Supreme Court of Florida ____________
No. SC18-1149 ____________
HARRY FRANKLIN PHILLIPS, Appellant,
vs.
STATE OF FLORIDA, Appellee.
May 21, 2020
PER CURIAM.
Harry Franklin Phillips, a prisoner under sentence of death, appeals the
circuit court’s order summarily denying his successive motion for postconviction
relief, which was filed under Florida Rule of Criminal Procedure 3.851. We have
jurisdiction. See art. V, § 3(b)(1), Fla. Const.
Phillips murdered Bjorn Thomas Svenson in 1982, and his conviction and
death sentence for that crime became final in 1998. A postconviction court in 2006
fully adjudicated and denied Phillips’s claim that he is intellectually disabled and,
under the rule of Atkins v. Virginia, 536 U.S. 304 (2002), constitutionally ineligible
for the death penalty. We affirmed the denial of Phillips’s intellectual disability claim in 2008. Phillips now seeks yet another determination of his intellectual
disability, relying in part on this Court’s decision in Walls v. State, 213 So. 3d 340
(Fla. 2016), in which we held that the United States Supreme Court’s decision in
Hall v. Florida, 572 U.S. 701 (2014), is retroactive to cases where there has
already been a finding that the defendant is not intellectually disabled.
For the reasons we explain, we affirm the circuit court’s denial of relief. We
also recede from our prior decision in Walls.
I. BACKGROUND
The facts of the case were summarized on direct appeal as follows:
In the evening of August 31, 1982, witnesses heard several rounds of gunfire in the vicinity of the Parole and Probation building in Miami. An investigation revealed the body of Bjorn Thomas Svenson, a parole supervisor, in the parole building parking lot. Svenson was the victim of multiple gunshot wounds. There apparently were no eyewitnesses to the homicide. As parole supervisor, the victim had responsibility over several probation officers in charge of appellant’s parole. The record indicates that for approximately two years prior to the murder, the victim and appellant had repeated encounters regarding appellant’s unauthorized contact with a probation officer. On each occasion, the victim advised appellant to stay away from his employees and the parole building unless making an authorized visit. After one incident, based on testimony of the victim and two of his probation officers, appellant’s parole was revoked and he was returned to prison for approximately twenty months. On August 24, 1982, several rounds of gunfire were shot through the front window of a home occupied by the two probation officers who had testified against appellant. Neither was injured in the incident, for which appellant was subsequently charged. Following the victim’s murder, appellant was incarcerated for parole violations. Testimony of several inmates indicated that
-2- appellant told them he had killed a parole officer. Appellant was thereafter indicted for first-degree murder.
Phillips v. State, 476 So. 2d 194, 195-96 (Fla. 1985). Phillips was convicted of the
first-degree murder of Svenson and sentenced to death. Id. at 197. His conviction
and sentence were affirmed on direct appeal, id., but on collateral review, this
Court reversed the death sentence and remanded for a new penalty phase based on
a finding that counsel was ineffective in the penalty phase, Phillips v. State, 608
So. 2d 778 (Fla. 1992). After a new penalty phase in 1994, the jury returned a
recommendation of death by a vote of seven to five, and Phillips was again
sentenced to death, which was affirmed on appeal. Phillips v. State, 705 So. 2d
1320, 1321, 1323 (Fla. 1997), cert. denied, 525 U.S. 880 (1998). We later
affirmed the denial of Phillips’s initial motion for postconviction relief after
resentencing and denied his petition for a writ of habeas corpus. Phillips v. State,
894 So. 2d 28, 31 (Fla. 2004). And we have affirmed the denial of his prior
successive motions for postconviction relief. Phillips v. State, 234 So. 3d 547, 548
(Fla.) (affirming denial of successive motion for postconviction relief based on
Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v. State, 202 So. 3d 40 (Fla.
2016)), cert. denied, 139 S. Ct. 187 (2018); Phillips v. State, 91 So. 3d 783 (Fla.
2012) (affirming denial of successive motion for postconviction relief based on the
claim that Phillips’s sentence violates the Sixth and Eighth Amendments under
Porter v. McCollum, 558 U.S. 30 (2009)); Phillips v. State, 996 So. 2d 859 (Fla.
-3- 2008) (affirming denial of successive motion for postconviction relief and denial of
motion to interview jurors); Phillips v. State, 984 So. 2d 503 (Fla. 2008) (affirming
finding that Phillips is not intellectually disabled).
During Phillips’s initial postconviction proceedings after resentencing,
Phillips filed a “Notice of Supplemental Authority and Motion for Permission to
Submit Supplemental Briefing” related to the United States Supreme Court’s
decisions in Ring v. Arizona, 536 U.S. 584 (2002), and Atkins, and this Court
permitted supplemental briefing on the intellectual disability issues under Atkins.
Phillips, 894 So. 2d at 34. We affirmed the denial of postconviction relief and
denied the habeas petition, but regarding his claim of intellectual disability, we
noted that “Phillips [was] free to file a motion under rule 3.203” but expressed “no
opinion regarding the merits of such a claim.” Id. at 40. We later relinquished
jurisdiction for a determination of intellectual disability pursuant to Florida Rule of
Criminal Procedure 3.203. Phillips, 984 So. 2d at 506.
At an evidentiary hearing on Phillips’s intellectual disability claim in 2006,
the circuit court permitted Phillips to present evidence regarding all three prongs of
the intellectual disability standard and concluded that Phillips failed to prove by
clear and convincing evidence that he met any of the three prongs of the statutory
intellectual disability standard (intellectual functioning, adaptive behavior, and
onset before age eighteen) and therefore was not intellectually disabled. Id. at 509.
-4- In 2008, this Court upheld the circuit court’s findings that Phillips failed to
establish that he met any of the three prongs and affirmed the denial of relief based
on his claim of intellectual disability. Id. at 513.
Phillips filed the instant successive motion for postconviction relief in 2018
seeking a new determination of his claim that he is ineligible for the death penalty
due to intellectual disability in light of the decisions in Hall, Walls, and Moore v.
Texas, 137 S. Ct. 1039 (2017). Phillips contended that the prior denial of his
intellectual disability claim must be reheard and determined under new
constitutional law that, according to Phillips, requires a court to holistically
consider all three prongs of the intellectual disability standard.
At a case management conference held in the circuit court on Phillips’s
motion, Phillips argued that in light of Hall and Walls, and a new evaluation report
prepared by Dr. Denis Keyes, who had testified at the 2006 hearing, he is entitled
to a new evidentiary hearing. Alternatively, Phillips requested that the circuit court
reevaluate the evidence presented at the 2006 hearing along with Dr. Keyes’s new
report, although Phillips conceded that there was no new evidence of intellectual
disability in this case and that Dr. Keyes did not change his opinion in his updated
report. The circuit court abruptly decided during the case management conference
-5- that it would review de novo the entire record from the 2006 hearing 1 and Dr.
Keyes’s new report before making any decision on Phillips’s motion.
On June 14, 2018, the circuit court entered an order denying an evidentiary
hearing and denying relief. But in its 2018 order, the circuit court also made new
findings regarding the evidence presented at the 2006 evidentiary hearing. First, it
concluded that because Hall requires that courts take into account the standard
error of measurement (SEM), which is “plus or minus five points” and “[a]n IQ of
up to 75 would meet the definition of [intellectual disability],” Phillips “has clearly
proven the first prong by clear and convincing evidence,” because the IQ scores
presented in 2006 were 70, 74, and 75. 2 The circuit court also made a new finding
that Phillips met the third prong—onset before age eighteen. 3 Nonetheless, the
1. Because it is not germane to our analysis or conclusion today, we make no comment on the propriety of the circuit court’s decision to conduct a de novo review of the record of the 2006 evidentiary hearing or of the new credibility determinations it made regarding witnesses who testified in 2006 based on the cold record.
2. In reaching this conclusion, however, the 2018 circuit court ignored the fact that the 2006 circuit court found that because neither of the defense experts performed a complete evaluation that tested for malingering, they were not credible on this prong.
3. But in doing so, the 2018 circuit court either ignored or rejected—without explanation—the finding made by the 2006 circuit court (and affirmed by this Court in 2008) that Phillips failed to establish that he met this prong, and simply concluded instead “that Dr. Keyes[’s] testimony from the 2006 hearing is credible and sufficient to prove onset before 18.”
-6- 2018 circuit court ultimately declined to find that Phillips is intellectually disabled
based on its agreement with the 2006 circuit court’s finding (and this Court’s 2008
opinion affirming that finding) that Phillips failed to establish that he met the
second prong of the intellectual disability standard—concurrent deficits in adaptive
behavior. Phillips now appeals that decision.
II. ANALYSIS
First, we review the recent history of intellectual disability as a bar to
execution. Then we discuss the clear error in this Court’s decision in Walls and
why Hall does not entitle Phillips to relief. Finally, we consider and reject
Phillips’s claim that he is entitled to relief based on Moore.
A. Intellectual Disability as a Bar to Execution
In 2002, the United States Supreme Court held in Atkins that the Eighth and
Fourteenth Amendments to the United States Constitution forbid the execution of
persons with intellectual disability. Atkins, 536 U.S. at 321. The Court observed
that “clinical definitions of [intellectual disability] require not only subaverage
intellectual functioning, but also significant limitations in adaptive skills such as
communication, self-care, and self-direction that became manifest before age 18.”
Id. at 318. The Atkins Court further noted that an IQ between 70 and 75 or lower
“is typically considered the cutoff IQ score for the intellectual function prong of
the [intellectual disability] definition,” id. at 309 n.5, but it did not define
-7- subaverage intellectual functioning as having an IQ of 75 or below or mandate that
courts take the SEM into account or permit defendants who present a score of 75 or
below to present additional evidence of intellectual disability. Instead, the Court
explicitly granted states discretion to determine how to comply with its prohibition
on execution of the intellectually disabled. Id. at 317 (“As was our approach in
Ford v. Wainwright, 477 U.S. 399 (1986), with regard to insanity, ‘we leave to the
State[s] the task of developing appropriate ways to enforce the constitutional
restriction upon [their] execution of sentences.’ ” (alterations in original)).
Under Florida law, “ ‘intellectual disability’ means significantly subaverage
general intellectual functioning existing concurrently with deficits in adaptive
behavior and manifested during the period from conception to age 18.”
§ 921.137(1), Fla. Stat. (2017). “Significantly subaverage general intellectual
functioning” is defined as “performance that is two or more standard deviations
from the mean score on a standardized intelligence test specified in the rules of the
Agency for Persons with Disabilities.” Id. “Adaptive behavior” “means the
effectiveness or degree with which an individual meets the standards of personal
independence and social responsibility expected of his or her age, cultural group,
and community.” Id. Thus, to establish intellectual disability as a bar to
execution, a defendant must demonstrate (1) significantly subaverage general
-8- intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3)
manifestation of the condition before age eighteen.
Until Hall, Florida law required that a defendant have an IQ of 70 or below
in order to meet the first prong of the intellectual disability standard—significantly
subaverage intellectual functioning. See Cherry v. State, 959 So. 2d 702, 712-13
(Fla. 2007) (“One standard deviation on the WAIS-III, the IQ test administered in
the instant case, is fifteen points, so two standard deviations away from the mean
of 100 is an IQ score of 70. As pointed out by the circuit court, the statute does not
use the word approximate, nor does it reference the SEM. Thus, the language of
the statute and the corresponding rule are clear.”), abrogated by Hall, 572 U.S.
701. Thus, a defendant was required to present an IQ score of 70 or below in order
to establish the first prong of the intellectual disability standard. Failure to present
the requisite IQ score precluded a finding of intellectual disability.
In Hall, the Supreme Court held that Florida’s “rigid rule” interpreting
section 921.137(1) as establishing a strict IQ test score cutoff of 70 or less in order
to present additional evidence of intellectual disability “creates an unacceptable
risk that persons with intellectual disability will be executed, and thus is
unconstitutional.” 572 U.S. at 704. The Court further held that when assessing the
subaverage intellectual functioning prong of the intellectual disability standard,
courts must take into account the standard error of measurement of IQ tests, which
-9- is five points. Id. at 723. And “when a defendant’s IQ test score falls within the
test’s acknowledged and inherent margin of error [±5], the defendant must be able
to present additional evidence of intellectual disability, including testimony
regarding adaptive deficits.” Id.
In Walls, we considered whether, under the standards set out in Witt v. State,
387 So. 2d 922 (Fla. 1980), Hall warranted retroactive application to cases on
collateral review. Walls, 213 So. 3d at 346. Under Witt, a change in the law “only
appl[ies] retroactively if the change ‘(a) emanates from this Court or the United
States Supreme Court, (b) is constitutional in nature, and (c) constitutes a
development of fundamental significance.’ ” Id. (quoting Witt, 387 So. 2d at 931).
We acknowledged that “[i]t is without question that the Hall decision emanates
from the United States Supreme Court and is constitutional in nature.” Id.
Regarding the third prong of the Witt analysis, a decision is of fundamental
significance when it either (1) places beyond the authority of the state the power to
regulate certain conduct or to impose certain penalties or (2) when the rule is of
sufficient magnitude to necessitate retroactive application under the retroactivity
test of Stovall v. Denno, 388 U.S. 293, 297 (1967), and Linkletter v. Walker, 381
U.S. 618, 636 (1965). See id.; Hernandez v. State, 124 So. 3d 757, 764 (Fla.
2012); Witt, 387 So. 2d at 929. In concluding that Hall met the third prong of the
Witt analysis, we declared “that Hall warrants retroactive application as a
- 10 - development of fundamental significance that places beyond the State of Florida
the power to impose a certain sentence—the sentence of death for individuals
within a broader range of IQ scores than before.” Walls, 213 So. 3d at 346. Based
on this declaration, we determined that Hall warranted retroactive application.
Upon further consideration, we have determined that this Court clearly erred in
reaching that conclusion and we now recede from our decision in Walls.
B. The Error in the Analysis in Walls
Because it remains clear that Hall establishes a new rule of law that
emanates from the United States Supreme Court and is constitutional in nature, it
satisfies the first two prongs of Witt. Witt, 387 So. 2d at 931. Thus, the question of
Hall’s retroactivity still turns on the third prong of Witt: whether the new rule
constitutes a “development of fundamental significance.” Id.
In Walls, this Court determined that the Hall decision met the third prong of
the Witt analysis by “plac[ing] beyond the authority of the state the power to
regulate certain conduct or impose certain penalties,” because it “removes from the
state’s authority to impose death sentences more than just those cases in which the
defendant has an IQ score of 70 or below” and is therefore of fundamental
significance. Walls, 213 So. 3d at 346. We now conclude that this Court erred in
making that determination.
- 11 - In discussing developments of fundamental significance that fall within the
category of changes of law that place beyond the authority of the state the power to
regulate certain conduct or impose certain penalties, this Court in Witt cited as an
example of a decision falling within that category Coker v. Georgia, 433 U.S. 584
(1977), which held that the Eight Amendment categorically prohibits the
imposition of the death penalty for the crime of rape of an adult woman as cruel
and unusual punishment. Witt, 387 So. 2d at 929. But contrary to the reasoning of
the majority in Walls, “Hall places no categorical limitation on the authority of the
state to impose a sentence of death.” Walls, 213 So. 3d at 350 (Canady, J.,
dissenting). The example of Coker is totally inapposite.
In Hall, the Supreme Court recounted its decisions holding that particular
punishments are prohibited by the Eighth Amendment “as a categorical matter,”
such as the denaturalization of natural-born citizens as a punishment, Hall, 572
U.S. at 708 (citing Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)), the
imposition of the death penalty for crimes committed by juveniles, id. (citing
Roper v. Simmons, 543 U.S. 551, 572 (2005)), “[a]nd, as relevant for [Hall],” the
imposition of the death penalty on persons who are intellectually disabled, id.
(citing Atkins, 536 U.S. at 321). The Court then unambiguously set out the issue it
was to address: “The question this case presents is how intellectual disability must
be defined in order to implement . . . the holding of Atkins.” Id. at 709 (emphasis
- 12 - added). And the holding of Hall was limited to a determination that it is
unconstitutional for courts to refuse to allow capital defendants whose IQ scores
are above 70 but within the test’s standard error of measurement to present
evidence of their asserted adaptive deficits. Hall, 572 U.S. at 723. Thus, Hall
merely “created a procedural requirement that those with IQ test scores within the
test’s standard of error would have the opportunity to otherwise show intellectual
disability.” In re Henry, 757 F.3d 1151, 1161 (11th Cir. 2014).4
The categorical prohibition on executing the intellectually disabled was not
expanded by Hall. See Walls, 213 So. 3d at 350 (Canady, J., dissenting) (“Hall . . .
does not preclude death sentences for individuals whose scores fall within the
SEM.”). The issue addressed in Hall was not whether the State is categorically
prohibited from executing those intellectually disabled defendants with IQs above
70, but within the SEM. Intellectually disabled persons with IQ scores above 70
are not a distinct class from intellectually disabled persons with IQ scores of 70 or
below; all are members of the same class protected by Atkins. In re Hill, 777 F.3d
1214, 1223 (11th Cir. 2015) (“Hall merely provides new procedures for ensuring
that States do not execute members of an already protected group.”); Henry, 757
4. The new rule announced in Hall is a procedural rule because it “regulate[s] only the manner of determining the defendant’s culpability.” Schriro v. Summerlin, 542 U.S. 348, 353 (2004) (“[R]ules that regulate only the manner of determining the defendant’s culpability are procedural.”).
- 13 - F.3d at 1161 (“The Supreme Court made clear in Hall that the class affected by the
new rule—those with an intellectual disability—is identical to the class protected
by Atkins. . . . Hall did not expand this class; instead, the Supreme Court limited
the states’ power to define the class . . . .”); Elmore v. Shoop, No. 1:07-CV-776,
2019 WL 5287912, at *4 (S.D. Ohio Oct. 18, 2019) (“[The class of people which is
addressed in Hall] is the same class of people that Atkins found ineligible for the
death penalty because that is the definition of mental retardation/intellectual
disability the Court used in Atkins. What Hall did was to preclude the State of
Florida from using an IQ score of 70 as an automatic disqualification for proving
that a person is in the class of people [who], on account of their intellectual
disability, may not be executed if they commit murder.”).
The conclusion “that Hall warrants retroactive application as a development
of fundamental significance that places beyond the State of Florida the power to
impose a certain sentence” because it may prohibit execution of intellectually
disabled persons “within a broader range of IQ scores than before,” Walls, 213 So.
3d at 346, is therefore incorrect. Hall does not place beyond the authority of the
State the power to regulate certain conduct or impose certain penalties; Hall
merely more precisely defined the procedure that is to be followed in certain cases
to determine whether a person facing the death penalty is intellectually disabled.
Hall is merely an application of Atkins. Kilgore v. Sec’y, Florida Dept. of Corr.,
- 14 - 805 F.3d 1301, 1314 (11th Cir. 2015) (“[Hall] merely provides new procedures for
ensuring that states follow the rule enunciated in Atkins.”). Hall’s limited
procedural rule does nothing more than provide certain defendants—those with IQ
scores within the test’s margin of error—with the opportunity to present additional
evidence of intellectual disability. Thus, Hall does not constitute “a development
of fundamental significance that places beyond the State of Florida the power to
impose a certain sentence,” Walls, 213 So. 3d at 346.
C. Hall is an Evolutionary Refinement
Although this Court in Walls did not consider whether Hall falls within
Witt’s second category of developments of fundamental significance—that is, a
change of “sufficient magnitude” under the Stovall/Linkletter test—having receded
from our conclusion that it falls within the first, we do so now.
In order to determine whether a new rule of law is of “sufficient magnitude”
to merit retroactive application, this Court considers the following three factors of
the Stovall/Linkletter test adopted in Witt: “(a) the purpose to be served by the new
rule; (b) the extent of reliance on the old rule; and (c) the effect on the
administration of justice of a retroactive application of the new rule.” Witt, 387 So.
2d at 926. We agree with the reasons given by the Walls dissent as to why these
factors counsel against the retroactive application of Hall:
Hall should not be given retroactive effect under the Stovall/Linkletter test based on (a) Hall’s purpose of adjusting at the margin the
- 15 - definition of IQ scores that evidence significant subaverage intellectual functioning, (b) the State’s reliance on Cherry’s holding in numerous cases over an extended period of time, and (c) the ongoing threat of major disruption to application of the death penalty resulting from giving retroactive effect to Hall as well as similar future changes in the law regarding aspects of the definition of intellectual disability.
Walls, 213 So. 3d at 351 (Canady, J., dissenting) (footnote omitted). Moreover, our Court in Witt equated new rules of law that are of “sufficient
magnitude” to merit retroactive application with “jurisprudential upheavals.” Witt,
387 So. 2d at 929. Gideon v. Wainwright, 372 U.S. 335 (1963)—which first
announced that each state must provide counsel to every indigent defendant
charged with a felony at all critical stages of the proceeding—“is the prime
example of a law change included within this category.” Witt, 387 So. 2d at 929.
“In contrast to these jurisprudential upheavals are evolutionary refinements in the
criminal law, affording new or different standards for the admissibility of evidence,
for procedural fairness, for proportionality review of capital cases, and for other
like matters.” Id.
Hall is an evolutionary refinement of the procedure necessary to comply
with Atkins. It merely clarified the manner in which courts are to determine
whether a capital defendant is intellectually disabled and therefore ineligible for
the death penalty. Roybal v. Chappell, No. 99CV2152-JM (KSC), 2014 WL
3849917, at *2 (S.D. Cal. Aug. 5, 2014) (stating that Hall was a clarification of
Florida’s implementation of Atkins). It did not invalidate any statutory means for
- 16 - imposing the death sentence, nor did it prohibit the states from imposing the death
penalty against any new category of persons.
Before Walls, this Court had been clear that evolutionary refinements do not
apply retroactively. See, e.g., State v. Barnum, 921 So. 2d 513, 526 (Fla. 2005)
(“Witt dictates that those decisions constituting ‘evolutionary refinements’ and not
‘jurisprudential upheavals’ should not be applied retroactively.” (quoting Witt, 387
So. 2d at 929)); State v. Glenn, 558 So. 2d 4, 8 (Fla. 1990) (“Applying the
principles of Witt, we conclude that Carawan was an evolutionary refinement of
the law which should not have retroactive application.”). As an evolutionary
refinement, Hall “do[es] not compel an abridgement of the finality of judgments.”
Witt, 387 So. 2d at 929. It is not of sufficient magnitude to warrant retroactive
application to cases on collateral review.
In Walton v. State, 77 So. 3d 639 (Fla. 2011), we rejected a claim that the
United States Supreme Court’s decision in Porter v. McCollum, 558 U.S. 30
(2009), warranted retroactive application. Porter was a fact-intensive decision in
which the Supreme Court held that in a particular case, this Court had
unreasonably applied the prejudice test for establishing ineffective assistance of
counsel under Strickland v. Washington, 466 U.S. 688 (1984). We held in Walton
that
the decision in Porter d[id] not concern a major change in constitutional law of fundamental significance. Rather, Porter
- 17 - involved a mere application and evolutionary refinement and development of the Strickland analysis, i.e., it addressed a misapplication of Strickland. Porter, therefore, does not satisfy the retroactivity requirements of Witt.
Walton, 77 So. 3d at 644. Similarly, as explained above, Hall involved a mere
application and evolutionary refinement of the Atkins analysis and therefore does
not satisfy the retroactivity requirements of Witt.
D. Federal Law Does Not Require Retroactive Application of Hall
Finally, we must consider whether federal law requires retroactive
application of Hall. Under Teague v. Lane, 489 U.S. 288 (1989), state courts must
give retroactive effect to new substantive rules of federal constitutional law.
Montgomery v. Louisiana, 136 S. Ct. 718, 728-29 (2016) (holding “that when a
new substantive rule of [federal] constitutional law controls the outcome of a case,
the Constitution requires state collateral review courts to give retroactive effect to
that rule” under the first prong of Teague’s retroactivity analysis).5 Substantive
rules set forth categorical constitutional guarantees that place certain criminal laws
5. Although the federal standard for determining retroactivity under Teague is a two-pronged approach stating that courts must give retroactive effect to (1) new substantive rules of federal constitutional law and (2) new watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding, Montgomery held only that substantive rules of federal constitutional law must be applied retroactively by state courts. The Court in Montgomery explicitly declined to address “the constitutional status of Teague’s exception for watershed rules of procedure.” 136 S. Ct. at 729.
- 18 - and punishments altogether beyond the State’s power to impose. Id. at 729. In
contrast, procedural rules are designed to enhance the accuracy of a conviction or
sentence by regulating the manner of determining the defendant’s culpability and
merely raise the possibility that someone convicted with use of the invalidated
procedure might have been acquitted otherwise. Id. at 730. Because we have
concluded that Hall announced a new procedural rule, which does not categorically
place certain criminal laws and punishments altogether beyond the State’s power to
impose but rather regulates only the manner of determining the defendant’s
culpability, we conclude that federal law does not require retroactive application of
Hall as a new substantive rule of federal constitutional law. Hall is similar to other
nonretroactive “decisions [that] altered the processes in which States must engage
before sentencing a person to death,” which “may have had some effect on the
likelihood that capital punishment would be imposed” but which did not render “a
certain penalty unconstitutionally excessive for a category of offenders.” Id. at
736.
E. Receding from Walls
Having concluded that Hall does not satisfy the Witt analysis for
retroactivity and that it is not a new substantive rule of federal constitutional law
requiring retroactive application to cases on collateral review, we are now faced
with the question of whether the policy of stare decisis should yield.
- 19 - We recently discussed the doctrine of stare decisis, stating:
While this Court has consistently acknowledged the importance of stare decisis, it has been willing to correct its mistakes. In a recent discussion of stare decisis, we said:
Stare decisis provides stability to the law and to the society governed by that law. Yet stare decisis does not command blind allegiance to precedent. “Perpetuating an error in legal thinking under the guise of stare decisis serves no one well and only undermines the integrity and credibility of the court.”
Shepard v. State, 259 So. 3d 701, 707 (Fla. 2018) (quoting State v. Gray, 654 So. 2d 552, 554 (Fla. 1995)). Similarly, we have stated that “[t]he doctrine of stare decisis bends . . . where there has been an error in legal analysis.” Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002). And elsewhere we have said that we will abandon a decision that is “unsound in principle.” Robertson v. State, 143 So. 3d 907, 910 (Fla. 2014) (quoting Brown v. Nagelhout, 84 So. 3d 304, 309 (Fla. 2012)). It is no small matter for one Court to conclude that a predecessor Court has clearly erred. The later Court must approach precedent presuming that the earlier Court faithfully and competently carried out its duty. A conclusion that the earlier Court erred must be based on a searching inquiry, conducted with minds open to the possibility of reasonable differences of opinion. “[T]here is room for honest disagreement, even as we endeavor to find the correct answer.” Gamble v. United States, 139 S. Ct. 1960, 1986 (2019) (Thomas, J., concurring).
State v. Poole, 45 Fla. L. Weekly S41, S47-48 (Fla. Jan. 23, 2020), clarified, 45
Fla. L. Weekly S121 (Fla. Apr. 2, 2020).
We cannot escape the conclusion that this Court in Walls clearly erred in
concluding that Hall applies retroactively. We say that based on our review of
Hall, our state’s judicial precedents regarding retroactivity, and the decisions of
federal habeas courts concluding that Hall does not apply retroactively. Based on
- 20 - its incorrect legal analysis, this Court used Hall—which merely created a limited
procedural rule for determining intellectual disability that should have had limited
practical effect on the administration of the death penalty in our state—to
undermine the finality of numerous criminal judgments. As in Poole, “[u]nder
these circumstances, it would be unreasonable for us not to recede from [Walls’]
erroneous holdings.” Id. at S48.
“[O]nce we have chosen to reassess a precedent and have come to the
conclusion that it is clearly erroneous, the proper question becomes whether there
is a valid reason why not to recede from that precedent. . . . The critical
consideration ordinarily will be reliance.” Id. But
reliance interests are “at their acme in cases involving property and contract rights.” Payne v. Tennessee, 501 U.S. 808, 828 (1991). And reliance interests are lowest in cases—like this one—“involving procedural and evidentiary rules.” Id.; see also Alleyne, 570 U.S. at 119 (Sotomayor, J., concurring) (“[W]hen procedural rules are at issue that do not govern primary conduct and do not implicate the reliance interests of private parties, the force of stare decisis is reduced.”).
Id.
As the expectant potential beneficiary of the erroneous decision in Walls,
Phillips has no concrete reliance interest; he has in no way changed his position in
reliance on Walls. In this postconviction context, Phillips’s interest as an expectant
potential beneficiary of Walls is set against all the interests that support
maintaining the finality of Phillips’s judgment. The surviving victims, society-at-
- 21 - large, and the State all have a weighty interest in not having Phillips’s death
sentence set aside for the relitigation of his claim of intellectual disability based on
Hall’s evolutionary refinement in the law.
Thus, we conclude that we should not continue to apply the erroneous
reasoning of Walls. And because Hall does not apply retroactively, it does not
entitle Phillips to a reconsideration of whether he meets the first prong of the
intellectual disability standard.
F. Moore
Phillips also asserts that he is entitled to a new determination as to whether
he meets the adaptive deficits prong of the intellectual disability standard because
the circuit court in 2006 and this Court in 2008 improperly relied on his adaptive
strengths in concluding that he did not meet the adaptive deficits prong, assertedly
in violation of the Supreme Court’s recent decision in Moore. But because Phillips
has conclusively failed to establish that he meets the first prong of the intellectual
disability standard, he cannot be found to be intellectually disabled even if he were
entitled to a renewed determination on the second prong and could establish that he
has deficits in adaptive behavior. As we have repeatedly stated, if a defendant fails
to prove that he or she meets any one of the three prongs of the intellectual
disability standard, he or she will not be found to be intellectually disabled. E.g.,
- 22 - Jones v State, 231 So. 3d 374, 376 (Fla. 2017); Salazar v. State, 188 So. 3d 799,
812 (Fla. 2016). Thus, we need not address his Moore claim.
III. CONCLUSION
For these reasons, we affirm the circuit court’s order denying Phillips’s
successive motion for postconviction relief. We also recede from our prior opinion
in Walls and hold that Hall does not apply retroactively.
It is so ordered.
CANADY, C.J., and POLSTON, LAWSON, and MUÑIZ, JJ., concur. LABARGA, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED. LABARGA, J., dissenting.
Yet again, this Court has removed an important safeguard in maintaining the
integrity of Florida’s death penalty jurisprudence. The result is an increased risk
that certain individuals may be executed, even if they are intellectually disabled—a
risk that this Court mitigated just three years ago by holding that the decision in
Hall v. Florida, 572 U.S. 701 (2014), is to be retroactively applied. See Walls v.
State, 213 So. 3d 340 (Fla. 2016). I strongly dissent to the majority’s decision to
recede from Walls, and I write to underscore the unraveling of sound legal
holdings in this most consequential area of the law.
- 23 - Before the United States Supreme Court’s decision in Hall, under Florida
law, individuals with an IQ score above 70 were barred from demonstrating that
they were intellectually disabled. This “rigid rule,” as described by the Supreme
Court, “creates an unacceptable risk that persons with intellectual disability will be
executed, and thus is unconstitutional.” Hall, 572 U.S. at 704. The Supreme Court
stated:
The Florida statute, as interpreted by its own courts, misuses IQ score on its own terms; and this, in turn, bars consideration of evidence that must be considered in determining whether a defendant in a capital case has intellectual disability. Florida’s rule is invalid under the Constitution’s Cruel and Unusual Punishment Clause.
Id. at 723.
In concluding that Florida’s intellectual disability law violated the Eighth
Amendment, the Supreme Court pointedly criticized the “mandatory cutoff” that
“disregards established medical practice in two interrelated ways”: (1) “tak[ing] an
IQ score as final and conclusive evidence of a defendant’s intellectual capacity,
when experts in the field would consider other evidence,” and (2) “rel[ying] on a
purportedly scientific measurement of the defendant’s abilities, his IQ score, while
refusing to recognize that the score is, on its own terms, imprecise.” Id. at 712.
The “other evidence” to which the Court referred primarily consists of evidence of
deficits in adaptive functioning, which is “an essential part of a sentencing court’s
inquiry.” Id. at 724. The Supreme Court concluded: “This Court agrees with the
- 24 - medical experts that when a defendant’s IQ test score falls within the test’s
acknowledged and inherent margin of error, the defendant must be able to present
additional evidence of intellectual disability, including testimony regarding
adaptive deficits.” Id. at 723. The Court admonished that while “the States play a
critical role in advancing protections and providing the Court with information that
contributes to an understanding of how intellectual disability should be measured
and assessed,” states do not have “unfettered discretion to define the full scope of
the constitutional protection.” Id. at 719.
The categorical prohibition of the execution of the intellectually disabled is
not limited to those whose convictions and sentences became final after a certain
date. However, the import of today’s decision is that some individuals whose
convictions and sentences were final before Hall was decided, despite timely
preserved claims of intellectual disability, are not entitled to consideration of their
claims in a manner consistent with Hall. What this means is that an individual
with significant deficits in adaptive functioning, and who under a holistic
consideration of the three criteria for intellectual disability could be found
intellectually disabled, is completely barred from proving such because of the
timing of his legal process. This arbitrary result undermines the prohibition of
executing the intellectually disabled.
- 25 - “Considerations of fairness and uniformity make it very ‘difficult to justify
depriving a person of his liberty or his life, under process no longer considered
acceptable and no longer applied to indistinguishable cases.’ ” Witt v. State, 387
So. 2d 922, 925 (Fla. 1980) (quoting ABA Standards Relating to Postconviction
Remedies 37 (Approved Draft 1968)). If Hall is not retroactively applied in a
uniform manner, an intellectually disabled individual on Florida’s death row may
eventually be put to death.
I reject the majority’s conclusion that Hall was a mere procedural evolution
in the law. When the law develops in such a manner as to clarify the criteria for
intellectual disability—a status which poses an absolute bar to execution—this
cannot simply be deemed “an evolutionary refinement.” Majority op. at 16. Walls
properly concluded that Hall was a “development of fundamental significance that
places beyond the State of Florida the power to impose a certain sentence—the
sentence of death for individuals within a broader range of IQ scores than before.”
Walls, 213 So. 3d at 346.
What is especially troubling is that because this Court held Hall to be
retroactive more than three years ago in Walls, some individuals have been granted
relief pursuant to Walls and received consideration of their intellectual disability
claims under the standard required by Hall. However, going forward, similarly
- 26 - situated individuals will not be entitled to such consideration. This disparate
treatment is patently unfair.
In justifying its holding, the majority discusses the need for finality in the
judicial process. I agree that finality is a fundamental component of a functioning
judicial system. However, we simply cannot be blinded by an interest in finality
when that interest leaves open the genuine possibility that an individual will be
executed because he is not permitted consideration of his intellectual disability
claim. “No legitimate penological purpose is served by executing a person with
intellectual disability. To do so contravenes the Eighth Amendment, for to impose
the harshest of punishments on an intellectually disabled person violates his or her
inherent dignity as a human being.” Hall, 572 U.S. at 708 (citation omitted) (citing
Atkins v. Virginia, 536 U.S. 304, 317-20 (2002)). “This is not to say that under
current law persons with intellectual disability who ‘meet the law’s requirements
for criminal responsibility’ may not be tried and punished. They may not,
however, receive the law’s most severe sentence.” Id. at 709 (citation omitted)
(quoting Atkins, 536 U.S. at 306).
Hall concluded with language that we would all do well to remember:
The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world. The
- 27 - States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects.
Hall, 572 U.S at 724.
Today’s decision potentially deprives certain individuals of consideration of
their intellectual disability claims, and it results in an inconsistent handling of these
cases among similarly situated individuals.
For these reasons, I dissent.
An Appeal from the Circuit Court in and for Miami-Dade County, Nushin G. Sayfie, Judge - Case No 131983CF0004350001XX
Neal Dupree, Capital Collateral Regional Counsel, William M. Hennis III, Litigation Director, and Marta Jaszczolt, Staff Attorney, Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida,
for Appellant
Ashley Moody, Attorney General, Tallahassee, Florida, and Lisa-Marie Lerner, Assistant Attorney General, West Palm Beach, Florida,
for Appellee
- 28 -