Joe Elton Nixon v. State of Florida

Supreme Court of Florida
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No. SC20-48
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JOE ELTON NIXON,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

August 26, 2021

PER CURIAM.

Joe Elton Nixon is a prisoner under sentence of death. He

appeals a trial court order, entered after a hearing, denying Nixon’s

claims (1) that he is intellectually disabled and therefore ineligible

for the death penalty and (2) entitled to relief under Hurst v. Florida,

577 U.S. 92 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016).

We affirm the order. 1

1. We have jurisdiction. See Art. V, § 3(b)(1), Fla. Const.
I.

A.

Nixon was convicted and sentenced to death in 1985 for the

first-degree murder of Jeanne Bickner. We detailed the horrific

facts of Nixon’s crime in our decision affirming the conviction and

sentence on direct appeal. Nixon v. State, 572 So. 2d 1336 (Fla.

1990), cert. denied, 502 U.S. 854 (1991). Later we affirmed the

denial of Nixon’s initial postconviction motion. Nixon v. State, 932

So. 2d 1009 (Fla. 2006). Later still, we affirmed the denial of

Nixon’s initial motion claiming that he is intellectually disabled.

Nixon v. State, 2 So. 3d 137 (Fla. 2009).

Before us now is Nixon’s successive motion under Florida Rule

of Criminal Procedure 3.203 raising an intellectual disability claim.

“[T]o establish intellectual disability as a bar to execution, a

defendant must demonstrate (1) significantly subaverage general

intellectual functioning; (2) concurrent deficits in adaptive behavior;

and (3) manifestation of the condition before age eighteen.”

Haliburton v. State, 46 Fla. L. Weekly S177, S178 (Fla. June 17,

2021); see also § 921.137, Fla. Stat. (2019); Fla. R. Crim. P. 3.203.

“[S]ignificantly subaverage intellectual functioning” means

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“performance that is two or more standard deviations from the

mean score on a standardized intelligence test.” § 921.137(1), Fla.

Stat; see also Fla. R. Crim. P. 3.203(b). Given that the mean IQ test

score is 100 points and the standard deviation is approximately 15

points, this definition translates to an IQ test score of approximately

70 points. Hall v. Florida, 572 U.S. 701, 711 (2014).

Nixon filed his successive intellectual disability claim in 2015,

after the Supreme Court’s decision in Hall. Hall is a successor case

to Atkins v. Virginia, 536 U.S. 304 (2002), where the Supreme Court

first held that the U.S. Constitution forbids the execution of persons

with intellectual disability. After Atkins but before Hall, we had

held that “failure to present an IQ score of 70 or below precluded a

finding of intellectual disability.” Haliburton, 46 Fla. L. Weekly

S178 (citing Cherry v. State, 959 So. 2d 702, 712-13 (Fla. 2007)).

We recently explained the holding in Hall as follows:

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, 134 S.Ct. 1986. The Court further held that
when assessing the intellectual functioning prong of the
intellectual disability standard, courts must take into

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account the standard error of measurement (SEM) of IQ
tests. 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.

Haliburton, 46 Fla. L. Weekly S178. We noted in Haliburton that,

even after Hall, “[i]f the defendant fails to prove any one of the three

components of the statutory test for intellectual disability, the

defendant will not be found to be intellectually disabled.” Id.

When it first took up Nixon’s successive intellectual disability

claim, the trial court summarily denied Nixon’s motion. Nixon

appealed the denial, and while that appeal was pending, this Court

held that Hall is retroactive to cases where there has already been a

finding that the defendant is not intellectually disabled. See Walls

v. State, 213 So. 3d 340 (Fla. 2016). In Nixon’s appeal, we

concluded that summary denial of Nixon’s successive motion was

inconsistent with our cases interpreting Hall and we remanded the

case to the trial court “to conduct proceedings to determine whether

a new evidentiary hearing is necessary.” Nixon v. State, No. SC15-

2309, 2017 WL 462148, at *2 (Fla. Feb. 3, 2017).

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The trial court held an evidentiary hearing on remand and

received evidence on all three prongs of the intellectual disability

test. Ultimately the court concluded that Nixon had presented clear

and convincing evidence of adaptive deficits but that he had failed

to establish the other two prongs—significantly subaverage

intellectual functioning and manifestation by age 18.

In its order denying Nixon’s intellectual disability claim, the

trial court explained that the parties had presented a range of IQ

test scores for Nixon at the hearing: 88, 80, 73, 72, 68, and 67. Of

these, the court found that the test score of 80 was the most

credible—a score that, accounting for the standard error of

measurement, placed Nixon’s IQ somewhere in a range from 75 to

85. Nixon received that score on a WAIS III test 2 administered in

2006 by the state’s expert, Dr. Gregory Prichard, a forensic

psychologist. Specifically, the court found that “Dr. Prichard’s full-

scale score of 80 and SEM range of 75-85 is more credible than the

2. WAIS is an acronym for Wechsler Adult Intelligence Scale.
Dr. Gregory Prichard testified that the WAIS-III test was the state of
the art when he administered it to Nixon in 2006 and that the
WAIS-IV test has now replaced it as the current state of the art. Dr.
Barry Crown, one of Nixon’s experts, administered the WAIS-IV to
Nixon in 2017 and scored Nixon’s IQ at 67.

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scores falling within the Hall range [i.e., the scores that, accounting

for the standard error of measurement, placed Nixon’s IQ at or

below 70].”

The trial court determined that Nixon’s criticisms of Dr.

Prichard’s test administration were unpersuasive. The court

elaborated:

First, there is no persuasive evidence that either the
administration or scoring by Dr. Prichard was invalid.
Second, as Dr. Prichard testified, the purpose of cognitive
testing is to determine capacity. While many factors
other than [intellectual disability] can reduce capacity on
a given day—inattention, lack of effort, lack of rapport
with the examiner, lack of sleep—no similar factors can
increase capacity.

As part of its rationale for finding that Nixon had not established

intellectual disability, the trial court reasoned that “Hall does not

suggest that an IQ range of 75 to 85 … should be adjusted by

applying deficits in adaptive behavior to then further reduce the

estimate of intellectual functioning lower than the standard error of

measurement.”

B.

In this appeal, Nixon argues that the trial court misapplied

Hall and that the evidence shows that Nixon is intellectually

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disabled. The State counters Nixon’s arguments on the merits. But

it also argues at the threshold that Nixon is unentitled to relief

because Hall is inapplicable in his case, given this Court’s recent

decision in Phillips v. State, 299 So. 3d 1013 (Fla. 2020). In Phillips,

we held that “this Court in Walls clearly erred in concluding that

Hall applies retroactively,” and we receded from Walls. Id. at 1023-

24.

We agree with the State that Nixon is not entitled to

reconsideration of whether he is intellectually disabled. It is true

that—when Walls was still good law—this Court instructed the trial

court to determine whether an evidentiary hearing was necessary to

evaluate Nixon’s successive intellectual disability claim in light of

Hall. But under Phillips, the controlling law in our Court now is

that Hall does not apply retroactively. It would be inconsistent with

that controlling law for us to entertain Nixon’s successive, Hall-

based challenge to the trial court’s order here.

We have not overlooked the law of the case doctrine. That

doctrine reflects “the long-established ‘principle that the questions

of law decided on appeal to a court of ultimate resort must govern

the case in the same court and the trial court, through all

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subsequent stages of the proceedings.’ ” State v. Okafor, 306 So. 3d

930, 934 (Fla. 2020) (quoting Delta Prop. Mgmt. v. Profile Invs., Inc.,

87 So. 3d 765, 770 (Fla. 2012)). But the law of the case doctrine is

prudential, and it has exceptions. One “generally accepted occasion

for disturbing settled decisions in a case [is] when there has been

an intervening change in the law underlying the decision.” Kathrein

v. City of Evanston, Ill., 752 F.3d 680, 685 (7th Cir. 2014); see also

Wagner v. Baron, 64 So. 2d 267, 268 (Fla. 1953) (law of the case

doctrine “must give way where there has been a change in the

fundamental controlling legal principles” (quoting Imbrici v. Madison

Ave. Realty Corp., 99 N.Y.S.2d 762, 765 (Sup. Ct. 1950)). This

exception to the law of the case doctrine applies here.

Accordingly, we affirm the denial of Nixon’s successive

intellectual disability claim.

II.

Nixon also appeals the trial court’s denial of Nixon’s most

recent successive motion under Florida Rule of Criminal Procedure

3.851. In that motion, Nixon sought relief “predicated upon Hurst

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v. Florida, 136 S. Ct. 616 (2006) and Hurst v. State, 202 So. 3d 40

(Fla. 2016).” 3

We have repeatedly held that Hurst relief is unavailable to

defendants, like Nixon, whose death sentences were final before the

Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002).

See, e.g., Wright v. State, 312 So. 3d 59, 60 (Fla. 2021).

Accordingly, we affirm this aspect of the trial court’s order as well.

III.

We affirm the trial court’s order denying Nixon’s successive

intellectual disability claim and his Hurst-based claim.

It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, COURIEL, and
GROSSHANS, JJ., concur.
LABARGA, J., dissents with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

LABARGA, J., dissenting.

In Phillips v. State, 299 So. 3d 1013 (Fla. 2020), I dissented to

the majority’s holding that Hall v. Florida, 572 U.S. 701 (2014), is

3. We partially receded from Hurst v. State, 202 So. 3d 40
(Fla. 2016) in State v. Poole, 297 So. 3d 487 (Fla. 2020).

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not to be applied retroactively, and its resultant decision to recede

from Walls v. State, 213 So. 3d 340 (Fla. 2016). See Phillips, 299

So. 3d at 1024-26 (Labarga, J., dissenting).

In addition to my fundamental disagreement with the holding

in Phillips, I noted the following:

[B]ecause 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 situated individuals will not be entitled to such
consideration. This disparate treatment is patently
unfair.

Id. at 1026.

I adhere to my dissent in Phillips, and thus, I dissent to the

majority’s conclusion that Nixon is not entitled to consideration of

his successive claim of intellectual disability.

An Appeal from the Circuit Court in and for Leon County,
Jonathan Eric Sjostrom, Judge
Case No. 371984CF002324AXXXXX

Eric M. Freedman of Law Offices of Eric M. Freedman, New York,
New York; Maria DeLiberato and Marie-Louise Samuels Parmer of
Parmer DeLiberato, P.A., Tampa, Florida; and Moe Keshavarzi,
David Poell, and Laura Alexander of Sheppard, Mullin, Richter &
Hampton LLP, Los Angeles, California,

for Appellant

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Ashley Moody, Attorney General, and Michael T. Kennett, Assistant
Attorney General, Tallahassee, Florida,

for Appellee

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