that afternoon may please the court counsel my name is todd share here on behalf of mr knight us each a point man from the capital collateral regional councils south office in fort lauderdale we were for the court on the denial of a twenty to fifty four and a capital case of this is a case with two first degree murder convictions along with two death sentences imposed over a jury recommendations of death by two twelve to zero twelve to zero jury recommendations in my  main arguments i'm going to be focusing on the argument first argument which relates to the death sentences the court has any questions obviously as to the second argument which is the ineffective assistance of counsel argument i'll be glad to answer them to the best that i can but i would like to spend my time this morning focusing on the first argument which is hurst versus florida related in the district court or we mr knight what happened actually in the floor supreme court was when his case was  appeal from that island was three point five one motion her sources florida was issued by the u s supreme court there was additional supplemental briefing ordered by the corps oral argument ultimately what happened is that the florida supreme court  found that there was an error at mr knight's capital penalty phase but based on its decisions in earlier cases had determined that the error was harmless beyond reasonable doubt the court also based on the twelve to zero jury recommendations the court also determined that mr knight was a title to the benefit of the first ruling because his case post dated a ring versus arizona actually by a number of years trial was in two thousand and six and i believe the direct appeal was in two thousand and ten or two thousand and eleven which is almost a decade after airing issued in june of two thousand and two in federal hate b s we raise the number of challenges to the florida supreme court's analysis of the harm of the harmlessness aspect of of the floors from courts of terminations that the error was harmless the way that the district court analyzed the claim determined that mr knight had to establish that he was entitled to the benefit of hurst versus florida under the teak standard and so that's one of the issues that's percolating in the case as to the harmless  i before you get to that get your share can i ask you a question about the nature of the claim and what the district court said about it as i understand the district court's underlying rationale for the claim was this hearst is certainly based on the federal constitution but under shiro a case like hearst will not be retroactive under federal law the florida supreme court made her first partially retroactive but only under state law and because you're only getting the benefit of hurst under state law any error in applying hurst can only be a state law problem that's essentially what the district court said right yes right to tell me tell me what's wrong with that line of analysis well dispute that what the district court said as your honor pointed out was that under shero and under this court's precedents in several of the lambrakis opinions i know for example the court had indicated that hurst versus florida was not other than ring applying to florida except that i'm no good things i wasn't to say set aside for a moment whether hurst is in fact retroactive under federal law let's assume for purposes of argument that it's not why my reading of the of judge scullers order i don't even think he got that far i think judge bowler's reasoning was we hadn't established or he didn't believe that hurst versus florida was a retroactive under t and that ended his discussion he didn't address any error under the state law he certainly didn't address any harm so do you think that ends the discussion if hurst is not retroactive under federal law do you think that that we don't consider this question no i mean my position all along was it the federal constitutional issue that i raised was the constitutionality or lack thereof of the floor some courts harmless error of you which is  applied i mean what was that issue in her sources florida when you look at the actual question presented was whether hurst death sentence violated worrying so there was nothing new in her first other than in the applying ring to florida and settled except that hearst involved for lack of a better term a hybrid type system which ring didn't really involve right well florida certainly florida and arizona had different systems but the whole thing with the same thing the whole thing was that any fact necessary to increase the punishment the other than that's authorized by the conviction has to be found by a jury and not the judge that was the holding in the ring and that was the whole thing that was applied in her first now when you apply those that holding to arizona versus florida of course there are differences arizona's statute only required i believe it was the existence of an aggravating circumstance to make to authorize the judge to then make the additional find existence or to impose death the florida statute as the u s supreme court indicated elements or facts to be found by a jury beyond a reasonable doubt unanimously before death sentence is authorized because the only sentence authorized at the conviction stage under florida's a first degree murder statute and three that the aggravators that way the mitigators now no jury in florida ever had made those findings and certainly no jury mr knight's jury didn't make any of those findings beyond a reasonable doubt nor was it floors from courts per se rule really is and has become in cases dealing with twelve to zero jury recommendations which is that there harm there harm us no matter what what the force in court does it look to instructions and says well the jury is instructed according to the standard struction the jury came back twelve to zero they were told you know what they had to find and so therefore we're going to assume that that twelve zero means that they made the necessary findings well that's contrary actually to what her sources florida said which you have if you believe that the jury followed its instructions and if you believe the evidence was fission either at trial or  is a problem no i completely agree the rest doesn't say anything about the rest of it but you have to at least you have to assume that if everything went according to plan and the evidence was sufficient to return a recommendation of  the jury had to find at least one aggravator right now and i want to hold out i want to put trying to answer a question but i want to go back a little bit in time because i think your question presumes that we have a properly instructed know i'm not i'm not i'm not assuming that in this case at all i'm just saying as a general matter if everything goes according to plan that means legally correct right in a hypothetical case and a jury returns a recommendation of death the assumption is that if the instructions were right and the evidence was sufficient the jury had to find at least one aggravator to recommend death rate as it is now yes back then it's not asking you to say that the jury found that this odd way or that there were two or three aggravators and only two mitigators none of that but you have to admit that if everything was done correctly instructions were correct evidence was sufficient the jury could not return a recommendation of death without at the very least finding one aggravator right that's the first of the findings caress i agree but i want to caution in terms of your question is that part of our issue here on like many of the other cases is that this jury was not informed that it was entitled to dispense mercy that it was entitled it did not have to find did not case being perfectly ok correct again that and that was my question i was not trying to pin you down on the facts of this case because there are there are those that is the first of the three findings presumably if if the jury finds beyond a reasonable doubt unanimously that there is not an aggravating circumstance that under the way that the current law is that's the end of their deliberation but that's not how the law was back at the time let me let me go back to the very first question i asked you because i want to understand the guts of your federal hearst claim as i understand your argument i think it has to be this but if i'm wrong i want you to tell me so that i figure out how to analyze your argument has remains a federal constitutional violation and necessarily any harmless error determination for that federal constitutional violation also necessarily presents a federal constitutional question and that is because retroactivity on the federal side is not a constitutional matter it's a federal common law matter it seems to me that's the argument you have to make to not get into the state error box right i mean i think i think certainly that's a more elegant way of putting it but i mean the way i look at it is let's say for example the claim was that the court had introduced too many autopsy photos state law issue the floor some court said under act appeal true but we find the error bought beyond a reasonable doubt c chapman that's a federal constitutional claim they're harmless error analysis so the autopsy photos admission are not admission aside the federal claim i think in mitchell one of the cases they say even in brackets these are all cases that focus on the harmless error aspect because that is a constitutional under brecht that's a constitutional issue separate apart from the sixth amendment violation that happened here so i don't know i've answered your question i'm trying to know  my understanding of the claim was i mean i've raised similar issues in the past and it's never been a question that when the state court finds error and then applies a parker mitchell i know was a case actually where the us supreme court address the harm most are analysis brecht is a perfect example i mean of a case where there was when there was toil violation that wasn't contested the issue became whether you appl chatman or were or are the caucus standard in federal hate is so that's my understanding of my federal constitutional claim that aside i still think mr knight is entitled to the  back to your harmless error analysis but before you even get there your argument is that any hearst error is structural right that's one of my argument he does so on that on that issue the supreme court has held that removing an element of an offense from a jury incorrectly can be subject to harmless error analysis what makes this situation different do you think i think that's like process of death eligibility being taken away from the jury the jury in florida mr knight's case specifically made no factual findings whatsoever first of all and so that takes that out that's more like a structural error because when you look at the way that the floors from court addressed the harmlessness test you can sort of at least i understand why it's structural because really what the court is doing his speculating about what up properly instructed the jury who's told you that it's sentencing responsibility is not to the recommend or advise but actually to sentence the defendant based on all the factors that are argued at the closing arguments in the evidence presented it to the jury at the penalty phase whether those twelve people would have found a b and c those three factors plus whether one of them may have decided a b and c are there i want to extend mercy to mr knight plus the jury in this case certainly was also told a instructed on another aggravating circumstance the extension of hurst or would we look at harmless aaron or perhaps what our interpretation of the requirements of hearst would be i mean for some court articulated it's harmless error it's understanding of how it was going to analyze harmless or right to we do we look at how the florida supreme court analyze harmless error or to relook at how we think harmless error would be though in federal havey is the court's obligated to apply brax right and so i think the court we don't have a district court opinion on it and so my first argument really would be if the court reaches that then example on reasonable determinations of facts like were alleging here for example you know the force in court determined that mr knight's jury was was instructed in the substantially the same manner as another case that's just not correct in our view and so they're harmless our analysis is in part premised on an unreasonable terminations fact and so what i think the court needs to do is go through all of these four five factors the caldwell aspect to  excuse me may have pleased the court lisa marie lerner with the florida office of the attorney general on the hearst issue basically i was lying on my brief but to summarize it here unlike hers there is no underlying constitutional violation because the jury found contemporaneous murder convictions so the murder conviction for the mother was an aggravator for the daughter and vice versa additionally the aggravator for the daughter one as being a child of under twelve was undisputed she was four years old so there is no underlying constitutional violation like there was in her first and the us supreme court is awarded the florida supreme court get it wrong on that issue well deflowered a supreme court said that the jury we have to explicitly five yes in the sentencing under the under state law rule exactly under state law but the fact that they hate the fact that the actually the make the finding may have violated law instructions and the florida supreme court did acknowledge that while they were substantially the same as it were given in david has the question of the mercy instruction was not given and the court did know that and it's harmless error analysis but went on given the facts of this case and with the contemporaneous murder convictions that the two murder convictions one for one charge one for the other meant that there is no error or that any error was rendered harmless both can't be both was harmless and that's what i meant to say when i said both and the supreme court has directly held on this point that when a jury comes back with a conviction that can be that but hers is a different question those cases you're talking about are cases in which the finding of guilt at the liability phase of a criminal trial also suffices as an aggravator at the penalty phase right and so when you have that sort of sequence and that's the way the state legislature has set up that capital scheme then there may not be any problems that's not the way this scheme was set up and that's not the way this jury was instructed but it is a navigate this however and the u s supreme court appears to have waited quite a long time to reach a case like hers where there was no accompanying violent felony conviction which allowed the death penalty they  death penalty in any number of cases that went up there prior to her who or where there was a contemporaneous conviction for burglary robbery or murder as in this see his argument its argument is that there is a constitutional claim in a state supreme court's standard of review of harmless error of a non constitutional florida when you conduct a harmless error review under state law you have to use extender and i don't either i mean i think that's it that's my interpretation of his claim i may be wrong about what i'm interpreted yes i start if there is no federal constitutional claim which there isn't because there were five yes that that  qualified the conviction for the death penalty so that's the end of that constitutional claim and the supreme court of florida not that later on decides to review whether or not to have a new sentencing hearing as i understand it he takes out of the standard review that the supreme court uses to decide whether under state law to give a new sentencing phase hearing finds a constitutional standard as if it freestanding constitutional claim here is what which would mean something like that that you could have a litigation over a criminal case under state law and the federal constitution claim is based soley on state law which it is in this case their first v state just because the court does a harmless error analysis under  i ask you the opposite question of what i asked mr share how does a state courts provision of retroactivity to a federal constitutional ruling by the supreme court make that ruling nonfederal because the us specially when retroactivity law on the federal side is not constitutionally based no it's not and it can only be retroactive under federal law if the u s supreme court says well here let me let me give you this hypothetical and maybe it'll illustrate my my question let's assume that you had a case identical in every single way to hurst identical in every single way to hearst ok it took place posts ring in florida florida supreme court says we're applying hurst retroactively to this new kit to this case that i call just like hearst ok is the violation in that case nonfederal no the violation would still be federal then the violation here if there was one and i know that's a big if was also federal no because what the florida supreme court found was they violated error that they were looking at was based on their jurors prudence the jury had to find those three additional things about the aggravators were they sufficient and the way that's the error that they identified they were not identifying the the exact same error as was found in her purse i know so you think they got that issue wrong and i understand that argument perfectly but it doesn't make that decision however and correct it may have been nonfederal how can and how can a hurst error which is constitutional in nature become nonfederal because a state court decides it that's the part about your case that has me spinning my wheels because as i said the the issue involved the state court law as identified by the florida supreme court's means that they've been applying in your view hurst to expansively i understand that argument but it doesn't mean that it's nonfederal it also doesn't mean you lose the case about that but i'm trying to figure out analytically both for your side and for mr nightside how to even begin to approach the issue and what box to put it in before figuring out what the proper analysis is and this is it's hard to know i understand and in your hypothetical  perhaps there would be a federal issue involved but that's not the situation in this case because of the underlying double murder convictions so right which means that you think that the florida supreme court applied hurst in correctly on the merits because it should have held that there was no hearst violation because of the circumstance you just mentioned and that's correct and what they did apply as i said  race based so white person who's the defendant could make the challenge it went to the alabama part of criminal appeals and they denied the challenge then it went to the supreme court of alabama meanwhile the united states instructions to send it back to the trial court and the side of this new that's in play what the alabama supreme court did was seize on a supreme court of the united states decision that did not apply at the time in turn it into alabama law so what the spray part of florida did was take her skirt a constitutional ruling which doesn't apply there is no constitutional violation and what your colleague is looking for is a constitutional rule which says what a state court has to do in reviewing a state constitutional here's a question that fair warning i'll ask your friend of the other table next let's say that in her wrist there's been a companion case regarding a georgia death penalty sentencing statute that was exactly the same and let's say let's say that her wrist struck down both of those held that both of those were unconstitutional entering upon in the rest of it let's say that the florida supreme court decided as it did to make her retroactive cheering let's say that the georgia supreme court did an application teague and said well this is not this is not attractive and georgia would and mr knight and his companion defendant and the exact same case in georgia would mr knight have a federal constitutional claim and mr feit in georgia would not know and it's the state's position that there is no constitutional claim for any of these cases and as you well and you justices are aware the state of florida just did not agree with the florida supreme court's expans brave decision which says that one state court decided harmless error as a matter of federal constitutional  i think there's a misapprehension of my arguments i want to make it very clear i'm not arguing there was no federal constitutional violation found by the force or court for same court explicitly found m circumstances making that eligible for death i found beyond a reasonable doubt but that's not how florida law operate outside are getting to forget how florida law operates that the constitution required a finding beyond reasonable doubt about aggravator that would qualify for the death penalty i disagree with that statement your are not that the constitution doesn't require that it's up to every state determined on the no no no  ring going back to going going back a good way and then ring and then hers hold that you cannot have a judge finding when i go bidding circumstance and employ the death penalty that's unconstitutional you have is that not right i understand that's your view i disagree with it with facts i disagree with that that's not what her i think if i were you i'd want to know what my concerns are wondering it wouldn't matter it wouldn't matter we do know the jury was instructed on the aggravators because they were instructed on those murders correct ok i agree with other jury found i gave reading circumstance that made the case eligible for the death penalty this is it there's not a supreme court of the united states holding to my understanding that says anything else about how the jury is as is to go about the way process adopted her as a matter for florida law you agree with it i'm trying to let's assume the person is not retroactive ok so and but but but they're applying what now they have made her first in a state rule green i'm trying to answer your question no doubt what you had at one one of the time let's assume for sake of discussion that earth is not retroactive in this context and the supreme court of florida still is applying curst why would that not be the supreme court that applying a creating a rule of law and for is that you have to look to the particularities of each state statute to determine what the facts necessary are to increase the punishment and arizona it's one aggravator in florida it's different there are three different factors how the state there choose it and there's one aggravator that that constitutionally makes it look eligible for the death penalty but that i don't agree with that from a constitution that does the united states supreme court hold in any case that for eligibility for the death penalty you need more than an aggravating circumstance found beyond a reasonable doubt by the jury i don't think that's ever been addressed because i look to everybody coming but there is no case that says the tell me what the supreme court holding is which sends after you find an aggravator that makes conviction eligible for the death penalty i am but beyond a reasonable doubt there are other things that are required forget luchadores all islands in order to impose the death penalty hearst is one of them hearst discusses what the florida statute is the florida statute as the you as the u s supreme sentencing statute that were identified with the by the u s supreme court and her sources for us nothing to demean your are your argument is that the florida scheme is unconstitutional and yours it was found on cannot you know no let me so you can make sure you try to answer judge joe flats concern i think and he can tell me if i characterize his view correctly or not but so far and i agree with you that you have to look at each state scheme separately but i think what he's trying to suggest to you is that so far what the supreme court has held in ring and in hurst is that the constitution requires maybe at a minimum that a jury find an aggravating factor that makes a defendant death eligible but so far has not ruled that the constitution also requires the ultimate sentence or who weighs to be the jury that's the that's the question that is posed to you i understand that that may be the next case coming down the road i mean alabama has a hybrid system and one of these days there's going to be alabama case going up and we'll know whether ringin hearst are really broad or really much much more narrow that's only a matter of time but right now suggesting we're not there yet i mean i disagree because i think when you read her sources florida it's very clear i think what the state is trying to do is on ravel how the florida supreme court has  analyzed its own sentence its own statute and how those factors operate like in arizona the arizona supreme court said well under our statute all you need is an aggravator that's f that's not how florida operates and it may not be how alabama operates i mean there are very few within times in states that have these sort of problems and there may well have been dozens of cases since two thousand and two that had multiple aggravat and multiple homicides i don't know that would require me to guess why the u s supreme court waited fourteen years to pick timothy hurst case where the intelligence of just so flat i'd like to ask you the same question  not retroactive at all under teac does a defendant do identical defendants in florida have a constitutional claim for a postering for a postering offense whereas georgia defendants do not have a constitutional claim under very view of this case maybe i'm confused so the florida case got the benefit of first back to work right so any poster in case would have gotten the benefit of her so there's no but about what i'm saying is a georgia defender who committed the exact same crime at the exact same time under your view would not have a federal constitutional habeas claim whereas the florida defendant would is that correct perhaps i'm confused because obviously every state utilizes its own retroactivity analysis radically florida had the will test which was more expansive district court says retroactive to those two identical defendants as one have a claim before this court and another one doesn't because their state courts make different decisions i think that my depending on me this is the claim here means it might depending on what beyond a reasonable doubt your argument focuses on what the florida statutory scheme says the jury is supposed to do she takes a  which all they charge the jury with in georgia is is the same thing and i get rating circumstance found beyond a reasonable doubt which makes the case of a little over the comedy and doesn't have what you consider a convoluted florida arrangement for the jury so if there is no mileage in georgia and there isn't florida that's your position because