o oppearing and coming from the Supreme court case' … · Supreme Court of Florida MONDAY,...

pupreme court of floridd

Supreme Cou rt hLdg.

600 5. duval Street

pr e s s i e y b. atston, ia il a hassee VI a

Plai nt i ff

petitioner. 32 99

VS,

ca se*

�254State of floridao

e e s pondents.

*Pe7itfort foy the State wyi�040oS |:obeas Corpils

C pressic>r b. atston petitions the Couff for The writ of babeas 03vyus)

o oppearing and coming from the Supreme court case' sco2 1904

899 So.2d 46 49

Comes now, pressley b. Olston, pro gg

pursuan t b the rules of the Court and the crin1inal rules of the

procedare rule 9.142 and rule'3.125 To file this petition that

reoueGTS relief concerning the writren content thai°S presenfed here og

a petition for the w ri T of habeas corpus

Thfe] supreme court of fiorida hos it's original jurisdiction from the Supreme

Court of Florida 67275 to grant the petitioner here a writ of babeas corpus

under orticle I section is and art. v Sec. 3Cb74 of florida s constifu7ioW

Supreme Court of FloridaMONDAY, DECEMBER 13, 2004

. CASE NO.: SC02-1904Lower Tribunal No.: 95-5326-CF A

PRESSLEY BERNARD ALSTON vs. STATE OF FLORíDA

Petitioner(s) Respondent(s)

Petitioner's Motion for Rehearing is hereby denien.

PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO andBELL, JJ., concur. . . .

A True CopyTer,t:

omas D. HallClerk. Supreule Comt .

kbServed:

HON. HARRY L. SHORSTFlNELIZABETH A. WILLIAMSROBERT T. STRAINPRESSLEY E. ALSTONCURTIS M. FRENCH ,CASSANDRA K. DOLGIN .HON JIM FULLER, CLERKHON. AARON K. BOWDEN, JUDGE .

Cand 3

cethe Gupreme court of florida has now punctuated itself irito the Kind of

to t/ocate the death penotty gentence n Q cdse of any C09e

that lacKs has locKed The unanimous Jury ©factfindin s of the

)' bi fu t cated proceed i n see f.S® 921.{ 41

The Supreme cou e og ° ow wr i tien off C2B2 death penalty

sentences un 79e Per curiams. oc vocatur s as their Leg a L

p b v o s e °lo97 f e m 7 es ibe cour r°s revi e wing detai l as·.

de ath sentence violates the decision of the u.s. supreme court

h hurst yg. {¡or¡gg jg6 s.Cf 6% and in Îlfe death penalty

6"t�254"Cewhere the CCadyiçoy Yecommendation of decik

Osn una n i moug0

The su pre me court of ç 90s kCCD follow i ng the ® a

iî has impute by the chaprnan vg_ col ; go, ¡a 3 re

Test. C 9uoT i ng äeguil io * M1 go. 7d f i gq D to vaca te any deat h

p e no l ty Come ibat has the i ac|C of u nani mous jury °Nact V i nd i ng g

and the J ury issues that retores to the hurst vs. Florido error

TABLE OF CITATIONS

Abdool v. State, Nos. SC14-582 & SC14-2039, 2017 WL1282105 (Fla. Apr. 6, 2017)......................................................................24

Alterberger v. State, Nos. SC15-628, SC15-1612, 2017WL 1506855 (Fla. Apr. 27, 2017) ............................................................24

Anderson v. State, No. SC12-1252, SC14-881, 2017 WL930924 (Fla. Mar. 9, 2017).......................................................................23

Armstrong v. State, 211 So. 3d 864 (Fla. 2017)........................................23

Asay v. State, 210 So. 3d 1 (Fla. 2016).....................................................passim

Ault v. State, No. SC14-1441, 2017 WL 930926 (Fla. Mar. 9, 2017)......24

Baker v. State, Nos. SC13-2331, SC14-873, 2017 WL1090559 (Fla. Mar. 23, 2017)...................................................................24

Banks v. Jones, No. SC15-297, 2017 WL1409666 (Fla. Apr. 20, 2017)....................................................................24

Bogle v. State, No. SC11-2403, 2017 WL 526507 (Fla. Feb. 9, 2017).... 19

Bradley v. State, No. SC14-1412, 2017 WL1177618 (Fla. Mar. 30, 2017)...................................................................24

Brookins v. State, No. SC14-418, 2017 WL1409664 (Fla. Apr. 20, 2017)....................................................................24

Brooks v. Jones, No. SC16-532, 2017 WL944235 (Fla. Mar. 10, 2017).....................................................................23,24

Calloway v. State, 2017 WL 372058 (Fla. Jan. 26, 2017)........................23

Card v. Jones, No. SC17-453, 2017 WL1743835 (Fla. May 4, 2017) .....................................................................25

Caylor v. State, Nos. SC15-1823, SC16-399, 2017 WL2210386 (Fla. May 18, 2017) ...................................................................25

Davis v. State, No. SC15-1794, 2017 WL1954979 (Fla. May 11, 2017) ...................................................................25

Danforth v. Minnesota, 552 U.S. 264 (2008)........................................... 16

11

Deviney v. State, No. SC15-1903, 2017 WL1090560 (Fla. Mar. 23, 2017)...................................................................24

Dubose v. State, 2017 WL 526506 (Fla. Feb. 9, 2017)............................22, 23

Durousseau v. State, 2017 WL 411331 (Fla. Jan. 31, 2017)....................23

Eisenstadt v. Baird, 405 U.S. 438 (1972) ................................................. 15

Franklin v. State, 209 So. 3d 1241 (Fla. 2016).........................................23

Gaskin v. State, No. SC15-1884, 2017 WL224772 (Fla. Jan. 19, 2017) ......................................................................19

Guzman v. State, No. SC13-1002, 2017 WL1282099 (Fla. Apr. 6, 2017)......................................................................24

Hampton v. State, Nos. SC15-1360, SC16-6, 2017 WL1739237 (Fla. May 4, 2017).....................................................................25

Hernandez v. Jones, No. SC17-440, 2017 WL1954985 (Fla. May 11, 2017) ...................................................................25

Hertz v. Jones, No. SC17-456, 2017 WL2210402 (Fla. May 1 8, 2017) ...................................................................25

Heyne v. State, No. SC14-1800, 2017 WL1282104 (Fla. Apr. 6, 2017)......................................................................24

Hodges v. State, No. SC14-878 (Fla. Mar. 16, 2017)...............................23

Hojan v. State, 2017 WL 410215 (Fla. Jan. 31, 2017).............................23

Hurst v. Florida, 136 S.Ct. 616 (2016)....................................................passim

Hurst v. State, 202 So. 3d 40 (Fla. 2016)..................................................passim

Ivan V v. City ofNew York, 407 U.S. 203 (1972).................................... 9, 11

James v. State, 615 So. 2d 668 (Fla. 1993)............................................... 17

Johnson v. State, 205 So. 3d 1285 (Fla. 2016).........................................23

Johnson v. United States, 135 S. Ct. 2551 (2015).................................... 11

King v. State, No. SC14-1949, 2017 WL372081 (Fla. Jan. 26, 2017) ......................................................................22

Kopsho v. State, 209 So. 3d 568 (Fla. 2017) ............................................23

H1

McGirth v. State 209 So. 3d 1146 (Fla. 2017).........................................23

McLaughlin v. Florida, 379 U.S. 184 ( 1964) ........................................... 15

McMillian v. State, No. SC14-1796, 2017 WL1366120 (Fla. Apr. 13, 2017)....................................................................24

Miller v. Alabama, 132 S. Ct. 2455 (2012)...............................................8

Montgomery v. Louisiana, 136 S. Ct. 7 18 (2016) ....................................passim

Mosley v. State, 209 So. 3d 1248 (Fla. 2016)...........................................passim

Newberry v. State, No. SC14-703, 2017 WL1282108 (Fla. Apr. 6, 2017)......................................................................24

Orme v. State, Nos. SC13-819 & SC14-22, 2017 WL1177611 (Fla. Mar. 30, 2017)...................................................................24

Pasha v. State, SC13-1551, 2017 WL 1954975 (Fla. May 11, 2017)......25

Powell v. Delaware, 153 A.3d 69 (Del. 2016) .........................................passim

Ring v. Arizona, 536 U.S. 5 84 (2002).......................................................passim

Robards v. State, No. SC15-1364, 2017 WL1282109 (Fla. Apr. 6, 2017)......................................................................24

Schriro v. Summerlin, 542 U.S. 348 (2004).............................................. 1 1

Serrano v. State, Nos. SC15-258, SC15-2005, 2017 WL1954980 (Fla. May 11, 2017) ...................................................................25

Skinner v. Oklahoma, 316 U.S. 535 (1942)..............................................15

Simmons v. State, 207 So. 3d 860 (Fla. 2016)..........................................23

Smith v. State, Nos. SC12-2466 & SC13-2111, 2017 WL1023710 (Fla. Mar. 17, 2017)...................................................................23

Snelgrove v. State, Nos. SC15-1659, No. SC16-124, 2017 WL1954978 ((Fla. May 11, 2017)..................................................................25

Teague v. Lane, 489 U.S. 288 (1989)....................................................... 11

Welch v. United States, 136 S. Ct. 1257 (2016) .......................................passim

White v. State, No. SC15-625, 2017 WL1177640 (Fla. Mar. 30, 2017)...................................................................24

iv

Williams v. State, 209 So. 3d 543 (Fla. 2017) ..........................................23

Witt v. State, 387 So. 2d 922 (1980).........................................................passim

v

Vv. abbr. 1. vsasus..- Also abbreviated vs. 2. Volume. -

Also abbreviated vol. 3. Verb. - Also abbreviated vb.4. (cap.) Victoria -- the Queen of England from 1837 to1901. 5. Vide. �042This Latin term, meaning "see," is usedin phrases such as quod vide ("which see," abbreviatedq.v.). 6. Voce (voh-see). �042This Latin term means "voice."

VA. abbr. (1945) DEPARTMENT OF vETERANs AFFAIRs.

vacancy, n. (16c) 1. The quality, state, or condition ofbeingunoccupied, esp. in reference to an office, post, or piecofproperty. 2. The time during which an office, pos orPiece ofproperty is not occupied. 3. An unoccupied o cpost, or piece ofproperty; an empty place. �042Although tterm sometimes refers to an office or post that is tempo-rarily filled, the more usual reference is to an office or postthat is unfilled even temporarily. An officer's misconductdoes not create a vacancy even if a suspension occurs;a vacancy, properly speaking, does not occur until theofficer is officially removed. 4. A job opening; a positionthat has not been filled.

vacancy clause. (1877) Insurance. A special indorsementallowing premises to be unoccupied beyond the periodstipulated in the original insurance policy, so that theinsurance remains in effect during policy extensions,often for a reduced amount.

vacant, adj. (13c) 1. Empty; unoccupied <a vacant office>.�042Courts have sometimes distinguished vacant fromunoccupied, holding that vacant means completelyempty while unoccupied means not routinely charac-terized by the presence ofhuman beings. 2. Absolutelyfree, unclaimed, and unoccupied <vacant land>. 3. (Ofan estate) abandoned; having no heir or claimant. - Theterm implies either abandonment or nonoccupancy forany purpose. 4. (Ofa job or position) unfilled and henceavailable for application by prospective employees.

vacantia (va-kan-sh[ee]-a). See bona vacantia under BONA.

vacantia bona (va-kan-sh[ee]-a boh-na). See bona vacantiaunder BONA.

vacant succession. See sUCCEssIoN (2),

vacate, vb. (17c) 1. To nullify or cancel; make void; invali-date <the court vacated the judgment>. Cf. OVERRULE.2. To surrender occupancy or possession; to move out orleave <the tenant vacated the premises>.

vacatio (va-kay-shee-oh). Civil law. Exemption; immunity;pnvilege; dispensation,

vacation, n. (15c) 1. A worker's paid leave of absence fromwork, esp. for the purpose of taking an annual holiday. -Also termed annual leave. 2. The act ofvacating <vacationofthe office> <vacation of the court's order>. 3. The periodbetween the end ofone term ofcourt and the beginningof the next; the space oftime duringwhich a court holdsno sessions. �042The traditional vacations in England wereChristmas vacation, beginning December 24 and endingJanuary 6; Easter vacation, beginning Good Friday andending Easter Tuesday; Whitsun vacation, beginning onthe Saturday immediately before and ending the Tuesday

immediately after Whitsunday (i.e., Pentecost, the seventhSunday after Easter); and the long vacation, beginningAugust 13 and ending October 23. 4. Loosely, any timewhen a given court is not in session. 5. Eccles. law. Theact or process by which a church or benefice becomesvacant, as on the death or resignation of the incumbent,until.a successor is appointed. - Also termed (in sense5 vacatura.

vacation ister. See BARRIsTER.

Vacatur y ay-tar), n. [Law Latin "it is vacated"] (17c)1. ofannulling or setting aside. 2. A rule or order

ich a proceeding is vacated.

vacatura (vay-ka-t[y]oor-a), n. [Latin] vACATION (5).

vacua possessio (vak-yoo-a pa-zes[h]-ee-oh). [Latin "avacant possession"] (17c) Roman & civil law. Free andunburdened possession, which a seller must convey toa purchaser.

vacuum abortion. See aspiration abortion under ABORTION.

vacuus (vak-yoo-as), adj. [Latili] Hist. EInpty; void; vacant;unoccupied.

vades. See vAs.

vadiare duellum (vad-ee-air-ee d[y]oo-el-am), vb. [LawLatin "to wage the.duellum"] Hist. To give pledgesmutually for engaging in trial by combat.

vadiare legem (vad-ee-air-ee lee-jam), vb. [Law Latin "towage law"] Hist. (Ofa defendant in a debt action) to givesecurity to make one's law on a day assigned - that is, thedefendant would pledge, upon giving the security, to dotwo things on the appointed day in court: (1) take an oathin open court that the debt was not owed, and (2) bring 11compurgators who would swear that they believed whatthe defendant said.

vadiatio (vad-ee-ay-shee-oh), n. [Law Latin] Hist. Wager.Cf. INVADIATIO. Pl. vadiationes (vad-ee-ay-shee-oh-neez).

> vadiatio duelli (vad-ee-ay-shee-oh d[y]oo-el-I). [LawLatin "wager ofbattle"] See TRIAL BY CoMBAT.

> vadiatio legis (vad-ee-ay-shee-oh lee-jis). [Law Latin"wager of law"] See WAGER OF LAW.

vadimonium (vad-a-moh-nee-am), n. Roman law. 1. Aguarantee (originally backed by sureties) that a litigantwould appear in court. 2. A solemn promise to thiseffect. - Also termed vadimony.

vadium (vay-dee-am), n. [Law Latin "pledge, bail, security"]Hist. 1. Securityby a pledge ofproperty.

>vadium mortuum (vay-dee-am mor-choo-am). [LawLatin "dead pledge"] (18c) A mortgage. �042This was con-sidered a "dead pledge" because an estate was given assecurityby the borrower,who granted to the lender theestate in fee, on the condition that ifthe money were notrepaid at the specified time, the pledged estate wouldcontinue as the lender's - it would be gone from, or

reecause of the supreme court of Roridd °s r

K. pasha barry try well daviG jr. and The Serrano case

"The Plaintiff here would like for the court to uge ¡T°S Game

S imi l a r GighT to ma Kc 1he opin that

f lo rida * co A 00 - 07275 must ha ve this art to

con viction G J udg e m en TG an d the sentences here because thig

Supreme courf of florida ao 87275 tc. (g a cf..

Jury vote case and

now Mr. alston has provided his Cfranscripts of the record D b g

the courT as an indica7ion that the jvry here did not ever

°usíy recommend his Sentence t'o death,

Se

Kha tid pasha *T7 fla. l. weeKLy S seg

carr y T. davig

42 fla,.L. weeKLy gsse

Snei grove tl 2 fla . L. weeKly S563

Serra n o

3.

occordingly

supre(ne court of fiorida should CDDGider the C53 CaGe9 Court

on9°ing Ccxistingo vacaturS o more a referral

O �040hem aç r eV lew iny ibis çUpreme Court of fLc>rid a

87 775 9- 3 case...

�042alston fi les this marçon ç, .r The dPProPriaTe relief ½ �040here

because the vacatur5 c2re b©'ning routine anò in the y>aticcn

° the ad judicated death renalty constitutional tssa-es T

This court Seco as the reviewing coact in the hurst

9

7 k 9d 435 Second petition Er atKins claims and

secause he may be simitarty situated a n reality

he "S asking the court to remand him to his court To

k a y e it to then deter ni in e if he''s etg i bl e fe. to

r ec e i V C' The evide ni la fy hear ing to ai scu ss rbe hiirst

1 II Cerrors and The ES. 42'Lilli mpediVnent to th6n ObaiM

flew Trial based on the contents of this w)otion

con side r i ng i f that rne supreme couri of flarida, has vacate

almosT C2%- aco cases from The death Penalty centence a

5 retare 16 the burSt vs. florida errors

f l.a . l . Week').y ç g y

si mrnong 42 fla_ )

Pressley b. atGion°c written Content herec)rievance to

redress the q.s.' q21. death penalty stature that

and chang ed from the q.s.* q

fr a me war K that was flor (da °G past old

th e sFC 0 C er hearin g g "tedd er* Gto od ardsand the GJ

t caT cd sy ste

V9. diton and the tedde dGe Standards that

eg a l and the law fu l

ænstitutionality o 25 death penalty statute

Cr i pli nal la w h Precedure s j ur y in GTruction g ,y par ti cu lar i nstr aCfíon5 f, S? g7f. jy 1

Po rf i C u lar thstruc o ng

Cct vehicle for determinaba

Y s-" 921.141 CD CD (3)

ceirn inol law ( procedure > habeas corpus > retro activir of aec¡grons

¶ �254GeralOs erv (Cw ænstitut ional procedores >pro ced urai d ae prccess

see bottogon 33 go. 2d 693

K n g

burst I II ClaimG Case 202 e.g yo

136 S.ct 6'16

©�0400 as The cv imi nal trial proceeding g phage mag

° f fec by The çç.* qr oct u ra l errof iD but St

and The F.S.+ q21.141 CD C2) C

l° Í°C W S�040i 1 M i io n a Ll.y begici e y>T in i furcated prcredures

in hurst

M0y ThiS Couri Yemand preggley 9_ algton to his cour�040ça,

ev identiary heativg to have his Transcripfg record cod th6 f.G 421.

crotuie diccussed for a new Trial as the judge éstructed the jury hereo o 10 a n uncavaiTu Tiona L rna nner

see· The Transcript of record

Given ibe Compounded issues of �040he e 92'LW

Ca h pena lT y statute as the CD Supreme CoorT C

f.C. 77 5 . 092

Cour T mu I allow presç(ey b. Olst

hea ring To çbou; The court that his Tria l pha se C2)

cc. .

I Wo Jury°J Phase was infected when the judge instructed

Q novi- una ni mouG Ynanner and

7 b· OL5ton The r ig h t b

ibe mogte

Cre as The Courf granted

05�254don the ytb .al Circui�040³g

of a death penatry trial moricn thatdGKc the ært To

dectore the F.S 921.14Geciton unaxstitutiona

See "lo ey * 202 ca. M 1246

* 42 Flw ces

resprifully filed by

6- PEstey b. dlSton

EXHIBlT 6

IN THE CIRCUIT COURT OETHE FOURTIL.. JUDICIAL CIRCUIW IlfAND FOR DUVAL

COUNTY, FLORIDA

PRESSLEY ALSTON CASE NOr - 95-5326CF/95-5373CFAPPELLANT

vs. APPEALNO 87,275

STATE OF FLORIDA ..

APPETLER

INSTRUMENT INDEL . DATEJILED PAGE

V )L

Testimony- and Proceedings taken- Non 29 1995 Ih 1996 853-1052

VOLUME¯ XVI

Testimony and takn Non 29% 3G 995 April 1996 1053-1252

Testimony andxProceedin 30;�576i cDec. 1,11,13 1996¯ Apr H, 319 1253-1.452 ..

Testimony ancFPhoceec tå beC W3h AgdL 199 1453-1652

Testimony and Proceedings takerr Dec. 13½14 20e 1995January 12,. 1996 _ . . Apri 1996 1653-1818

c.

PS-01213

. 1653

1 . IN THE CIRCUIT COURT, OF THE. FOURTH JUDICIAL CIRCUIT, IN

2 AND FOR DUVAL COUNTY, FLORIDA.

3 CASE NO. 95-5326-CF &94-5373-CF

DIVISION: CR-A

5 STATE OF FLORIDA,

6 vs.

7 PRESSLEY B. ALSTON,Apq 17 1996

8 Defendant. ..- COUR

10

11 TESTIMONY AND PROCEEDINGS before the Honorable Aaron

12 K. Bowden, Circuit Judge, in Courtroom No. 7, Second

13 Floor, Duval County Courthouse, Jacksonville, Florida, on

14 Wednesday, December 13, 1995, Thursday, December 14, 1995,

15 Wednesday, December 20, 1995, and Friday, January 12,

16 1996, as recorded by Cynthia M. Olk, Registered

17 Professional Reporter.

18

19 APPEARANCES:

20 HARRY SHORSTEIN, Esquire,- State Attorney, and f 5 1996

21 ANGELA COREY-LEE, Esquire,Assistant State Attorney,

22 appearing on behalf of the State. homensrcouer

23 WILLIAM WHITE, Esquire, andALAN CHIPPERFIELD, Esquire,

24 Assistant Public Defenders,appearing on behalf of the defendant.25 _ _ _

1748

1 overruled, the photograph is to be considered in

2 evid'ence.

3 So I hope your argument is not that it wasn't in

4 evidence?

5 MR. CHIPPERFIELD: Oh, no. No. That was the

6 understanding that we had.

7 THE COURT: I didn't understand that.

8 MR. SHORSTEIN: Because that obviously would be

9 wrong to exhibit it to the jury if it wasn't in

10 . evidence. But that's not your objection.

11 MR. CHIPPERFIELD: I'm merely re-raising the

12 objection we raised earlier, and I wanted to make it

13 clear since for the record, since the record doesn't

14 reflect how the photo was used in closing argument, I

15 wanted it to be clear that it was placed on the easel

16 and at those times I referred to and left in view of

17 the jury for a pretty significant period of time.

18 THE COURT: Very well. The objections are

19 overruled. Your motion is denied.

20 We'll start back at noon, 12:00.

21 (Short recess)

22 THE COURT: Okay, bring the jury in, please.

23 Have a seat, please, ladies and gentlemen.

24 Okay. Ladies and gentlemen of the jury, it is

25 now your duty to advise the Court as to what

1749

1 punishment should be imposed upon the defendant for

2 his crime of murder in the first degree.

3 As you have been told, the final decision as to

4 what punishment shall be imposed is the

5 responsibility of the Judge, however, it is your duty

6 to follow the law that will now be given you by the

7 Court and render to the Court an advisory sentence

8 based upon your determination as to whether

9 sufficient aggravating circumstances exist to justify

10 the imposition of the death penalty, and whether

11 sufficient mitigating circumstances exist to outweigh

12 any aggravating circumstances found to exist.

13 Your advisory sentence should be based upon the

14 evidence that you have heard while trying the guilt

15 or innocence of the defendant, and evidence that has

16 presented -- and evidence that has been presented to

17 you in these proceedings.

18 The aggravating circumstances that you may

19 consider are limited to any of the following that are

20 established by the evidence:

21 No. 1. The defendant has been previously

22 convicted of another capital offense or of a felony

23 involving the use or threat of violence to some

24 person. The crimes of false imprisonment and

25 aggravated assault are felonies involving the use or

1750

1 threat of violence to another person.

2 No. 2. The defendant, in committing the crime

3 for which he is to be sentenced, was engaged or was

4 an accomplice in the commission of or an attempt to

5 commit, or flight after committing or attempting to

6 commit the crime of kidnapping.

7 No. 3. The crime for which the defendant is to

8 be sentenced was committed for the purpose of

9 avoiding or preventing a lawful arrest or effecting

10 an escape from custody.


12 be sentenced was committed for financial gain.

13 No. 5. The crime for which the defendant is to)

14 be sentenced was especially heinous, atrocious or

15 cruel.

16 Heinous means extremely wicked or shockingly

17 evil.

18 Atrocious means outrageously wicked and vile.

19 Cruel means designed to inflict a high degree of

20 pain with utter indifference to or even enjoyment of

21 the suffering of others.

22 A kind of crime intended to be included as

23 heinous, atrocious or cruel is one accompanied by

24 additional acts that show that the crime was

25 conscienceless or pitiless -- I'm sorry, let me back

1751

1 up -- accompanied by additional acts that show that

2 the criminal was conscienceless or pitiless or was

3 unnecessarily tortuous to the victim.


5 be sentenced was committed in a cold, calculated and

6 premeditated manner without any pretense of moral or

7 legal justification.

8 In order for you to consider this aggravating

9 factor, you must find the murder was cold and

10 calculated and premeditated and that there was no

11 pretense of moral or legal justification.

12 Cold means the murder was the product of calm

13 and cool reflection.

14 Calculated means the defendant had a careful

15 plan or prearranged design to commit the murder.

16 Premeditated means the defendant exhibited a

17 higher degree of premeditation than that which is

18 normally required in a premeditated murder.

19 A pretense of moral or legal justification is

20 any claim of justification or excuse that, though

21 sufficient to reduce the degree of homicide,

22 nevertheless rebutts the otherwise cold and

23 calculating nature of the homicide.

24 If you find the aggravating circumstances do not

25 justify the death penalty, your advisory sentence

1752

1 should be one of life imprisonment without

2 possibility for parole.

3 You are reminded that the victim impact evidence

4 offered by Sharon Coon during the penalty phase of

5 this trial shall not be considered as an aggravating

6 circumstance but may be considered in making your

7 decision.

8 Should you find sufficient aggravating

9 circumstances do exist, it will then be your duty to

10 determine whether mitigating circumstances exist that

11 outweigh the aggravating circumstances.

12 Among the mitigating circumstances you may

13 consider, if established by the evidence, are: Any

14 aspect of the defendant's character or record and any

15 other circumstances of the offense.

16 Each aggravating circumstance must be

17 established beyond a reasonable doubt before it may

18 be considered by you in arriving at your decision.

19 If one or more aggravating circumstances are

20 established, you should consider all of the evidence

21 tending to establish one or more mitigating

22 circumstances and give that evidence such weight as

23 you feel it should receive in reaching your

24 conclusion as to the sentence that should be imposed.

25 A mitigating circumstance need not be proved

1753

1 beyond a reasonable doubt by the defendant. If you

2 are reasonably convinced that a mitigating

3 circumstance exists, you may consider it as

4 established.

5 The sentence that you recommend to the Court

6. must be based upon the facts as you find them from

7 the evidence and the law. You should weigh the

8 aggravating circumstances against the mitigating

9 ci cumstances and your advisory sentence must be

10 based on these considerations.

11 Ehese pr_ö eedings iFMTöt~necessa-ry

12 hthWä-dViWy_Wnce of the_jnry_be_unaniiiioM T e

13 fact that the determination of whether you recommend

14 a sentence of death or recommend a sentence of life

15 imprisonment in this case can be reached by a single

16 ballot should not influence you to act hastily or

17 without due regard for the gravity of these

18 proceedings. Before you ballot, you should carefully

19 weigh, sift and -- before you ballot you should

20 carefully weigh, sift and consider the evidence, and

21 all of it, realizing that human life is at stake and

22 bring to bare your best judgment in reaching your

23 advisory sentence.

24 If a majority of the jury determine that

25 Pressley Alston should be sentenced to death, your

1754

1 advisory sentence will be, and it's right here on the

2 same type of form that you had before, as follows:

3 "A majority of the.jury by a vote of blank to

4 blank," you would fill in the numbers, "advise and

5 recommend to the Court that it impose the death

6 penalty upon Pressley Alston." If that is your

7 recommendation, it would be filled in and signed by

' 8 the foreman or the presiding officer of the jury.

9 On the other hand, if by six or more votes the

10 jury determines that Pressley Alston should not be

11 s,entenced to death, your advisory sentence will

12 be: "The jury advises and recommends to the Court

13 that it impose a sentence of life imprisonment

14 without eligibility for parole upon Pressley Alston."

15 And that is that. This recommendation there are no

16 blanks to be filled in, but it is to be signed by the

17 presiding officer if that is your recommendation.

18 You will now retire to consider your

19 recommendation. When you have reached an advisory

20 sentence in conformity with these instructions,

21 again., that form of recommendation should be signed

22 by the foreman, and you will then return to court.

23 Does counsel have any exceptions or objections

24 to the instructions as read by the Court?

25 MR. SHORSTEIN: The State does not.

CERTIFICATE OF COMPLIANCE

The Court has never found a Hurst error harmless in a case, like Petitioner's,

where the jury vote was not unanimous. The Court has now addressed harmless

error and granted relief in numerous non-unanimous-recommendation cases that

are materially indistinguishable from Petitioner's. See, e.g., Johnson v. State, 205

So. 3d 1285, 1288 (Fla. 2016) (11-1 jury vote); McGirth v. State, 209 So. 3d 1146,

1150 (Fla. 2017) (11-1 jury vote); Durousseau v. State, No. SC15-1276, 2017 WL

411331, at *5-6 (Fla. Jan. 31, 2017) (10-2 jury vote); Kopsho v. State, 209 So. 3d

568, 569 (Fla. 2017) (10-2 jury vote); Hodges v. State, No. SC14-878, 2017 WL

1024527 at *2 (Fla. Mar. 16, 2017) (10-2 jury vote); Smith v. State, Nos. SC12-

2466 & SC13-2111, 2017 WL 1023710 at *17 (Fla. Mar. 17, 2017) (10-2 and 9-3

jury votes); Franklin v. State, 209 So. 3d 1241, 1245 (Fla. 2016) (9-3 jury vote);

Hojan v. State, No. SC13-5, 2017 WL 410215, at *2 (Fla. Jan. 31, 2017) (9-3 jury

vote); Armstrong v. State, 211 So. 3d 864, 865 (Fla. 2017); Williams v. State, 209

So. 3d 543, 567 (Fla. 2017) (9-3 jury vote); Simmons v. State, 207 So. 3d 860, 867

(Fla. 2016) (8-4 jury vote); Mosley, 209 So. 3d at 1284 (8-4 jury vote); Dubose,

2017 WL 526506, at *11 (8-4 jury vote); Anderson v. State, No. SC12-1252, 2017

WL 930924, at *12 (Fla. Dec. 1, 2016) (8-4 jury vote); Calloway v. State, 210 So.

3d 1160, 1200 (Fla. 2017) (7-5 jury vote); Hurst v. State, 202 So. 3d at 69 (7-5 jury

vote); Brooks v. Jones, No. SC16-532, 2017 WL 944235, at *1 (Fla. Mar. 9, 2017)

(9-3 and 11-1 jury votes); Ault v. State, No. SC14-1441, 2017 WL 930926 at *8

(Fla. Mar. 9, 2017) (9-3 and 10-2 jury votes); Jackson v. State, SC13-1232, 2017

WL 1090546 at *6 (Fla. Mar. 23, 2017) (11-1 jury vote); Baker v. State, Nos.

SC13-2331, SC14-873, 2017 WL 1090559 at *2 (Fla. Mar. 23, 2017) (9-3 jury

vote); Deviney v. State, No. SC15-1903, 2017 WL 1090560 at *1 (Fla. Mar. 23,

2017) (8-4 jury vote); Orme v. State, Nos. SC13-819 & SC14-22, 2017 WL

1177611, at *1 (Fla. Mar. 30,.2017) (11-1 jury vote); Bradley v. State, No. SC14-

1412, 2017 WL 1177618, at *2 (Fla. Mar. 30, 2017) (10-2 jury vote); White v.

State, No. SC15-625, 2017 WL 1177640, at *1 (Fla. Mar. 30, 2017) (11-1 jury

vote); Guzman v. State, No. SC13-1002, 2017 WL 1282099, at *1 (Fla. Apr. 6,

2017) (7-5 jury vote); Abdool v. State, Nos. SC14-582 & SC14-2039, 2017 WL

1282105, at *8 (Fla. Apr. 6, 2017) (10-2 jury vote); Newberry v. State, No. SC14-

703, 2017 WL 1282108, at *4-5 (Fla. Apr. 6, 2017) (8-4 jury vote); Heyne v. State,

No. SC14-1800, 2017 WL 1282104, at *5 (Fla. Apr. 6, 2017) (10-2 jury vote);

Robards v. State, No. SC15-1364, 2017 WL 1282109, at *5 (Fla. Apr. 6, 2017) (7-

5 jury vote); McMillian v. State, No. SC14-1796, 2017 WL 1366120, at *11 (Fla.

Apr. 13, 2017) (10-2 jury vote); Brookins v. State, No. SC14-418, 2017 WL

1409664, at *7 (Fla. Apr. 20, 2017) (10-2 jury vote); Banks v. Jones, No. SC15-

297, 2017 WL 1409666, at *9 (Fla. Apr. 20, 2017) (10-2 jury vote); Alterberger v.

State, Nos. SC15-628, SC15-1612, 2017 WL 1506855 (Fla. Apr. 27, 2017) (9-3

jury vote); Hampton v. State, Nos. SC15-1360, SC16-6, 2017 WL 1739237 (Fla.

May 4, 2017) (9-3 jury vote); Card v. Jones, No. SC17-453, 2017 WL 1743835

(Fla. May 4, 2017) (11-1 jury vote); Pasha v. State, SC13-1551, 2017 WL

1954975 (Fla. May 11, 2017) (11-1 jury votes); Serrano v. State, Nos. SC15-258,

SC15-2005, 2017 WL 1954980 (Fla. May 11, 2017) (9-3 jury votes); Snelgrove v.

State, Nos. SC15-1659, No. SC16-124, 2017 WL 1954978 (Fla. May 11, 2017) (8-

4 jury votes); Davis v. State, No. SC15-1794, 2017 WL 1954979 (Fla. May 11,

2017) (9-3 and 10-2 jury votes); Hernandez v. Jones, No. SC17-440, 2017 WL

1954985 (Fla. May 11, 2017) (11-1 jury vote); Caylor v. State, Nos. SC15-1823,

SC16-399, 2017 WL 2210386 (Fla. May 18, 2017) (8-4 jury vote); Hertz v. Jones,

No. SC17-456, 2017 WL 2210402 (Fla. May 18, 2017) (10-2 jury vote). The same

harmless error result should occur in Petitioner's case.

CONCLUSION

For the foregoing reasons, Petitioner respectfully requests that this Court

grant a writ of habeas corpus, vacate his death sentence, and remand for a new

penalty phase.

Headnotes and indexes are copyrighted and may not be duplicated. by photocopying, printing,or other means without the express permission of the publishers. 1-800-351-0917

S569

²° SUPREME COURT OF FLORIDACriminal law-Murder-Deathpenalty-Counsel-Self-representa-tion-Record does notsupportclaim thattrial court's offerofcounsel,which included a procedural benefit, violated defendant's right to self-representation, violated public policy, or constituted fraud in theinducement-Although a trial court's offer of counsel that simulta-neouslycontains a procedural benefitmay raise dueprocess concernsin some circumstances, no cause for concern exists under facts ofinstant case---Speedy trial-Defendant, whose retrial was held lessthan 3 years after Fiorida Supreme Court's mandateordering retrialbecause defendant's right toself-representation was violated, was notdeprived ofconstitutional right to speedy trial under balancing testestablished inBarker v. Wmgo-Trial court's granting ofdefendant'smotion for continuancerenderedmoot defendant's argument thattrialcourt erred in striking notice of expiration of speedy trial time anddenying motion for discharge-Judges-Disqualification-Denial ofmotion to disqualifyby a successorjudgewill onlybereversed ifrecordclearly refutes.successorjudge's decision to deny motion, and recordin instant case does not clearly refute denial of motion-Search andseizure---Vehicle stop-Under totalityofcircumstances, facts knowntodeputies immediatelyprior to investigatorystopprovided them withobjectively reasonable basis to justify stop-Claim that deputiesdetaiped defendant longer than necessary has no merit-Standbycounsel-,Successor judge did not err in reappointing as standbycounsel anattorneywhohadpreviouslyserved as standbycounsel whohad been discharged by predecessor judge after. defendant made it

. clear thathedidnotwish toconsultwithhim-Successorjudge didnotabuse its discretion in denying defendant's motion to reconsiderpredecessor successor judge's denial of motion to dismiss standbycounsel and did not err in denying currentmotion to dismiss standbycounsel after Nelson inquiryatwhich defendantpresentedno groundsto question counsel's competence-Evidence-Hearsay-911 record-ing and transcript-911 recording in which witness described hercontemporaneous observations of defendant covered in blood andcarryingknife-likeobjectand ensuing events observedby witness wasproperly admitted under hearsay exception, whether as excitedutterance or spontaneous statement-Claim that portion of 911recording inwhichcaller relayed to 911 dispatcher theobservations ofthe caller's husband was hearsay within hearsay and, therefore,inadmissible was not preserved for review by specific contemporane-ous objection-Introduction to 911 recording was not inadmissiblehearsay, as introduction was not offered for its truth, but merely toorient jury to nature of recording that followed-Confrontation ofwitnesses-Claimthatintroductionto911recordingandtranscriptofrecording constitutedtestimonialhearsaybecausetheywereproducedby law enforcement in anticipation oflitigation was not preserved forreviewby specific objection-Claim that trial court erred in failing tomake independent pretrial determination ofaccuracy oftranscript of911 recording was preserved for appeal where defendant argued thattranscript was "altered"-However, any error in distribution oftranscript to jury was harmless beyond reasonable doubt becausetranscriptwas cumulative to testimony provided at trial-Claim thattrial court failed to givecautionary instruction tojuryregarding useoftranscript was not preserved for review where defendant did notrequest such instruction-Alibijury instruction-Trial court did notabuse its discretion in denying request for alibi instruction wheredefendant did not present evidence to show that it would have beenphysically impossible forhim tohave committed themurders-Courtneedes fromAdams v. State to extent thatit is inconsistentwithholdingin instant case-Claim that reversal is required because certaincomments made by trial court during guilt phase allegedly implied toprospectivejurors andjurors that trial court expected a guiltyverdict

was not preserved for appeal by contemporaneous objection-Photographs-Claim that trial court erred in admitting crime scenephotographs of victims because defendant and state stipulated toidentityofvictims was notpreserved forappeal byspecificobjection-Motion in limine did not preserve issue where trial court never madea definitiveruling on the issue raised in themotion-Trialcourtdidnotabuse its discretion inadmittingmorgue photographs ofvictim-Noneof the other guilt-phase evidentiary rulings, either individually orcumulatively, deprived defendantoffair trial,including argument thattrial court improperly refused to instruct witness to avoid nonre-sponsive answers; improperly refused to curtail improper opiniontestimony regarding defendant's guilt; improperly overruled objec-tions to prosecutor's leading questions; erred in ruling thatdefendantcould impeach prosecution witness with prior inconsistent statementonly by admitting entire transcript from hearing, rather than usingtwo-page excerpt; erred in admitting crimescene diagram; and erredin excluding evidencewithoutallowing defendant to proffer testimonyonmultiple occasions-Silence ofdefendant-Prosecutor's questionsduring cross-examination of defendant were not fairly susceptible ofbeing construedbyjuryas commenting on defendant's exerciseofrightto remainsilent---Claim thatprosecutor improperly asserted personalknowledge ofdefendant's guilt while crossemining defendant wasnot preserved for review by contemporaneous objection and, in anyevent, was without merit-Argument-Claim that prosecutor im-propérly asserted personal knowledge of defendant's guilt in singlecomment during closing argument was not preserved for review bycontemporaneous objection-Moreover, guilty verdict could havebeen obtained without assistanceofthis alleged error-Evidencewassufficient tosupportconvictions--Mentencing-Hursterroroccurredwhere jury did not iind each fact necessary to impose sentence ofdeath-Error not harmless where jury's recommendation of deathwas not unanimous-New penalty phase requiredKHAUDALIPASHA,Appellant,v.STATEOFFIDRIDA,Appellee.SupremeCourtofFlorida. CaseNo. SC13-1551. May 11,2017. An Appeal from the CircuitCourt mand for Hillsbozough County, Kimberly Kay Fernandez, Judge - Case No.292002CF013748000AHC. Counsel:HowardL."Rex"Dimmig,II,PublicDefender,and KarenM. Kinney,AssistantPublicDefender, TenthJudicial Circuit, Bartow, forAppellant. Pamela Jo Bondi, Attorney General, Tallahassee; and Scott A. Browne,SeniorAssistantAttorney General, Tampa, forAppellee.

(PER CURIAM.) This case is before the Court on direct appeal,following a retrial, from a judgment of conviction of two counts offirst-degree murder and two sentences of death for the slaying ofRobin Canady andReneesha Singleton.' We havejurisdiction.See art.V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirmKhalid Ali Pasha's convictions but vacate the death sentences andremand for a new penalty phase based on the United States SupremeCourt' s opinion inHurst v. Florida (Hurstv. Florida), 136 S.Ct.6 16(2016), and this Court's opinion on remand inHurst v. State (Hurst),202 So. 3d 40 (Fla. 2016), petitionfor cert. filed, No. 16-998 (U.S.Feb. 13, 2017).

FACTS AND PROCEDURAL HISTORYAt approximately 10 p.m. on August 23, 2002, Robin Canady

drove to theWoodland Corporate Center ("WCC") inherwhiteBuickto pick up Reneesha Singleton, her daughter, from a training class.Earlier that day, Canady had discussed with Pasha, her husband,Canady's plan to pick up Singleton. That same evening, Pasha droveto the WCC in his white work van after visiting his ex-wife. Uponarriving at the WCC, Pasha put on a whitejumpsuit and whiteboots.He then walked to Canady's vehicle, sat in thebackseat whileCanadyremained in the driver's seat, and awaited Singleton's arrival. Pashawas still sitting in the backseat of Canady's vehicle when Singletonentered it.

Headnotes and indexes are copyrighted and may not be duplicated by photocopying, printing,or other means without the express pennission of the publishers. 1-800-35 b0917

42 Fla. L.Weekly S558 SUPREME COURT OF FLORIDA

the text ofRule 2.530(d)(1). (POLSTON, J., concurs.)

Criminal law-Murder-Deathpenalty--Search andseizure-Trialcourtdidnoterr indenyingmotion to suppress photographs and videotaken bypolice at defendant's residence during execution ofwarrantto search forvictim's debitcard-Trial.courtdid not err in admitting .evidence ofdefendant?s priorpossession ofrevolver where testimonyserved toexplainwhyprosecutionwitness believed defendantwhenhetold her he had a gun at the victim's house the night of the murder,even though themurderweaponwas nota firearm--Defense counselopened door to testimony. by presenting .inconsistency betweenwitness's prior statement to lawenforcementthatdefendanthad a gunat the house on night of murders and her testimony at.trial that shenever saw or heard a gun-Trial court did not err in denying defensecounsel's objection to prosecutor's display, during closing argument,of photograph of prosecution witness crying on the witness standduring guilt phase oftrial and did not abuse its discretion in denyingmistrial-Evidence was sufficient to support first-degree murderconvictions-Sentencing-Hurst error occurred whenjudge, ratherthanjury, made necessary findings to impose death sentence-Errornot harmless where jury's recommendation of. death was notunanimous-New penalty phase requiredBARRY TRYNELLDAVIS, JR., Appellant, v. STATE OF FIDRIDA, Appellee.SupremeCourtofFlorida. CaseNo. SC15-1794.May 1.1,2017. AnAppeal from theCircuit Court in and for Walton County, Kelvin Clyde Wells, Judge - Case No.662013d1000124CFAXMX. Counsel: Andy Thomas, Public Defender, and RichardM. Bracey, III, Assistant Public Defender, Second Judicial Circuit, Tallahassee, forAppellant. PamelaJo Boridi, Attorney General, and Jennifer L. Keegan, AssistantAttorney General, Tallahassee, forAppellee.

(PERCURIAM.) Barry TrynellDavis, Jr., appeals his convictions andsentences ofdeath for the murders ofJohn GregoryHughes and HeidiAnn Rhodes. We havejurisdiction. See art. V, § 3(b)(1), Fla. Const.For the reasons thatfollow, weaffmnDavis's convictions but vacatethe sentences ofdeath and remand for a new penalty phase pursuantto Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016),petitionfor cert.filed, No.16-998 (U.S.Feb. 13,2017), dueto thejury's nonunanimousrecommendations of death for both victims, which are not harmlessbeyond a reasonable doubt.

FACTS AND BACKGROUNDThe murders occurred onMay7,2012. At the time ofthe murders,

Davis was twenty-sixyears old and had one child, Andreian ("Drey"),with Tiffani Steward, his on-and-off girlfriend of several years.

The victims, John Gregory Hughes and Heidi Ann Rhodes, werelast seen on May 7, 2012. Hughes was forty-nine years old. Rhodeswas almost forty-oneyears old. Rhodes' dog, Molly, who went almosteverywhere with Rhodes, was also missing. At the time of theirdisappearance, Hughes and Rhodes had been dating for approxi-mately one year. Thevictims lived together inHughes' house in SantaRosa Beach, Florida, although Rhodes also rented another property.

Davis and Hughes knew each other from previously beingincarcerated at the sametime. According to witnesses, the two stayedin contact after their independent releases. Davis sold drugs toHughes.

On May 9, 2012, Rhodes' employer, Ray Webb, became con-cerned about Rhodes' well-being after she did not show up for anappointment. Webb drove to Hughes' house and Rhodes' house andfound no one at either place. There was no sign of Molly at eitherhouse. Webb, however, noticed "a lot ofcleaning materials, bucketsand mops and things sitting in the edge of the driveway" ofHughes'house.

A few days later, Webb reported Rhodes missing. At Webb'srequest, theWalton County Sheriff's Office (WCSO) went to Hughes'housetocondúctasve1farecheckonRhodes.WCSOfoundnopersons

or vehicles present, but nothing seemed out ofthe ordinary.WCSOthenreceived amissing-personsreportfromRhodes'sister,

Cecaire McPherson. Rhodes' family had become worried whenRhodes did not contact her mother on Mother's Day. WCSO con-ducted welfare checks on Rhodes at both Rhodes' house, whichappeared to be in a normal, lived-in condition, and Hughes' house;which appeared to be empty. When thewelfarechecks did not locateHughes or Rhodes, WCSO initiated missingeperson investigations.

Rhodes' sisters also went to Rhodes' house and Hughes' houselooking for the ·victims. Both houses were vacant, and Rhodes'mailbox was completely filled. When they looked inside Hughes'house, they saw a commercial mop bucket in the middle ofthe livingroom floor. Theonly furniture inHughes' house was apool table, andit looked like the TV had been pulled off the wall. Hughes' 2003Cadillac EscaladeEXT was not visible on the property.

Officers were led to Davis as a person of interest in Hughes' andRhodes' disappearance through a series of transactions on Hughes'bank card and several checks written to the order of Davis fromHughes' bank account. When asked aboutHughes' disappearance ina series ofinterviews, Davis told officers thatHughes paid him to loadHughes' furniture into a rental truck and to later clean and manageHughes' residential property. Davis stated that (1) helast sawHughesand Rhodes when they left Hughes' house in the rental truck full offurniture, though he did not know where Hughes moved or how tocontacthim; (2)heremembered Hughes saying thathewas moving toBarbados to hide from people to whom he owed money for drugs;¹and (3) Molly no longer belonged to Rhodes.

. On June 18, 2012, officers.executed a search warranton a storageunit at Freeport Storage that Davis and Donna Gee, Davis's friend,wererenting. Inside the storageunit, officers found fourbarstools thatbelonged to Hughes.2 Also that day, investigators interviewed CecilGalloway, Davis's friend, who said he had helped Davis movefurniture out of a house in Santa Rosa B.each. Galloway did notremember seeing a male owner or female at the house but remem,-bered that, when he arrived, "the dressers [in the house] were alreadyemptied," although "the house appeared to have everything in it."According to Galloway, everything in the house was loaded into ayellow Ryderpick-up truck in about three hours.

On July 10, 2012, officers executed a search warrant on Davis'shome in Argyle, Florida,3 looking for Hughes' Regions Bank debitcard, which they did not find. Later that day, Davis was arrested forgrand theft ofHughes' vehicle ahd credit card fraud related to use ofHughes' bank card.

While Davis was in jail, law enforcement officers interviewedSteward several times. However, she was not forthcoming withinformation. On September 25, 2012, Davis was released fromjail.Following his release, Davis and Steward moved from Argyle toDestin, Florida and rented for several months a house referred to as"the Grand Key Loop house."

In October2012, WCSO foundHughes' Escalade, whichhadbeenreported stolen, parked in the back ofKenneth Ingram's property inDeFuniak Springs, Florida, covered by a tarp.Ingram toldofficers thatDavis had asked to park theEscalade onhisproperty. Upon searchingthe Escalade, officers discovered that the back bench seat wasmissing, and the back carpet had been roughly cut out. The carpetremaining inside the Escalade had bleach stains, and the interior wascovered in mold. Cadaver dogs used in law enforcement's investiga-tion detected human remains inside the Escalade. Gallowaystated thathe last saw the vehicle at Davis's home in Argyle, where he helpedDavis remove the seat and carpet, which Gallowayremembered beingmoist. According to Galloway, when he asked Davis why they wereremoving the seat and carpet from the Escalade, Davis said that a bodyhad been in the vehicle. Galloway also reported seeing remnants of

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SUPREME COURT OF FLORIDA 42 Fla. L.weeldy 8563

a new penalty phase.¹° Because we remand for a new penalty phaseunderHurst, we decline to address Davis's otherpenalty phase claimsand need not address the proportionality ofhis death sentences.

CONCLUSIONBased on the foregoing, we affirm Davis's convictions, vacate

Davis's sentences ofdeath, and remand for a new penalty phase.. It is so ordered. (LABARGA, C.J., and PARIENTE, LEWIS, andQUINCE, JJ., concur. CANADY, POLSTON, and LAWSON, JJ.,concur as to the conviction and dissent as to the sentence.)

'A neighbor ofHughes' also recalled Davis saying that Hughes was moving toBarbados.

2Kelly Kamens and William G. Smith, to whom Hughes had previously givenpowerofattorney, identified the barstools as belongingto Hughes.

³Davis andSteward moved to this house a few weeks afterHughes' and-Rhodes'murdem afterpayingoffthe debtowed on theirprevious home, referred to as "theNewHannony house," in cash.

4Stewarddid nottell ollicers aboutthesaw duringprior interviews. At trial, Stewardclaimed that "something [they] were talking aboutorsomething in deposition ... made[her] rememberabout the saw."

. SIn anötherversion ofthestory,Davis told Stewardthathe had scattered the ashes,or the parts ofthe bodies thatwould notburn.

'Geewas also on the U-Haul rental and told law enforcement that "she rented theU-Haulforherself...tomoveherdadwhohadjustrecentlydivorced."

7Spencerv. State, 615 So.2d 688 (Fla. 1993)."ThejuryalsoconvictedDavisof(a)burglaryofadwelling,-(b)theft,(c)twocounts

ofgrandtheftofanautomobile,.(d)burglaryofunoccupiedstructure,(e)fraudulentuseofa credit card ($100 or more), (f) three counts of forgery ofa check, and (g) threecounts ofuttering a forged check:The trial court imposed the following sentences fortheotherconvictions(totalingseventyyearsofimprisonmenttorunconsecutivelywithcredit for time served): fifteenyears' imprisonmentforburglaryofa dwellingand fiveyears forburglaryofanunoccupiedstructure, fiveyears each for two counts ofcar theftand fiveyears for theft, fiveyears for fraudulentuseofa creditcard, fiveyears each forthree counts of forgery of a check, and five years each for three counts ofuttering aforged instrument.

*1'he forty nonstatutory mitigating circumstances that the trial judge found to beprovenbyaprepondemnceoftheevidenceandtheirrespectiveassignedweightswere:(1)Davis lived in a violentneighborhoodfora significantperiod oftimedittleweight),(2) Davis lived in Los Angeles during the Rodney King riots (no weight), (3) Davisremembers seeing blood, chalk lines, and other evidence ofhomicides on his way toschool. in Los Angeles (little weight), (4) Davis's mother was detached andunaffectionateand had very limited contactwith him afterhe moved to Florida to livewithhisfather0ittleweight),(5)Daviscouldnotreadandwriteatgradeleveluntilhewas ten years old (no weight), (6) Davis had limited contact with his father betweenages six and nine (no weight), (7) Davis has a close bond with his siblings Oittleweight), (8) Davis unexpectedly moved to Florida at nine years old (no weight), (9)Davis exhibited good courtroom behavior during trial (no weight), (10) Davis iscapable of strong, loving relationships Oittle weight), (11) Davis has a special bondwith his son (moderate weight), (12) Davis was homeschooled for two years to catchup academically (no weight), (13) Davis has a family who loves him very much(moderate weight), (14) Davis has a history of traumatic brain injury (moderateweight), (15) Davis firstencounteredmeism in PopWarner football whena teammatecalledhim the "n" wordwithoutbeingpunished (noweight), (16)Davis was skilled insports (no weight), (17)Davis suffers from anxiety (no weight), (1 8) Davis was helpfulto an elderlyneighborGittle weight), (19)Davis saved an elderlyman from drowning(substantialweight),(20)Davisfeltabandonedbyhismother0ittleweight),(21)Davisfelt abandoriedbyhis fatherand stepmotherafterhis arrest at seventeenyears old (noweight), (22) Davis assisted Hughes (the victim) in prison when other inmates wereplanning to attack him (no weight), (23) Davis has a history ofillegal drug use Oittleweight), (24) Davis was a victim of a stabbing and robberies during his early drugdealing years while estranged from his family (no weight), (25) Davis suffered fromemotional distress due to his relationship with Steward in the weeks preceding themurders (no weight), (26) Davis has memory deficits as a result of traumatic braininjury Qittleweight), (27) Davis has a tic disorder(noweight), (28)Davis suffers fromexecutivedysfunction(no weight), (29) Davis often stutters and has faced ridicule forthis (no weight), (30)Davis'sparents had a dysfunctionalrelationship (no weight), (31)Davis suffered the loss ofhis paternal grandfatherat a young age Qittle weight), (32)Davis was a good fatherto his son (moderateweight), (33)Davis receivedhis GED (noweight), (34) Davis suffered the loss of a family friend at a young age Oittle weight),(35) Davis suffers from borderline intellectual functioning in the area ofperceptualreasoningand a specific learningdisorderwith impairmentin reading (no weight), (36)Davis has been diagnosed with mild neurocognitive disorder due to traumatic braininjury, major depressivedisorder, generalized anxiety disorder, obsessivecompulsivedisorder, and post traumatic stress disorder (moderate weight), (37) Davis providedfinancial and other assistance to individuals in need of assistance (no weight), (38)

Davis suffered the loss ofan elderlygentlemenwhom he would see in a park when hewas a child (no weight), (39)Davis was previously incarcerated inprisonand exposedto shocking behaviorby other inmates Oittle weight), and (40)Davis has a personalitydisorder Gittleweight).

"This Court has already rejected the argument that section 775.082(2), FloridaStatutes (2016), requires thatDavis's sentences ofdeath be commuted to sentences oflife imprisonment. See Hurst, 202 So. 3d at44.

* * *Criminal law-Murder-Death penalty-Post conviction relief-Counsel-Ineffectiveness-Intellectual disability-Failure duringsecond penalty phase to secure defendant's high school specialeducation program administrator as a witness to establish intellectualdisability-Post conviction court properly denied claim because itsconclusion that trial counsel conducted a sufficient investigation ofdefendant's background is supported by the record-Defendant is alsonotentitled to reliefpursuant to U.S. Supreme Court's decision inHallv. Florida, holding that the definition of subayerage intellectualfunctioning establishing a strict IQ score cutoff is unconstitutional,because defendant failed to present any additional argument orevidence ofintellectual disability at theevidentiary hearing on his postconviction motion-Hursterror-Becausejury recommendations ofdeath were nonnnanimous, and it cannot be said that the failure torequire a nnnnimous recommendation was harmless beyond reason-able doubt, defendant's death sentences are vacatedDAVIDBEASHERSNELGROVE,Appellatit,vs..STATEOFFLOR]DA,Appellee.SupremeCourtofFlorida. CaseNo. SC15-1659.DAVIDBEASHERSNELGROVE,Petitioner, vs. JULIEL. JONES, etc., Respondent. SupremeCourtofFlorida. CaseNo.SC16-124.May 11,2017.AnAppeal from the CircuitCotut irtand forFlaglerCounty,JosephDavidWalsh, Judge-CaseNo. I 82000CF000323X:dXXXAnd anOriginalProceeding-HabeasCorpus. Counsel: James VincentViggiano,Jr., CapitalCollateralRegional Counsel, and Richard E. Kiley and Ali Andrew Shakoor, Assistant CapitalCollateral Regional Counsel, Middle Region, Temple Terrace, for Appel-Iant/Petitioner.PamelaJo Bondi, AttorneyGeneral, Tallahassee; and ScottA. Browne,SeniorAssistantAttorney General, Tampa, forAppellee/Respondent.

(PER CURIAM.) David Beasher Snelgrove appeals an order of thecircuit court denying his postconviction motion filed pursuant toFlorida Rule of Criminal Procedure 3.851 and simultaneouslypetitions this Court for a writ ofhabeas corpus.1 For the reasons thatfollow, weaffirm the denial ofthepostconviction motion and deny thepetition forwritofhabeas corpus, but vacate the two death sentencesand order that Snelgrove receive a new penalty phase proceedingbased on the United States Supreme Court's decision in Hurst ii.Florida, 136 S. Ct. 616 (2016), and this Court's decision in Hurst v.State, 202 So. 3d 40 (Fla. 2016), petition for cert.filed, No. 16-998(U.S. Feb. 13, 2017).

L BACKGROUNDFollowing a jury trial in May 2002, Snelgrove was convicted and

sentenced to death for the June 2000 murders of Glyn and VivianFowler. In Sne1grove's initial direct appeal, this Court described thecase as follows:

On Sunday, June 25, 2000, Glyn and Vivian Fowler were founddead in their home. The elderly couple had been brutally beaten andstabbed to death, as evidenced by multiple fractures and stab woundsspread throughout their bodies. Ultimately, Vivian died from a stabwound to the heart, and Glyn died of a brain injury caused by bluntforce trauma to the head.

Evidence at the crime scene and in the surrounding area linkedDavid Snelgrove, the twenty-seven-year-old nephew of one of theFowlers' neighbors, to the murder. Snelgrove had recently moved inwith his aunt and his cousin, JeffMcCrae, after being expelled froma drug rehabilitation program. Blood droplets matching Snelgrove'sDNA were found throughout the house, as were bloody fingerprintsand footprints matching Snelgrove's. A trained bloodhound followeda scent from the blood on theFowlers' broken window to Snelgrove,and the police recovered a knife in the woods next to the Snelgrovehome with blood matching Snelgrove's DNA.

Headnotes and indexes are copyrighted and may not be duplicated by photocopying, printing,or other means without the express permission of the publishers. 1-800-351-0917

S459Volume 42, Number 16April21,2017

Criminal law-Murder.-Deatlr penalty-Post conviction relief-Counsel was not ineffective for failure to file and present a morecomprehensivemotion tosuppress defendant's statements to police inhospital by fniling to present witnesses to explain defendant's medicalcondition at time statements were made-Counsel cannot be deemedineffective for failing to raise a meritless basis to suppress defendant'sconfession-Counsel was not ineffective for failing to move to redactstatements made by law enforcement during recorded interview ofdefendant-Counsel was not ineffective for seeking consolidation ofcases for attempted second degree murder for shooting at a policeofficer and for first degree murder-Counsefwas not ineffective forfailure to make nieritless objections to evidence-Death sentence

. violates the decision ofU.S. Supreme Court in Hurst v. Florida wherejury recommendation of death was not unanimous-Defendant isentitled to new penalty phase .JUSTIN RYAN MCMILLIAN, Appellant, v. STATE OF FLORIDA, Appellee.SupremeCourtofFlorida. CaseNo. SCl4-1796.April 13, 2017. AnAppeal from theCircoit Court in and for Duval County, David Michael Gooding; Judge.- Case No.162009CF002002µ. Counsel: Ann E. Finnell of Finnell, McGuinness,Nezami,&Andux,P.A., Jacksonville; and BillyH. Nolas, Chief, CapitalHabeasUnit,Office of the Federal Public Defender, Northern District ofFlorida, Tallahassee, forAppellant. Pamela Jo Bondi, Attomey General, and Jennifer L Keegan, AssistantAttorney Genemi, Tallahassee, forAppellee.

(PERCURIAM.) JustinRyan McMillian appeals an order ofthe trialcourt denying his motion to vacate his conviction of first-degreemurder and sentence of death filed under Florida Rule of CriminalProcedure 3.851. For the reasons that follow; we affirm the denial ofhis guiltphase claims butremand for a newpenaltyphasepursuant toHurst v. State, 202 So. 3d 40 (Fla. 2016),petitionfor cert. Jiled, No.16-998 (U.S. Feb. 13, 2017).2

.L BACKGROUNDOn direct appeal, this Court described the facts as follows: .

The defendant, Justin McMillian, and his victim, Danielle Stubbs,began dating in the spring of 2008. On Wednesday or Thursday,January 6.or 7, 2009, Stubbs moved from an apartment into a nearbytownhouse on Pineverde Lane in Jacksonville. McMillian assistedStubbs and her family with the move. Friday afternoon, Stubbs tookMcMillian and her mother to lunch at Olive Garden as a thank-you forhelping with the move. There, McMillian told Stubbs' mother that heand Stubbs werebreaking up, that he was quitting hisjob, and that hewas going back to Georgia [to] spend time with and take care ofhistwo children.

Saturday night, Stubbs left her townhome and drove to acoworker's apartment so that the two could then be driven by AllenMorris, another coworker, to a beachsidenightclub. At the nightclub,Stubbs consumed seveml alcoholic beverages, became intoxicated,and, at some point, had sexual intercourse with Morris in the back ofMorris' car.

Morris, Stubbs, and the coworker left the nightclub around 2:45a.m. on Sunday, January 11. Morris first drove the coworker back tohis apartment and had to stop a couple of times on the way to allowStubbs to vomit. After dropping off the coworker, Morris droveStubbs home because she was too inebriated to drive herown car. Afew minutes from Stubbs' townhouse, at around 3:30 a.m., Morrisstopped to get Stubbs something to eat in an effort to settle herstomach. From there, he drove Stubbs to her townhome. Initially, andat Stubbs' request, Morris drove down Stubbs' street past hertownhouse, and stopped fora few minutes to allow Stubbs to eat somefood and to compose herself. Morris then dropped Stubbs off in frontofhertownhouse,watchedherwalkpastMcMillian'sCadillac,whichwas backed into Stubbs' driveway, and drove away after she waved.Other than the defendant, Morris was the last person to see Stubbsalive.

COURT OF FLORIDAStubbs had plans with her mother.during the day Sunday. When

Stubbs' family could notreachher by phone throughoutthemomingand into Sunday afternoon, they became increasingly alarmed andbegan to actively search for her by calling around to her friends andgoing to her townhomeand recently emptied apartment. At onepointthat morning, McMillian called Stubbs' mother to say that he couldnot find Stubbs and to inquire as to whether the family knew whereshe was. That evening, McMillian called again to say that he still couldnot find Stubbs. Stubbs' parents and youngerbrother eventually calledthepolice Sunday evening to report Stubbs missing and then drove toher townhome. Upon arriving and finding the front door locked,Stubbs' father andbrother went around to the back ofthe townhomewhile Stubbs' mother waited at the front door.

Stubbs' brother and father discovered that the sliding glass door attherearofStubbs' townhomewas unlocked. Stubbs' brotherimmedi-ately went inside, ran upstairs, and began screaming. Stubbs' fatherwent to thefront door, unlocked the doorknob and the deadbolt, let hiswife in, and went upstairs with her. There, they found Stubbs dead ina pool ofblood. She had been shot through the arm and thetop ofthehead. Stubbs' parents immediately called 911 and were waitingoutside when the police, who were already en route due to Stubbs'parents' earlier call to report Stubbs missing, arrived minutes later.

The police recovered several important pieces of evidence fromStubbs' bedroom. An unfired .45taliber cartridge was found on thefloor just inside the doorway to Stubbs' bedroom. Further insideStubbs' bedroom, at the foot of her bed and beside her dresser/TVstarid, a fired.45 caliber shell casing was recovered. Another fired .45calibershell casing wasrecoveredfromthefloorbesideStubbs' body

. on the side of the bed furthest from the bedroom door. Stubbs'bedding was bloodstained and had holes in it which were consistentwith being caused by fired bullets. A fired .45 caliber bullet, latermatched to McMillian's pistol, was also found lying ontop ofStubbs'bedding.

Stubbs' autopsy confinned that Stubbs was shot once through theright arm and once in the top of the head and1was alive when bothshots were fired. The shot to thehead likely would have immediatelyrendered Stubbs unconscious and likely wouldhave killed herwithinseconds, though it is possible that she survived for as long as a coupleofminutes. Thebullet thatkilled Stubbs was recovered from her skulland was later matched to McMillian's gun.

The day after the murder, McMillian called the JacksonvilleSheriff's Office (JSO) and said that his girlfriend had been found deadin her apartment and he wanted to speak with someone about hercase.He also said that he had been in Georgia since 3 a.m. the morning ofthe murder. A detective called McMillian back shortly thereafter. Inthat conversation, McMillian stated that he had last seen Stubbsaround 6 the night before the murder and had last spoken to her on thephone around 9 p.m., before she went out with her coworkers.McMillian also said that he was about to return to Jacksonville andwould meet the detective at the station. When McMillian failed toshow, the detective contacted a special task forceto have him broughtID.

Two days later, the task force saw McMillian and two other menleave a Jacksonville house in McMillian's Cadillac. The task forcefollowed McMillian, with an unmarked SUV initially leading severaltrailing task force vehicles. Shortly thereafter the lead was passed offfrom the SUV to a marked JSO K-9 unit so that a traffic stop could beinitiated. Oncethe marked unit was behind McMillian, it turned on itslights and siren, but McMillian continued driving as though nothingwere happening. After a short distance, McMillian turned onto a sidestreet and abruptly stopped withoutpulling offtheroad. As McMillianwas coming to a stop, the two passengers opened the passenger sidecar doors and ran a short distance from the vehicle before going to theground.

Filing # 56996078 E-Filed 05/26/2017 02:13:49 PM

No. SC17-

IN THE

Bupreme �254ourtof floríba

PRESSLEY BERNARD ALSTON.

Petitioner,

v.

JULIE L. JONES, SECRETARY,

FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent.

PETITION FOR WRIT OF HABEAS CORPUS

Robert A. Norgard Billy H. NolasNorgard, Norgard, & Chastang Chief, Capital Habeas UnitP.O. Box 811 Northern District ofFlorida .Bartow, FL 33830 227 N. Bronough Street, Suite 4200(863) 533-8556 Tallahassee, FL [email protected] (850) 942-881 8Florida Bar No. 322059 [email protected]

Florida Bar No. 806821

Counselfor Petitioner

TABLE OF CONTENTS

TABLE OF CITATIONS......................................................................................ii

INTRODUCTION..................................................................................................1

REQUEST FOR ORAL ARGUMENT................................................................1

JURISDICTION TO ENTERTAIN PETITION AND GRANT RELIEF.......1

PROCEDURAL HISTORY..................................................................................2

SUMMARY OF ARGUMENT.............................................................................5

ARGUMENT..........................................................................................................5

I. Petitioner's death sentence violates Hurst v. Florida and Hurst v. State............5

II. The United States Constitution requires Florida's state courts to applyHurst retroactively to Petitioner regardless of the date his death sentencebecame final relative to Ring..............................................................................7

III. Even if federal law did not require Florida's state courts to apply Hurstretroactively to Petitioner, he should receive the benefit ofHurst as a matter ofstate law.............................................................................................................16

IV. Because Petitioner's jury recommended the death penalty by a vote of9

to 3, the Hurst errors in his case cannot be proven harmless beyond areasonable doubt under this Court's precedent establishing that Hursterrors are never harmless where at least one juror recommends life................22

CONCLUSION.......................................................................................................25

1

Constitution. This proceeding is also authorized by Florida Rule of Appellate

Procedure 9.030(a)(3). This petition complies with the Rule 9.100(a)

requirements.

PROCEDURAL HISTORY

In 1995, Petitioner was convicted of one count of first-degree murder in the

Circuit Court of the Fourth Judicial Circuit, in and for Duval County. Prior to trial,

Petitioner filed a motion regarding the advisory role of the jury at sentencing based

upon on Caldwell v. Mississippi, 472 U.S. 320 (1985). State v. Alston, Duval Co.

No. 95-5326 CF (Motion filed Oct. 16, 1995). The court denied his motion. After

aggravating and mitigation evidence was presented penalty phase, the court

instmgted Petitioner's "advisory" sentencing jury as follows:

adies and gentlemen of the jury, it is now your duty to adviseCouibas to what punishment should be imposed upon the d antfor his chesof Murder in the First Degree. As you een told,the final decisiitiMs,to what punishment shoul imposed is theresponsibility of the jdd}ge;Jiowever, it is ygur#8uty to follow the lawthat will now be given you effand render to the Court anadvisory sentence based you dqt,ermination as to whether

{ sufficient aggravat,ing reumstances exist t 7astify the imposition ofthe death en°8h and whether sufficient mitig'alíïsg circumstances

o outweigh any aggravating circumstances found î&eQst.

Alston, No. 95-5326 CF (Jury instructions filedi Dec. 14,1995_).

After deliberating, the jury, by a vote of 9-3, returned a generalized advisory

recommendation to impose the death penalty. The jury's verdict stated, in full:

see

2Page 1793

INTRODUCTION

This petition for a writ of habeas corpus respectfully requests this Court to

review the constitutionality of Petitioner Pressley Bernard Alston's death sentence

in light of Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v. State, 202 So. 3d

40 (Fla. 2016). Under those decisions, Petitioner's death sentence violates the

United States and Florida Constitutions and should be vacated.

The Hurst decisions are retroactive to Petitioner and the Hurst error in his

case was not harmless, as this Court has held that Hurst errors are not harmless

where the jury recommended the death penalty by a non-unanimous vote. The jury

in Petitioner's case recommended death by a non-unanimous vote of 9-3.

Accordingly, for the reasons explained further below, Petitioner respe.ctfully

rec[uests that this Court grant a writ of habeas corpus, vacate his death sentence,

anci remand for a new penalty phase.

REQUEST FOR ORAL ARGUMENT

In light of the seriousness of a death sentence and the complex issues

presented by this appeal, Petitioner respectfully requests oral argument. Petitioner

has tiled a separate motion requesting oral argument. See Fla. R. App. P. 9.320.

JURISDICTION TO ENTERTAIN PETITION AND GRANT RELIEF

This Court has original jurisdiction to grant Petitioner a writ of habeas

corpus under Article I, Section 13, and Article V, Section 3(b)(9), of the Florida

1

A MAJORITY OF THE JURY, BY A VOTE OF 9 TO 3,ADVISE AND RECOMMEND TO THE COURTTHAT IT IMPOSE THE DEATH PENALTY UPONPRESSLEY ALSTON.

Alston, No. 95-5326 CF (Verdict filed Dec. 14, 1995). The verdict form did not

contain any findings of fact or specify the basis for the jury's non-unanimous

recommendation.

The court, not the jury, then made the critical findings of fact required to

impose a sentence of death under Florida law. Alston v. State, 723 So. 2d 148, 153

(Fla. 1998). The court found that the following aggravating factors had been

proven beyond a reasonable doubt: (1) the defendant was convicted of three prior

violent felonies; (2) the murder was committed during a robbery/kidnapping and

for pecuniary gain; (3) the murder was committed for the purpose of avoiding a

lawful arrest; (4) the murder was especially heinous, atrocious, or cruel; and (5) the

murder was cold, calculated, and premeditated. Id. at 153. The court, not the jury,

found beyond a reasonable doubt that those aggravating factors were "sufficient"

to impose the death penalty, and that the aggravators were not outweighed by the

mitigation.' Based upon this fact-finding, the court sentenced Petitioner to death.

Id. This Court affirmed Petitioner's conviction and sentence. Id. at 162-63.

' The mitigation the court found included: (1) Petitioner had a horribly deprivedand violent childhood; (2) Petitioner cooperated with law enforcement; (3)Petitioner has low intelligence and mental age; (4) Petitioner has a bipolar

3

In his initial brief on direct appeal, Petitioner raised several issues, including

arguments challenging the role of juries in Florida under Caldwell, specifically

arguing that the jury instructions at both the close of the guilt phase and the penalty

phase misled the jury as to the roles of the judge and jury in determining the

appropriateness of a defendant's death sentence. This Court found no error. Id. at

159-60.

In 1999, a "shell" motion for post-conviction relief was filed pursuant to

Rule 3.850. In 2000, the Capital Collateral Regional Counsel for the Middle

Region of Florida ("CCRC-M") moved for a competency determination and the

trial court, after reviewing the report of three doctors, found Petitioner incompetent

to proceed. Alston v. State, 894 So. 2d 46, 48 (Fla. 2004). Despite CCRC-M's

representation and having been found incompetent, Petitioner filed a plethora of

pro se motions. In one filing to this Court, however, Petitioner requested the

circuit court be ordered to hold a Durocher v. Singletary, 623 So. 2d 482 (Fla.

1993) hearing. This Court ordered the circuit court to hold a post-conviction

appeals procedure. Id. at 48. The trial court found Petitioner was competent to

proceed, found he "knowingly, intelligently, and voluntarily" waived his right to

post-conviction proceedings and dismissed CCRC-M, .as well as all pending

motions or petitions for post-conviction relief. Id. at 49.

disorder; and (5) Petitioner has the ability to get along with people and treat themwith respect. Alston, 723 So. 2d at 153.

4

Petitioner continued to file various pro se motions in this Court, and motions

in the United States District Court for the Middle District of Florida, seeking

federal habeas corpus relief. Alston v. Dep't of Corrs., No. 3:04-cy-00257, ECF

No. 1 (M.D. Fla. Apr. 5, 2004). In 2009, the district court denied relief. Id., ECF

No. 99. The United States Court of Appeals for the Eleventh Circuit affirmed.

Alston v. Dep't ofCorrs., 610 F.3d 1318, 1328-29 (11th Cir. 2010).

SUMMARY OF ARGUMENT

Although Florida maintains its own state retroactivity doctrines, the United

States Constitution sets a retroactivity "floor" that requires both Hurst v. Florida

and Hurst v. State to be applied retroactively to Petitioner without regard to when

his death sentence became final on direct appeal. Even if federal law did not

require Florida's state courts to apply Hurst retroactively to Petitioner, he should

receive the retroactive benefit of Hurst under Florida law. The Hurst error in

Petitioner's case cannot be proven harmless beyond a reasonable doubt under this

Court's precedent because his jury recommended death by a non-unanimous vote

of 9 to 3.

ARGUMENT

I. Petitioner's death sentence violates Hurst v. Florida and Hurst v. State

Petitioner's death sentence violates Hurst v. Florida and Hurst v. State. The

United States Supreme Court held in Hurst v. Florida that the same Florida scheme

5

Presslev Alston#0-709795Union Correctional Institution7819 N.W. 228th St.Raiford, FL 32026

Case: 17-10048 Date Filed: 02/02/2017 Page: 1 of 5

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 17-10048-P ..

IN RE: PRESSLEY B. ALSTON,

Petitioner.

Application for Leave to File a Second or SuccessiveHabeas Corpus Petition,28 U.S.C. §2244(b)

Before HULL, WILLIAM PRYOR, and JILL PRYOR, Circuit Judges.

BY THE PANEL:

Psessley B. Alston, a Florida death row inmate proceedingpro se, has filed a request for

authorization ("RFA") to file la the district court a second or successive petition for a writ of

habeas corpus. See 28 U.S.C. § 2244(b)(3)(A). Such authorization may be granted only if.

(A) the applicant shows that the claim relies on a newrule ofconstitutional. law, made retroactive to cases on collateral review by the Supreme Court, that was

previouslyunavailable; or

(B)(i) the factual predicate for the claim could not havo been discoveredpreviously through the exercise ofdue diligence; and

(ii) the facts underlying the claim, if pmven and viewed in light of theevidence as a whole, would be sufficient to establish by clear and convincingevidence that, but for constitutional error, no reasonable factfinder would havefound the applicant guilty of the underlying offense.

28 U.S.C. § 2244(bX2). "The court of appeals may authorize the filing of a second or

successive application only if it detennines that the application makes a prima facio showing that


the application satisfies the requirements of this subsection." Id § 2244(bX3)(C); see also

Jordan v. Sec'y, Dep't of Corr., 485 F.3d 1351, 1357-58 (1Ith Cir. 2007) (explaining that our

determination that an applicant has made a primafacie showing that the statutory criteria have

been met is simply a threshold determination).

In his instant RFA, Alston indicates that he wishes to bring two claims in a successive

§ 2254 petition. First, Alston asserts that he is entitled to a hearing to examine the prosecutor's

"culpability" in the murder for which Alston was convicted. Alston does not expressly indicate

that this claim relies upon a new rule ofconstitutional law, but in the space on the application form

in which to identify such a rule, he cites "the newly enacted" Antiterrorism and Effective Death

Penalty Act ("AEDPA") of 1996, along with Bowersox v. Williams, 517 U.S. 345 (1996). Alston

also states that the claim relies upon newly discovered evidence, alleging that, after the jury

retumed a guilty verdict, he reported to the prosecutor that "[J]ames [Coon] had d[one) something

to h[im] lst." Alston further alleges that the prosecutor participated in the crimes and made him

"the kill agent to axxx-off [J]ames [C]oon." He argues that no "reasonable jury or juror" could

have convicted him. He appears to suggest that documents to support this claim "still rest0 in the

trial court's inventory," explaining that the prosecutor put "the report" into a box in the court's

storage.

This first claim is very similar to one Alston raised in a previous RFA to this Court. See In

re Alston, No. 16-15700, ord. at I l-13 (1Ith Cir. Sept. 21, 2016). Thus, the claim he now asserts

appears to be barred by In re Baptiste, 828 F.3d 1337, 1339 (1Ith Cir. 2016). See id (noting that

a claim is the same as one previously raised when the basic gravamenofthe argument is the same).

In any event, Alston has not made a prima facie showing that his claim satisfies the statutory

requirements of § 2244(bX2). Although Alston suggesda®

2


law, neither AEDPA itself, nor Bowersox, represents a new rule of constitutional law within the

meaning ofthe statute. AEDPA is a congressional enactment, not a decision ofthe U.S. Supreme

Court. Bowersox was decided in 1996, and, thus, existed at the time Alston brought his initial

§2254 proceeding in 2000. See Bowersox, 517 U.S. at 345. Therefore, his reliance on those

sources is misplaced. See 28 U.S.C. § 2244(b)(2)(A).

Furthermore, Alston has not identified any newly discovered evidence upon which his

claim relies. See 28 U.S.C. § 2244(b)(2)(B). To the extent that Alston suggests his statement to

the prosecutor following the jury's verdict represents newly discovered evidence, we disagree.

He was aware of this statement, which he made personally at the time ofhis trial; thus, he could

have asserted it as a basis in his initial §2254 proceeding. See Boshears, 110 F.3d at 1540.

Alston also generally references a "report" that may be found in the trial court's "inventory"boxes, but he has failed to show that this report could not have been obtained previously through

"the exercise of due diligence." See 28 U.S.C. § 2244(b)(2)(B)(i); Boshears, 110 F.3d at 1540.

Idoreover, he failed to describe the contents of this report or otherwise explain how it would

establish his factual innocence notwithstanding the remaining trial evidence against him. See

Boshears, 110 F.3d at 1541. Therefore, Alston has not shown that either his statement to te

prosecutor, or the report purportedly stored in the court's inventory boxes, represents newly

See 28 U.S.C. § 2244(bX2XB).discovered evidence within the meaning of the statute.

Accordingly, Alston cannot make a primafacie showing that his first proposed claim meets the

statutory requirements. See id. § 2244(bX2).As his second claim, Alston asserts that, based on the Florida Supreme Court's recent

decision in Hurst v. State, 202 So. 3d 40 (Fla. 2016), his death sentence is now unconstitutionalmmendation. Alston indicates that

because it was not imposed based on a unanimous jury reco

3


this claim also relies on a number of other decisions, including Cage v. Louisiana, 498 U.S. 39

(1990), Glossip v. Gross, 135 S. Ct. 2726 (2015), Ring v. Arizona, 536 U.S. 584 (2002),

McCleskey v. Kemp, 481 U.S. 279 (1987), Burch v. Louisiana, 441 U.S. 130 (1979), Dop v.

Dulles, 356 U.S. 86 (1958), "[P]aul [B]vans case,"¹ Peek v. Kemp, 746 F.2d 672 (11th Cir. 1984),

vacated, 784 F.2d 1479 (11th Cir. 1986) (en banc), United States v. Chavis, 719 F.2d 46 (2d Cir.

1983), Kimbrough v. State, 125 So. 3d 752 (Fla. 2013), Mann v. State, 112 So. 3d 1158 (Fla.

2013), State v. Steele, 921 So. 2d 538 (Fla. 2005), Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002),

King v. Moore, 831 So. 2d 143 (Fla. 2002), James v. Florida, 453 So, 2d 786 (Fla. 1984), and State

v. Dixon, 283 So. 2d 1 (1973).2

Alston's reliance on the Florida Supreme Court's decision in Hurst v. State is misplaced.

Because it is a state court decision, not a decision of the U.S. Supreme Court, it cannot satisfy the

statutory requirements for a second or successive federal habeas petition. See 28 U.S.C.

§ 2244(b)(2)(A). Nor can Alston rely on the Supreme Court's decision in Cage as a new rule of

constitutional law: Cage, which was decided in 1990-well before Alston's initial § 2254

proceeding in 2000-is not a new rule of constitutional law. See Cage, 498 U.S at 39-41. For

the same reason, Alston cannot rely on any rule set forth by McCleskey, Burch, or Dop, because

i Alston appears to be referring to Evans v. Sec'y, Fla. Dep't ofCorr., 699 F.3d 1249 (11th

2 on further suggests that this claim relies u on new1 di overed e n 8that the Florida Supreme Court's decision m Hurst v. not evidence. Cf Hunter v. Soc. Sec'yin order to impose the death penalty. But decisions att not evidence any more than evidence isAdmin., 808 F.3d 818, 822 (11th Cir.2015)(' s n lated to the penalty phase ofhis trial to thea decision."). And although Alston attached hi nalty phase, do not constitute newinstant RFA, these documents, o gth e of lus ini i § 2254 proceeding. See 28 U.S.C.evidence because they were avat§ 2244(b)(2)(B)(ii).

4


all of these decisions were previously available to him. See McCleskey, 481 U.S. at 279-320;

Burch, 441 U.S. at 130-39; Trop, 356 U.S. at 86-104. .

Further, Alston's reliance upon Ring and Glossip is misplaced. The Supreme Court has

not made Ring retroactively applicable to cases on collateral review. See Schriro v. Summerlin,

542 U.S. 348, 358 (2004). And the Supreme Court has not made any rule announced in Glossip

retroactively applicable to cases on collateral review, even assinning Glossip announced a new

constitutional rule. See Glossip, 135 S. Ct. 2726-55. Thus, neither Ring nor Glossip can satisfy

the statutory requirements. See 28 U.S.C. § 2244(b)(2)(A). As to the remaining cases upon

which Alston relies-Peek, Evans, Chavis, Kimbrough, Steele, Bottoson, King, James, and

Dixon-these are cases from federal circuit courts and the Florida Supreme Court. Because they

are not decisions ofthe U.S. Supreme Court, they cannot establish a new rule ofconstitutional law

within the meaning of the statute. See id § 2244(b)(2)(A).

Accordingly, because Alston has failed to make aprimafacie showing of the existence of

either of the grounds set forth in § 2244(b)(2), his application for leave to file a second or

successive petition hereby is DENIED.

5




No. 17-11729-P


Petitioner.

Application for Leave to File a Second or SuccessiveHabeas Corpus Petition, 28 U.S.C. § 2244(b) . .


BY THE PANEL:

Pressley B. Alston, a Florida death row inmate proceeding pro se, has filed a request for

authorization ("RFA'') to file in the district court a second or successive petition for a writ of

habeas corpus. See 28 U.S.C. § 2244(b)(3)(A). Such authorization may be granted only if:

(A) the applicant shows that the claim relies on a new rule ofconstitutionallaw, made retroactive to cases on collateral review by the Supreme Court, that waspreviously unavailable; or .

(B)(i) the factual predicate for the claim could. not have been discoveredpreviously through the exercise ofdue diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of theevidence as a whole, would be sufficient to establish by clear and convincing

evidence that, but for constitutional error, no reasonable factfinder would havefound the applicant guilty of the underlying offense.

28 U.S.C. §2244(b)(2). "The court of appeals may authorize the filing of a second or

successive application only if it determines that the application makes a prima facie showing that


the application satisfies the requirements of this subsection." Id. § 2244(b)(3)(C); see also

Jordan v. Sec'y, Dep't ofCorr., 485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that our


been·met is simply a threshold determination).

In his instant RFA, Alston indicates that he wishes to bring three claims in a successive

§ 2254 petition. First, Alston requests an opportunity to present argument on his claim that the

prosecutor in his criminal case was somehow culpable in the murder for which he was convicted.

Alston raised a virtually identical claim in a previous RFA to this Court. See In re Alston, No.

17-10048, ord. at 2 (l ith Cir. Feb. 2, 2017). Thus, the claim he now asserts is barred. See In re

Baptiste, 828 F.3d 1337, 1339 (11th Cir. 2016) (barring consideration of claims in an RFA that

were raised in a previous RFA).

Second, Alston asks this Court to comment about the Florida legislature's revisions to its

death penalty statute in light ofHurst v. Florida ("Hurst 1"), 136 S. Ct. 616 (2016), and Hurst v.

State ("Hurst I1"), 202 So. 3d 40 (Fla. 2016). Insofar as Alston intends to challenge his own death

sentence under these cases, his claim is barred byRaptiste. See In re Alston,No. 17-10726, ord, at

3 (11th Cir. Mar. 9, 2017) (explaining, in denying a previous RFA Alston filed, that claims based

on these cases had been raised and denied and therefore were barred). To the extent Alston seeks

some other form ofreliefbased on Hurst I and Hurst II, his claim fails to meet the statutorycriteria

set forth in § 2244(b)(2). He alleges no new facts supporting his claim that could not have been

discovered previously through the exercise ofdue diligence, and he does not rely on a new rule of

constitutional law, citing instead Florida senate bills and statutes. This is insufficient to make a

primafacie showing under § 2244(b).

Third, Alston asserts that he is actually innocent. He indicates that this claim relies on a

2

October 1, 2009

Tassone, Sichta, & Dreicer, LLC �042Attn: Frank J. Tassone, Esq.1833 Atlantic Blvd

Re: State v. Alston, 95-5326-CF 48' Judicial Circuit ofFlorida

To Whom It May Concern:

. I, Pressley Alston, write to the office ofthe state attorney in the attempt tofexplainmy intent in empowering·my appointed attorney Frank J. Tassone to pursue appelläteclaims on my behalf. I seek to have a number ofclaims heard before a federal court aftersuch a time that state officials have reviewed the claims I wish.to present.

These claims include, but are not limited to, such issues as: My accusation duringtrial that former State Attorney of the 48° judicial circuit, Harry Shorstein, was onsitewhen James Coon was murdered; that Harry Shorstein promised at the conclusion ofmytrial that should I be convicted, a complete inspection of the boxes in the possession ofthe State Attorney's Id be conducted by myself, Mr. Shorstein, and iny trial .

. counsel; li r em e at the Jack lie Branch office of the FBIprior to my . ;. . e a wou ereleased from confinement after having served seven years.

It has been my desire.since my 1995 conviction that the Governor of the State of ..-Florida would draft an order to a Fed'eral Court to hold a·review ofmy case. It is my .understanding of legal appellate procedure that by waiving my state and federal appeals .

. the governor is then free to order an appellate review ofmy case by federal officials.

Pressle ernard Alsfon

Prepared at the request of Mr. Alston by Frank J. Tassone Esq.,Request.heard and witnessed by Chad D. Graber, FRPSignature witnessed by Tom Wildes, Frank J. Tassone Esq.


new rule ofconstitutional law, but he only cites the Antiterrorism and Effective Death Penalty Act

of 1996, which is neither new nor itself a substantive rule ofconstitutional law upon which Alston

can rely to obtain relief. Alston also indicates that his claim relies on newly discovered facts.

Specifically, he asserts that a picture, which he has attached to his RFA, demonstrates his

innocence. We do not see how this picture supports Alston's claim of innocence or is relevant in

any way to his case. Thus, we conclude he has failed to make a prima facie showing under

§ 2244(b) on his third claim.

Accordingly, because Alston's claims either are barred or because he has failed to make a

prima facie showing of the existence of either of the grounds set forth in § 2244(b)(2), his

application for leave to file a second or successive petition hereby is DISMISSED IN PART and

DENIED IN PART.

3




No. 17-10726-P


Petitioner.

Application for Leave to File a Second or SuccessiveHabeas Corpus Petition, 28 U.S.C. § 2244(b)


BY THE PANEL:

Pressley B. Alston, a Florida death row inmate proceeding pro se, has filed an untitled

document, which we construe as a request for authorization ("RFA") to file in the district court a

second or successive petition for a writ of habeas corpus. See 28 U.S.C. § 2244(b)(3)(A). Such

authorization may be granted only if:

(A) the applicant shows that the claim relies on a new rule ofconstitutionallaw, made retroactive to cases on collateral review by the Supreme Court, that waspreviously unavailable; or

(B)(i) the factual predicate for the claim could not have been discoveredpreviously through the exercise ofdue diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of theevidence at a whol% wonld be mfhient to establish by clear and convincingevidence that, but for constitutional error, no reasonable factfinder would havefound the applicant guilty ofthe underlying offense.

28 U.S.C. § 2244(b)(2). "The court ofappeals may authorize the filing ofa second or successive


application only if it determines that the application makes a prima facie showing that the

application satisfies the requirements ofthis subsection." Id. § 2244(b)(3)(C); see also Jordan v.

Sec 'y, Dep't ofCorr., 485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that our determination

that an applicant has made aprimafacie showing that the statutory criteria have been met is simply

a threshold determination).

In his instant RFA, Alston indicates that he wishes to bring two claims in a successive

§ 2254 petition. First, Alston asserts that he is entitled to an evidentiary hearing in state court

because the jury instructions given at his trial violated Caldwell v. Mississippi, 472 U.S. 320, 328-

29 (1985) ("[I]t is constitutionally impermissible to rest a death sentence on a determination made

by a sentence who has been led to believe that the responsibility for determining the

appropriateness of the defendant's death rests elsewhere."). He also appears to cite in support of

this claim Mann v. Dugger, 844 F.2d 1446 (1Ith Cir. 1988) (en banc), overruled by Romano v.

Oklahoma, 512 U.S. 1 (1994), and Adams v. Wainwright, 804 F.2d 1526 (11th Cir. 1986), rev'd

sub nom., Dugger v. Adams, 489 U.S. 401 (1989). And, although Alston has not specifically

identified any newly discovered evidence upon which his claim relies, he has attached to his RFA

the following documents potentially relevant to this claim: (1) copies of Caldwell, Mann, and

Adams; (2) an excerpt from his brief on direct appeal in which he argued that the trial court

committed a Caldwell error; (3) a "Motion to Prohibit Misleading References to the Advisory Role

ofthe Jury at Sentencing," which was filed in his criminal case; and (4) an excerpt from a previous

Florida Supreme Court opinion in his case.

Alston has not made a prima facie showing that his Caldwell claim satisfies the

requirements of § 2244(b)(2). Caldwell, the only U.S. Supreme Court case upon which Alston's

2


claim appears to rely, was decided in 1985, 15 years prior to the filing of his original § 2254

petition. See Caldwell, 472 U.S. at 320. Thus, Caldwell did not set forth for Alston a new,

previously unavailable rule of constitutional law. See 28 U.S.C. § 2244(b)(2)(A). The

remaining cases to which Alston cites are not U.S. Supreme Court cases; therefore, they cannot

establish any new rules of constitutional law. See id. Nor has Alston satisfied the criteria of

§ 2244(b)(2)(B) with the documents he attached to his RFA. All of these documents were

available and discoverable through the exercise of due diligence by the conclusion of his direct

appeal. See id. § 2244(b)(2)(B)(i). In any event, none of those documents has any bearing on

whether Alston, as a factual matter, committed the crime for which he was convicted. See id.

§ 2244(b)(2)(B)(ii).

As to his second claim, Alston appears to allege that his death sentence and Florida's death

penalty statute, Fla. Stat. § 921.141, are unconstitutional in light of the U.S. Supreme Court's

decision in Hurst v. Florida ("Hurst 1"), 136 S. Ct. 616 (2016), and the Florida Supreme Court's

subsequent decision in Hurst v. State ("Hurst F'), 202 So. 3d 40 (Fla. 2016). Also in support of

this claim, Alston attached to his RFA a "Motion to Dismiss and to Declare Sections 782.04 and

921.141, Florida Statutes, Unconstitutional for a Variety of Reasons," which he apparently filed

in his criminal case.

This second claim is very similar to claims Alston has raised in previous RFAs to this

Court. See In re Alston, No. 16-15700, ord. at 15-17 (11th Cir. Sept. 21, 2016) (discussing

Alston's claim based on Hurst I); In re Alston, No. 17-10048, ord. at 3-5 (11th Cir. Feb. 2, 2017)

(discussing Alston's claim based on Hurst II). Thus, the claim he now asserts appears to be barred

' by In re Baptiste, 828 F.3d 1337, 1339 (11th Cir. 2016). See id. (noting that a claim is the same

3


as one previously raised when the basic gravamen ofthe argument is the same). In any event, for

the same reasons discussed in detail in those previous two orders, Alston has not made a prima

facie showing that his claim based on Hurst I and Hurst II satisfies the statutory requirements of

§ 2244(b)(2).

Accordingly, because Alston has failed to make aprimafacie showingofthe existenceofeither

of the grounds set forth in § 2244(b)(2), his application for leave to file a second or successive

petition hereby is DENIED.

4


HULL, Circuit Judge, joined by WILLIAM PRYOR, Circuit Judge, concurring:

I join in the majority's order in full. This is Alston's 6th application to file a successive

§ 2254 petition, and I outline belowhow this Court carefully and repeatedly has reviewed his prior

applications and what his previous claims were. This analysis further shows why Alston's current.

application is due to be denied.

L Factual Background and Procedural History

A. Facts ofthe Crime and Trial Proceedings

In its opinion affirming Alston's conviction and sentence, the Florida Supreme Court set

forth the following relevant facts. The victim, James Coon, was last seen at the University

Medical Center in Jacksonville, Florida, on January 22, 1995. Alston v. State, 723 So. 2d 148,

150 (Fla. 1998) ("Alston 1"). His car, a red Honda Civic, was found abandoned the next day

behind a convenience store. Id. at 150-51.

Gwenetta McIntyre testified that, on January 19, 1995, Alston was living at her home in

Jacksonville. See id. at 151. McIntyre left town for several days and returned on

January 23, 1995. Id. While she vias parked at a convenience store, Alston and his half-brother,

Dee Ellison, drove up in a red Honda Civic, then drove the Civic around the back of the store and

abandoned it. Id. When McIntyre asked about the Honda, Alston replied that it was stolen. Id.

McIntyre noticed that Alston was carrying her .32 caliber revolver, which she kept at her home.

Id. She later became suspicious ofAlston and went to the police. Id. When police searched her

home, they found her .32 caliber revolver. Id. Police then arrested Alston and Ellison. Id.

After he was read his rights and signed a waiver form, Alston confessed orally and in

writing to his involvement in the crime. Id. He stated that, on January 22, 1995, he and Ellison

5


saw Coon leave a hospital in his red Honda Civic. Id. When Coon pulled up to them, Alston

and Ellison got in the car. Id A short while later, Ellison pointed a revolver at Coon and took

his watch. Id Ellison later took his wallet and split the cash with Alston. Id According to

Alston, they then drove to another location, where he and Ellison shot Coon. Id at 152.

After confessing, Alston agreed to show detectives the location of Coon's body. Id

During the evening search, which proved unsuccessful, Alston stated, "We had robbed somebody

and taken him in [the] woods and I shot him twice in the head." Id (alteration in original). On

the way back from the search, they went to Alston's mother's house, where Alston again admitted

to killing Coon. Id. On the walk back from the police station to the jail, which was recorded on

videotape, Alston also made inculpatory remarks to reporters. Id

Later,.police took Alston back to the woods and again advised him of his constitutional

rights. Id Alston waived his rights and directed the police to the area they had searched the

previous night. Id. Police found skeletal remains, as well as three bullets. Id One bullet was

found in the skull, and another was found where the skull would have been. if it had not been

moved, apparently by animals. Id The final bullet was discovered inside Coon's shirt. Id At

trial, a medical expert identified the remains as Coon's by using dental records and testified that

the cause ofdeath was three gunshot wounds. Id. A firearms expert also testified that the bullets

were .32 caliber, and there was a 99 percent probability that the bullet found in Coon's skull came

from McIntyre's revolver. Id

On the day that Coon's body was found, Alston initially told a detective that Ellison and a

person named Kurt killed Coon, but later indicated that he had lied about Kurt. Id at 153. Alston

then admitted that he shot Coon twice in the head, while Ellison shot him once in the body. Id

6


Several days later, Alston gave another written statement, in which he stated that Ellison and Kurt.

initially kidnapped Coon, then sought Alston out to ask what to do with him. Id When Alston

opened the trunk, where Coon was being kept, Alston told Ellison that "the boy will have to be

dealt with, meaning kill[ed]." Id (alteration in original). Kurt left, and Alston and Ellison drove

away. Id. They took Coon into the woods, where Ellison shot him once, and Alston shot him

twice. Id

Thejury found Alston guilty offirst-degree murder, armed robbery, and armed kidnapping,

and recommended the death penalty. Id The trial court found five aggravating factors and five

non-statutory mitigating factors. Id. It sentenced Alston to death as to the murder charge and

imposed consecutive life sentences as to the remaining charges. Id. Alston appealed to the

Florida Supreme Court, which affirmed his convictions and death sentence. Id at 162-63.

Alston did not petition the U.S. Supreme Court for certiorari. Alston v. State, 894 So. 2d 46, 48

(Fla. 2004) ("Alston I1").

B. State Post-Conviction Proceedings

In June 1999, Capital Collateral Regional Counsel ("CCRC") was appointed to represent

Alston in his post-conviction proceedings. Id. Before CCRC filed a post-conviction motion,

Alston sent a letter to the state trial court expressing his desire to represent himself. Id. A few

months later, in November 1999, CCRC filed ''an unverified 'shell' motion for post[-]conviction

relief." Id CCRC also filed two motions to withdraw as counsel, which the state trial court

denied. Id In May 2000, the trial court conducted a hearing regarding Alston's request to

proceedpro se and thereafter directed CCRC to continue representing him. Id.

7


In July 2000, CCRC filed a motion for a competency determination. Id The district

court granted the motion and appointed three experts-Drs. Umesh Mhatre, Wade Myers, and

Robert Berland-who examined Alston and filed reports. Id Dr. Myers and Dr. Berland

concluded that Alston was incompetent to proceed, while Dr. Mhatre concluded that he was

competent. Id at 49. In October 2001, after reviewing the reports, the state trial court found

Alston incompetent to proceed, ordered the Department ofCorrections to file periodic reports with

the court concerning Alston, and directed that he be periodically re-evaluated. Id at 48.

While he was declared incompetent, Alston filed numerouspro se petitions in the Florida

Supreme Court, one ofwhich requested a writ ofmandamus ordering the state trial court to conduct

a Durocher' hearing "to waive all further appeals and the post[-]conviction appeals procedure."

Id The Florida Supreme Court denied most of the petitions, but, in December 2002, it ordered

the state trial court to conduct a Durocher hearing if the court determined that Alston wished to

waive all further appeals. Id at 48-49.

Prior to the issuance of the Florida Supreme Court's order, Drs. Mhatre, Myers, and

Berland re-evaluated Alston and filed reports with the state trial court. Id at 49. Their

conclusions did not change upon re-evaluation. Id. at 50. In March 2003, the state trial court

conducted a full evidentiary hearing to determine Alston's competence, at which the

court-appointed experts and multiple staff from Alston's prison testified. Id. at 49. At the

hearing, over his counsel's objection, Alston requested that the state court find him competent to

proceed and asked the court to schedule a Durocher hearing. Id at 55. Ultimately, after

¹ Durocher v. Singletary, 623 So. 2d 482, 484-85 (Fla. 1993) (holding that a capital defendant may waive his right topost-conviction counsel and proceedings following a hearing to determine if the defendant understands theconsequences ofhis decision).

8


reviewing the evidence, the state court found Alston competent, and, in June 2003, it held a

Durocher hearing. Id at 49. Following the hearing, the state court found that Alston's decision

to waive his post-conviction rights was knowing, intelligent, and voluntary. Id. It discharged

CCRC and ordered all pending motions or petitions for post-conviction relief dismissed with

prejudice. Id.

Later, the Florida Supreme Court then requested that both the state and CCRC counsel for

Alston file briefs regarding the state trial court's competency determination and the validity of

Alston's waiver. Id. In October 2004, the Florida Supreme Court held that the state trial court

did not abuse its discretion in finding Alston competent to proceed or in finding that he knowingly,

intelligently, and voluntarily waived his rights to post-conviction counsel and proceedings. Id at

59.

C. Federal Post-Conviction Proceedings

In April 2000, while his November 1999 motion for state post-conviction relief was

pending, Alston filed a § 2254 petition, alleging, inter alia, that the prosecutor fabricated

evidence, maliciously prosecuted him, and committed Brady2 and Giglio3 violations. In May

2000, the district court dismissed the § 2254 petition without prejudice because Alston had a

motion for post-conviction reliefpending in state court.

In March 2004, while the Florida Supreme Court was reviewing the state trial court's

competency determination and findings from the Durocher hearing, Alston filed a second § 2254

petition, which he amended in October 2004, after the Florida Supreme Court affirmed the state

2 Brady v. Maryland, 373 U.S. 83 (1963).

3 Giglio v. UnitedStates, 405 U.S. 150 (1972).

9


court's findings that he was competent and that his waiver was knowing, intelligent, and voluntary.

In his amended § 2254 petition, he argued that the state committed a crime in obtaining his

convictions, and the prosecutor "violate[d] [his] civil and constitutional rights to seek the death

penalty and to administer the death penalty as weaponry and as a weapon upon [Alston]

for/because of totally separate and different criminal investigations in 1995 one that involves

political campaigns in '95."

After the district court appointed counsel to represent Alston, counsel filed a second

amended § 2254 petition and memorandum in support, alleging, in relevant part, that: (1) Alston

was incompetent to waive his state post-conviction rights, and his waiver was not knowing,

intelligent, and voluntary; and (2) Alston's due process rights were violated when he was tried

while incompetent. Counsel also requested that the district court allow Alston to "re-litigate the

claims introduced" in his October 2004 amended § 2254 petition.

In August 2009, the district court denied the claims raised in the October 2004 amended

§ 2254 petition. It also denied the claims raised in his counseled second amended § 2254 petition,

but granted a certificate of appealability as to the issue of whether it erred in concluding that the

state court's ruling--that Alston was competent to waive his post-conviction proceedings, and his

waiver was knowing, intelligent, and voluntary-was neither an unreasonable application of

clearly established federal law, nor based on an unreasonable determination ofthe facts in light of

the evidence presented during the state court proceedings. Alston III, 610 F.3d at 1324-25.

On July 8, 2010, this Court affirmed the district court's denial ofAlston's § 2254 petition,

concluding that his challenge to the Florida Supreme Court's decision upholding the state trial

court's competency and waiver-validity findings was not a cognizable claim. Id. at 1325-26.

10


Even if it were cognizable, we alternatively concluded that Alston's claims failed on the merits

and that the state court's competency and waiver-validity findings were not fairly supported by the

record. Id. at 1326. The U.S. Supreme Court denied Alston's subsequent petition for certiorari.

Alston v. McNeil, 562 U.S. 1113 (2010).

D. Prior Successive Applications

In August 2010, Alston filed his first application for leave to file a successive § 2254

petition. In his application, Alston indicated that he wished to raise two claims in a successive

§ 2254 petition. First, he alleged that the prosecutor was responsible for Coon's murder and used

him as an agent to do the killing. He argued that his claim relied on Atkins v. Virginia, 536 U.S.

304 (2002), Hart v. Att'y Gen. ofFla., 323 F.3d 884 (11th Cir. 2003), and the "contrary to" clause

of § 2254(d)(1) as new rules of constitutional law. He also contended that his claim was

supported by newly discovered evidence-the prosecutor's record ofwho read him his Miranda4

rights. In his second claim, Alston appeared to assert that his Miranda rights were violated

because the arresting police officers handcuffed him after responding to "information that involved

[him] in a high[-]profile crime report." Alston alleged that his second claim relied on new rules

of constitutional law set forth in Hart and Nelson v. Fulcomer, 911 F.2d 928 (3d Cir. 1990), and

cited, as newly discovered evidence, his "transcript record." This Court denied Alston's

application, concluding that he failed to make aprimafacie showing that either ofhis claims met

the requirements of § 2244(b)(2)(A) or (B).

In October 2010, Alston filed a second application for leave to file a successive § 2254

petition. In his application, he explained that he wished to raise two claims in a successive § 2254

4 Miranda v. Arizona, 384 U.S. 436 (1966).

11


petition: (1) the prosecutor committed prosecutorial misconduct by promising to "guide [him] to a

test case" and prosecuting the case "after [giving Alston] instructions of [the prosecutor's]

involvement and how to do this test"; and (2) "procedural problems of the courts." He conceded

that neither claim relied on a new rule of constitutional law, but argued that his first claim was

supported by newly discovered evidence-specifically, the fact that the prosecutor "attack[ed]

[Alston] to avoid arrest" after Alston saw the prosecutor "axxx[ ]" Coon. As newly discovered

evidence in support of his second claim, he alleged that the prosecutor picked up his Federal

Bureau of Investigation ("FBI") badge while doing an inventory for "trial court storage." In

November 2010, we summarily denied Alston's application.

In August 2016, Alston filed a third application for leave to file a successive § 2254

petition. Liberally construing his application, he appeared to assert that the prosecutor was

"involved in what happened to" Coon, which made Alston himselfactually innocent ofmurdering

Coon. In an attachment to the application, Alston appeared to present several additional claims.

First, he requested that we "nullify" his prior waiver of his right to pursue state post-conviction

relief, given that: (1) he only waived his state post-conviction rights in an effort to seek federal

habeas relief; (2) he objected to the three psychiatric evaluations that "allowed the court

prosecutors and [his post-conviction counsel] to stream him into the 'waivers' court"; and (3) the

state courtjudge who conducted the Durocher hearing was incompetent. Second, he asserted that

Fla. Stat. Ann. § 921.141 is unconstitutional in light of Hurst I.5 He next argued that his

procedural due process rights were violated when the prosecutor referred to 0. J. Simpson during

voir dire. He also contended that he has been on death row from 2004 to 2016, but the state

5 Hurst v. Florida ("Hurst 1"), 136 S. Ct. 616 (2016) and Hurst v. State ("Hurst I1"), 202 So, 3d 40 (Fla. 2016).

12


"hasn't executed a warrant on him to get him executed," which is both cruel and unconstitutional.

Finally, he requested that we "remove the [Prison Litigation Reform Act] '3' strikes offhim." In

support ofhis application, he submitted numerous news articles, court filings, excerpts from two

Florida state court cases, and excerpts from his voir dire transcript.

On September 21, 2016, this Court denied Alston's application for leave to file a successive

§ 2254 petition. Assuming, arguendo, that his actual-innocence claim was not barred under

§ 2244(b)(1), this Court concluded that he had not made aprimafacie showing that his claim met

the requirements of § 2244(b)(2). First, he did not allege that his claim relied on a new rule of

constitutional law. Additionally, Alston's purported new evidence-the fact that the prosecutor

allegedly went to bully a city councilman and was called a bully on television, and Alston's

allegation that he himself is or was an employee of the FBI-had no bearing on whether he, as a

factual matter, committed the charged first-degree murder. In any event, the alleged new

evidence did not establish a constitutional violation.

This Court further determined that, to the extent that Alston sought to attack the knowing,

voluntary, and intelligent nature of his waiver of his state post-conviction rights, his claim was

barred under § 2244(b)(1) because he previously raised this claim in his second amended § 2254

petition, which the district court denied on the merits. To the extent that he intended to challenge

his waiver on the basis of any error in overruling his objection to three psychiatric evaluations or

in permitting an "incompetent" judge to conduct the Durocher hearing, he arguably raised a new

claim. Nevertheless, Alston failed to meet the requirements of § 2244(b)(2), as he did not allege

that his claim relied on a new rule ofconstitutional law, and the factual predicate for his claim was

previously available. Alston also failed to make a prima facie showing that his Hurst I claim

13


would have found him incompetent. He appeared to allege that his claim relied on the fact that

the Supreme Court has not yet clarified the relationship between § 2254(d)(2) and § 2254(e)(1).

In support ofhis claim, he cited Brumfield v. Cain, 135 S. Ct. 2269 (2015), Burt v. Titlow, 134 S.

Ct. 10 (2013), Harrington v. Richter, 562 U.S. 86 (2011), Gonzalez v. Crosby, 545 U.S. 524

(2005), "the Kevin Tharpe case,"6 and three Florida state court cases. Alston next alleged that

the state court judge who conducted the Durocher hearing was "incompetent in his mail

forwarding." Finally, Alston argued that the state trial court erred by failing to conduct a Faretta7

hearing after he indicated that he wished to proceedpro se in his state post-conviction proceeding.

He appeared to indicate that this claim relied on new rules of constitutional law announced in

Gonzalez and several Florida state court cases. In support of his claims, he attached, inter alia, a

transcript from an October 2000 hearing in his state post-conviction proceeding.

On November 14, 2016, this Court denied Alston's fourth application for leave to file a

successive § 2254 petition. This Court first noted that the gravamen of each of Alston's claims

was the same-the state trial court erred by failing to conduct a Faretta hearing. We concluded

that Alston had not satisfied either of the statutory criteria for authorization to file a successive

§ 2254 petition. The majority of the cases that Alston cited were not U.S. Supreme Court cases,

and the four Supreme Court cases that he cited-Brumfield, Burt, Richter, and Gonzalez--did not

meet the statutory requirements. Brumfield, Burt, and Richter did not set forth new rules of

constitutional law, and Gonzalez was available more than four years before the district court denied

Alston's second amended § 2254 petition. Alston also failed to satisfy § 2244(b)(2)(B) because

6 Tliis appears to be a reference to Tharpe v. Warden, 834 F.3d 1323 (1 Ith Cir. 2016).

7 arella V. Cahy'ornia, 422 U.S. 806 (1975).

15


he did not allege when he obtained the transcript of the October 2000 hearing. In any event, he

was present at the hearing and gained firsthand knowledge of the events underlying his claim in

October 2000, more than three years before he filed his second § 2254 petition. Moreover, Alston

had not alleged, much less made a prima facie showing, that, but for constitutional error, no

reasonable fact-finder would have found him guilty of the charged murder.

In January 2017, Alston filed a fifth application for leave to file a successive § 2254

petition. In his application, Alston first appeared to assert that an evidentiary hearing was

warranted to examine the prosecutor's "culpability" in Coon's murder. He did not explicitly state

that his claim relied on a new rule of constitutional law, but, in the space on the application form

for identifying such a rule, he cited the "newly enacted" Antiterrorism and Effective Death Penalty

Act of 1996 ("AEDPA"), as well as Bowersox v. Williams, 517 U.S. 345 (1996). Alston alleged

that his claim also relicid on newly discovered evidence-the fact that he reported to the prosecutor,

after thejury returned the guilty verdict, that Coon had done something to him first. Alston further

argued that the prosecutor participated in the crime and made him "the kill agent to axxx-off [ ]

[C]oon." He contended that "no reasonable jury or juror" could have convicted him. He

appeared to suggest that the documents to support his claim "still rest[ed] in the trial court's

inventory," explaining that the prosecutor put "the report" into a box in the court's storage.

Alston next appeared to allege that, under Hurst II, his death sentence was unconstitutional

because it was not imposed based on a unanimous jury recommendation. He explained that the

Florida Supreme Court rendered a decision in Hurst II following the remand by the U.S. Supreme

Court in Hurst I, and requested that we "provide him an opinion in ref[erence] to 28 [U.S.C.] §

2244(b)" and authorize a successive habeas proceeding. Alston indicated that his claim relied on

16

a


Cage v. Louisiana, 498 U.S. 39 (1990), as a new rule ofconstitutional law. He also cited Glossip

v. Gross, 135 S. Ct. 2726 (2015), Ring v. Arizona, 536 U.S. 584 (2002), McCleskey v. Kemp, 481

U.S. 279 (1987), Burch v. Louisiana, 441 U.S. 130 (1979), Trop v. Dulles, 356 U.S. 86 (1958),

two Eleventh Circuit cases, a Second Circuit case, and several Florida Supreme Court cases.

Finally, he appeared to allege that his claim relied on newly discovered evidence-the fact that,

post-Hurst H, a Floridajury must unanimously recommend a death sentence in order for the death

sentence to be imposed.

In February 2017, this Court denied Alston's fifth application for leave to file a successive

§ 2254 petition. We determined that Alston's first claim appeared to be barred by In re Baptiste,

828 F.3d 1337, 1339-40 (11th Cir. 2016) (holding that § 2244(b)(1)'s bar against identical,

successive claims applies to claims previously raised in prior applications for leave to file a

successive § 2254 petition). In any event, Alston alternatively failed to show that his first claim

met the criteria of § 2244(b)(2), as neither Bowersox, nor the AEDPA itself, was a new rule of

constitutional law within the meaning of the statute. Additionally, his statement to the prosecutor

was not new evidence, as he was aware of the statement as of the time ofhis trial. The alleged

"report" also was not newly discovered evidence within the meaning ofthe statute because Alston

failed to show that the report could not have been obtained earlier through the exercise of due

diligence, and he did not describe the contents of the report or otherwise explain how it could

establish his factual innocence notwithstanding the evidence presented against him at trial.

As to Alston's second claim, his reliance on Hurst H was misplaced, given that Hurst H

was a state court decision. This Court further concluded that Cage, McCleskey, Burch, and Trop

were not new rules of constitutional law, as they were decided prior to Alston's initial § 2254

17


proceeding, and the Supreme Court had not made any rules announced in Ring and Glossip apply

retroactively. The remaining cases that Alston cited did not meet the statutory criteria because

they were decisions from federal circuit courts and the Florida Supreme Court.

II. Discussion

Under § 2244(b)(1)'s threshold requirement, "[a] claim presented in a second or successive

habeas corpus application under section 2254 that was presented in a prior application shall be

dismissed." 28 U.S.C. § 2244(b)(1). We have held that a federal prisoner's previous application

for leave to file a successive 28 U.S.C. § 2255 motion is a "prior application" for purposes of §

2244(b)(1). Baptiste, 828 F.3d at 1340. A "claim" is "an asserted federal basis for relief from a

state court's judgment ofconviction." Gonzalez, 545 U.S. at 530. New supporting evidence and

new legal arguments in support ofa prior claim are insufficient to create a new claim. In re Hill,

715 F.3d 284, 293 (11th Cir. 2013). The claim remains the same so long as "[t]he basic thrust or

gravamen of [the applicant's] legal argument is the same.'' Id at 294 (citation omitted).

An applicant seeking permission to file a second or successive § 2254 petition based on

newly discovered facts must show, first, that the facts at issue would not have been uncovered

through a reasonable investigation undertaken before the initial § 2254 petition was litigated. In

re Boshears, 110 F.3d 1538, 1540 (11th Cir. 1997). Second, he must allege newly discovered

facts that, when taken as true, establish a constitutional error. Id at 1541. Finally, we evaluate

these facts in light ofthe evidenòe as a whole to determine whether, had the applicant known these

facts at the time ofhis trial, the application "clearly proves that the applicant could not have been

convicted." Id Thus, we will deny the application if "any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt." Id

18


An applicant may obtain permission to file a second or successive § 2254 petition based

upon a new rule of constitutional law only if that rule was previously unavailable and has been

made retroactive to cases on collateral review by the Supreme Court. 28 U.S.C. § 2244(b)(2)(A).

The applicant must establish that the Supreme Court has held that the new rule of constitutional

law applies retroactively on collateral review. Id. at 662. Multiple cases can, together, make a

rule retroactive, but "only ifthe holdings in those cases necessarily dictate retroactivity of the new

rule." Id. at 666.

A. Alleged Caldwell Error

In his first claim, Alston asserts that he is entitled to an evidentiary hearing in state court

because the jury instructions that were given at his trial violated Caldwell. In support of this

claim, Alston cites to Caldwell, Mann, Adams, and Alston I. While he does not explicitly identify

any newly discovered evidence upon which his claim relies, he attaches to his application the

following documents: (1) copies of Caldwell, Mann, and Adams; (2) an excerpt from his brief on

direct appeal, in which he argued that the state trial court committed a Caldwell violation; (3) a

"Motion to Prohibit Misleading References to the Advisory Role ofthe Jury at Sentencing," which

was filed in his criminal case; and (4) an excerpt from Alston I. He also refers to the "transcript

of the record" in case no. 17-10048. A review of the documents filed in that case indicates that

he likely intends to refer to a transcript excerpt from his criminal trial, in which the state trial court

instructed the jurors as to their role in imposing sentence.

Alston has not made a prima facie showing that his Caldwell claim satisfies the

requirements of § 2244(b)(2). Caldwell, the only U.S. Supreme Court case upon which his claim

appears to rely, was decided in 1985, 15 years prior to the filing of Alston's original § 2254

19


petition. See Caldwell, 472 U.S. at 320. Thus,. Caldwell did not set forth a new, previously

unavailable rule of constitutional law. See 28 U.S.C. § 2244(b)(2)(A). The remaining cases to

which Alston cites-Mann, Adams, andAlston I-are not U.S. Supreme Court cases, and, as such,

did not establish any new rules of constitutional law. See id.

Alston also has not satisfied the criteria of § 2244(b)(2)(B). All ofthe documents that he

attaches to his application were available and discoverable through the exercise of due diligence

by the conclusion of his direct appeal. See id. § 2244(b)(2)(B)(i). In any event, none of these

documents have any bearing on whetherhe, as a factual matter, committed the charged first-degree

murder. See id. § 2244(b)(2)(B)(ii). The transcript that he attached to his application in case no.

17-10048 likewise is irrelevant to his factual guilt or innocence ofthe charged murder, as it simply

recounts the state trial court's instructions to thejurors regarding their advisory role in determining

whether a death sentence was warranted. See id. Therefore, Alston's Caldwell claim fails to

meet the requirements of § 2244(b)(2).

B. Hurst I/II Claim

In his second claim, Alston alleges that his capital sentence and Florida's death penalty

statute are unconstitutional in light ofHurst I and Hurst II.

As a preliminary matter, Alston's claim is barred by § 2244(b)(1). The crux ofhis clairn

is that his death sentence, imposed pursuant to Fla. Staf. Ann. § 921.141, is unconstitutional under

Hurst I and Hurst II. In his third application for leave to file a successive § 2254 petition, he

alleged that Fla. Stat. Ann. § 921.141 is unconstitutional in light of Hurst I. He also contended,

in his fifth application for leave to file a successive § 2254 petition, that his death sentence was

unconstitutional in light ofHurst II. Because he previously requested authorization to challenge

20


his sentence on the same grounds that he now raises in the instant application, his claim is barred.

See Baptiste, 828 F.3d at 1340.

Even ifhis-claim were not barred under Baptiste, Alston could not satisfy the requirements

of § 2244(b)(2). First, he has not made a prima facie showing that his claim relies on a new,

retroactively applicable rule ofconstitutional law. See 28 U.S.C. § 2244(b)(2)(A). To the extent

that Alston relies on Hurst II, his reliance is misplaced, as Hurst II is a state court case, and,

therefore, did not establish a new rule of constitutional law. See id. While Hurst I is a U.S.

Supreme Court case, the Supreme Court has not issued any decisions holding that Hurst I applies

retroactively to cases on collateral review, and Hurst I itselfwas decided on direct appeal from the

defendant's resentencing. See Hurst I, 136 S. Ct. at 620-21; Tyler, 533 U.S. at 662-63.

Likewise, no combination of cases necessarily dictates that the rule in Hurst I is

retroactively applicable to cases on collateral review. See Tyler, 533 U.S. at 666. The Supreme

Court first recognized the Sixth Amendment right at issue in Hurst I in Apprendi v. New Jersey,

530 U.S. 466, 490 (2000) (holding that, other 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). In Ring, the Supreme Court applied Apprendi in

the capital punishment context and held that Arizona's death penalty scheme was unconstitutional

because it required a judge, rather than a jury, to find whether there was an aggravating

circumstance, which was a statutory prerequisite to the imposition ofthe death penalty. 536 U.S.

at 592-93, 609. The Hurst ICourt explicitly relied on its prior holding in Ring in concluding that

Florida's death penalty statute was unconstitutional. Hurst I, 136 S. Ct. at 621-22 ("The analysis

the Ring Court applied to Arizona's sentencing scheme applies equally to Florida's. . . . In light of

21


Ring, we hold that [the defendant's] sentence violates the Sixth Amendment."). The Supreme

Court has not held or suggested that Apprendi is retroactively applicable, and, more importantly,

the Supreme Court has held that Ring does not apply retroactively. Schriro v. Summerlin, 542

U.S. 348, 358 (2004). Given the Court's holding in Ring and Schriro, Supreme Court precedent

does not suggest, much less dictate, that Hurst I applies retroactively. Rather, Ring and Schriro

show that Hurst is not retroactive to Alston's case under federal law. As to the remaining cases

that Alston cites, these decisions are either federal district court cases or state court cases, and,

therefore, did not establish any new rules of constitutional law for purposes of § 2244(b)(2)(A).

See 28 U.S.C. § 2244(b)(2)(A).

Alston also may not proceed under § 2244(b)(2)(B). The motion that he attaches to his

application has no bearing on whether he, in fact, killed Coon. See id. § 2244(b)(2)(B)(ii).

Rather, it sets forth legal arguments in support of its contention that Fla. Stat. Ann. § 782.04-

Florida's murder statute-and § 921.141 violate Alston's constitutional rights. Moreover,

because the motion was filed in Alston's underlying criminal case, it was previously discoverable

through the exercise of due diligence. See id. § 2244(b)(2)(B)(i). Accordingly, Alston has not

satisfied the requirements of § 2244(b)(2) with respect to his second claim for the above reasons.

22


IN THE UNITED STATSS COURTOF APPEALS


No. 16-lS700-P


Pentioner.

Application for Leave to File a Second or ShecessivoHabeas Corpus Petitlan, 28 U.S.C. §2244(b)

Before: HULL, WILLIAM PRYOR and JILL PRYOR. Circuit Judges.

BYTHEPANEL:

Pursuant to 28 U.S.C. §2244(b)(3)(A), Presslay B. Alston has filed an applicadon

seeldag an order authorizing the district court to consider a second or successive petition for a

writ ofhabeas.corpus. Such authorization may be granted only if:

(A) the applicant shows that the claim relies on a now rule ofconstitutional law, made retroactive to cases on collateral review by the SupremeCourt, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discoveredpreviously through the exercise ofdue diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of theevidence as a whole, would be suSicient to establish by clear and convincingevidence that, but for constitutional error, no reasonable thctfinder would havefound the applicant guilty of the undedying offense.


28 U.S.C. § 2244(b)(2). "The court ofappeals may authorize the filing ofa second or successive

application only if it determines that the application makes a prima facie showing that the

application satisfies the requirements of this subsection." Id § 2244(b)(3)(C); see also Jordan v.

Sec'y, Dep't of Corr., 485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that our


been met is simply a threshold determination).

In the instantpro se application,3Alston asserts that the prosecutor was "invgived in what .

happeneq to" the victim, and "éó tèsöintble faòth]finderWòuld lãve fopädihiái] gúiltý bechuse

ôf [the pøsebütor's] involveineïnt.F He alleges that his claim relies on newly discovered

evidence. Specifically, he asserts that, when the prosecutor went to the "[J]ax, FL city council to

bully it[s] president . . . media put on the open tv screen the news words: ('[the prosecutor] bully

and he's a bully')." He further ñotes that, "as a person asking for his Si employment record,

47 F. Supp. 2d 28 [(D.D.C. 2010)], [ e o injrgdge geggto seek

élief in e federal@urt" He concedes that he previously raised this claim in his second

28 U.S.C. § 2254 petition.

In his attachment, Alston appears to present several additional claims. First, he requests

that we "nullify" his prior waiver of his right to pursue state post-conviction relief, given that:

(1) he only waived his state post-conviction rights in an offort to seek federal habeas relief;

(2) he objected to the three psychiatric evaluations that "allowed the court prosecutors and [his

post-conviction counsel] to stream him into the 'waivers' court"; and (3) the state court judge

who conducted the hearing regarding his waiver of his state post-conviction rights was

incompetent. Second, he asserts that Florida's death penalty statute, Fla. Stat. Ann. § 921.141, is

unconstitutional in light of the Supreme Court's recent decision in Hurst v. Florida,

2


577 U.S. 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016). Next, he argues that his procedural due.

process rights were violated when the prosecutor referred to O. J. Simpson during voir dire. He

also contends that he has been on death row from 2004 to 2016, but the state "hasn't executed a

warrant on him to get him executed," which is both cruel and unconstitutional. Finally, he

requests that we "remove the [PLRA] '3' strikes off him." In support of his application, he

attaches numerous news articles, court filings, excerpts from two Florida state court cases, and

excerpts from his voir dire transcript.

I. Factual Background and Procedural History . .

A. Facts ofthe Crime and hial Proceedings

In its opinion afHrming Alston's conviction and sentence, the Florida Supreme Court set

forth the following relevant facts. The victim, James Coon,.was last seen at the University

Medical Center in Jacksonville, Florida, on January 22, 1995. Alston v. State, 723 So. 2d 148,

150 (Fla. 1998) ("Alston 1"). His car, a red Honda Civic, was found abandoned the next day

behind a convenience store. Id at 150-51.

Gwenetta McIntyre testified that, on January 19, 1995, Alston was living at her home in

Jacksonville. See id at 151. McIntyre left town for several days and returned on

January 23, 1995. Id. While she was parked at a convenience store, Alston and his half-brother,

Dee Ellison, drove up in a red Honda Civic, then drove the Civic around the back of the store

and abandoned it. Id When McIntyre asked about the Honda, Alston replied that it was stolen.

Id McIntyre noticed .that Alston was carrying her .32 caliber revolver, which she kept at her

home. Id She later became suspicious of Alston and went to the police. Id. When police

searched her home, they found her .32 caliber revolver. Id Police then arrested Alston and

Ellison. Id

3

Case: 16-15700 Date Filed: 09/21/2016 Page: 4 of 20 .

After he was read his rights and signed a waiver form, Alston confessed orally and in

writing to his involvement in the crime. Id He stated that, on January 22, 1995, he and Ellison

saw Coon leave a hospital in his red Honda Civic. Id When Coon pulled up to them, Alston

and Ellison got in the car. Id A short while later, Ellison pointed a revolver at Coon and took

his watch. Id Ellison later took his wallet and split the cash with Alston. Id According to

Alston, they then drove to another location, where he and Ellison shot Coon. Id at 152.

After confessing, Alston agreed to show detectives the location of Coon's body. Id

During the evening search, which proved unsuccessful, .Alston stated, "We had robbed

somebody and taken him in [the] woods and I shot him twice in the head." Id (alteration in

original). On the way back from the search, they went to Alston's mother's house, where Alston

again admitted to killing Coon. Id On the walk back from the police station to the jail, which

was recorded on videotape, Alston also made inculpatory remarks to reporters. Id

Later, police took Alston back to the woods and again advised him of his constitutional

rights. Id Alston waived his rights and directed the police to the area they had searched the

previous night. Id Police found skeletal remains, as well as three bullets. Id One bullet was

found in the skull, and another was found where the skull would have been if.it had not been

moved, apparently by animals. Id The final bullet was discovered inside Coon's shirt. Id At

trial, a medical expert identified the remain as Coon's by using dental records and testified that

the cause ofdeath was three gunshot wounds. Id A firearms expert also testified that the bullets

were .32 caliber, and there was a 99 percent probability that the bullet found in Coon's skull

came from McIntyre's revolver. Id

On the day that Coon's body was found, Alston initially told a detective that Ellison and

a person named Kurt killed Coon, but later indicated that he had lied about Kurt. Id at 153.

4


Alston then admit.ted that he shot Coon twice in the head, while Ellison shot him once in the

body. Id Several days later, Alston gave another written statement, in which he stated that

Ellison and Kurt initially kidnapped Coon, then sought Alston out to ask what to do with him.

Id When Alston opened the tmnk, where Coon was being kept, Alston told Ellison that "the boy

will have to be dealt with, meaning kill[ed]." Id (alteration in original). Kurt left, and Alston

and Ellison drove away. Id They took Coon into the woods, where Ellison shot him once, and

Alston shot him twice. Id

The jury found Alston guilty of first-degree murder, armed robbery, and armed

kidnapping, and reconunended the death penalty by a vote of nine to three. Id The trial court

found five aggravating factors and five non-statutory mitigating factors. Id On

January 12, 1996, it sentenced Alston to death as to the murder charge and imposed consecutive

life sentences as to the remaining charges. Id Alston appealed to the Florida Supreme Court,

which affirmed his convictions and death sentence. Alston I, 723 So. 2d at 162-63. Alston did

not petition the Supreme Court for certforari. Alston v. State, 894 So. 2d 46, 48 (Fla.2004)

("Alston H').

B. State Post-Conviction Proceedings

In June 1999, Capital Collateral Regional Counsel ("CCRC") was appointed to represent

Alston in his post-conviction proceedings. Id Before CCRC filed a post-conviction motion,

Alston sent a letter to the state trial court expressing his desire to represent himself. Id A few

months later, in November 1999, CCRC filed "an unverified 'shell' motion for post[-]conviction

relief." Id CCRC also filed two motions to withdraw as counsel, which the state trial court

denied. Id In May 2000, the trial court conducted a hearing regarding Alston's request to

proceedpro se and thereafter directed CCRC to continue representing him. Id

5

. Case: 16-15700 Date Filed: 09/21/2016 Page: 6 of 20

In July 2000, CCRC filed a motion for a competency determination. Id The district

court granted the motion and appointed three experts-Drs. Umesh Mhatre, Wade Myers, and

Robert Berland-who examined Alston and filed reports. Id Dr. Myers and Dr. Berland

concluded that Alston was incompetent to proceed, while Dr. Mhatre concluded that he was

competent. Id at 49. In October 2001, after reviewing the reports, the state trial court found

Alston incompetent to proceed, ordered the Department of Corrections to file periodic reports

with the court concerning Alston, and directed that he be periodically re-evaluated. Id at 48.

While he was declared incompetent, Alston filed numerouspro se petitions in the Florida

Supreme Court, one of which requested a writ of mandamus ordering the state trial court to

conduct a Durocher' hearing "to waive all further appeals and the post[-]conviction appeals

procedure." Id The Florida Supreme Court denied most of the petitions, but, in December

2002, it ordered the state. trial court to conduct a Durocher hearing if the court determined that

Alston wished to waive all further appeals. Id at 48-49.

Prior to the issuance of the Florida Supreme Court's order, Drs. Mhatre, Myers, and

Berland re-evaluated Alston and filed reports with the state trial court. Id at 49. Their

conclusions did not change upon re-evaluation. Id at 50. In March 2003, the state trial court

conducted an evidentiary hearing to determine Alston's competence, at which the

court-appointed experts Ènd staff from Alston's prison testified. Id at 49. At the hearing, over

his counsel's objection, Alston requested that the court find him competent to proceed and asked

the court to schedule a Durocher hearing. Id at 55. The court found Alston competent, and, in

June 2003, it held a Durocher.hearing. Id at 49. Following the hearing, the court found that

' Durocher v. Singletary, 623 So. 2d 482, 484-85 (Fla. 1993) (holding ·that a capitaldefendantmay waive his right to post-conviction counsel and proceedings following a hearing todetermine ifthe defendant understands the consequences ofhis decision).

6


Alston's decision to waive his post-conviction rights was knowing, intelligent, and voluntary.

Id It discharged CCRC and ordered all pending motions or petitions for post-conviction relief

dismissed with prejudice. Id "Unsure how to proceed from there, the circuit court, by letter

dated June 12, 2003, informed [the Fiorida Supreme Court] of its order, forwarding a copy of it

and a transcript of the Durocher hearing to [the Florida Supreme Court] 'for whatever action the

justices may deem appropriate."' Id

A few weeks later, Alston filed a pro se pleading with the Florida Supreme Court,

arguing that his testimony at the Durocher hearing established that an assistant state attorney

fabricated the case against him. Id The Florida Supreme Court struck the filing as an

unauthorized pro se pleading. Id In August 2003, Alston filed a second pro se pleading to

"appeal" the order striking his prior pleading. Id The Florida Supreme Court also stmck that

pleading, but requested that the state and CCRC file briefs regarding the state trial court's

competency determination and the validity ofAlston's waiver. Id In October 2004, the Florida

Supreme Court held that the state trial court did not abuse its discretion in finding Alston

competent to proceed or in finding that he knowingly, intelligently, and voluntarily waived his

rights to post-conviction counsel and proceedings. Id at 59.

C. FederalPost-Conviction Proceedings

In April 2000, while his November 1999 motion for state post-conviction relief was

pending, Alston filed a § 2254 petition, alleging, inter alia, that the prosecutor fabricated

evidence, maliciously prosecuted him, and committed Brad/ and Giglio3 violations. In May

2 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

3 Giglio v. UnitedStates, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972).7


2000, the district court dismissed the § 2254 petition without prejudice because Alston had a

motion for post-conviction reliefpending in state comt.

In March 2004, while the Florida Supreme Court was reviewing the state trial court's

competency determination and findings from the Durocher hearing, Alston filed a second § 2254

petition, which he amended in October 2004, after the Florida Supreme Court affirmed the state

court's findings that he was competent and that his waiver was knowing, intelligent, and

voluntary. In his amended § 2254 petition, he argued that the state committed a crime in

obtaining his convictions, and the prosecutor "violate[d] [his] civil and constitutional rights to

seek the death penalty and to administer the death penalty as weaponry and as a weapon upon

[Alston] for/because of totally separate and different criminal investigations in 1995 one that

involves political campaigns in '95."

After the district court appointed counsel to represent Alston, counsel filed a second

amended § 2254 petition and memorandum in support, alleging, in relevant part, that: (1) Alston

was incompetent to waive his state post-conviction rights, and his waiver was not knowing,

intelligent, and voluntary; and (2) Alston's due process rights were violated when he was tried

while incompetent. Counsel also requested that the district court allow Alston to "re-litigate the

claims introduced" in his October 2004 amended § 2254 petition.

The district court summarily denied the claims raised in the October 2004 kmended

§ 2254 petition. It also denied the claims raised in his counseled second amended § 2254

petition, but granted a certificate ofappealability as to the issue ofwhether it erred in concluding

that the state court's ruling-that Alston was competent to waive his post-conviction

proceedings, and his waiver was knowing, intelligent, and voluntary-was neither an

unreasonable application of clearly established federal law, nor based on an unreasonable

8


determination of the facts in light of the evidence presented during the state court proceedings.

Alston III, 610 F.3d at 1324-25.

On July 8, 2010, we afBrmed the district court's denial of Alston's § 2254 petition,

concluding that his challenge to the Florida Supreme Court's decision upholding the state trial

court's competency and waiver-validity findings was not a cognivable claim. Id at 1325-26.

Even if it were cognizable, it would fail on the merits, as Alston failed to demonstrate by clear

and convincing evidence that the state court's competency and waiver-validity findings were not

fairly supported by the record. Id at 1326. The Supreme Court denied Alston's subsequent

petition for certforari. Alston v. McNeil, 562 U.S. 1113, 131 S. Ct. 829, 178 L. Ed.2d 564

(2010).

II, Discussion

Under § 2244(b)(1)'s threshold requirement, "[a] claim presented in a second or

successive habeas corpus application under section 2254 that was presented in a prior application

shall be dismissed." 28 U.S.C. § 2244(b)(1). A prisoner's previous § 2254 petition is a "prior

application" for purposes of § 2244(b)(1). In re Lambrix, 624 F.3d 1355, 1362 (11th Cir. 2010).

A "claim" is "an asserted federal basis for relief from a state court's judgment of conviction."

Gonzalez v. Crosby, 545 U.S. 524, 530, 125 S. Ct. 2641, 2647, 162 L. Ed. 2d 480 (2005). New

supporting evidence and new legal arguments in support ofa prior claim are insufEcient to create

a new claim. In re Hill, 715 F.3d 284, 293 (1Ith Cir. 2013). The claim remains the same so long

as "[t]he basic thrust or gravamen of [the applicant's] legal argument is the same." Id at 294

(citation omitted).

An applicant seeking permission to Ble a second or successive § 2254 petition based on

newly discovered facts must show, first, that the facts at issue would not have been uncovered

9


through a reasonable investigation undertaken before the initial § 2254 petition was litigated. In

re Boshears, 110 F.3d 1538, 1540 (11th Cir. 1997). Second, he or she must allege newly

discovered facts that, when taken as true, establish a constitutional error. Id at 1541. Finally,

we evaluate these facts in light of the evidence as a whole to determine whether, had the

applicant known these facts at the time ofhis or her trial, the application "clearly proves that the

applicant could not have been convicted." Id Thus, we will deny the application if"any rational

trier of fact could have found the essential elements ofthe crime beyond a reasonable doubt." Id

An applicant may obtain permission to file a second or successive § 2254 petition based

upon a new rule of constitutional law only if that rule was previously unavailable and has been

made retroactive to cases on collateral review by the Supreme Court. 28 U.S.C. § 2244(b)(2)(A).

It is not enough for the applicant to show that we have applied a new rule of constitutional law

retroactively, or that the rule satisfies the criteria for retroactive application set forth in Teague v.

Lane, 489 U.S. 288, 311-13, 109 S. Ct. 1060, 1075-77, 103 L. Ed. 2d 334 (1989) (plurality

opinion) (stating that a new rule of criminal procedure may apply retroactively if it "places

certain kinds of pEimary, private individual conduct beyond the power of the criminal law-

making authority to proscribe," or it is a "watershed rule[ ] ofcriminal procedure" that "requires

the observance of those procedures that ... . are implicit in the concept of ordered liberty"

(omission in original) (quotations omitted)). Tyler v. Cain, 533 U.S. 656, 663, 665-66,

121 S. Ct. 2478, 2482-84, 150 L. Ed. 2d 632 (2001). Instead, the applicant must establish that

the Supreme Court has held that the new rule of constitutional law applies retroactively on

collateral review. Id at 662, 121 S. Ct. at 2482. Multiple cases can, together, make a rule

retroactive, but "only if the holdings in those cases necessarily dictate retroactivity of the new

rule." Id at 666, 121 S. Ct. at 2484.

10


A. Prosecutor'sAllegedInvolvementwith the Victim

In his first claim, Alston asserts that the prosecutor was "involved in what happened" to

Coon. Specifically, he states that, without telling the court, his employees, or his office, the

×prosecutor "axxxed [Coon] because he became intolerable to him." According to Alston, "no

reasonable fact[-]finder would have found [him] guilty because of [the prosecutor's]

involvement." Liberally constming this claim, it appears that he intends to assert that the

prosecutor's alleged involvement in the crime makes Alston himself actually innocent of .

murdering Coon. Alston alleges that his claim relies on newly discovered evidence-the fact

that, when the prosecutor went to the "Jax, FL" city council to bully the city council president,

"media put on the open tv screen the news words: ('[the prosecutor] bully and he's a bully')."

He also notes that, "as a person asking for his Si employment record . .. [P]ressley [A]. wants to

introduce them both to seek relief in the federal court." In support ofhis application, he attaches

numerous news articles, court filings, and excerpts of the voir dire transcript, none of which

concem the prosecutor's alleged involvement with Coon.

As an initial matter, Alston concedes that he previously raised this claim in his second

§ 2254 petition, which was denied on the merits. Although his allegations in his October 2004

amended § 2254 petition were unclear, he appeared to argue that the state committed a crime in

obtaining his convictions, and the prosecutor violated his constitutional rights by using the death

penalty as a weapon against him because of separate criminal investigations eat invoked

political campaigns. Here, the "basic thrust or gravamen" of Alston's instant claim may not be

the same as that of his prior claim. See Hill, 715 F.3d at 294. While the instant application

appears to raise a claim of actual innocence, the crux of his prior claim appears to be an

11


allegation ofprosecutorial misconduct. Thus, the instant claim arguably is a new, separate claim

for purposes of § 2244(b)(1). See id

Assuming arguendo that the instant claim is a new claim and that we are not bound by

Alston's concession to the contrary, he has not made a prima facie showing that his

actual-innocence claim meets the requirements of § 2244(b)(2). See 28 U.S.C. § 2244(b)(3)(C).

Because he does not assert that his claim relies on a new, previously unavailable rule of .

constitutional law, he may not proceed under § 2244(b)(2)(A). See id § 2244(b)(2)(A). He also

has not shown that he meets the requirements of § 2244(b)(2)(B). Alston does not explain when

he discovered that the prosecutor allegedly went to bully a city councilman or when he found out

that the prosecutor was called a bully on television, and he does not argue, much less

demonstrate, that he could not have discovered this evidence earlier through a reasonable

investigation. See Boshears, 110 F.3d at 1540. Moreover, Alston's alleged new evidence has no

bearing on whether he himself is factually innocent. See 28 U.S.C. § 2244(b)(2)(B)(ii). Even if

the prosecutor bullied a city councilman and the media called him a bully, this information does

not suggest, much less establish by clear and convincing evidence, that Alston in fact did not

shoot Coon. See i 1,ikewise, whe er Alstog is or vgs egplqggljy the Féral Bureau

Investigation Ü!ÈB as no bearing on whether he shot Coon. See id

Finally, Alston has not alleged facts or presented evidence that, when taken as true,

establish a constitutional violation. See Boshears, 110 F.3d at 1541. Under the plain language of

the statute, § 2244(b)(2)(B)(ii) requires both clear and convincing evidence of actual innocence

and a constitutional violation, which we have referred to as the "actual innocence plus" standard.

In re Davis, 565 F.3d 810, 823 (11th Cir. 2009). Unlike a "typical constitutional claim," such as

one arising under Brady, 373 U.S. 83, 83 S. Ct. I194, Giglio, 405 U.S. 150, 92 S. Ct. 763, or

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Strickland v. Fashington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), "the statutory

language does not readily accommodate" a freestanding claim ofactual innocence. Id Although

Alston states that the prosecutor was "involved in what häppened to" Coon, he has not clearly

identified any underlying constitutional violation, such as the prosecutor knowingly presenting

false testimony. See id. Accordingly, he has not shown that this claim meets the requirements of

§ 2244(b)(2)(B). See 28 U.S.C. § 2244(b)(2)(B).

B. Waiver ofState Post-Conviction Rights

In his attachment to his application, Alston requests that we "nullify" his waiver of his

state post-conviction rights because he only waived these rights in an effort to have his case

reviewed in federal court. He also asserts that he objected to "the '3' crazy evals. tests that

allowed the court prosecutors and the CCRC attomeys to stream him into the 'waivers' court that

dismissed the appeals." Finally, he alleges that the state court judge was incompetent to conduct

the Durocher hearing, as evidenced by the fact that the judge "didn't know what i.o.p[.]

procedures to use to forward and process the case 'waivers' mail in to the [ ] Florida Supreme

Court."

As a preliminary matter, to the extent that Alston intends to attack the knowing,

voluntary, and intelligent nature of his waiver of his state post-conviction rights, his claim is

barred under § 2244(b)(1), as he previously raised this claim in his second amended § 2254

petition, which the district court denied on the merits. See id §·2244(b)(1). On appeal, we

rejected the claim, concluding that, even if the claim were cogni7ahle in a federal habeas

proceeding, Alston failed to demonstrate by clear and convincing evidence that the state court's

competency and waiver-validity findings were not fairly supported by the record. Alston HI,

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610 F.3d at 1326. Under § 2244(b)(1), he is barred from attempting to relitigate the knowing,

voluntary, and intelligent nature ofhis waiver. See 28 U.S.C. § 2244(b)(1).

To the extent that Alston intends to challenge his waiver on the basis of any error in

overruling his objection to "the '3' crazy evals. tests" or in permitting an "incompetent" judge to

conduct the hearing, he arguably raises a new claim, as these assertions do not appear to attack

the knowing, voluntary, and intelligent nature of his waiver. See Hill, 715 F.3d at 294.

Nevertheless, even if this claim were cognizable, Alston has not made the requisiteprimafacie

showing that his claim meets the criteria of § 2244(b)(2). See 28 U.S.C. § 2244(b)(3)(C). He

does not allege, and the record does not reflect, that his claim relies on a new, previously

unavailable rule of constitutional law. See id § 2244(b)(2)(A). Alston also does not present any

new evidence in support of his claim, and the record reflects that the facts underlying his claim

were previously available. See id § 2244(b)(2)(B)(i). The factual predicate for his claim arose

in 2003, at the time that he underwent psychiatric evaluations and participated in the Durocher

hearing. See Alston II, 894 So. 2d at 49. Because he did not file his second § 2254 petition until

more than one year later, the factual predicate for his claim could have been discovered through

a reasonable investigation prior to the litigation ofhis second § 2254 petition. See Boshears, 110

F.3d at 1540. In any event, Alston cannot show that no reasonable fact-finder would have found

him guilty of first-degree murder in light of evidence that he objected to psychiatric evaluations

or that the state trial court judge was unsure how to proceed after finding that Alston's waiver

was valid. See 28 U.S.C. § 2244(b)(2)(B)(ii). Accordingly, Alston has not made a primafacie

showing that his claim meets the requirements of § 2244(b)(2). See id § 2244(b)(3)(C).

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C. Constitutionality ofFlorida's Death Penaity Statute

Alston further appears to allege that, in light of the Supreme Court's recent decision in

Hurst, Flo'rida's death penalty statute is unconstitutional. He requests that we "allow [him] to do

a second or successive habeas action that can ask for the court's governance regarding Florida

death case impediment," and states that he wishes to "ask the trial court for a new trial" due to

the ruling in Hurst. In support of this claim, he attaches three news articles discussing Florida's

death penalty procedure and the holding in Hurst.

In 2012, when the defendant in Hurst was resentenced, Florida law provided that, if a

defendant was convicted ofa capital felony, the trial court would hold a hearing before the jury,

in which both parties could present evidence relevant to the nature of the crime and character of

the defendant.' Fla. Stat. Ann. § 921.141(1) (2012); Hurst, 577 U.S. ata 136 S. Ct. at 620.

The jury would then render an advisory sentence without specifying the factual basis for its

recommendation. Fla. Stat. Ann. § 921.141(2) (2012); Hurst, 577 U.S. at 136 S. Ct. at 620.

Finally, the trial judge would enter a sentence, and, if it imposed the death sentence, set forth its

relevant findings in writing. Fla. Stat. Ann. § 921.141(3) (2012).. Although the judge was

required to give the jury's recommendation "great weight," the sentencing order was required to

reflect the judge's independent judgment about the existence of aggravating and mitigating

factors. Hurst, 577 U.S. at __, 136 S. Ct. at 620. The Supreme Court in Hurst held that this

scheme violated defendants' Sixth Amendment right to have each element of an offense

submitted to a jury and proved beyond a reasonable doubt. Hurst, 577 U.S. at _._, 136 S. Ct. at

621-22.

4 The relevant portions of Florida's death penalty statute in 2012 were identical to theprovisions in place in January 1996, when Alston was sentenced to death. . CompareFla. Stat. Ann. § 921.141 (2012), with Fla. Stat. Ann. § 921.141 (1996).

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Alston has not made a primafacie showing that his Hwst claim meets the requirements

of § 2244(b)(2). See 28 U.S.C.. § 2244(b)(3)(C). First, none of the evidence that he submits is

relevant to his guilt or innocence, as none of the articles are about his own case, and they are not

probative of the factual issue of whether he shot Coon. Accordingly, he has not satisfied the

criteria of § 2244(b)(2)(B). See id. § 2244(b)(2)(B)(ii). He also has not demonstrated that his

claim relies on a new, previously unavailable rule of constitutional law that has been made

retroactive on collateral review by the Supreme Court. The Supreme Court has not issued any

decisions holding that Hwst applies retroactively to cases on collateral review, and Hest itself

was decided on direct appeal from the defendant's resentencing. See Hwst, 577 U.S. ata

136 S. Ct. at 620-21; Tyler, 533 U.S. at 662-63, 121 S. Ct. at 2482.

Likewise, no combination of cases necessarily dictates that the rule in Hwst is

retroactively applicable to cases on collateral review. See Tyler, 533 U.S. at 666, 121 S. Ct. at

2484. The Supreme Court first recognized the Sixth Amendment right at issue in Hwst in

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 (2000)

(holding that, other 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 ajury and proved beyond

a reasonable doubt). In Ring v. Arizona, 536 U.S. 584, 592-93, 609, 122 S. Ct. 2428, 2434-35,

2443, 153 L. Ed. 2d 556 (2002), the Supreme Court applied Apprendi in the capital punishment

context and held that Arizona's death penalty scheme was unconstitutional because it required a

judge, rather than a jury, to find whether there was an aggravating circumstance, which was a

statutory prerequisite to the imposition ofthe death penalty. The Hrst Court explicitly relied on

its prior holding in Ring in concluding that Florida's death penalty statute was unconstitutional.

Hwst, 577 U.S. at __, 136 S. Ct. at 621-22 ("The analysis the Ring Court applied to Arizona's

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sentencing scheme applies equally to Florida's. . . . In light of Ring, we hold that [the

defendant's] sentence violates the Sixth Amendment."). The Supreme Court has not held or

suggested that Apprendi is retroactively applicable, and it has held that Ring does not apply

retroactively. Schriro v. Summerlin, 542 U.S. 348, 358, 124 S. Ct. 2519, 2526, 159 L. Ed. 2d

442 (2004). Given the Court's holding in Schriro, Supreme Court precedent does not suggest,

much less dictate, that Hurst applies retroactively. Accordingly, Alston cannot make a prima

facie showing that that he meets the requirements of § 2244(b)(2)(A). See 28 U.S.C.

§ 2244(b)(2)(A).

D. Prosecutor's Remarks Regarding 0..I Simpson

Alston next argues that his procedural due process rights were violated when the

prosecutor made a reference to O. J. Simpson during voir dire. He appears to indicate that the

prosecutor's remark warrants a new trial. In support of his claim, he attaches excerpts from his

voir dire transcript, pictures of Simpson, news articles about Simpson's case, and an excerpt

from Redish v. State, 525 So. 2d 928 (Fla. 1st Dist. Ct. App. 1988), a Florida case discussing a

prosecutor's improper remarks.

The transcript demonstrates that, during voir dire, the prosecutor stated, "I guess we can

talk about the O. J. Simpson case, and I don't want to make light of it by any means. Have any

of you, as a result of the O. J. Simpson[ ] case or anything you have seen on television, .

developed a feeling or attitude that is adverse to the government or law enforcement?" None of

the prospective jurors responded. The prosecutor then said, "Let me assure you, and I tried cases

with these gentlemen and this Judge, this case will be nothing like the O. J. Simpson case, but it

is important that you understand that in this case things are done differently than apparently were

done in that case." One ofAlston's attomeys later stated:

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Okay, the comment was made earlier, and I guess it's accurate, that this is not -this case is not like the O. J. Simpson case. And it's true in a sense and not in a

- sense. You know, it's not going to last that long, fortunately for all of us therewas a lot more to do in that case as far as publicity and many other things, but it isthe same in that.we have a citizen of our community who is charged with a veryvery serious offense, and in this case, as in that case, the State is trying to provebeyond a reasonable doubt to your satisfaction that he is guilty.

Alston has not made a prima facie showing that his claim meets the requirements of

§ 2244(b)(2). See 28 U.S.C. § 2244(b)(3)(C). He does not allege that his claim relies on a new,

previously unavailable rule of constitutional law that has been made retroactive on collateral

review. See id § 2244(b)(2)(A). Assuming that he intends to rely on the holding in Redish as a

new rule of constitutional law, his claim does not meet the statutory criteria, as Redish is a

Florida state court case, not a U.S. Supreme Court case, such that it did not establish a new rule

ofconstitutional law. See id § 2244(b)(2)(A); Redish, 525 So. 2d 928. To the extent that Alston

relies on the voir dire transcript as newly discovered evidence, he has not alleged when he

obtained it. In any event, because he was present at voir dire, and, thus, gained firsthand

knowledge of the events underlying his claim prior to trial, he could have raised this claim in a

previous § 2254 petition. See·Boshears, 110 F.3d at 1540. Moreover, the attorneys' remarks

have no bearing on whether Alston, as a factual matter, committed the charged first-degree

murder. See 28 U.S.C. § 2244(b)(2)(B)(ii). The pictures of Simpson and the news article about

.Simpson's case also are factually irrelevant to whether Alston shot Coon. See id Accordingly,

Alston has not satisfied the criteria to proceed under § 2244(b)(2)(B). See id § 2244(b)(2).

E. Extended Stay on Death Row

Alston .further asserts that the state "hasn't executed a warrant on him to get him

executed." According to Alston, waiting on death row from 2004 to 2016 "without a warrant" is

both cruel and unconstitutional. He urges us to "consider the 'inordinate length oftime' that [he]

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