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MOORE, Secretary, Florida Department of Corrections, ` `  hh#(Respondent. 0   0 PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA   K8  CAPITAL CASE: EXECUTION SCHEDULED FOR MAY 2, 2001, AT 6:00 P.M.   ` `  hh#(TODD G. SCHER ` `  hh#(Litigation Director  <xxA F(#(#K` `  hh#(Florida Bar No. 0899641 ` `  hh#(Office of the Capital Collateral (#(#K` `  hh#(Regional Counsel ` `  hh#(101 NE 3d Avenue, Suite 400 ` `  hh#(Ft. Lauderdale, Florida 33301 ` `  hh#((954) 7131284 ` `  hh#((954) 7131299 (fax) ` `  hh#(COUNSEL FOR PETITIONER@$0*0*0*  ?    0  QUESTIONS PRESENTED ĩ CAPITAL CASE ׃  < I. A. 1. a.(1)(a) i) a) 1. a. i.(1)(a)(i) 1) a)xxA 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?  0*((  ?   " TABLE OF CONTENTS ă X QUESTIONS PRESENTEDCAPITAL CASE p!(#H i XX TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . .ii TABLE OF AUTHORITIESp (#F iii X CITATION TO OPINION BELOW p!(#H 1 X STATEMENT OF JURISDICTION p!(#H 1 X CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED p!(#H 1 X STATEMENT OF THE FACTS AND PROCEDURAL HISTORY p!(#H 2  ? XX REASONS FOR GRANTING THE WRIT p!(#H 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.x` p!(#H 8 X 2.` ` Apprendi is a Watershed Change in Law. p!(#H 18 X 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. p!(#H 21 X 1.` ` Florida's Arbitrary Application of the Tedder ` ` standard to Petitioner's case. p!(#H 25 X C.CONCLUSION. p!(#H 41   כ  0*((  ? < TABLE OF AUTHORITIES ă  0 Apprendi v. New Jersey, 120 S. Ct. 2348 (2000)p(#D4, 5, 8 Bertolotti v. Dugger, 883 F. 2d 1503, 152728 (11th Cir. 1989)p8"(#I15 Blanco v. State, 706 So. 2d 7, 13 (Fla. 1997)p8"(#I12 Brookings v. State, 495 So. 2d 135 (Fla. 1986)p8"(#I34 Brown v. State, 473 So. 2d 1260 (Fla. 1985)p8"(#I38 Buford v. State, 403 So. 2d 943 (Fla. 1981)pX (#E14, 37 Buford v. State, 570 So. 2d 923 (Fla. 1990)p8"(#I37 Burr v. State, 466 So. 2d 1051 (Fla. 1985)p8"(#I37 Burr v. State, 576 So. 2d 278 (Fla. 1991)p8"(#I37 Cabana v. Bullock, 474 U.S. 704 (1986)p8"(#I15 Cochran v. State, 547 So. 2d 928 (Fla. 1989)p8"(#I28 Cochran v. State, 547 So. 2d 928, 933 (Fla. 1989)p8"(#I40 Coker v. Georgia, 433 U.S. 584 (1977)p8"(#I14 Craig v. State, 585 So. 2d 278 (Fla. 1991)p8"(#I24 Darity v. United States, 124 F. Supp.2d 355, 360 (W.D.N.C. 2000)p8"(#I19  Douglas v. State, 328 So. 2d 18 (Fla. 1976)p8"(#I37 H&0*(( 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)p8"(#I37 Engle v. Florida, 102 S. Ct. 1094 (1988)p8"(#I25 Engle v. Florida, 485 U.S. 924, 928 (1988)p8"(#I40 Engle v. State, 510 So. 2d 881 (Fla. 1987)p8"(#I37 Enmund v. Florida, 458 U.S. 782 (1982)pX (#E12, 14 Espinosa v. Florida, 505 U.S. 1079 (1992)p8"(#I20 Eutzy v. Dugger, 746 F. Supp. 1492 (N.D. Fla. 1989), ` ` aff'd, No. 894014 (11th Cir. 1990)p8"(#I37 Eutzy v. State, 458 So. 2d 755 (Fla. 1984)p8"(#I37 Fiore v. White, 121 S.Ct. 712 (2001)p(#B4, 24, 35 Freeman v. State, 547 So. 2d 125 (Fla. 1989)p8"(#I24 Fuente v. State, 549 So. 2d 652 (Fla. 1989)p8"(#I34 Furman v. Georgia, 408 U.S. 238 (1972)p8"(#I28 Furman v. Georgia, 408 U.S. 238, 274 (1976)p8"(#I21 Gardner v. Florida, 430 U.S. 349 (1977)p8"(#I37 Gardner v. State, 313 So. 2d 675 (Fla. 1975)p8"(#I37 Grossman v. State, 525 So. 2d 833, 851 (Fla. 1988)p8"(#I28 '0*(( Hawkins v. State, 436 So. 2d 44 (Fla. 1983)p8"(#I24 Heiney v. State, 447 So. 2d 210 (Fla. 1984)p8"(#I37 Heiney v. State, 620 So. 2d 171 (Fla. 1993)p8"(#I37 Hildwin v. Florida, 490 U.S. 638 (1989)p"(#J5 Hoffman v. Arave, 236 F. 3d 523, 54647 (9th Cir. 2001)p"(#J7  Hoffman v. Arave, 236 F. 3d 523, 54648 (9th Cir. 2001)p8"(#I19 James v. State, 615 So. 2d 668 (Fla. 1993)p8"(#I21 Jenkins v. State, 692 So. 2d 893 (Fla. 1997)p8"(#I24 Jones v. United States, 526 U.S. 227 (1999)pH!(#G8, 9 Keen v. State, 775 So. 2d 263 (Fla. 2000)pX (#E30, 39 Kyles v. Whitley, 514 U.S. 419, 45556 (1995)p8"(#I38 Lambrix v. Singletary, 520 U.S. 518 (1997)p8"(#I20 McCaskill v. State, 344 So. 2d 1276 (Fla. 1977)p8"(#I24 McCrae v. State, 395 So. 2d 1145 (Fla. 1980)p8"(#I37 McCrae v. State, 582 So. 2d 613 (Fla. 1991)p8"(#I37 Mills v. Dugger, 559 So. 2d 578 (Fla. 1990)p"(#J3 Mills v. Moore,  So. 2d (Fla. 2001)p"(#J1 '0*(( Mills v. Singletary, 161 F. 3d 1273 (11th Cir. 1998)ph(#C1, 4, 15 Mills v. Singletary, 606 So. 2d 622, 623 (Fla. 1992)p"(#J4 Mills v. State, 476 So. 2d 172 (Fla. 1985)p (#F2, 15 Mills v. State, 476 So. 2d 172, 179 (Fla. 1995)p8"(#I26 Mills v. State, 603 So. 2d 482 (Fla. 1992)p"(#J3  Mills v. State, 603 So. 2d 482, 486 (Fla. 1992)p8"(#I29 Minnick v. Anderson, 2000 US. Dist. LEXIS 12573 (D.C. Ind. 2000)p8"(#I41  Norris v. State, 429 So. 2d 688 (Fla. 1983)p8"(#I24 Parker v. Dugger, 111 S. Ct. 731 (1991)p8"(#I37 Parker v. Dugger, 498 U.S. 308, 323 (1991)p8"(#I24 Parker v. Dugger, 876 F. 2d 1470, 1474 (11th Cir. 1989), ` ` rev'd on other grounds, 498 U.S. 308 (1991)p8"(#I40 Parker v. State, 458 So. 2d 750 (Fla. 1984)p8"(#I37 Parker v. State, 643 So. 2d 1032 (Fla. 1994)p8"(#I37 Pentecost v. State, 545 So. 2d 861 (Fla. 1989)p8"(#I34 Pentecost v. State, 545 So.2d 861, 863 (Fla. 1989)p8"(#I34 People v. Beachem, 740 N.E.2d 389, 397 (Ill. Ct. App. 2000)p8"(#I19 People v. Burns, 2001 WL 304090 at *8 (Ill. Ct. App. March 29, 2001)p8"(#I20 '0*((ԌPeople v. Martinez, 2001 WL 360836 (Co. Ct. App. 2001)p"(#J5 Porter v. State, 429 So. 2d 293 (Fla. 1983)p8"(#I38 Porter v. State, 564 So. 2d 1060, 1064 (Fla. 1990)p8"(#I15 Porter v. State, 723 So. 2d 191 (Fla. 1998)p8"(#I38 Proffit v. Florida, 428 U.S. 242 (1976)p8"(#I11 Reilly v. State, 601 So. 2d 222 (Fla. 1992)p8"(#I24 Reynolds v. Cambra, 2001 WL 314628 at *13 (C.D. Calif. Jan. 10, 2001)p8"(#I20 Richmond v. Lewis, 506 U.S. 40, 50 (1992)p8"(#I29 Rivers v. State, 458 So. 2d 762 (Fla. 1984)p8"(#I24 San Martin v. State, 717 So. 2d 462 (Fla. 1998)p8"(#I24 Sochor v. Florida, 504 U.S. 527 (1992)p"(#J3 Spaziano v. Florida, 468 U.S. 447 (1984)p(#B5, 17, 23 Spaziano v. Florida, 468 U.S. 447, 483 (1984)p8"(#I15 Spaziano v. State, 433 So. 2d 508 (Fla. 1983)p8"(#I38 Spaziano v. State, 433 So. 2d 508, 51112 (Fla. 1983)p8"(#I16  State v. Dixon, 283 So. 2d 1, 9 (FLa. 1973)p8"(#I12  State v. Spaziano, 692 So. 2d 174 (Fla. 1997)p8"(#I38 '0*(( Stevens v. State, 613 So. 2d 402 (Fla. 1992)p8"(#I38 Stringer v. Black, 503 U.S. 222 (1992)p"(#J3 Teague v. Lane, 489 U.S. 288 (1989)p8"(#I20 Teague v. Lane, 489 U.S. 288, 297 (1989)p8"(#I17 Tedder v. State, 322 So. 2d 908 (Fla. 1975)px(#A12, 22, 23 Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975)p8"(#I27 Thomas v. State, 456 So. 2d 454 (Fla. 1984)p8"(#I37 Thomas v. State, 546 So. 2d 716 (Fla. 1989)p8"(#I37 Thompson v. State, 553 So. 2d 153 (Fla. 1989)p8"(#I37 Thompson v. State, 731 So. 2d 1235 (Fla. 1998)p8"(#I37 Tison v. Arizona, 481 U.S. 137 (1987)pX (#E12, 14 TorresArboleda v. Dugger, 636 So. 2d 1321 (Fla. 1994)p8"(#I37 TorresArboledo v. State, 524 So. 2d 403 (Fla. 1988)p8"(#I37 United States v. Murphy, 109 F.Supp.2d 1059, 106364 (D. Minn. 2000)p8"(#I19 Walton v. Arizona, 497 U.S. 639 (1990)p"(#J5 Weeks v. State, 761 A.2d 804 (Del. 2000)p8"(#I17 H& 0*((  ?    CITATION TO OPINION BELOW Ѓ   The decision of the Supreme Court of Florida in this cause appears as sMills v. Singletary, 161 F. 3d 1273 (11tMills v. Singletary, 161 F. 3d 1273 (11th Cir. 1998)suMills v. Moore, So. 2d (Fla. 200Mills v. Moore,   So. 2d   (Fla. 2001)uMills 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: XNo 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: X` ` 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: X` ` 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:H& 0*((ԌX` ` 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 firstdegree 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.  ?0 ЍThe jury found Mr. Mills guilt of felony murder, aggravated battery, and burglary. After a penalty phase, the jury recommended that Mr. Mills be sentenced to life imprisonment without the possibility of parole for at least twentyfive (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  ?8 only statutory mitigating factors, 8   ? ЍThe trial judge's sentencing order stated: "there are sufficient aggravating circumstances as specified in 921.141 and insufficient mitigating circumstances therein that a sentence of death is justified" (R. 642). the court found that no mitigating circumstances had been established. The conviction and sentence were affirmed in a 52 decision. Mills v. State, 476 So. 2d 172 (Fla. 198Mills v. State, ` ` 476 So. 2d 172 (Fla. 1985), ` ` cert. denied, 475 U.S. 1031 (1986)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 0*(( 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." jMills v. Dugger, 559 So. 2d 578, 579 (FlMills v. Dugger, ` ` 559 So. 2d 578 (Fla. 1990)jMills v. Dugger, 559 So. 2d 578, 579 (Fla. 1990). The Court also denied a request for state habeas corpus  ? relief. Id.  ? ЍIn his state habeas petition, Petitioner challenged, inter  ? alia, the constitutionality of the Florida Supreme Court's purported harmless error analysis on direct appeal. Justice Barkett would have granted habeas relief to Petitioner on this issue. Mills, 559 So. 2d at 579 (Barkett, J., concurring specially). Following the evidentiary hearing and the lower court's order denying relief, the Florida Supreme Court, in a 43 vote, affirmed. iMills v. State, 603 So. 2d 482 (Fla. 199Mills v. State, ` ` 603 So. 2d 482 (Fla. 1992)iMills v. State, 603 So. 2d 482 (Fla. 1992). Subsequent to the decisions in cStringer v. Black, 503 U.S. 222 (1992)Stringer v. Black, 503 U.S. 222 (1992)cStringer v. Black, 503 U.S. 222 (1992), and cSochor v. Florida, 504 U.S. 527 (1992)Sochor v. Florida, 504 U.S. 527 (1992)cSochor 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@ @0*(( Supreme Court denied relief. hWitt v. State, 387 So. 2d 922 (Fla. 1980Witt v. State, 387 So. 2d 922 (Fla. 1980)hsMills v. Singletary, 606 So. 2d 622, 623Mills v. Singletary, 606 So. 2d 622, 623 (Fla. 1992)sMills 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. sMills v. Singletary, 161 F. 3d 1273 (11tMills v. Singletary, 161 F. 3d 1273 (11th Cir. 1998)sMills v. Singletary, 161 F. 3d 1273 (11th Cir. 1998), cert. denied, 120 S.Ct. 804 (2000). Following this Court's decisions in lApprendi v. New Jersey, 120 S.Ct. 2348 (Apprendi v. New Jersey, 120 S.Ct. 2348 (2000)lApprendi v. New Jersey, 120 S.Ct. 2348 (2000), and _Fiore v. White, 121 S.Ct. 712 (2001)Fiore v. White, 121 S.Ct. 712 (2001)_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.  0*((  ?   REASONS FOR GRANTING THE WRIT ă  ?   A.THE OVERRIDE PROVISIONS OF FLORIDA'S CAPITAL SENTENCING  ?X SCHEME CANNOT SURVIVE THE REASONING OF APPRENDI.  ? X 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. [X@  ? ԍMills v. Moore, slip op. at 27 n.8 (Pariente, J., dissenting, joined by Anstead and Shaw, JJ.) (emphasis added). ]    In her dissent in lApprendi v. New Jersey, 120 S.Ct. 2348 (Apprendi v. New Jersey, 120 S.Ct. 2348 (2000)lApprendi 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." uPeople v. Martinez, 2001 WL 360836 (Co. People v. Martinez, 2001 WL 360836 (Co. Ct. App. 2001)uPeople 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 cWalton v. Arizona, 497 U.S. 639 (1990)Walton v. Arizona, 497 U.S. 639 (1990)cWalton v. Arizona, 497 U.S. 639  ? (1990), eHildwin v. Florida, 490 U.S. 638 (1989)Hildwin v. Florida, 490 U.S. 638 (1989)eHildwin v. Florida, 490 U.S. 638 (1989) (per curiam), and gSpaziano v. Florida, 468 U.S. 447 (1984)Spaziano v. Florida, 468 U.S. 447 (1984)gSpaziano 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@0*(( change in constitutional law that its holding should be applied  ? to Petitioner.N  ? ԍPetitioner would note that apparently the Maryland Court of Appeals has ruled that it will not decide an appeal by Steven Oken until its 2001 term beginning in September. Oken's appeal raises the question of the constitutionality of Maryland's capital murder statute in light of Apprendi. N As noted by the 43 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 5member 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 238001 (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,`"x0*(( 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 238081. 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 postApprendi, 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 vHoffman v. Arave, 236 F. 3d 523, 546-47 Hoffman v. Arave, 236 F. 3d 523, 54647 (9th Cir. 2001)vHoffman v. Arave, 236 F. 3d 523, 54647 (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").'  X  ? ԍThat this issue was not dispositively addressed in Apprendi is made more doubtful in light of the fact that Justice Stevens, who authored Apprendi, has repeatedly suggested that because of the uniqueness of capital sentencing proceedings, the "normal presumption that a judge is the appropriate sentencing authority does not apply in the capital context." Spaziano, 468 U.S. at Stevens, J., concurring in part and dissenting in part). As Justice Stevens wrote: XThe same consideration that supports a constitutional entitlement to a trial by jury rather than a judge at the guilt or innocence stagethe right to have an authentic representative of the community apply its lay perspective to the determination that must precede a'0*(( deprivation of libertyapplies with special force to the determination that must precede a deprivation of life. In many respects capital sentencing resembles a trial on the question of guilty, involving as it does a prescribed burden of proof of given elements through the adversarial process. But more important than its procedural aspects, the lifeordeath decision in capital cases depends on its link to community values for its moral and constitutional legitimacy.    Id. at 48283. Justice Stevens later dissented in Walton, labeling as "unfortunate" the Court's decision in Spaziano. Walton, 497 U.S. at 714. See also id. at 709 ("The Court holds ... that a person in not entitled to a jury determination of facts that must be established before the death penalty is imposed. I am convinced that the Sixth Amendment requires the opposite conclusion.") In jJones v. United States, 526 U.S. 227 (19Jones v. United States, 526 U.S. 227 (1999)jJones v. United States, 526 U.S. 227 (1999), Justice Stevens, concurring, wrote that the right to jury trial "encompasses facts that increase the minimum as well as the maximum permissible sentence, and also facts that must be established before a defendant may be put to death." Id. at 253 (Stevens, J., concurring). In so writing, Justice Stevens concluded that the Court in Walton "departed from that principle" and "should be reconsidered in due course." Id. Despite these pronouncements, it was Justice Stevens authored the Apprendi decision wherein he acknowledged the difficulty in reconciling Walton but simply wrote that the capital cases "are not controlling." Apprendi, 120 S.Ct. at 2366. It was this incongruence that the dissenters in Apprendi could not logically explain. See id. at 2388 (O'Connor, J., dissenting) ("Indeed, at the time Walton was decided, the author of the Court's opinion today understood well the issue at stake. . . If the Court does not intend to overrule Walton, one would be hard pressed to tell from the opinion it issues today").' 0*((ԌPetitioner'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 mApprendi v. New Jersey, 120 S. Ct. 2348 Apprendi v. New Jersey, 120 S. Ct. 2348 (2000)mApprendi, 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 236263. The constitutional underpinnings of the Court's holding are the 0*(( 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).;X  ? ЍApprendi's holding was "foreshadowed" by this Court's decision in jJones v. United States, 526 U.S. 227 (19Jones v. United States, 526 U.S. 227 (1999)jJones v. United States, 526 U.S. 227 (1999). Apprendi, 120 S.Ct. at 2355. ; 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:394(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:436(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:443(e) (West Supp. 2000), defined additional elements required for punishment of possession of a#0*(( firearm for an unlawful purpose when committed as a "hate crime." The fourth statute, N.J. Stat. Ann.  2C:437(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: XA person who has been convicted of a capital felony  ?X  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: X XX 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'0*(( 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: XNotwithstanding 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 . . . X` `    XIf 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,n`  ?H ЍThe statute was rewritten in 1994, and now provides: XA person who has been convicted of a capital felony shall be punishable by death if the proceedings held to determine sentence according to the procedure set forth in s. 921.141 results in findings by the court that such person shall be punishable by death, otherwise such person shall be punished by life imprisonment and shall be ineligible for parole.     775.082 (1), Florida Statutes (1994 Supp.). See 1994 Fla. Sess. Law Serv. Ch. 94228 (S.B. 158). n 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 deatheligible. Florida's statute provides that the "narrowing" of death eligible persons occurs at the penalty phase. See eProffit v. Florida, 428 U.S. 242 (1976)Proffit v. Florida, 428 U.S. 242 (1976)eProffit v. Florida, 428 U.S. 242 (1976). Petitioner was not eligible for the death penalty simply upon his conviction of firstdegree 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:   0*((ԌX(1)` ` the State to prove at least one aggravating factor  ? beyond a reasonable doubt before the defendant is eligible for the death penalty, lBlanco v. State, 706 So. 2d 7, 13 (Fla. Blanco v. State, 706 So. 2d 7, 13 (Fla. 1997)lBlanco 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 firstdegree murder");  X(2)` ` the aggravating circumstance(s) must be sufficiently weighty to call for the death penalty, jState v. Dixon, 283 So. 2d 1, 9 (FLa. 19State v. Dixon, 283 So. 2d 1, 9 (FLa. 1973)jState v. Dixon, 283 So. 2d 1, 9 (Fla. 1973);  X(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, jTedder v. State, 322 So. 2d 908 (Fla. 19Tedder v. State, 322 So. 2d 908 (Fla. 1975)jTedder v. State, 322 So. 2d 908 (Fla. 1975);  X(4)` ` because this case involved a conviction premised on felony murder, the eligibility requirements of cEnmund v. Florida, 458 U.S. 782 (1982)Enmund v. Florida, 458 U.S. 782 (1982)cEnmund v. Florida, 458 U.S. 782 (1982), and aTison v. Arizona, 481 U.S. 137 (1987)Tison v. Arizona, 481 U.S. 137 (1987)aTison v. Arizona, 481 U.S. 137 (1987), also had to be established before Petitioner was deatheligible.  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  ? MerriamWebster'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'0*(( 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 firstdegree 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.'0*(( 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. aCoker v. Georgia, 433 U.S. 584 (1977)Coker v. Georgia, 433 U.S. 584 (1977)aCoker v. Georgia, 433 U.S. 584 (1977). In fact, the Supreme Court of Florida has so stated. See jBuford v. State, 403 So. 2d 943 (Fla. 19Buford v. State, 403 So. 2d 943 (Fla. 1981)jBuford v. State, 403 So. 2d 943 (Fla. 1981). xxA 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. cEnmund v. Florida, 458 U.S. 782 (1982)Enmund v. Florida, 458 U.S. 782 (1982)cEnmund v. Florida, 458 U.S. 782 (1982); aTison v. Arizona, 481 U.S. 137 (1987)Tison v. Arizona, 481 U.S. 137 (1987)aTison 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. 0 ? ԍRespondent argued below that Petitioner's conviction of felony murder made him "automatically" eligible for death because one of the aggravating circumstances addresses whether the homicide was committed during the course of a felony. Thus, Respondent argued, Petitioner's case fell outside the scope of Apprendi's application because his felony murder conviction made him automatically death eligible. Petitioner urges that the opposite is in fact the case. First of all, Petitioner has previously urged that his felony murder conviction constituted an impermissible automatic aggravator, a claim which Respondent'0*(( vehemently opposed and a claim which has been rejected by the courts. iMills v. State, 476 So. 2d 172 (Fla. 198Mills v. State, 476 So. 2d 172 (Fla. 1985)iMills v. State, 476 So. 2d 172 (Fla. 1985); rMills v. Singletary, 161 F.3d 1273 (11thMills v. Singletary, 161 F.3d 1273 (11th Cir. 1998)rMills v. Singletary, 161 F.3d 1273 (11th Cir. 1998). However, in light of Apprendi, Respondent has changed its legal position. But it is still unavailing. "In no sense did the jury's verdict of felony murder automatically predestine the judge's imposition of Florida's highest penalty," as "the jury could have found [Mr. Mills] guilty of felony murder and yet still not have concluded that the parallel aggravating circumstance justified the imposition of capital punishment; nor need the sentencing judge have agreed with the jury's determination that felony murder had been proven beyond a reasonable doubt." }Bertolotti v. Dugger, 883 F. 2d 1503, 15Bertolotti v. Dugger, 883 F. 2d 1503, 152728 (11th Cir. 1989)}Bertolotti v. Dugger, 883 F. 2d 1503, 152728 (11th Cir. 1989). See also qPorter v. State, 564 So. 2d 1060, 1064 (Porter v. State, 564 So. 2d 1060, 1064 (Fla. 1990)qPorter v. State, 564 So. 2d 1060, 1064 (Fla. 1990) ("Since premeditation is already an element of capital murder in Florida, [the `cold, calculated, and premeditated' aggravating circumstance] must have a different meaning; otherwise, it would apply to every premeditated murder. Therefore, [this aggravator] must apply to murders more coldblooded, more ruthless, and more plotting than the ordinarily reprehensible crime of premeditated firstdegree murder").  After all, 0*(( "the lifeordeath decision in capital cases depends upon its  ? link to community values for its moral and constitutional  ?  legitimacy. lSpaziano v. Florida, 468 U.S. 447, 483 (Spaziano v. Florida, 468 U.S. 447, 483 (1984)lSpaziano v. Florida, 468 U.S. 447, 483 (1984) (Stevens, J., concurring in part and dissenting in part)  ?@ (emphasis added). @ ? ԍPetitioner also suggests that, in light of Apprendi, the viability of cCabana v. Bullock, 474 U.S. 704 (1986)Cabana v. Bullock, 474 U.S. 704 (1986)cCabana v. Bullock, 474 U.S. 704 (1986), remains an issue to be addressed as well. This is particularly true in Petitioner's case, where he has now presented evidence to the Supreme Court of Florida that his codefendant, Vincent Ashley, has confessed to being the triggerman. As of the filing of this petition, the Supreme Court of Florida is considering this newlydiscovered evidence. The viability of Cabana in light of Apprendi is thus an issue which will need to be resolved in Petitioner's case.  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 X 0*(( 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,   ?x ԍFor example, the jury could have found none of the aggravators established beyond a reasonable doubt, that the aggravators that were established were insufficiently weighty to impose death, or that the aggravators did not outweigh the mitigation. 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, 48283 (1984) ("The same consideration that supports a constitutional entitlement to a trial by a jury rather than a judge at the guilt or innocence stagethe right to have an authentic representative of the community apply its lay perspective to the determination that must precede a deprivation of libertyapplies 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." tSpaziano v. State, 433 So. 2d 508, 511-1Spaziano v. State, 433 So. 2d 508, 51112 (Fla. 1983)tSpaziano v. State, 433 So. 2d 508, 51112`"x 0*(( (Fla. 1983). See also gSpaziano v. Florida, 468 U.S. 447 (1984)Spaziano v. Florida, 468 U.S. 447 (1984)gSpaziano 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 deatheligibility determination beyond a reasonable doubt. The Supreme Court of Florida also held that this Court's  ? denial of certiorari in gWeeks v. State, 761 A.2d 804 (Del. 2000)Weeks v. State, 761 A.2d 804 (Del. 2000)gWeeks 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.'" gTeague v. Lane, 489 U.S. 288, 297 (1989)Teague v. Lane, 489 U.S. 288, 297 (1989)gTeague v. Lane, 489 U.S. 288, 297 (1989) (citation  ?' omitted). Accord Liebman & Hertz, Federal Habeas Corpus Practice' 0*((  ? and Procedure , 2d Ed. at 6.4d ("the denial of a certiorari petition has no precedential or legally binding significance in  ?  future postconviction proceedings").  ?x ԍWeeks, which arose from a guilty plea, is inapposite to Petitioner's case. Moreover, the Delaware capital sentencing scheme is vastly different from Florida's. Unlike Florida, Delaware's statute does not mandate a life sentence unless a separate penalty proceeding is held. See 11 Del.C.  4209 (a). Unlike Florida, Delaware prosecutors are required to provide notice to the defense of any aggravating circumstances it intends to pursue. See 11 Del.C. 4209 (c)(1). And unlike Florida, Delaware jurors are required to disclose which specific aggravators they have found to exist beyond a reasonable doubt, and make a specific finding that the aggravators outweighed the mitigation on each count. Weeks, 761 A.2d at 80506 & n.5; 11 Del.C.  4209 (c)(3); (d)(1). Weeks provides no meaningful insight as to how Apprendi impacts Florida's 1980 scheme permitting overrides either in general or as applied to Petitioner.   ?  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.| h ?p ԍPetitioner would note that in Justice Thomas' concurrence in  Apprendi, he believed that the rule announced by the majority, "far from being a sharp break with the past, marks  ? nothing more than a return to the status quo anteĩthe status quo that reflected the original meaning of the Fifth and Sixth Amendments." Apprendi, 120 S.Ct. at 2378 (Thomas, J., concurring). Thus under this view, Petitioner's claim should have merited relief in 1985. On direct appeal, Petitioner's appellate counsel did challenge Florida's capital sentencing statute which permitted a trial judge to override a jury's  ?@ sentencing recommendation as violative of, inter alia, the state and federal constitutions, specifically the right to a trial by jury and due process: X[T]he sentencing judge's rejection of the jury's advisory verdict of life imprisonment and imposition of the ultimate punishment constitutes double jeopardy, cruel and/or unusual punishment, deprivation of Appellant's right to trial by jury and due process of law established by U.S. Const. Amend., V, VI, VIII,' 0*(( XIV, and by Fla. Const. Art. I,  9, 16, 22.    (Initial Brief of Appellant, Mills v. State, No. 59,140, at 45 n.5). | The dissentingx 0*(( 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. zPeople v. Beachem, 740 N.E.2d 389, 397 (People v. Beachem, 740 N.E.2d 389, 397 (Ill. Ct. App. 2000)zPeople 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 Darity v. United States, 124 F. Supp.2d 355, 360 (W.D.N.C. 2000)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 1United States v. Murphy, 109 F.Supp.2d 1059, 106364 (D. Minn. 2000)United States v. Murphy, 109 F.Supp.2d 1059, 106364 (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'"); vHoffman v. Arave, 236 F. 3d 523, 546-48 Hoffman v. Arave, 236 F. 3d 523, 54648 (9th Cir. 2001)vHoffman v. Arave, 236 F. 3d 523, 54648`"x 0*(( (9th Cir. 2001) (Pregerson, J., concurring) ("the issue at stake in this casethe right to have a jury determine facts that increase the potential penalty from life imprisonment to deathis 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 *1Reynolds v. Cambra, 2001 WL 314628 at *13 (C.D. Calif. Jan. 10, 2001)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 (IPeople v. Burns, 2001 WL 304090 at *8 (Ill. Ct. App. March 29, 2001)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  ?P Teague exception"). The phrase "watershed change in law" derives from ]Teague v. Lane, 489 U.S. 288 (1989)Teague v. Lane, 489 U.S. 288 (1989)]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# 0*(( determine the effect of such a decision on Petitioner's case  ? under Florida law.s@ ? ԍFor example, following this Court's decision in hEspinosa v. Florida, 505 U.S. 1079 (1992Espinosa v. Florida, 505 U.S. 1079 (1992)hEspinosa v. Florida, 505 U.S. 1079 (1992), this Court subsequently determined that habeas petitioners could not receive the benefit of Espinosa's "new rule" pursuant to Teague. iLambrix v. Singletary, 520 U.S. 518 (199Lambrix v. Singletary, 520 U.S. 518 (1997)iLambrix v. Singletary, 520 U.S. 518 (1997). The Supreme Court of Florida, however, under its own retroactivity jurisprudence, has allowed Florida defendants to benefit from Espinosa under certain circumstances. iJames v. State, 615 So. 2d 668 (Fla. 199James v. State, 615 So. 2d 668 (Fla. 1993)iJames v. State, 615 So. 2d 668 (Fla. 1993). s  ?   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 .   ?@ X "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." [c ˈ ? ԍMills v. Moore, slip op. at 26 (Anstead, J., dissenting).c]    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." jFurman v. Georgia, 408 U.S. 238, 274 (19Furman v. Georgia, 408 U.S. 238, 274 (1976)jFurman 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` 0*(( 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 2731 (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: XWe 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  ?8 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 2727 (emphasis added).(   ?x ԍPrior to the decision below issued on April 12, 2001, five Justices on the Supreme Court of Florida have, at one time or another, agreed that the override in this case was improper. On direct appeal, Justices Overton and McDonald found the presence of mitigating evidence in the record, and concluded that under jTedder v. State, 322 So. 2d 908 (Fla. 19Tedder v. State, 322 So. 2d 908 (Fla. 1975)jTedder, the override should not be sustained. Mills, 476 So. 2d at 180 (Overton and McDonald, JJ., dissenting in part). In an appeal from the summary denial of postconviction relief, Justice McDonald, in dissenting from the granting of an evidentiary hearing, again reiterated that "counsel presented a substantial amount of mitigating evidence and secured a jury recommendation of life imprisonment." Mills v. Dugger, 559 So. 2d at 580'0*(( (McDonald, J., dissenting in part). He went on to conclude, however, that "the override sentence is the law of the case." Id. ThenJustice Barkett, concurring in the grant of an evidentiary hearing, would also have granted habeas relief to Mr. Mills. Id. at 579 (Barkett, J., concurring in part and dissenting in part). In this Court's 1992 postconviction opinion, thenJustice Barkett again dissented from the affirmance of the jury override. Mills v. State, 603 So. 2d at 486 (Barkett, J., dissenting). ThenChief Justice Shaw concurred in Justice Barkett's dissenting opinion. Id. Justice Kogan would also reduce Mr. Mills' sentence to life. Id. at 487 (Kogan, J., dissenting). Two additional justices, Anstead and Pariente, who were not on the Court during Petitioner's previous attempts to seek review, have now also held that Petitioner should get a life sentence. Mills, slip op. at 1827 (Anstead, J., dissenting); id. at 2732 (Pariente, J., dissenting). Thus, seven justices of Florida's high court have now ruled that Petitioner is entitled to a life sentence.  00*((Ԍ ? In gSpaziano v. Florida, 468 U.S. 447 (1984)Spaziano v. Florida, 468 U.S. 447 (1984)gSpaziano v. Florida, 468 U.S. 447 (1984),0 ?  Spaziano was decided prior to the direct appeal in Petitioner's case, but well after his trial. this Court, looking at the Florida Supreme Court's application of the Tedder  ?  standard at that time,  ?8 ЍcTedder v. State, 322 So. 2d 908 (1975)Tedder v. State, 322 So. 2d 908 (1975)cTedder v. State, 322 So. 2d 908 (1975). In Tedder, the Supreme Court of Florida announced that "[i]n order to sustain a sentence of death following a jury's recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ." Id. at 910. 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 juryoverride procedure has resulted in an arbitrary or 0*(( 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)Fiore v. White, 121 S.Ct. 712 (2001)_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." iParker v. Dugger, 498 U.S. 308, 323 (199Parker v. Dugger, 498 U.S. 308, 323 (1991)iParker v. Dugger, 498 U.S. 308, 323 (1991). Petitioner is the only defendant in the State of Florida who was convicted of firstdegree under the felonymurder 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. `" ?$ ЍSee nMcCaskill v. State, 344 So. 2d 1276 (FlaMcCaskill v. State, 344 So. 2d 1276 (Fla. 1977)nMcCaskill v. State, 344 So. 2d 1276 (Fla. 1977); jNorris v. State, 429 So. 2d 688 (Fla. 19Norris v. State, 429 So. 2d 688 (Fla. 1983)jNorris v. State, 429 So. 2d 688 (Fla. 1983); jHawkins v. State, 436 So. 2d 44 (Fla. 19Hawkins v. State, 436 So. 2d 44 (Fla. 1983)jHawkins v. State, 436 So. 2d 44 (Fla. 1983); jRivers v. State, 458 So. 2d 762 (Fla. 19Rivers v. State, 458 So. 2d 762 (Fla. 1984)jRivers v. State, 458 So. 2d 762 (Fla. 1984); kFreeman v. State, 547 So. 2d 125 (Fla. 1Freeman v. State, 547 So. 2d 125 (Fla. 1989)kFreeman v. State, 547 So. 2d 125 (Fla. 1989); iCraig v. State, 585 So. 2d 278 (Fla. 199Craig v. State, 585 So. 2d 278 (Fla. 1991)iCraig v.'0*(( State, 585 So. 2d 278 (Fla. 1991); jReilly v. State, 601 So. 2d 222 (Fla. 19Reilly v. State, 601 So. 2d 222 (Fla. 1992)jReilly v. State, 601 So. 2d 222 (Fla. 1992); kJenkins v. State, 692 So. 2d 893 (Fla. 1Jenkins v. State, 692 So. 2d 893 (Fla. 1997)kJenkins v. State, 692 So. 2d 893 (Fla. 1997); nSan Martin v. State, 717 So. 2d 462 (FlaSan Martin v. State, 717 So. 2d 462 (Fla. 1998)nSan Martin v. State, 717 So. 2d 462 (Fla. 1998).  In light of this situation, there can`"!0*(( 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 gEngle v. Florida, 102 S. Ct. 1094, 1098 Engle v. Florida, ` ` 102 S. Ct. 1094 (1988)gEngle 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  ?h 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: XIT 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.  XX` ` x` (R. at 642). The judge never discussed or made any findings regarding whether the jurys life recommendation could have been reasonably supported by the record. Instead, the trial judges(#"0*(( 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  ?  courts four page order, Tedder is never mentioned.b  ?x ԍIndeed, in his order denying Petitioner's first postconviction motion, the trial judge expressly stated that no evidentiary hearing was necessary since no additional mitigation or anything else that Petitioner could present to him would have changed his mind and caused him to follow the jury's recommendation of life.b 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 codefendant, 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: XWe 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.    hMills v. State, 476 So. 2d 172, 179 (FlaMills v. State, 476 So. 2d 172, 179 (Fla. 1995)hMills v. State, 476 So. 2d 172, 179 (Fla. 1995). !#@0*((ԌJustice 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: XI 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.  XThe 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." oTedder v. State, 322 So. 2d 908, 910 (FlTedder v. State, 322 So. 2d 908, 910 (Fla. 1975)oTedder v. State, 322 So. 2d 908, 910 (Fla. 1975). We should, therefore, review Mills' sentence in light of Tedder.  XThe 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.  XAre 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'$0*(( 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 kCochran v. State, 547 So. 2d 928 (Fla. 1Cochran v. State, 547 So. 2d 928 (Fla. 1989)kCochran 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 cFurman v. Georgia, 408 U.S. 238 (1972)Furman v. Georgia, 408 U.S. 238 (1972)cFurman. Cochran, 547 So. 2d at 935. In response to the Ehrlich dissent, the majority in Cochran wrote: XFinally, 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'%0*(( 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 (Grossman v. State, 525 So. 2d 833, 851 (Fla. 1988)Grossman v. State, 525 So. 2d 833, 851 (Fla. 1988) (Shaw, J., specially concurring):  XX` ` During 198485, we affirmed on direct appeal trial judge overrides in eleven of fifteen cases, seventythree 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 . . .x`  ? XX` `  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.x` 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  ?x anymore.kx ? ЍOf note is the fact that between 1981 and 1984, when Mr. Mills' case was pending on direct appeal, the Supreme Court of Florida issued forty (40) opinions addressing override death  ?(# sentences. Not one of these cases is cited or addressed in the Court's opinion affirming Petitioner's override. k The Supreme Court of Florida's waxing and waning onx&x0*((  ? the meaning of the Tedder standard is obviously arbitrary.@x ?X ԍThat this is correct is established in the Supreme Court of Florida's opinion affirming the denial of Mr. Mills' motion for postconviction relief in 1992, where the majority, faced with the argument that Tedder had not been properly applied on direct appeal, held that "even though the jury override might not have been sustained today, it is the law of the case." nMills v. State, 603 So. 2d 482, 486 (FlaMills v. State, 603 So. 2d 482, 486 (Fla. 1992)nMills v. State, 603 So. 2d 482, 486 (Fla. 1992).@ "[T]he federal constitutional question is whether [the Supreme Court of Florida's everchanging interpretation of Tedder] is `so arbitrary and capricious as to constitute an independent due process or Eighth Amendment violation.'" hRichmond v. Lewis, 506 U.S. 40, 50 (1992Richmond v. Lewis, 506 U.S. 40, 50 (1992)hRichmond 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 hKeen v. State, 775 So. 2d 263 (Fla. 2000Keen v. State, 775 So. 2d 263 (Fla. 2000)hKeen 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 '0*(( applied in consideration of the jury's life recommendation." Id. As the Court acknowledged: XThe 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: XConsequently, 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 28485 (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'(0*(( 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: XIT 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  ?0 unreasonable under Tedder.0 0 ? ЍEven the order found lacking in Keen made some attempt to set forth why the judge believed the jury's recommendation to be lacking in a reasonable basis. Keen, 775 So. 2d at 283. No such attempt was made by the trial court in Petitioner's case.0 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`")0*(( 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 X[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 validH&*0*(( 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: XOn 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  ?X 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 twelveperson 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 firstdegree murder. Thus, the jury was apparently able to follow the law and apply the appropriate legal standards to the distinct  ?H& phases of the capital case before them. H&+0*((Ԍ  Id. at 284 n.19 (emphasis added). See also rPentecost v. State, 545 So.2d 861, 863 (Pentecost v. State, 545 So.2d 861, 863 (Fla. 1989)rPentecost 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"); cBrookings v. State, 495 So. 2d 135 (Fla.Brookings v. State, 495 So. 2d 135 (Fla. 1986)cBrookings v. State, 495 So. 2d 135 (Fla. 1986) (override reversed because codefendant walking away "totally free...could reasonably be considered by the jury"); cPentecost v. State, 545 So. 2d 861 (Fla.Pentecost v. State, 545 So. 2d 861 (Fla. 1989)c`Fuente v. State, 549 So. 2d 652 (Fla. 19Fuente v. State, 549 So. 2d 652 (Fla. 1989)`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 1516. 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)Fiore v. White, 121 S.Ct. 712 (2001)_Fiore v. White, 121 S.Ct. 712 (2001), is instructive on whether a court can arbitrarily apply standards to similarlysituated defendants. In Fiore, two defendants, Fiore and Scarpone, were both convicted under a Pennsylvania law of operating a hazardous waste facility',0*(( 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 71314.  ? 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'-0*(( 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 20.6  ? ԍSignificantly, many of the override cases affirmed on direct appeal during this period of uncertainty by the Supreme Court of Florida were later reversed on collateral attack in either state or federal court. The death sentence upheld in kGardner v. State, 313 So. 2d 675 (Fla. 1Gardner v. State, ` ` 313 So. 2d 675 (Fla. 1975)kGardner v. State, 313 So. 2d 675 (Fla. 1975), was subsequently vacated by this Court. eGardner v. Florida, 430 U.S. 349 (1977)Gardner v. Florida, ` ` 430 U.S. 349 (1977)eGardner v. Florida, 430 U.S. 349 (1977). The death sentence affirmed in jDouglas v. State, 328 So. 2d 18 (Fla. 19Douglas v. State, ` ` 328 So. 2d 18 (Fla. 1976)jDouglas v. State, 328 So. 2d 18 (Fla. 1976), was subsequently vacated by the Eleventh Circuit Court of Appeals. Douglas v. Wainwright, 714 F. 2d 1532 (1Douglas 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)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). The death sentence affirmed in kMcCrae v. State, 395 So. 2d 1145 (Fla. 1McCrae v. State, ` ` 395 So. 2d 1145 (Fla. 1980)kMcCrae v. State, 395 So. 2d 1145 (Fla. 1980), was vacated by a federal district court for Hitchcock error, and the reimposition of the death sentence over the jury's life recommendation was reversed by the Supreme Court of Florida. jMcCrae v. State, 582 So. 2d 613 (Fla. 19McCrae v. State, ` ` 582 So. 2d 613 (Fla. 1991)jMcCrae v. State, 582 So. 2d 613 (Fla. 1991). The death sentence affirmed in jBuford v. State, 403 So. 2d 943 (Fla. 19Buford v. State, ` ` 403 So. 2d 943 (Fla. 1981)jBuford v. State, 403 So. 2d 943 (Fla. 1981), was also vacated in federal court due to Hitchcock error, and the Supreme Court of Florida reversed the reimposition of death following a resentencing. jBuford v. State, 570 So. 2d 923 (Fla. 19Buford v. State, ` ` 570 So. 2d 923 (Fla. 1990)jBuford v. State, 570 So. 2d 923 (Fla. 1990). The death sentence affirmed in jThomas v. State, 456 So. 2d 454 (Fla. 19Thomas v. State, ` ` 456 So. 2d 454 (Fla. 1984)jThomas v. State, 456 So. 2d 454 (Fla. 1984), was vacated by the Court in postconviction also due to Hitchcock error. jThomas v. State, 546 So. 2d 716 (Fla. 19Thomas v. State, ` ` 546 So. 2d 716 (Fla. 1989)jThomas v. State, 546 So. 2d 716 (Fla. 1989). The death sentence affirmed in iEutzy v. State, 458 So. 2d 755 (Fla. 198Eutzy v. State, ` ` 458 So. 2d 755 (Fla. 1984)iEutzy v. State, 458 So. 2d 755 (Fla. 1984), was vacated by the federal courts because penalty phase counsel failed to investigate and present mitigating evidence which would have precluded an override. Eutzy v. Dugger, 746 F. Supp. 1492 (N.D.Eutzy v. Dugger, ` ` 746 F. Supp. 1492 (N.D. Fla. 1989), ` ` aff'd, No. 894014 (11th Cir. 1990)Eutzy v. Dugger, 746 F. Supp. 1492 (N.D. Fla. 1989), aff'd, No. 894014 (11th Cir. 1990). The death'0*(( sentence affirmed in iBurr v. State, 466 So. 2d 1051 (Fla. 198Burr v. State, ` ` 466 So. 2d 1051 (Fla. 1985)iBurr v. State, 466 So. 2d 1051 (Fla. 1985), was subsequently vacated in postconviction because the trial court relied on improper aggravating circumstances in overriding the jury's life recommendation. hBurr v. State, 576 So. 2d 278 (Fla. 1991Burr v. State, ` ` 576 So. 2d 278 (Fla. 1991)hBurr v. State, 576 So. 2d 278 (Fla. 1991). The death sentences in jHeiney v. State, 447 So. 2d 210 (Fla. 19Heiney v. State, ` ` 447 So. 2d 210 (Fla. 1984)jHeiney v. State, 447 So. 2d 210 (Fla. 1984), sTorres-Arboledo v. State, 524 So. 2d 403TorresArboledo v. State, ` ` 524 So. 2d 403 (Fla. 1988)sTorresArboledo v. State, 524 So. 2d 403 (Fla. 1988), and lThompson v. State, 553 So. 2d 153 (Fla. Thompson v. State, 553 So. 2d 153 (Fla. 1989)lThompson v. State, 553 So. 2d 153 (Fla. 1989), were reversed in postconviction due to ineffective assistance of penalty phase counsel because counsel failed to present mitigating evidence which would have precluded the override. jHeiney v. State, 620 So. 2d 171 (Fla. 19Heiney v. State, ` ` 620 So. 2d 171 (Fla. 1993)jHeiney v. State, 620 So. 2d 171 (Fla. 1993); uTorres-Arboleda v. Dugger, 636 So. 2d 13TorresArboleda v. Dugger, ` ` 636 So. 2d 1321 (Fla. 1994)uTorresArboleda v. Dugger, 636 So. 2d 1321 (Fla. 1994); mThompson v. State, 731 So. 2d 1235 (Fla.Thompson v. State, 731 So. 2d 1235 (Fla. 1998)mThompson v. State, 731 So. 2d 1235 (Fla. 1998). The death sentence affirmed in jParker v. State, 458 So. 2d 750 (Fla. 19Parker v. State, ` ` 458 So. 2d 750 (Fla. 1984)jParker v. State, 458 So. 2d 750 (Fla. 1984), was vacated by this Court in eParker v. Dugger, 111 S. Ct. 731 (1991)Parker v. Dugger, ` ` 111 S. Ct. 731 (1991)eParker v. Dugger, 111 S. Ct. 731 (1991), and on remand to the Supreme Court of Florida, the override was reversed. lParker v. State, 643 So. 2d 1032 (Fla. Parker v. State, ` ` 643 So. 2d 1032 (Fla. 1994)lParker v. State, 643 So. 2d 1032 (Fla. 1994). The defendant whose override was affirmed in iEngle v. State, 510 So. 2d 881 (Fla. 198Engle v. State, ` ` 510 So. 2d 881 (Fla. 1987)iEngle v. State, 510 So. 2d 881 (Fla. 1987), was eventually sentenced to life imprisonment during the pendency of state collateral proceedings because his codefendant received life in kStevens v. State, 613 So. 2d 402 (Fla. 1Stevens v. State, ` ` 613 So. 2d 402 (Fla. 1992)kStevens v. State, 613 So. 2d 402 (Fla. 1992). Likewise, the defendant in jBrown v. State, 473 So. 2d 1260 (Fla. 19Brown v. State, ` ` 473 So. 2d 1260 (Fla. 1985)jBrown v. State, 473 So. 2d 1260 (Fla. 1985), was sentenced to life during the pendency of state collateral proceedings pursuant to an agreement with the State after his codefendant received a life sentence in separate trial proceedings. With respect to the override affirmed in jPorter v. State, 429 So. 2d 293 (Fla. 19Porter v. State, 429 So. 2d 293 (Fla. 1983)jPorter v. State, 429 So. 2d 293 (Fla. 1983), it was reversed by the Supreme Court of Florida due to judicial bias. jPorter v. State, 723 So. 2d 191 (Fla. 19Porter v. State, 723 So. 2d 191 (Fla. 1998)jPorter v. State, 723 So. 2d 191 (Fla. 1998). Finally, the defendant whose override was affirmed in lSpaziano v. State, 433 So. 2d 508 (Fla. Spaziano v. State, 433 So. 2d 508 (Fla. 1983)lSpaziano v. State, 433 So. 2d 508 (Fla. 1983), was awarded a new trial. lState v. Spaziano, 692 So. 2d 174 (Fla. State v. Spaziano, 692 So. 2d 174 (Fla. 1997)lState v. Spaziano, 692 So. 2d 174 (Fla. 1997). Thus, Gregory Mills has been arbitrarily singled out by the Supreme Court of Florida, which has refused to correct its mistake despite openly acknowledging that a mistake was made.  6 However, in the Cochran.0*(( 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` /0*(( 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 2526. Accord lKyles v. Whitley, 514 U.S. 419, 455-56 (Kyles v. Whitley, 514 U.S. 419, 45556 (1995)lKyles v. Whitley, 514 U.S. 419, 45556 (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: XA 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 hKeen v. State, 775 So. 2d 263 (Fla. 2000Keen v. State, 775 So. 2d 263 (Fla. 2000)hKeen 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'00*(( revisit our prior ruling in this case." Mills. slip op. at 27 (Pariente, J., dissenting). She further stated: XThe 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 casebycase basis in order to reach a desired result.' Concurring op. at 17. Rather, a proper and consistent application of our longstanding 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 pCochran v. State, 547 So. 2d 928, 933 (FCochran v. State, 547 So. 2d 928, 933 (Fla. 1989)pCochran 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 2728. 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 (Parker v. Dugger, 876 F. 2d 1470, 1474 (11th Cir. 1989), ` ` rev'd on other grounds, 498 U.S. 308 (1991)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'10*(( unconstitutional application of the death penalty if followed incorrectly"); iEngle v. Florida, 485 U.S. 924, 928 (198Engle v. Florida, 485 U.S. 924, 928 (1988)iEngle 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 felonymurder cases has led to the arbitrary imposition of the death penalty"); Minnick v. Anderson, 2000 US. Dist. LEXIMinnick v. Anderson, 2000 US. Dist. LEXIS 12573 (D.C. Ind. 2000)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%20*(( 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.    ` `  hh#(yhH ddd3y   ` `  hh#(TODD G. SCHER ` `  hh#(Florida Bar No. 0899641 ` `  hh#(Litigation Director ` `  hh#(CCRC South ` `  hh#(101 NE 3d Avenue, Suite 400 ` `  hh#(Ft. Lauderdale, Florida 33301 ` `  hh#((954) 7131284 ` `  hh#(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