Cite as: 584 U. S. ____ (2018) 1

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES JESSE GUARDADO 17–7171 v. JULIE L. JONES, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS

STEVEN ANTHONY COZZIE 17–7545 v. FLORIDA ON PETITIONS FOR WRITS OF CERTIORARI TO THE SUPREME

COURT OF FLORIDA

Nos. 17–7171 and 17–7545. Decided April 2, 2018

The petitions for writs of certiorari are denied. JUSTICE SOTOMAYOR, dissenting from the denial of certiorari. Twice now this Court has declined to vacate and remand to the Florida Supreme Court in cases where that court failed to address a substantial Eighth Amendment chal­ lenge to capital defendants’ sentences, and twice I have dissented from that inaction. See Truehill v. Florida, 583 U. S. ___, ___ (2017); Middleton v. Florida, 583 U. S. ___, ___ (2018). Four petitioners were involved in those cases. Today we add two more to the list, for a total of at least six capital defendants who now face execution by the State without having received full consideration of their claims. It should not be necessary for me to explain again why petitioners’ challenges are substantial, why the Florida Supreme Court should have addressed those challenges, or why this Court has an obligation to intervene. Neverthe­ less, recent developments at the Florida Supreme Court compel me to dissent in full once again. As a reminder, like the petitioners in Truehill and Mid- dleton, Jesse Guardado and Steven Cozzie challenge their 2 GUARDADO v. JONES

SOTOMAYOR, J., dissenting

death sentences pursuant to Caldwell v. Mississippi, 472 U. S. 320 (1985). I summarized those challenges in Mid- dleton as follows: “[Petitioners] were sentenced to death under a Flor­ ida capital sentencing scheme that this Court has since declared unconstitutional. See Hurst v. Florida, 577 U. S. ___ (2016). Relying on the unanimity of the juries’ recommendations of death, the Florida Su­ preme Court post-Hurst declined to disturb the peti­ tioners’ death sentences, reasoning that the unanim- ity ensured that jurors had made the necessary findings of fact under Hurst. By doing so, the Florida Supreme Court effectively transformed the pre-Hurst jury recommendations into binding findings of fact with respect to petitioners’ death sentences.” 583 U. S., at ___–___ (slip op., at 1–2) (dissenting from de­ nial of certiorari). Reliance on those pre-Hurst recommendations, rendered after the juries repeatedly were instructed that their role was merely advisory, implicates Caldwell, where this Court recognized that “the uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role,” in contravention of the Eighth Amendment. 472 U. S., at 333. Following the dissent from the denial of certiorari in Truehill, the Florida Supreme Court has on at least two occasions taken the position that it has, in fact, considered and rejected petitioners’ Caldwell-based challenges.1 In Franklin v. State, — So. 3d —, 2018 WL 897427 (Feb. 15, —————— 1 The cases in which the Florida Supreme Court has taken this posi­ tion, i.e., that it has considered and rejected the Caldwell-based claims discussed herein, are not the ones currently under review before our Court in these petitions. Cite as: 584 U. S. ____ (2018) 3

SOTOMAYOR, J., dissenting

2018) (per curiam), the Florida Supreme Court stated that, “prior to Hurst, [it] repeatedly rejected Caldwell challenges to the standard jury instructions.” Id., at *3. The decisions it cited in support of that pre-Hurst prece­ dent rely on one fact: “Informing the jury that its recom­ mended sentence is ‘advisory’ is a correct statement of Florida law and does not violate Caldwell.” Rigterink v. State, 66 So. 3d 866, 897 (Fla. 2011) (per curiam); Globe v. State, 877 So. 2d 663, 673–674 (Fla. 2004) (per curiam) (stating that it has rejected Caldwell challenges to the standard jury instructions, citing cases that similarly rely on the fact that the instructions accurately reflect the advisory nature of the jurors’ role). But of course, “the rationale underlying [this] previous rejection of the Cald- well challenge [has] now [been] undermined by this Court in Hurst,” Truehill, 583 U. S., at ___ (slip op., at 2), and the Florida Supreme Court must therefore “grapple with the Eighth Amendment implications of [its subsequent post-Hurst] holding” that “then-advisory jury findings are now binding and sufficient to satisfy Hurst,” Middleton, 583 U. S., at ___ (slip op., at 2). Its pre-Hurst precedent thus does not absolve the Florida Supreme Court from addressing petitioners’ new post-Hurst Caldwell-based challenges. The Florida Supreme Court in Franklin did not stop there, however. It went on to state that it had “also re­ jected Caldwell-related Hurst claims” more recently, citing Truehill v. State, 211 So. 3d 930 (Fla. 2017) (per curiam), and Oliver v. State, 214 So. 3d 606 (Fla. 2017) (per cu- riam), noting that “the defendants in Oliver and Truehill petitioned the United States Supreme Court for a writ of certiorari to review their Caldwell claims, which the Court denied.” Franklin, 2018 WL 897427, *3. This is a surpris­ ing statement, because Quentin Truehill and Terence Oliver were the two petitioners whose claims were at issue in my dissent in Truehill. Franklin did not discuss that 4 GUARDADO v. JONES

SOTOMAYOR, J., dissenting

dissent, joined by two other Justices, which specifically noted that “the Florida Supreme Court has failed to ad­ dress” the important Caldwell-based challenge. Truehill, 583 U. S., at ___ (slip op., at 1). Earlier this month, in rejecting a motion to vacate a sentence brought by peti­ tioner Jesse Guardado, the Florida Supreme Court again held that it had “considered and rejected” post-Hurst Caldwell-based challenges, citing Franklin, 2018 WL 897427, and Truehill, 211 So. 3d 930. Guardado v. State, — So. 3d —, 2018 WL 1193196, *2 (Mar. 8, 2018).2 It is hard to understand how the Florida Supreme Court “considered and rejected” these Caldwell-based challenges based on its decisions in Truehill and Oliver. Those cases did not mention or discuss Caldwell. Nor did they men­ tion or discuss the fundamental Eighth Amendment prin­ ciple it announced: “It is constitutionally impermissible to rest a death sentence on a determination made by a sen­ tencer who has been led to believe that the responsibility

—————— 2 As petitioner Guardado explained in his supplemental brief, in addi­

tion to the postconviction motion that forms the basis of the petition currently before our Court, he also filed a motion to vacate his sentence. See Supp. Brief for Petitioner 1. It was with respect to that motion that the Florida Supreme Court issued the opinion stating that it had “considered and rejected” the Caldwell-based challenge. No mention of the Caldwell-based claim was made in the Florida Supreme Court opinion directly under review in this petition. 226 So. 3d 213 (2017). In fact, petitioner Guardado filed a motion with the Florida Supreme Court for rehearing and clarification of the denial of his postconviction motion, noting, inter alia, that the opinion “unreasonably omitted any consideration or discussion of [his] arguments regarding the interplay between Caldwell and Hurst.” App. to Pet. for Cert. in No. 17–7171, p. 68a. The Florida Supreme Court denied the motion in an unreasoned one-line order. See id., at 7a. Petitioner Steven Cozzie also moved for rehearing below, similarly arguing in part that the Florida Supreme Court “overlooked the effect of instructing [his] jury many times that its recommendation was advisory only,” citing Caldwell. App. to Pet. for Cert. in No. 17–7545, p. 66a. The Florida Supreme Court also denied the motion in an unreasoned one-line order. See id., at 43a. Cite as: 584 U. S. ____ (2018) 5

SOTOMAYOR, J., dissenting

for determining the appropriateness of the defendant’s death rests elsewhere.” Caldwell, 472 U. S., at 328–329. In neither Truehill nor Oliver did the Florida Supreme Court discuss the grave Eighth Amendment concerns implicated by its finding that the Hurst violations in those cases are harmless, a conclusion that transforms those advisory jury recommendations into binding findings of fact. Although the Florida Supreme Court noted in Truehill that the defendant in that case “contends that he is entitled to relief pursuant to Hurst v. Florida because the jury in his case was repeatedly instructed regarding the non-binding nature of its verdict,” 211 So. 3d, at 955, that was the first and last reference to that argument. There was absolutely no reference to the argument in Oliver. 214 So. 3d 606.3 Therefore, the Florida Supreme Court has (again)4 failed to address an important and substantial Eighth Amend­ ment challenge to capital defendants’ sentences post- Hurst. Nothing in its pre-Hurst precedent, nor in its opinions in Truehill and Oliver, addresses or resolves these substantial Caldwell-based challenges. This Court can and should intervene in the face of this troubling situation. I dissent.

—————— 3 Tellingly, in neither Franklin nor Guardado did the Florida Su­

preme Court supply a pincite for its “consider[ation] and reject[ion]” in Truehill and Oliver of these Caldwell-based claims. 4 “Toutes choses sont dites déjà; mais comme personne n’écoute, il

faut toujours recommencer.” Gide, Le Traité du Narcisse 8 (1892), in Le Traité du Narcisse 104 (R. Robidoux ed. 1978) (“Everything has been said already; but as no one listens, we must always begin again”).