Harry Franklin Phillips v. State of Florida

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appellant’s parole was revoked and he was returned to prison for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

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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.

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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.

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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

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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.”

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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

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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

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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

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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

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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.

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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

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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.”).

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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.,

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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

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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

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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

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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.

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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.

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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

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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-

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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.,

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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.

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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

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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.

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“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

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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

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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

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