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 challenge 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. Nevertheless, recent developments at the Florida Supreme Court 

compel me to dissent in full once again. 

As a reminder, like the petitioners in Truehill and Middleton, 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 Middleton as follows: 

“[Petitioners] were sentenced to death under a Florida 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 Supreme Court post-Hurst declined to disturb the petitioners’ death sentences, reasoning that the unanimity 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 denial 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, 

—————— 

1The cases in which the Florida Supreme Court has taken this position, 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 precedent rely on one fact: “Informing the jury that its recommended 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 Caldwell 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 rejected 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 curiam), 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 surprising 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 address” 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 petitioner 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 mention or discuss the fundamental Eighth Amendment principle it announced: “It is constitutionally impermissible to 

rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility 

—————— 

2As petitioner Guardado explained in his supplemental brief, in addition 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 Amendment challenge to capital defendants’ sentences postHurst. 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. 

—————— 

3Tellingly, in neither Franklin nor Guardado did the Florida Supreme 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”).