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IN THE SUPREME COURT OF FLORIDA

CASE NOS. SC01-2523 & SC02-1788

MICHAEL RIVERA,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

________________________/

MICHAEL RIVERA,

Petitioner,

vs.

JAMES V. CROSBY,

Respondent.

________________________/

MOTION FOR REHEARING

COMES NOW, Appellant/Petitioner MICHAEL RIVERA, by and through his undersigned counsel, pursuant to Florida Rule of Appellate Procedure 9.370, and moves this Court to grant rehearing in the above-styled cause. Through counsel, Mr. Rivera states the following grounds in support of his request:

1. On September 11, 2003, this Court issued an opinion denying Mr. Rivera’s appeal and his habeas petition in the above-entitled matters. This motion for rehearing is timely filed. Fla.R.App.Pro. 9.330(a).

2. In denying Mr. Rivera’s appeal, this Court affirmed the circuit court’s denial of Mr. Rivera’s claim that he received ineffective assistance of counsel during the penalty phase portion of his trial. This Court’s assessment of trial counsel’s effectiveness under the Sixth Amendment must be governed by Strickland v. Washington, 466 U.S. 668 (1984), and by the Supreme Court’s subsequent explications in Wiggins v. Smith, 123 S. Ct. 2527 (2003), and Williams v. Taylor, 529 U.S. 362 (2000). However, this Court made no reference to the recent pronouncements from the United States Supreme Court in either Wiggins and Williams wherein the Strickland standards were illuminated. Because this Court relied on cases that are wholly inconsistent with – if not overruled by – Supreme Court law, rehearing is necessary to resolve this important issue.

3. This Court in addressing the ineffective assistance of counsel claim briefly addressed the performance prong of the Strickland standard. In its "History of Drug Use" section of its opinion, this Court said, "the trial court pointed out in its order that at the penalty phase, defense counsel presented a ‘plethora’ of mitigating evidence similar to that presented at the postconviction hearing." Slip Op. at 10. Under Wiggins, that is not the test for determining whether counsel’s performance was deficient. Wiggins provides different instruction on how a reviewing court is to analyze a trial attorney’s putative "knowledge" of available mitigation and strategic decisions flowing therefrom. This analysis requires a close examination of the record, particularly where trial counsel lists "sources" of information from which he allegedly obtained "knowledge" of mitigation; indeed, in Wiggins, much of the Court’s opinion is devoted to such an examination. See Wiggins, 123 S. Ct. at 2539 et. seq. Any "decision" by counsel not to present evidence about which he was unreasonably unaware cannot survive scrutiny. Wiggins; Williams. Presenting some mitigation or even a lot of mitigation does not automatically render counsel constitutionally effective if he unreasonably failed to investigate and presented additional mitigation and there is a reasonable probability that the additional mitigation would have tipped the scales in favor of a life sentence.

4. This Court stated in its opinion, "[w]e conclude that the record supports the trial court findings that while perhaps not presented in the same detail, defense counsel did present substantial evidence of mitigation at the original penalty phase. Wiggins has thoroughly rejected this Court’s reasoning in concluding that Mr. Rivera had not demonstrated deficient performance. Mitigation must be investigated before an attorney turns to some other line of defense. And it must be investigated well. Wiggins, 122 S.Ct. at 2536-37. Using the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty, the Court in Wiggins held that counsel’s minimal investigation into the defendant’s background (only reviewing the defendant’s PSI report and a DSS file),and abandonment of that investigation in order to focus on lingering doubt, fell short of reasonable professional standards:

Counsel’s conduct...fell short of the standards for capital defense work articulated by the American Bar Association...standards to which we have long referred as guides to determining what is reasonable. The ABA Guidelines provide that investigations into mitigating evidence "should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor." Id. (quoting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty 11.4.1(C), p. 93 (1989)).

Id. at 2537. It is not reasonable for counsel to find some mitigation and stop when the investigation is incomplete.

5. This Court also stated, "counsel’s reasonable mental health investigation and presentation of evidence is not rendered incompetent "merely because the defendant has now secured the testimony of a more a favorable mental health expert.’" Slip Op. at 12, quoting Asay v. State, 769 So.2d 974, 986 (Fla. 2000). However, true that statement may be, this Court is improperly inverting it to assert that the mere presentation of substantial mitigation innoculates trial counsel from a finding of having rendered deficient performance no matter how inadequate his investigation. This Court’s analysis of the deficient performance prong does not comport with the clear standards contained in Wiggins. The reasonableness of counsel’s conduct at the penalty phase of a capital case is determined by the conduct and its context, not simply the fact that mitigation was or was not presented. As was made clear in Wiggins, an ineffectiveness claim is addressed by examining what the lawyer in question actually knew and actually did to investigate potential mitigation, and then comparing those actions to prevailing professional norms.

6. This Court’s conclusion that Mr. Rivera’s protestations of innocence "contradicts" expert opinions finding a mitigating circumstance (that the crime was committed "under the influence of drugs at the time") offends due process. First, mitigating circumstances can be established by circumstantial evidence, just as the State can establish aggravating circumstances through circumstantial evidence. To hold otherwise would violate due process by holding the defense to higher standards than the State. Second, the idea that mitigation is established and a death sentence avoided only through the acknowledgment of guilt smacks of the long ago Salem witch trials and violates fundamental fairness. Third, this Court’s opinion permits the State to rely upon protestations of innocence to undercut a plea for life sentence, while denying the defense from using residual doubt to undercut the State’s plea for a death sentence. Such an unlevel playing field offends the constitutional guarantee to due process. Dillbeck v. State, 643 So.2d 1027, 1030 (Fla. 1994)("No truly objective tribunal can compel one side in a legal bout to abide by the Marquis of Queensbury’s rules, while the other fights ungloved.").

7. As to the prejudice prong, this Court’s analysis did not comport with the United States Supreme Court’s recent pronouncements. First, to determine prejudice from the unreasonable failure to investigate and present mitigating evidence, "we reweigh the evidence in aggravation against the totality of available mitigating evidence." Wiggins v. Smith, 123 S.Ct 2357, 2542 (2003)(emphasis added); see also Williams, supra, 120 S.Ct at 1495 (court is required to conduct an "assessment of the totality of the omitted evidence" and then to "evaluate the totality of the available mitigation evidence–both that adduced at trial, and the evidence adduced in the habeas proceeding")( (emphasis added). If "the available mitigating evidence, taken as a whole, ‘might well have influenced the jury’s appraisal’ of [the defendant’s] moral culpability," Wiggins, 123 S.Ct. at 2544 (quoting Williams, 102 S.Ct. at 1495, then prejudice has been shown. Second, Petitioner need only show that the available mitigation creates "a reasonable probability that one juror would have struck a different balance." Id. (emphasis added). Third, every defendant has "a right–indeed a constitutionally protected right–to provide the jury with the mitigating evidence that his trial counsel either failed to discover or failed to offer," Williams, 120 S.Ct. at 1513, regardless of the strength of the state’s case, the heinous nature of the offense, or the severity of the aggravators. Williams, 120 S.Ct. at 1515. Fourth, for a fact to be mitigating it does not have to be relevant to the crime – any of "the diverse frailties of humankind," Woodson v. North Carolina, 428 U.S. 280, 304 (1976), which might counsel in favor of a sentence less than death, Lockett v. Ohio, 438 U.S. 586 (1978), are mitigating. Williams, 120 S.Ct at 1495. The lower court’s prejudice analysis violated each of these fundamental rules, as did this Court’s analysis in affirming. The totality of all of the proffered mitigation was never considered in light of the improper aggravating circumstance presented. This Court’s analysis amounted to nothing more than a unconstitutional finding that some capital cases warrant death regardless of the mitigation. However, the Eighth Amendment jurisprudence is premised upon the notion that the available mitigation evidence "might well have influenced" a juror’s "appraisal of [petitioner’s] moral culpability." Williams, 120 S.Ct. at 1515. Automatic death sentences violate this principle.

8. This Court’s analysis of Mr. Rivera’s challenges to the evidentiary rulings made by the circuit court overlooks the facts and the law. At a prior hearing, the guilt phase issue of the State’s failure to comply with the requirements of Brady v. Maryland, 373 U.S. 83 (1963), and the defense attorney’s failure to present the exculpatory evidence were addressed. In that context, this Court said that the witness involved left town and "did not tell the police he was leaving and did not remember telling Malavenda he was leaving." Slip Op at 17. This Court overlooks the fact that this Court’s 1998 opinion did not rest upon Peters’ availability, but upon a lack of prejudice, i.e. Peters’ testimony did not establish an alibi. Rivera v. State, 717 So.2d 477, 482 (Fla. 1998)("Therefore assuming, arguendo, that Rivera established deficient performance, he must still satisfy Strickland’s prejudice prong. We find that Rivera has not satisfied that prong of the test."). At issue, here was Mr. Malavenda’s failure to investigate and present mitigating evidence. Yet, Mr. Rivera was denied the opportunity to present evidence from Mark Peters supporting his claim that Mr. Malavanda’s performance was deficient in failing to secure Mr. Peters’ presence at the penalty phase.

9. This Court violated the principles of Wiggins when it affirmed the trial court’s refusal to consider that two of his prior violent felony convictions had been vacated. "The entire post-conviction record, viewed as a whole and cumulative of mitigation evidence presented originally, raised a ‘reasonable probability that the result of the sentencing proceeding would have been different,’" Williams, 120 S.Ct at 1495. In Rivera’s case, the entire post-conviction record was not viewed as a whole. By excluding consideration of the fact that two prior violent felonies that had been presented to the jury had been vacated, the proper analysis did not occur.

10. In addressing Mr. Rivera’s other arguments that the circuit court erroneously excluded evidence, this Court overlooked the record and misapprehended Mr. Rivera’s arguments.

11. As to Mr. Rivera’s habeas petition, this Court overlooked the fact that Mr. Rivera fully pled and proved this claim. See Clark v. Crist, — F.3d — (11^th Cir. July 2, 2003).

In considering Mr. Rivera’s claim that he received ineffective assistance of appellate counsel, this Court did a piecemeal analysis that fails to comport with the due process requirement that cumulative consideration be afforded. The constitutional guarantee of effective assistance of appellate counsel exists to insure that an adequate testing occurs in order to produce a just result. The refusal to consider aspects of the ineffectiveness claim that were previously considered without reference to the full context of counsel’s deficiencies does not comport with due process. This Court’s analysis overlooked this principle detailed in Kyles v. Whitley.

12. The prejudice prong to an ineffectiveness claim requires cumulative consideration of counsel’s failings and a determination as to whether confidence is undermined in the outcome. This does not mean that the defendant must prove that the outcome would have been different. This Court’s analysis misapplied Strickland.

13. Mr. Rivera included in his Petition a claim pursuant to the United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). In Ring, the Supreme Court held that the Sixth Amendment to the United States Constitution requires that when aggravating factors are statutorily necessary for imposition of the death penalty, they must be found beyond a reasonable doubt by a jury:

[W]e overrule Walton [v. Arizona, 497 U.S. 639 (1990),] to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. . . . Because Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ . . . the Sixth Amendment requires that they be found by a jury.

Ring, 536 U.S. at 609 (citations omitted). This was in conformity with its earlier ruling in Apprendi v. New Jersey, where the Supreme Court held, "If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact--no matter how the State labels it--must be found by a jury beyond a reasonable doubt." 530 U.S. at 482-83. Ring applied Apprendi to the category of capital murder cases and concluded any fact rendering a person eligible for a death sentence is an element of the offense. 536 U.S. at 604, quoting Apprendi, 530 U.S. at 494 ("In effect, ‘the required finding [of an aggravating circumstance] expose[d] [Ring] to a greater punishment than that authorized by the jury’s guilty verdict’"). The Supreme Court has even more recently elaborated upon the meaning of Ring. In Sattazahn v. Pennsylvania, 123 S.Ct. 732, 739 (2003), the Supreme Court explained:

Put simply, if the existence of any fact (other than a prior conviction) increases the maximum punishment that may be imposed on a defendant, that fact–no matter how the State labels it– constitutes an element, and must be found by a jury beyond a reasonable doubt.

14. In Ring, the Supreme Court noted that Arizona was one of five states that committed sentencing factfinding and the ultimate sentencing decision to judges. Ring, 536 U.S. at 609 n. 6 (the other four were identified as Colorado, Idaho, Montana, and Nebraska). The Supreme Court further noted that four additional states had hybrid capital sentencing schemes. Id. (Alabama, Delaware, Florida, and Indiana). Subsequently, it has been recognized that additional hybrid states were overlooked by the United States Supreme Court. Johnson v. State, 59 P.3d 450, 460 (Nev. 2002)(under Nevada law, the judge determines the sentence in a capital case if the jury is unable to return a unanimous verdict imposing either a death or a life sentence); State v. Whitfield, 107 S.W.3d 253 (Mo. 2003)(under Missouri law, the judge determines the sentence in a capital case if the jury is unable to return a unanimous verdict imposing either a death or a life sentence). Even in a state with jury sentencing in capital cases, error has been found. In Esparza v. Mitchell, 310 F.3d 414 (6^th Cir. 2002), the Sixth Circuit granted federal habeas relief because the jury was not required to return a verdict identifying the aggravating factors that were present and that rendered the defendant death eligible under state law. In Summerlin v. Stewart, 2003 U.S. App. LEXIS 18111 (9^th Cir. September 2, 2003)(in banc), the in banc Ninth Circuit concluded that Ring announced substantive criminal law which by definition applied retroactively. Further, the in banc Ninth Circuit concluded that Ring error was structural error not subject to harmless error analysis.

15. In denying Mr. Rivera’s petition, this Court failed to look at the jurisprudence that has developed in the wake of Ring. Not surprisingly, the states labeled by the United States Supreme as being in the same category as Arizona have generally recognized that Sixth Amendment error pervades their capital sentencing schemes. State v. Fetterly, 52 P.3d 875 (Idaho 2002)(in light of Ring, death sentence vacated and remanded for further proceedings); State v. Gales, 658 N.W.2d 604, 624 (Neb. 2003)("It is clear that the jury made no explicit determination that any of the statutory aggravating circumstance existed in this case. Instead, that determination was made by a judge."); Woldt v. People, 64 P.3d 256 (Colo. 2003)(death sentences vacated in consolidated direct appeal for two of the three individuals sentenced to death under 1995 scheme providing for three-judge panel to conduct capital sentencing factfinding and cases remanded for the imposition of life sentences); State v. Ring, 65 P.3d 915 (Ariz. 2003)(in a consolidated case involving those on Arizona’s death row, Arizona Supreme Court established parameters for evaluating each case for harmless error analysis). Each of these states has found that the necessary facts under Ring to render the defendant death eligible were not made by the jury at the guilt phase of the capital case.

16. In denying Mr. Rivera’s petition this Court also overlooked the decisions from those states lumped in the same category as Florida, hybrid states. For example in Indiana, the hybrid sentencing scheme is employed not just in determining whether to impose death, but also in determining what sentence to impose in murder cases not reaching the capital level. In Bostnick v. State, 773 N.E.2d 266 (Ind. 2002), the Indiana Supreme Court was faced with a case in which the judge overrode a jury’s recommendation against a sentence of life without parole. The Bostnick court concluded, "[t]he jury during the sentencing phase was unable to reach a unanimous recommendation, and thus there was no jury determination finding the qualifying aggravating circumstances beyond a reasonable doubt." Id. at 273. Under the Indiana sentencing scheme, the judge made the finding of the aggravating circumstances necessary to warrant the imposition of life without parole. "Because of the absence of a jury determination that qualifying aggravating circumstances were proven beyond a reasonable doubt, we must therefore vacate the trial court’s sentence of life without parole." Id. See Esparza v. Mitchell, 310 F.3d at 420 ("the jury never found the statutorily required aggravating circumstance").

17. Another case further illuminates Indiana law and its interplay with Ring. In Overstreet v. State, 783 N.E.2d 1140, 1160-61 (Ind. 2003)(emphasis added), while addressing a capital case, the Indiana Supreme Court explained, "[u]nder the terms of our death penalty statute, before a jury can recommend a sentence of death, it must unanimously find that one or more of the charged aggravating circumstances was proven beyond a reasonable doubt." In Overstreet, the defense had requested to have a special finding to this effect made by the jury. The Indiana Supreme Court noted that on the basis of Hildwin v. Florida, 490 U.S. 638 (1989), the trial court had denied the requested special verdict. No reversible error was found because the jury had been explicitly instructed that this unanimous finding beyond a reasonable doubt was necessary before it could return a death recommendation.

18. In another hybrid state, the Delaware legislature enacted legislation following the decision in Ring. In pending capital prosecutions, four questions were certified to the Delaware Supreme Court in light of the new legislation passed in an effort to conform with Ring. The Delaware Supreme Court thereupon undertook a review of Delaware’s capital sentencing scheme. Brice v. State, 815 A.2d 314, 322 (Del. 2003). The new statutory language provided that a death sentence could not be imposed unless "a jury (unless waived by the parties) first determines unanimously and beyond a reasonable doubt that at least one statutory aggravating circumstances exists." Further under Delaware law, first degree murder was defined by the statute in seven alternative ways. Delaware Code, Title 11, §636(a)(1-7). According to Delaware law, "[i]n any case where the defendant has been convicted of murder in the first degree in violation of any provision of §636(a)(2)-(7) of this title, that conviction shall establish the existence of a statutory aggravating circumstance and the jury, or judge where appropriate, shall be so instructed." Delaware Code, Title 11, §4209(e)(2). Thus, the Delaware legislature had defined first degree murder on the basis of the presence of six alternative aggravating circumstances and determined that a finding by the jury of the presence of one these circumstances constituted capital first degree murder subject to the death penalty. Accordingly, the Delaware Supreme Court found that the provisions complied with Ring. Brice, 815 A.2d at 322-23.

19. In Brice, the Delaware Supreme Court indicated that it would review cases in which death had been imposed under the old law case-by-case to determine whether any Ring error was harmless or whether relief was warranted. Subsequently, the court has issued opinions. Garden v. State, 815 A.2d 327, 342 n.4 (Del. 2003)(death sentence vacated in an override case because judge failed to give life recommendation sufficient weight; therefore the Ring challenge was held to be moot); Reyes v. State, 819 A.2d 305, 316 (Del. 2003)(jury that returned a nine to three death recommendation had first explicitly and unanimously found during a the guilt phase a statutory aggravator; therefore relief was denied). In these case, the Sixth Amendment right of confrontation was neither implicated nor discussed.

20. The Alabama Supreme Court has also analyzed its capital sentencing provisions in light of Ring. The Alabama Supreme Court has explained that under Alabama’s statutory definition of capital first degree murder, the jury must find an aggravating circumstance at the guilt phase of a capital trial to render a defendant death-eligible. Ex parte Waldrop, – So.2d –, 2002 Ala. LEXIS 336, *13 (Ala. November 22, 2002)("‘Unless at least one aggravating circumstance as defined in Section 13A- 5-49 exists, the sentence shall be life imprisonment without parole.’"); Martin v. State, – So.2d – , 2003 Ala. Crim. App. LEXIS 136, *55 (Ala. App. May 30, 2003)("the jury in the guilt phase entered a verdict finding Martin guilty of capital murder because it was committed for pecuniary gain. Murder committed for pecuniary gain is also an aggravating circumstance"). Thus, like Delaware, Alabama provides that unless there is a finding of an aggravating circumstance at the guilt phase proceeding, the sentence is life imprisonment. This clearly distinguishes Alabama law from Florida law in a critical fashion.

21. In denying Mr. Rivera’s habeas petition, this Court also overlooked the decisions from two states not mentioned in Ring that have found reversible Ring error. Recently, the Nevada Supreme Court found that its capital scheme was a "hybrid" scheme because if the jury failed to return a unanimous verdict, the judge made the sentencing findings. Johnson v. State, 59 P.3d 450, 460 (Nev. 2002). Nevada law "requires two distinct findings to render a defendant death-eligible." There must be at least one aggravating circumstance and no mitigation sufficient to outweigh the aggravating circumstances. Because in Johnson, the jury had been unable to return a unanimous verdict, the Nevada Supreme Court concluded that the error was not harmless, and it vacated the death sentence.

22. The Missouri Supreme Court also found that its death sentencing scheme was a "hybrid" scheme because the judge imposed the sentence whenever the jury could not return a unanimous verdict. That Court explained that in those circumstances Ring was violated because the first three steps of the Missouri procedure for determining death-eligibility had not been decided beyond a reasonable doubt by a jury:

In the second, or "penalty" phase, the jury is required to be instructed to follow the four-step process set out in section 565.030.4:

The trier shall assess and declare the punishment at life imprisonment without eligibility for probation, parole, or release except by act of the governor:

(1) If the trier does not find beyond a reasonable doubt at least one of the statutory aggravating circumstances set out in subsection 2 of section 565.032; or

(2) If the trier does not find that the evidence in aggravation of punishment, including but not limited to evidence supporting the statutory aggravating circumstances listed in subsection 2 of section 565.032, warrants imposing the death sentence; or

(3) If the trier concludes that there is evidence in mitigation of punishment, including but not limited to evidence supporting the statutory mitigating circumstances listed in subsection 3 of section 565.032, which is sufficient to outweigh the evidence in aggravation of punishment found by the trier; or

(4) If the trier decides under all of the circumstances not to assess and declare the punishment at death.

Id . Section 565.030.4 on its face requires that steps 1, 2, 3, and 4 be determined against defendant before a death sentence can be imposed. Id.; see Whitfield, 837 S.W.2d 503, 515 (Mo. banc 1992).

Step 1. Step 1 requires the trier of fact to find the presence of one or more statutory aggravating factors set out in section 565.032.2. Both the State and Mr. Whitfield agree that this is a fact that normally must be found by the jury in order to impose a sentence of death.

The State contends that steps 2, 3, and 4 merely call for the jury to give its subjective opinion as to whether the death penalty is appropriate, however, not to make findings as to whether the factual predicates for imposing the death penalty are present. It urges that the principles set out in Ring are not offended even if the judge rather than the jury determines those three steps. This Court disagrees.

Step 2. Step 2 requires the trier of fact (whether jury or judge) to find that the evidence in aggravation of punishment, including but not limited to evidence supporting the statutory aggravating factors, warrants imposition of the death penalty. As noted, the State argues that this step merely calls for a subjective opinion by the trier of fact, not a finding. But, the State fails to note that this Court rejected this very argument in its opinion on Mr. Whitfield's appeal of his initial conviction, in which it remanded for the new trial at issue here. In that decision, this Court held that step 2 requires a "finding of fact by the jury, not a discretionary decision." Whitfield, 837 S.W.2d at 515 . This holding is supported by the plain language of the statute. In order to fulfill its duty, the trier of fact is required to make a case-by-case factual determination based on all the aggravating facts the trier of fact finds are present in the case. This is necessarily a determination to be made on the facts of each case. Accordingly, under Ring, it is not permissible for a judge to make this factual determination. The jury is required to determine whether the statutory and other aggravators shown by the evidence warrants the imposition of death. . . .

Step 3. In step 3 the jury is required to determine whether the evidence in mitigation outweighs the evidence in aggravation found in steps 1 and 2. If it does, the defendant is not eligible for death, and the jury must return a sentence of life imprisonment. While the State once more argues that this merely calls for the jury to offer its subjective and discretionary opinion rather than to make a factual finding, this Court again disagrees.

The analysis undertaken in three recent decisions by other state courts of last resort, interpreting similar statutes, is instructive. In Woldt v. People, 64 P.3d 256 (Colo. 2003), the Supreme Court of Colorado reversed the death sentences of two capital defendants after determining that Colorado's three-judge capital sentencing statute was unconstitutional in light of Ring. Colorado's death penalty statute, like Missouri's, requires the fact-finder to complete a four-step process before death may be imposed. First, at least one statutory aggravator must be found. Second, whether mitigating factors exist must be determined. Third, mitigating factors must not outweigh the aggravating factors. Finally, whether death is the appropriate punishment is considered.

The Supreme Court of Colorado described the first three of these four steps as findings of fact that are "prerequisites to a finding by the three-judge panel that a defendant was eligible for death." Woldt, 64 P.3d at 265. It noted that states are sometimes grouped into "weighing states" that require the jury to weigh the aggravating circumstances against those in mitigation in arriving at their determination of punishment, and "non-weighing states." It explained that, while in steps 1, 2, and 3 the jury is permitted to consider and weigh aggravators and mitigators, and to that extent Colorado's process is like that used in weighing states, Colorado is a non-weighing state in that, in step 4, in which the jury decides whether to impose death or to give a life sentence, the jury is permitted to consider all of the evidence without being required to give special significance to the weight of statutory aggravators or mitigators. Id. at 263-64 . This last step thus "affords the sentencing body unlimited discretion to sentence the defendant to life imprisonment instead of death." Id. at 265 . Because Colorado's death penalty statute required a three-judge panel to make the first three of these findings, the statute was declared unconstitutional. Id. at 266-67.

Similarly, in Johnson v. State, 59 P.3d 450 (Nev. 2002), Nevada's Supreme Court considered the constitutionality of its capital sentencing scheme in light of Ring. Its sentencing scheme provides for a three-judge panel to determine punishment if the jury is unable to do so. Johnson noted that Nevada "statutory law requires two distinct findings to render a defendant death-eligible: 'the jury or the panel of judges may impose a sentence of death only if it finds at least one aggravating circumstance and further finds that there are no mitigating circumstances sufficient to outweigh the aggravating circumstance or circumstances found.'" Johnson, 59 P.3d at 460 (citation omitted).

Johnson determined the requisite statutory finding that the mitigating circumstances are not sufficient to outweigh the aggravating circumstances is at least "in part a factual determination, not merely discretionary weighing." Id. at 460 . It held that, as a result, the rule announced in Ring required a jury rather than a judge to determine the mitigating as well as the aggravating factor issues. Id.

Finally, on remand from the United States Supreme Court, the Supreme Court of Arizona rejected the state's contention that the requirement of Arizona law -- that the court weigh mitigating circumstances against aggravating circumstances -- did not require a factual determination, stating:

In both the superseded and current capital sentencing schemes, the legislature assigned to the same fact-finder responsibility for considering both aggravating and mitigating factors, as well as for determining whether the mitigating factors, when compared with the aggravators, call for leniency. Neither a judge, under the superseded statutes, nor the jury, under the new statutes, can impose the death penalty unless that entity concludes that the mitigating factors are not sufficiently substantial to call for leniency. A.R.S. [sections] 13-703.E (Supp.2002) and 13-703.F (Supp.2001). The process involved in determining whether mitigating factors prohibit imposing the death penalty plays an important part in Arizona's capital sentencing scheme.

Ring II, 65 P.3d at 943 (emphasis added). The Court continued:

We will not speculate about how the State's proposal [to allow the judge to make these findings] would impact this essential process. Clemons v. Mississippi, 494 U.S. 738, 754, 110 S.Ct. 1441, 1451, 108 L.Ed.2d 725 (1990) ('In some situations, a state appellate court may conclude that peculiarities in a case make appellate...harmless error analysis extremely speculative or impossible.'); see also Johnson v. Nevada , 59 P.3d 450 (Nev. 2002) (as applied to Nevada law, Ring... requires [a] jury to weigh mitigating and aggravating factors under Nevada's statute requiring the fact-finder to further find whether mitigating circumstances are sufficient to outweigh the aggravating circumstances).

Id. Accordingly, the Court held that, even were the presence of a statutory aggravator conceded or not contested, resentencing would be required unless the court found that the failure of the jury to make these factual findings was harmless on the particular facts of the case. Id. This was a necessary result of applying Ring's holding that "[c]apital defendants...are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." Ring, 536 U.S. at 589.

Missouri's steps 1, 2, and 3 are the equivalent of the first three factual determinations required under Colorado's death penalty statute, so that, as in Colorado, the jury is told to find whether there are mitigating and aggravating circumstances and to weigh them to decide whether the defendant is eligible for the death penalty. These three steps are also similar to the aggravating and mitigating circumstance findings required under Nevada and Arizona law. As in those states, these three steps require factual findings that are prerequisites to the trier of fact's determination that a defendant is death-eligible.

State v. Whitfield, 2003 WL 21386276 (Mo. June 17, 2003) (footnote omitted).

23. The three steps in Florida’s statute, like the steps in Missouri, also "require factual findings that are prerequisites to the trier of fact’s determination that a defendant is death-eligible." Step 1 in the Florida procedure requires determining whether at least one aggravating circumstance exists. As in Missouri, Colorado, Indiana, Delaware, Arizona, and Nevada, this step involves a factual determination which is a prerequisite to rendering the defendant death-eligible.

24. Step 2 in the Florida procedure requires determining

whether "sufficient" aggravating circumstances exist to justify imposition of death. Missouri’s Step 2 is indistinguishable, requiring a determination of whether the evidence of all aggravating circumstances "warrants imposing the death sentence." This step is obviously not the ultimate step of determining whether death will or not be imposed because other steps remain. Rather, in Florida as well as Missouri, this step involves a factual determination which is a prerequisite to rendering a defendant death-eligible.

25. Step 3 in the Florida procedure requires determining whether "there are insufficient mitigating circumstances to outweigh the aggravating circumstances." Missouri’s and Colorado’s Step 3, as well as Nevada’s and Arizona’s Step 2, are identical, requiring a determination of whether mitigating circumstances outweigh aggravating circumstances. Again, this step is not the ultimate determination of whether or not to impose death because an additional step remains. Rather, in Florida as well as these other states, this step involves a factual determination which is a prerequisite to rendering a defendant death-eligible.

26. In Florida, as in Missouri and the other states discussed in Whitfield, the sentencer does not consider the ultimate question of whether or not to impose death until the eligibility steps are completed. After the first three steps, the Florida statute directs the jury to determine, "[b]ased on these considerations, whether the defendant should be sentenced to life imprisonment or death." Section 921.141(2)(c), Fla. Stat. The structure of the statute clearly establishes that the steps which occur before this determination are necessary to make the defendant eligible for this ultimate determination, that is, to render the defendant death-eligible.

27. The question which Ring v. Arizona decided was what facts constitute "elements" in capital sentencing proceedings. Following the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), Mr. Ring raised an Apprendi challenge to his death sentence. In addressing that challenge, the Arizona Supreme Court stated that the United States Supreme Court’s description of Arizona’s capital sentencing scheme contained in Walton v. Arizona, 497 U.S. 639 (1990), was incorrect and provided the correct construction of the scheme. Ring, 122 S. Ct. at 2436. Based upon this correct construction, the United States Supreme Court then determined that Walton "cannot survive the reasoning of Apprendi." Ring, 122 S. Ct. at 2440.

28. The bulk of the Ring opinion addresses how to determine whether a fact is an "element" of a crime. See Ring, 122 S. Ct. at 2437-43. The question in Ring was not whether the Sixth Amendment requires a jury to decide elements. That has been a given since the Bill of Rights was adopted. The question was what facts are elements. Justice Thomas explained this in his concurring opinion in Apprendi:

This case turns on the seemingly simple question of what constitutes a "crime." Under the Federal Constitution, "the accused" has the right (1) "to be informed of the nature and cause of the accusation" (that is, the basis on which he is accused of a crime), (2) to be "held to answer for a capital, or otherwise infamous crime" only on an indictment or presentment of a grand jury, and (3) to be tried by "an impartial jury of the State and district wherein the crime shall have been committed." Amdts. 5 and 6. See also Art. III, [Sec.] 2, cl. 3 ("The Trial of all Crimes . . . shall be by Jury"). With the exception of the Grand Jury Clause, see Hurtado v. California, 110 U.S. 516, 538 . . . (1884), the Court has held that these protections apply in state prosecutions. Herring v. New York, 422 U.S. 853, 857, and n.7 . . . (1975). Further, the Court has held that due process requires that the jury find beyond a reasonable doubt every fact necessary to constitute the crime. In re Winship, 397 U.S. 358, 364 . . . (1970).

All of these constitutional protections turn on determining which facts constitute the "crime"--that is, which facts are the "elements" or "ingredients" of a crime. In order for an accusation of a crime (whether by indictment or some other form) to be proper under the common law, and thus proper under the codification of the common-law rights in the Fifth and Sixth Amendments, it must allege all elements of that crime; likewise, in order for a jury trial of a crime to be proper, all elements of the crime must be proved to the jury (and, under Winship, proved beyond a reasonable doubt).

Apprendi, 120 S. Ct. at 2367-68 (Thomas, J., concurring) (emphasis added). Justice Thomas explained that courts have "long had to consider which facts are elements," but that once that question is answered, "it is then a simple matter to apply that answer to whatever constitutional right may be at issue in a case--here, Winship and the right to trial by jury." Id. at 2368.

29. The essence of criminal law is the definition of the offense. Jones v. United States, 526 U.S. 227 (1999), construed the federal statute at issue in that case, and stated that facts which increase the maximum punishment for an offense are elements of the offense. Apprendi applied the well-established rule that elements must be found by a jury and determined that the sentencing factor identified by the New Jersey legislature was in fact an element. Ring merely held that based upon the clarification of the Arizona statute provided by the Arizona Supreme Court, aggravating circumstances in Arizona were elements subject to the Sixth Amendment right to a jury trial.

30. Ring’s requirement that juries, not judges, find the elements of the charge is derived from ancient principles of law: "The principle that the jury were the judges of fact and the judges the deciders of law was stated as an established principle as early as 1628 by Coke. See 1 E. Coke, Institutes of the Laws of England 155b (1628)." Jones, 526 U.S. at 247. Walton did not contravene those principles but simply misread the Arizona statute. The Ring decision merely rejuvenated the longstanding rule which Walton temporarily rejected.

31. The Framers of the Bill of Rights included the Sixth Amendment’s guarantee of a right to jury trial as an essential protection against government oppression. "Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence." Duncan v. Louisiana, 391 U.S. 145, 156 (1968). Only by maintaining the integrity of the factfinding function does the jury "stand between the accused and a potentially arbitrary or abusive Government that is in command of the criminal sanction." United States v. Martin Linen Supply Co., 430 U.S. 564, 572 (1977). Thus, the adoption of the jury trial right in the Bill of Rights establishes the Founders’ recognition that a jury trial is more reliable than a bench trial.

32. Just as Justice Thomas explained in Apprendi, there was no question in Ring that the jury trial right applies to elements. The dispute in Ring involved what was an element. Thus, the question in Ring is akin to a statutory construction issue, and "retroactivity is not at issue." Fiore v. White, 531 U.S. 225, 226 (2001); Bunkley v. Florida, 123 S. Ct. 2020, 2023 (2003). That is, the Sixth Amendment right to have a jury decide elements is a bedrock, indisputable right. Mr. Rivera was entitled to this Sixth Amendment protection at the time of his trial. The Sixth Amendment guarantees not only the right to a jury trial, but also the right of confrontation. Ring simply clarified that facts rendering a defendant eligible for a death sentence are elements of capital murder and therefore subject to the Sixth Amendment guarantees that are applicable to the states. 33. The ruling in Ring concerns an issue of substantive criminal law. In concluding that the Sixth Amendment requires that the jury, rather than the judge, determine the existence of aggravating factors, the Supreme Court described aggravating factors as "the functional equivalent of an element of a greater offense." Ring, 122 S.Ct. at 2243 (citing Apprendi v. New Jersey, 530 U.S. 466, 494, n. 19 (2000)). Ring clarified the elements of the "greater" offense of capital murder. As explained above, Ring did not decide a procedural question (i.e., whether the Sixth Amendment requires that juries decide elements), but a substantive question (what is an element). Thus, retroactive application is required under Bousley v. United States, 523 U.S. 614 (1998), because the ruling addresses a matter of substantive criminal law, not a procedural rule. This Court overlooked this when denying Mr. Rivera’s petition.

35. In rejecting Mr. Rivera’s argument that this Court erroneously found the consideration of an improper aggravating circumstance to be harmless, this Court overlooked the decision in Esparza v. Mitchell, 310 F.3d at 422-23 ("The State’s argument that the error here can be excused as harmless would lead to the conclusion that any, or all, elements required by a capital sentencing system may be supplied by judges rather than the jury").

36. This Court overlooked the post-Ring jurisprudence from other state and federal courts. These decisions demonstrate that this Court has erroneously denied Mr. Rivera’s arguments that he was deprived of his Sixth Amendment rights at his resentencing and that his death sentence was unconstitutionally imposed.

WHEREFORE, Mr. Rivera, by and through undersigned counsel, respectfully requests this Court grant a rehearing and reconsider the opinion of September 11, 2003.

I HEREBY CERTIFY that a true copy of the foregoing Motion for Rehearing has been furnished by United States Mail, first class postage prepaid, to Celia Terenzio, Assistant Attorney General, 1515 N. Flagler Drive, Suite 900, West Palm Beach, Florida 33409, on September 26, 2003.

Respectfully submitted,

MARTIN J. MCCLAIN

Special Assistant CCRC-South

Florida Bar No. 0754773

141 NE 30^th Steet

Fort Lauderdale, FL 33334

(305) 984-8344

OFFICE OF THE CAPITAL COLLATERAL

REGIONAL COUNSEL FOR THE

SOUTHERN REGION

101 NE 3rd Ave., Suite 400

Fort Lauderdale, FL 33301

(954) 713-1284

Counsel for Mr. Rivera