1
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` Cite as: 584 U. S. ____ (2018)
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` SOTOMAYOR, J., dissenting
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`SUPREME COURT OF THE UNITED STATES
`JESSE GUARDADO
`17–7171
`
`v.
`JULIE L. JONES, SECRETARY, FLORIDA
`DEPARTMENT OF CORRECTIONS
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`
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`17–7545
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`STEVEN ANTHONY COZZIE
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`v.
`FLORIDA
`ON PETITIONS FOR WRITS OF CERTIORARI TO THE SUPREME
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`
`COURT OF FLORIDA
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` Nos. 17–7171 and 17–7545. Decided April 2, 2018
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` The petitions for writs of certiorari are denied.
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` JUSTICE SOTOMAYOR, dissenting from the denial of
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`certiorari.
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`Twice now this Court has declined to vacate and remand
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`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
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`dissented from that inaction. See Truehill v. Florida, 583
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`U. S. ___, ___ (2017); Middleton v. Florida, 583 U. S. ___,
`___ (2018). Four petitioners were involved in those cases.
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`Today we add two more to the list, for a total of at least six
`capital defendants who now face execution by the State
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`without having received full consideration of their claims.
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`It should not be necessary for me to explain again why
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`petitioners’ challenges are substantial, why the Florida
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`Supreme Court should have addressed those challenges, or
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`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-
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`dleton, Jesse Guardado and Steven Cozzie challenge their
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`2
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`GUARDADO v. JONES
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` SOTOMAYOR, J., dissenting
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`death sentences pursuant to Caldwell v. Mississippi, 472
`U. S. 320 (1985). I summarized those challenges in Mid-
`dleton as follows:
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`“[Petitioners] were sentenced to death under a Flor­
`ida capital sentencing scheme that this Court has
`since declared unconstitutional. See Hurst v. Florida,
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`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
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`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
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`after the juries repeatedly were instructed that their role
`was merely advisory, implicates Caldwell, where this
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`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
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`role,” in contravention of the Eighth Amendment. 472
`U. S., at 333.
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`Following the dissent from the denial of certiorari in
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`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
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`Franklin v. State, — So. 3d —, 2018 WL 897427 (Feb. 15,
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`——————
`1The cases in which the Florida Supreme Court has taken this posi­
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`tion, i.e., that it has considered and rejected the Caldwell-based claims
`discussed herein, are not the ones currently under review before our
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`Court in these petitions.
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`

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`3
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` Cite as: 584 U. S. ____ (2018)
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` SOTOMAYOR, J., dissenting
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`2018) (per curiam), the Florida Supreme Court stated
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`that, “prior to Hurst, [it] repeatedly rejected Caldwell
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`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
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`Florida law and does not violate Caldwell.” Rigterink v.
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`State, 66 So. 3d 866, 897 (Fla. 2011) (per curiam); Globe v.
`State, 877 So. 2d 663, 673–674 (Fla. 2004) (per curiam)
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`(stating that it has rejected Caldwell challenges to the
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`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-
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`well challenge [has] now [been] undermined by this Court
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`in Hurst,” Truehill, 583 U. S., at ___ (slip op., at 2), and
`the Florida Supreme Court must therefore “grapple with
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`the Eighth Amendment implications of [its subsequent
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`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
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`thus does not absolve the Florida Supreme Court from
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`addressing petitioners’ new post-Hurst Caldwell-based
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`challenges.
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`The Florida Supreme Court in Franklin did not stop
`there, however. It went on to state that it had “also re­
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`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-
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`riam), noting that “the defendants in Oliver and Truehill
`petitioned the United States Supreme Court for a writ of
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`certiorari to review their Caldwell claims, which the Court
`denied.” Franklin, 2018 WL 897427, *3. This is a surpris­
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`ing statement, because Quentin Truehill and Terence
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`Oliver were the two petitioners whose claims were at issue
`in my dissent in Truehill. Franklin did not discuss that
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`4
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`GUARDADO v. JONES
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` SOTOMAYOR, J., dissenting
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`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
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`held that it had “considered and rejected” post-Hurst
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`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
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`It is hard to understand how the Florida Supreme Court
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`“considered and rejected” these Caldwell-based challenges
`based on its decisions in Truehill and Oliver. Those cases
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`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
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`
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`——————
`2As petitioner Guardado explained in his supplemental brief, in addi­
`tion to the postconviction motion that forms the basis of the petition
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`currently before our Court, he also filed a motion to vacate his sentence.
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`See Supp. Brief for Petitioner 1. It was with respect to that motion that
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`the Florida Supreme Court issued the opinion stating that it had
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`“considered and rejected” the Caldwell-based challenge. No mention of
`the Caldwell-based claim was made in the Florida Supreme Court
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`opinion directly under review in this petition. 226 So. 3d 213 (2017).
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`In fact, petitioner Guardado filed a motion with the Florida Supreme
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`Court for rehearing and clarification of the denial of his postconviction
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`motion, noting, inter alia, that the opinion “unreasonably omitted any
`consideration or discussion of [his] arguments regarding the interplay
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`between Caldwell and Hurst.” App. to Pet. for Cert. in No. 17–7171, p.
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`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
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`Court “overlooked the effect of instructing [his] jury many times that its
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`recommendation was advisory only,” citing Caldwell. App. to Pet. for
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`Cert. in No. 17–7545, p. 66a. The Florida Supreme Court also denied
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`the motion in an unreasoned one-line order. See id., at 43a.
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`5
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`Cite as: 584 U. S. ____ (2018)
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` SOTOMAYOR, J., dissenting
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`for determining the appropriateness of the defendant’s
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` 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
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`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
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`Truehill that the defendant in that case “contends that he
`is entitled to relief pursuant to Hurst v. Florida because
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`the jury in his case was repeatedly instructed regarding
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`the non-binding nature of its verdict,” 211 So. 3d, at 955,
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`that was the first and last reference to that argument.
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`There was absolutely no reference to the argument in
`Oliver. 214 So. 3d 606.3
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`Therefore, the Florida Supreme Court has (again)4 failed
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`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
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`these substantial Caldwell-based challenges. This Court
`can and should intervene in the face of this troubling
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`situation.
` I dissent.
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`
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`——————
`3Tellingly, in neither Franklin nor Guardado did the Florida Su­
`preme Court supply a pincite for its “consider[ation] and reject[ion]” in
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`Truehill and Oliver of these Caldwell-based claims.
`4“Toutes choses sont dites déjà; mais comme personne n’écoute, il
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` faut toujours recommencer.” Gide, Le Traité du Narcisse 8 (1892), in
` Le Traité du Narcisse 104 (R. Robidoux ed. 1978) (“Everything has been
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` said already; but as no one listens, we must always begin again”).
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