also fatally flawed under Keen and Tedder. As the Court noted in Keen, the Court's focus of appellate review in override cases is a "narrow" one and focuses solely on whether there is a reasonable basis in the record on which the jury could have relied in recommending life. Keen, 775 So. 2d at 283. In Petitioner's direct appeal, the majority decision did the exact opposite, also addressing the issue as if it were a death recommendation. The Court sustained the override because

[t]here are three valid statutory aggravating circumstances, and the trial judge has found that there are no mitigating circumstances. The purported mitigating circumstances claimed by Mills, but not found by the trial judge, are not sufficient to outweigh the aggravating circumstances nor do they establish a reasonable basis for the jury's recommendation.

Mills, 476 So. 2d at 179. This is plainly incorrect under Keen, which explicitly held that under Tedder, "[t]he singular focus of a Tedder inquiry is whether there is `a reasonable basis in the record to support the jury's recommendation of life, rather than the weighing process which a judge conducts after a death recommendation." Keen, 775 So. 2d at 283. The mere existence of aggravators does not, under Tedder, exclude the possibility of a reversal in an override: "[R]eversal under Tedder is in no way prevented even assuming the presence of several valid aggravators. Indeed, that has been the rule rather than the exception." Id. at 287 n.24.

As Justice McDonald's dissent in Mills set forth, the jury recommendation could have reasonably rested on the disparate treatment between Mr. Mills and Ashley "when their involvement was substantially the same." Mills, 476 So. 2d at 180 (McDonald, J., dissenting). However, the majority determined that this fact, along with the other "purported" nonstatutory mitigation adduced by Mr. Mills, were "not found by the trial judge" and did not establish a reasonable basis. But as the Court noted in Keen, whether members of the Court believed that Ashley was equally culpable or not "is not the legal standard by which we must evaluate the override of the jury's life recommendation." Keen, 775 So. 2d at 286. As the Court wrote:

On the issue of disparate treatment, a fundamental distinction exists between a defendant who receives an advisory sentence of death from a jury as opposed to one who receives an advisory sentence of life. In the former, the defendant is left to argue that the jury got it wrong and that the disparate treatment of a codefendant or coperpetrator should have mitigated the offense. In the latter situation, such as here, it must be assumed that the jury found that disparate treatment mitigates the offense. That is, a majority of a twelve-person jury concluded that based on the record before them, this factor compelled a life recommendation, whether alone or in combination with other mitigation. From that starting point, the trial court must then consider whether disparate treatment could serve as a reasonable basis for a life recommendation. Here, that is an especially powerful finding because the same jury found sufficient evidence to convict the defendant of first-degree murder. Thus, the jury was apparently able to follow the law and apply the appropriate legal standards to the distinct phases of the capital case before them.

Id. at 284 n.19 (emphasis added). See also Pentecost v. State, 545 So. 2d 861, 863 (Fla. 1989) (override reversed because "the testimony could have raised in the jurors' minds the question of who actually stabbed the victim"); Brookings v. State, 495 So. 2d 135 (Fla. 1986) (override reversed because codefendant walking away "totally free...could reasonably be considered by the jury"); Fuente v. State, 549 So. 2d 652 (Fla. 1989) (override was reversed because "the jury in this case could have reasonably based its recommendation on the fact that [the codefendants] would likely not be prosecuted for their participation in the murder").

The majority below rejected Petitioner's claim, simply concluding that " Keen offers no new or different standard for considering jury overrides on appeal" and that " Tedder is the seminal case in Florida on jury overrides and remains so after Keen. Tedder was applied in this case." Mills, slip op. at 15-16. Petitioner never claimed that the Supreme Court did not technically cite to the Tedder standard on direct appeal; Petitioner's contention was that the interpretation and application of that standard had changed over time, as established by the Court itself in Cochran and demonstrated in Keen. On this point, Petitioner believes that Fiore v. White, 121 S.Ct. 712 (2001), is instructive on whether a court can arbitrarily apply standards to similarly-situated defendants. In Fiore, two defendants, Fiore and Scarpone, were both convicted under a Pennsylvania law of operating a hazardous waste facility without a permit. Id. at 713. Pennsylvania conceded that Fiore had a permit, but argued that Fiore had deviated so dramatically from the permit's terms that he nevertheless violated the statute. Id. The lower Pennsylvania courts agreed, and the Pennsylvania Supreme Court refused to review the case. Id. In the meantime, after Fiore's conviction was final by the Pennsylvania Supreme Court's failure to review the case, the Pennsylvania Supreme Court agreed to review Scarpone's case and awarded him with a new trial "on the ground that the statute meant what it said." Id. Fiore then sought and obtained federal habeas relief; the Third Circuit Court of Appeals reversed the granting of relief, however, holding that "state courts are under no [federal] constitutional obligation to apply their decisions retroactively." Id. at 713-14.

After granting certiorari, this Court certified a question to the Pennsylvania Supreme Court, asking whether the interpretation of law it applied to Scarpone's case was the correct interpretation of law at the time of Fiore's conviction. Id. at 714. In response, the Pennsylvania Supreme Court wrote that the decision in Scarpone's case did not announce a new rule of law, but rather "clarified" the plain meaning of the law which also applied at the time of Fiore's conviction. Id. The Court wrote that "the question is simply whether Pennsylvania can, consistently with the Federal Due Process Clause, convict Fiore for conduct that its criminal statute, as properly interpreted, does not prohibit." Id. The Court resolved the question in the negative, holding that "Fiore's conviction fails to satisfy the Federal Constitution's demands." Id. The reasoning of Fiore applies to Petitioner's case and warrants a similar result.

Below, three justices determined that the Supreme Court of Florida's failure to consistently apply its standards to Petitioner have resulted in the arbitrary infliction of the death penalty to Gregory Mills. Justice Anstead noted that at the time of Petitioner's direct appeal, "the law pertaining to a trial court's authority to void a decision for life was unclear and conflicting, often leading to patently inconsistent outcomes in this Court." Mills, slip op. at 20. However, in the Cochran decision, the Court "openly conceded its prior erroneous and inconsistent application of Tedder." Id. Under the rule of Cochran and the rule "as definitively explained in Keen, this Court dramatically shifted its focus and has subsequently rigidly applied the Tedder rule." Id. at 21. As Justice Anstead expressed, "When a life is at stake this Court should not hesitate to admit its past mistakes. We did so in Cochran on this precise issue. We should do so here. . . . Because the standard this Court previously applied in permitting the judge's override of the jury's decision was admittedly erroneous, as we acknowledged in Cochran, we must correct Mills' sentence so as to avoid the unjust and arbitrary taking of a life here." Id. at 25-26. Accord Kyles v. Whitley, 514 U.S. 419, 455-56 (1995) ("Our duty to administer justice occasionally requires busy judges to engage in a detailed review of the particular facts of a case, even though our labors may not provide posterity with a newly minted rule of law. . . Sometimes the performance of an unpleasant duty conveys a message more significant than even the most penetrating legal analysis"). Justice Anstead concluded:

A life hangs in the balance while this Court considers whether it should openly acknowledge its past mistake. In my view the choice is obvious while we still have time. A jury has lawfully determined that Mr. Mills' life should be spared. We are now called upon to recognize that a trial court wrongfully ignored the jury's decision and this Court erroneously approved of that action. No one disputes that a mistake was made. Under our holding in Keen v. State, 775 So. 2d 263 (Fla. 2000), and countless other decisions properly applying the Tedder rule, it is apparent that there was a reasonable basis for the jury's decision to spare Mills' life and we should not hesitate to say so now. For example, in both Keen and Mills, the jury was entitled to rely on the more lenient treatment to a codefendant as a valid reason to recommend life. However, under our ruling today, Mills will die and Keen will live.

Mills, slip op. at 18.

In her dissent, Justice Pariente starkly concluded that "[t]he undeniable fact is that a proper and consistent application of Tedder [] would result in this Court's honoring the jury's recommendation of life and therefore requires that we revisit our prior ruling in this case." Mills. slip op. at 27 (Pariente, J., dissenting). She further stated:

The issue in this case is whether the doctrine of the law of the case precludes our revisiting the jury override issue. I conclude that it does not because it would be a manifest injustice for Mills to be executed when, under identical circumstances, he would not be executed if this Court had reviewed his sentence at any time after 1985. Contrary to Justice Harding's assertion in his concurrence, a proper and consistent application of Tedder does not result in out making `new law on a case-by-case basis in order to reach a desired result.' Concurring op. at 17. Rather, a proper and consistent application of our long-standing Tedder analysis mandates that we reduce Mills' sentence to life in order to fulfill `our responsibility to apply the law uniformly in all cases, regardless of the status of the players or the stakes of the game.' It is precisely because this Court has openly acknowledged in Cochran v. State, 547 So. 2d 928, 933 (Fla. 1989), that it did not properly and `uniformly' apply Tedder to Mills and other defendants, that we are urged to correct our mistake now before a life is taken based on that mistake.

Id. at 27-28.

It could not be clearer that Keen and Mills are virtually indistinguishable except for grossly different outcomes. A proper application of Tedder to Mr. Keen's case warranted relief. An erroneous application of Tedder to Mr. Mills' case warranted an affirmance. This is the "lightning strike" that makes the application of the death penalty arbitrary in Petitioner's case. Furman, 408 U.S. at 309 (Stewart, J., concurring). Moreover, it invalidates the override scheme as applied to Petitioner. Spaziano. See also Parker v. Dugger, 876 F. 2d 1470, 1474 (11th Cir. 1989), rev'd on other grounds, 498 U.S. 308 (1991) ("Procedures that result in the constitutional application of the death penalty if correctly followed may result in the unconstitutional application of the death penalty if followed incorrectly"); Engle v. Florida, 485 U.S. 924, 928 (1988) (Marshall and Brennan, JJ., dissenting from the denial of certiorari) (voicing concern over Supreme Court of Florida's "haphazard application of the Tedder standard in cases in which an accomplice's lesser role may have influenced the jury's recommendation of life imprisonment," a constitutional infirmity which left the justices "convince[d] [] that the Florida sentencing scheme is being applied in a manner inconsistent with the requirements of due process"); id. at 925 (Supreme Court of Florida's "inconsistent application of the Tedder standard in felony-murder cases has led to the arbitrary imposition of the death penalty"); Minnick v. Anderson, 2000 US. Dist. LEXIS 12573 (D.C. Ind. 2000) ("the way in which the Supreme Court of Indiana has dealt with death penalty cases where a judge imposes that penalty in the face of a contrary jury recommendation raises serious equal protection issues under Amendment XIV of the Constitution of the United States. . . . The Equal Protection Clause is fundamental and the State of Indiana has constitutionally flawed conflicting rules where a jury has recommended against the death penalty and the judge goes ahead and imposes it. The Equal Protection Clause is thus violated").

C. CONCLUSION.

Based on the foregoing, Petitioner submits that certiorari review is warranted to review the decision of the Supreme Court of Florida in this cause, and that Petitioner's unconstitutional death sentence be vacated.

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by Federal Express to all counsel of record on April 23, 2001.

TODD G. SCHER

Florida Bar No. 0899641

Litigation Director

CCRC South

101 NE 3d Avenue, Suite 400

Ft. Lauderdale, Florida 33301

(954) 713-1284

Attorney for Defendant

Copies furnished to:

Kenneth Nunnelley, Asst. Attorney General

Office of the Attorney General

444 Seabreeze Boulevard, 5th Floor

Daytona Beach, FL 32118