Nos. 15-7786 AND 15A755
______________________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
CHRISTOPHER BROOKS,
Petitioner,
v.
ALABAMA,

Respondent.

_______________________________________________________
On Petition for a Writ of Certiorari
to the Alabama Supreme Court
_______________________________________________________
REPLY TO RESPONDENT=S BRIEF IN OPPOSITION
TO BROOKS’ PETITION AND MOTION FOR STAY OF EXECUTION
_______________________________________________________
Christine A. Freeman, Executive Director
John A. Palombi*
Leslie S. Smith
Federal Defenders for the Middle District of Alabama
817 S. Court Street
Montgomery, Alabama 36104
Telephone: (334) 834-2099
Facsimile: (334) 834-0353
John_Palombi@fd.org
*Counsel of Record
Counsel for Christopher Brooks

 TABLE OF CONTENTS

Table of Authorities ______________________________________________ ii
Argument _______________________________________________________ 1
I.
The State mischaracterizes the nature of Brooks’ pleading in
the Alabama Supreme Court in an attempt to detract from the nature of
his challenge: a request for relief from an unlawful sentence, which was
denied __________________________________________________________ 1
II. The question of the applicability of Hurst to Alabama’s capital
sentencing scheme, and the continued vitality of Harris v. Alabama, is
an open federal question that can only be resolved by this Court through
a grant of certiorari. ______________________________________________ 3
III. The question of retroactive application of Hurst is before this
Court but the jurisdictional question raised in Montgomery v. Louisiana,
must be resolved before that question can be reached. _______________ 8
IV. The State offers no compelling reason to deny Brooks a stay
of execution pending resolution of the legality of his death sentence. _ 18
Conclusion _____________________________________________________ 19

 TABLE OF AUTHORITIES
Federal Cases

Apprendi v. New Jersey,

530 U.S. 466 (2000) .......................................................................... 18

Blakely v. Washington,

124 S. Ct. 2531 (2004) ...................................................................... 17

Bousley v. United States,

523 U.S. 614 (1998) .................................................................... 14, 16

Danforth v. Minnesota,

552 U.S. 264 (2008) .......................................................................... 11

Flynt v. Ohio,

451 U.S. 619 (1981) ............................................................................ 3

Gotthilf v. Sills,

375 U.S. 79 (1963) .............................................................................. 2

Gregg v. Georgia,

428 U.S. 153 (1976) .......................................................................... 12

Harris v. Alabama,

513 U.S. 504 (1995) .................................................................... 3, 4, 5

Hildwin v. Florida,

490 U.S. 638 (1989) ......................................................................... 7, 8

Hurst v. Florida,

No. 14-7505, 2016 WL 112683 (U.S. Jan. 12, 2016) ............... passim

Lockhart v. Alabama,

135 S. Ct. 1844 (2015) ........................................................................ 4

Montgomery v. Louisiana,

135 S. Ct. 1546 (2015) ........................................................................ 8

2

 Payne v. Tennessee,

501 U.S. 808 (1991) ........................................................................ 7, 8

Radio Station WOW, Inc. v. Johnson,

326 U.S. 120 (1945) ............................................................................ 3

Ring v. Arizona,

536 U.S. 584 (2002) .............................................................. 10, 14, 15

Sattazahn v. Pennsylvania,

537 U.S. 101 (2003) .......................................................................... 15

Sawyer v. Smith,

497 U.S. 227 (1990) .......................................................................... 13

Schriro v. Summerlin,

542 U.S. 348 (2004) .................................................................. passim

Schriro v. Summerlin,

124 S. Ct. 2519 (2004) ...................................................................... 11

Spaziano v. Florida,

468 U.S. 447 (1984) ............................................................................ 7

Summerlin v. Stewart,

341 F.3d 1082 (9th Cir. 2003) .................................................... 10, 11

Sullivan v. Louisiana,

508 U.S. 275, 281 (1993)………………………………………………….19

Teague v. Lane,

489 U.S. 288 (1989) .................................................................... 13, 14

United States v. Carver,

260 U.S. 482 (1923) ............................................................................ 4

Whorton v. Bockting,

549 U.S. 406 (2007) .......................................................................... 17

3

 Woodson v. North Carolina,

428 U.S. 280 (1976) .......................................................................... 12

Federal Statutes
28 U.S.C. § 1257(a) (2012) ....................................................................... 2
State Cases

Gilbreath v. Wallace,

292 Ala. 267, 292 So. 2d 651 (1974) ................................................ 14

State Statutes
Ala. Code § 12-2-7 .................................................................................... 3
Ala. Code § 13A-5-47(a) ........................................................................... 6
Ala. Code § 13A-5-47(d) ........................................................................... 6

4

 ARGUMENT
The State responded to Brooks’ Application for Stay of Execution
and Petition for Writ of Certiorari in the same document, and Brooks,
for ease of this Court’s review, will reply in a single document. The
State makes three arguments in opposition to the Writ, and one brief
response in opposition to the stay. Brooks will deal with these
arguments in turn.
I. The State mischaracterizes Brooks’ pleading in the Alabama Supreme
Court in an attempt to detract from the nature of his petition: a request
for relief from an unlawful sentence, which the Alabama Supreme
Court denied.
Because it has somehow interpreted this certiorari petition as an
appeal from a denial of relief under Rule 8(d)(1) of the Alabama Rules of
Appellate Procedure, the State argues that Mr. Brooks has improperly
invoked this Court’s jurisdiction.1 But, Mr. Brooks’ pleadings in the
Alabama Supreme Court did not invoke, mention, or imply that his
appeal was premised on Rule 8. The State’s assertion is wrong, and a
red herring designed to distract this Court from the substantive issues

1

State’s BIO, pp. 10-11.
5

 before it.
Mr. Brooks invoked the Alabama Supreme Court’s original
jurisdiction to determine whether his death sentence violated the Sixth
Amendment in light of Hurst v. Florida.2 The Alabama Supreme Court
is “the last state court in which a decision of that (constitutional)
question could be had.”3 The Alabama Supreme Court has authority
“[t]o issue writs of injunction, habeas corpus, and such other remedial
and original writs as are necessary to give to it a general
superintendence and control of courts of inferior jurisdiction.”4 For that
reason, Mr. Brooks pleading was captioned “Petition for Stay of
Execution and Relief from Unconstitutional Punishment.” Having
considered Mr. Brooks’ arguments respecting Hurst, the Alabama
Supreme Court’s one-sentence denial of that petition constitutes a final
order under 28 U.S.C. § 1257(a).
The Alabama Supreme Court denied Brooks relief on the question

2

2016 WL 112683 (Jan. 12, 2016).

3

Gotthilf v. Sills, 375 U.S. 79, 80 (1963).

4

Ala. Code § 12-2-7.
6

 he presented. There is nothing left for it to decide. “In general, the finaljudgment rule has been interpreted ‘to preclude reviewability ... where
anything further remains to be determined by a State court, no matter
how dissociated from the only federal issue that has finally been
adjudicated by the highest court of the State.’”5 Thus, contrary to what
the State has argued, there is no impediment to this Court’s
jurisdiction.
II. The question of the applicability of Hurst to Alabama’s capital
sentencing scheme, and the continued vitality of Harris v. Alabama,6 is
an open federal question that can only be resolved by this Court
through a grant of certiorari.
The State’s next argument in the Brief in Opposition is that

certiorari should be denied because Hurst v. Florida7 does not apply to
invalidate Alabama’s capital sentencing statute and because Alabama’s
death penalty sentencing scheme is different from Florida’s.8 This

Flynt v. Ohio, 451 U.S. 619, 620 (1981)(quoting Radio Station WOW, Inc. v.
Johnson, 326 U.S. 120, 124 (1945)).
5

6

513 U.S. 504 (1995).

7

2016 WL 112683 (Jan. 12, 2016).

8

State’s BIO, p. 11.
7

 argument should be rejected by this Court. In Harris v. Alabama,9 this
Court upheld Alabama’s capital sentencing scheme against an Eighth
Amendment challenge.10 Certiorari is necessary to resolve the issue of
whether Alabama’s capital sentencing scheme violates the Sixth
Amendment and to determine the continued vitality of Harris in light of

Hurst.11
There is no question that Florida and Alabama have virtually
identical capital sentencing schemes. The Harris Court recognized the
similarities between Alabama’s scheme and Florida’s. It stated directly:
Alabama’s capital sentencing scheme is much like that of
Florida. Both require jury participation in the sentencing
process but give ultimate sentencing authority to the trial
judge.12
9

Harris v. Alabama, 513 U.S. 504, 512-513 (1995).

The questions presented in Harris were both related to the Eighth Amendment
and did not involve a Sixth Amendment challenge to Alabama’s capital sentencing
scheme. See Harris v. Alabama, 1994 WL 501803 (Petitioner’s Brief).
10

Alabama also argues to this Court that this Court’s denial of certiorari in
Lockhart v. Alabama, 135 S.Ct. 1844 (2015) somehow validates Alabama’s capital
sentencing scheme. Alabama did not acknowledge this Court’s long-held precedent
that denial of certiorari is not precedential and does not reflect on the merits of the
argument. See United States v. Carver, 260 U.S. 482, 490 (1923) (“The denial of a
writ of certiorari imports no expression of opinion upon the merits of the case, as
the bar has been told many times.”).
11

12Harris,

504 U.S. at 508-09.
8

 The Harris Court further observed that the two States only differed in
one important respect: the weight that the judge must give to the jury’s
advisory verdict.13
Alabama’s recent pleadings in this Court acknowledge the
similarities between the two systems. In its amicus brief filed in this
Court in Hurst, Alabama stated:
States like Florida and Alabama responded to Furman by
creating hybrid systems under which the jury recommends
an advisory sentence, but the judge makes the final
sentencing decision.14
As Alabama acknowledged in that brief, it has a capital sentencing
system where the jury renders an advisory sentence, but the judge
makes the final decision.
In Alabama, regardless of what the jury found, or did not find,
when it found it or if it found it, its sentence is wholly advisory. As in
Florida, there is no death sentence in Alabama until the judge finds

13Harris,
14

504 U.S. at 509.

Hurst v. Florida, 14-7505, Brief of Amici Curiae Alabama and Montana in

Support of Respondent, p. 4.

9

 that an aggravator exists.
And most importantly, as in Florida, a capital defendant in
Alabama is not sentenced to death unless the trial court has determined
that to be the sentence.15 The jury recommendation is advisory only
and does not stand as a sentence, let alone a final one.16 As with
Timothy Hurst, in the absence of the trial court’s fact-findings and
imposition of sentence, Christopher Brooks would not have received a
death sentence.17
In Mr. Brooks’ case, the jury voted, 11-1, in favor of an advisory
death verdict. Weeks later, the trial judge sentenced him to death after
improperly18 considering aggravating evidence which had not been

15

Ala. Code § 13A-5-47(a).

16

Ala. Code § 13A-5-47(e).

Ala. Code § 13 A-5-47(d) (“Based upon the evidence presented at trial, the
evidence presented during the sentence hearing, and the pre-sentence investigation
report and any evidence submitted in connection with it, the trial court shall enter

17

specific written findings concerning the existence or nonexistence of each
aggravating circumstance enumerated in Section 13A-5-49, each mitigating

circumstance enumerated in Section 13A-5-51, and any additional mitigating
circumstances offered pursuant to Section 13A-5-52.”). (emphasis added).
The Eighth Amendment forbids the admission of “a victim’s family members’
characterization and opinions about the crime, the defendant, and the appropriate
sentence.” Payne v. Tennessee, 501 U.S. 808, 830 n.2 (1991).
18

10

 presented to the jury, and independently evaluating aggravating and
mitigating circumstances.

Hurst now forbids “a judge [to] increase[] … authorized
punishment based on her own fact-finding.”19 In so holding, the
Supreme Court explicitly overruled its decisions in Hildwin v. Florida20
and Spaziano v. Florida,21 which concluded that “the Sixth Amendment
does not require that the specific findings authorizing the imposition of
the sentence of death be made by the jury.”22
Thus, Hurst imperils the constitutionality of Alabama’s capital
sentencing scheme, which also vests in the trial judge sole discretion for
determining whether to impose the death penalty. Contrary to the
State’s assertion,23 Hurst holds that a judge may not be the final

19

Id. at *6.

20

Hildwin v. Florida, 490 U.S. 638 (1989).

21

Spaziano v. Florida, 468 U.S. 447 (1984).

22

Hurst, No. 14-7505, 2016 WL 112683, at *8.

23

State’s BIO, p. 18.
11

 sentencing authority.24 Certiorari is appropriate to resolve this
question.
III. The question of retroactive application of Hurst is before this Court
but the jurisdictional question raised in Montgomery v. Louisiana,25
must be resolved before that question can be reached.
As it did in the Alabama Supreme Court, the State now argues
that Hurst does not apply to Mr. Brooks because his case was not on
direct appeal when Hurst was rendered.26 Mr. Brooks acknowledged in
his petition that the issue of retroactive application of Hurst was before
the Court.27 However, there is a jurisdictional issue that must be
resolved before the Court may resolve the question of retroactivity.
The State maintains that this issue is “convoluted.”28 It is
certainly clear to the Court, because it was the Court that raised the
24

Hurst, No. 14-7505, 2016 WL 112683, at *9 (U.S. Jan. 12, 2016) (“The Sixth

Amendment protects a defendant’s right to an impartial jury. This right required
Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s
factfinding.”).
25

No. 14-280.

26

State’s BIO, p. 18.

27

Petition, p. 26.

28

State’s BIO, p. 19.
12

 issue in Montgomery.29 Does this Court have jurisdiction to review a
ruling of a state court that decides a retroactivity question using federal
law?
The State also argues that because this Court did not hold in

Hurst that the case applied retroactively, it does not apply
retroactively.30 This argument fails because the issue was not present
in Hurst; therefore, there was no need for this Court to decide it. The
issue is present here, and certiorari is appropriate to determine
whether Hurst applies retroactively to petitioners such as Mr. Brooks.
Further, the State’s response treats the issue as resolved
immutably in its favor.31 This is not the case, and certiorari is
appropriate to resolve the question.
Warren Summerlin was convicted of first-degree murder and
sexual assault in Arizona under a capital sentencing scheme which
allowed a trial judge to impose a death sentence without a jury’s

29

135 S.Ct. 1546 (2015).

30

State’s BIO, p. 19.

31

Id.
13

 input.32
While Summerlin’s case was pending in federal habeas, this Court
decided Ring v. Arizona33, which “concluded that, because Arizona law
authorized the death penalty only if an aggravating factor was present,

Apprendi required the existence of such a factor to be proved to a jury
rather than to a judge.”34 Summerlin asserted that Ring invalidated the
capital sentencing scheme under which he had been sentenced to death.
More specifically, he argued that his judge-alone sentencing proceeding
violated his Sixth Amendment jury trial rights.35 The Ninth Circuit
agreed, reasoning that “under Teague, the rule announced by the
Supreme Court in Ring, with its restructuring of Arizona murder law
and its redefinition of the separate crime of capital murder, is
necessarily a ‘substantive’ rule.”36
32

Schriro v. Summerlin, 542 U.S. 348, 350 (2004)(“Arizona’s capital sentencing

provisions in effect at the time authorized the death penalty if one of several
enumerated aggravating factors was present.”)
33

536 U.S. 584 (2002).

34

Id. at 351 (2004) (citing Ring, 536 U.S. at 603-609).

35Summerlin

v. Stewart, 341 F.3d 1082, 1088 (9th Cir. 2003).

36Summerlin

v. Stewart, 341 F.3d at 1092 rev'd and remanded sub nom. Schriro v.
14

 On certiorari to this Court, Summerlin asked: “whether Ring v.

Arizona . . . applies retroactively to cases already final on direct
review.”37 And, answering that question in the negative, Summerlin
held that neither the rule announced in Ring v. Arizona nor in Apprendi

v. New Jersey would apply retroactively to convictions already final.38
Thus, this Court decided in Summerlin that, for some condemned
petitioners, there is no remedy for patently death unconstitutional
sentences.39
This Court asserted two reasons for its conclusion that the patent
Sixth Amendment violation embodied in Summerlin’s sentence could
not be remedied. First, this Court said that “Ring’s holding is properly
classified as procedural,”40 because it spoke to the method for imposing

Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004).
 
37

124 S. Ct. 2519 (2004).

Summerlin, 542 U.S. at 358 (“Ring announced a new procedural rule that does
not apply retroactively to cases already final on direct review.”).

38

Danforth v. Minnesota, 552 U.S. 264, 291 (2008)(“A decision by this Court that a
new rule does not apply retroactively under Teague does not imply that there was
no right and thus no violation of that right at the time of trial—only that no remedy
will be provided in federal habeas courts.”)
39

40

Summerlin, 542 U.S. at 353.
15

 a death sentence and “did not alter the range of conduct Arizona law
subjected to the death penalty.”41 Next, this Court implied that Ring
was a not “watershed rule[]of criminal procedure,” warranting an
exception to Teague.42
Leaving aside (for the moment) whether this Court has
jurisdiction to impose retroactivity rules on Alabama, Summerlin’s
resolution does not foreclose retroactive application of Hurst.
First, failing to make Hurst retroactive would be incompatible
with the Eighth Amendment, which recognizes that capital punishment
is qualitatively different from any other form of punishment.43 “All of
[the Court’s] Eighth Amendment jurisprudence concerning capital

 
41

Id.

42

Id. at 355.

43

Woodson v. N. Carolina, 428 U.S. 280, 305 (1976) (“the penalty of death is

qualitatively different from a sentence of imprisonment, however long. Death, in its
finality, differs more from life imprisonment than a 100-year prison term differs
from one of only a year or two. Because of that qualitative difference, there is a
corresponding difference in the need for reliability in the determination that death
is the appropriate punishment in a specific case.”); ....”); Gregg v. Georgia, 428 U.S.
153, 187 (1976) (“[D]eath as a punishment is unique in its severity and
irrevocability”).
 

16

 sentencing is directed toward the enhancement of reliability and
accuracy in some sense.”44 To the extent that Summerlin rejected the
Eighth Amendment concerns raised by the unconstitutional death
sentence in that case,45 it was wrongly decided. As Justice Breyer
wrote, concurring in the Hurst judgement, “the Eighth Amendment
[also] requires that a jury, not a judge, make the decision to sentence a
defendant to death.”46
Second, assuming Hurst can be said to be a new rule,47 it should
be applied retroactively because Sixth Amendment rights are

44

Sawyer v. Smith, 497 U.S. 227, 243 (1990).

Summerlin, 542 U.S. at 357 (“The dissent also advances several variations on the
theme that death is different (or rather, ‘dramatically different,’ post, at 2529).
Much of this analysis is not an application of Teague, but a rejection of it, in favor of
a broader endeavor to ‘balance competing considerations,’ post, at 2528. Even were
we inclined to revisit Teague in this fashion, we would not agree with the dissent's
conclusions.”)
45

46

Hurst v. Florida, No. 14-7505, 2016 WL 112683, at *9 (U.S. Jan. 12, 2016).

Hurst is arguably an old rule under Teague because it rests on well-established
Sixth Amendment precedent. See Teague v. Lane, 489 U.S. 288, 301 (1989) (“a case
announces a new rule if the result was not dictated by precedent existing at the
time the defendant's conviction became final.”) The State appears to agree. See
(State’s BIO, p. 16)(“Hurst did not create new law, but merely applied Ring to
47

peculiarities in Florida law that are not present in Alabama.”)
17

 fundamental rights, both under the federal constitution48 and in
Alabama.49 As this Court said in Teague, “a new rule should be applied
retroactively if it requires the observance of ‘those procedures that ...
are ‘implicit in the concept of ordered liberty[.]”50And “Teague by its
terms only applies to procedural rules.”51
In the most basic sense, Hurst’s reaffirmance of the jury trial right
remedies a “‘structural defect [ ] in the constitution of the trial

Ring v. Arizona, 536 U.S. 584, 610 (2002)(Scalia, J., concurring)(“On the other
hand, as I wrote in my dissent in Almendarez–Torres v. United States, 523 U.S.
224, 248, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and as I reaffirmed by joining the
opinion for the Court in Apprendi, I believe that the fundamental meaning of the
jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition
of the level of punishment that the defendant receives—whether the statute calls
them elements of the offense, sentencing factors, or Mary Jane—must be found by
the jury beyond a reasonable doubt.”)
48

 
49

Gilbreath v. Wallace, 292 Ala. 267, 271-72, 292 So. 2d 651, 655 (1974)(“In

Alabama the basic principles which apply to constitutional juries in criminal cases
also apply in civil cases. The crucial words which control these principles are ‘shall
remain inviolate.’ To provide that the right of trial by jury shall remain inviolate is
to forbid the state through the legislative, judicial, or executive department-one or
all-from ever burdening, disturbing, qualifying, or tampering with this right to the
prejudice of the people. Alford v. State, supra. Historically, a jury (with minor
exceptions, e.g., insanity inquisitions) has consisted of 12 people selected from the
community in which the trial is to be held.”)
50

Teague, 489 U.S. at 311.

51

Bousley v. United States, 523 U.S. 614, 620 (1998).
18

 mechanism,”’52: it vindicates “the jury guarantee ... [as] a ‘basic
protectio[n]’ whose precise effects are unmeasurable, but without which
a criminal trial cannot reliably serve its function.”53
A rule through which the Supreme Court “mak[es] a certain fact
essential to the death penalty” is substantive.54 Hurst unquestionably
substantively redefined Florida’s capital sentencing scheme (as well as
Alabama’s). As Ring did to Arizona’s scheme, Hurst transformed
Florida’s aggravators into elements by reaffirming that a fact that
“‘exposes the defendant to a greater punishment than that authorized
by the jury’s guilty verdict” is an ‘element’ that must be submitted to a
jury.”55 This Court has said repeatedly that capital punishment results

52

Sullivan v. Louisiana, 508 U.S. 275, 281 (1993).

53

Id.

54

Summerlin, 542 U.S. at 352-53.

55

Hurst v. Florida, No. 14-7505, 2016 WL 112683, at *5 (U.S. Jan. 12, 2016); Id. at

*6 (“As with Timothy Ring, the maximum punishment Timothy Hurst could have
received without any judge-made findings was life in prison without parole. As with
Ring, a judge increased Hurst's authorized punishment based on her own
factfinding. In light of Ring, we hold that Hurst’s sentence violates the Sixth
Amendment.”)
19

 in a substantive, categorical transformation of the crimes charged.56 So
too here. Because Florida’s scheme failed to protect the defendant’s
right to jury fact-finding in capital sentencing, this Court declared
Florida’s statute unconstitutional, which means that it must be
reinvented.57 Substantive rules must apply retroactively, this Court has
said, because they “‘necessarily carry a significant risk that a defendant’
. . . faces a punishment that the law cannot impose upon him.”58
Alternatively, Hurst should be considered a “watershed rule . . .
implicating the fundamental fairness and accuracy of the criminal

56

Sattazahn v. Pennsylvania, 537 U.S. 101, 111 (2003) (“Put simply, if the

existence of any fact (other than a prior conviction) increases the maximum
punishment that may be imposed on a defendant, that fact … constitutes an
element, and must be found by a jury beyond a reasonable doubt.”) (emphasis
added); Ring, 536 U.S. at 613 (“[T]he finding of an aggravating circumstance
exposes ‘the defendant to a greater punishment than that authorized by the jury's
guilty verdict.’ When a finding has this effect, Apprendi makes clear, it cannot be
reserved for the judge.”) (Kennedy, J., concurring) (internal citation omitted)
(emphasis added).
57

Hurst, No. 14-7505, 2016 WL 112683, at * 9. (“Florida’s sentencing scheme,

which required the judge alone to find the existence of an aggravating circumstance,
is therefore unconstitutional.”)

Summerlin, 542 U.S. at 352 (quoting Bousley v. United States, 523 U.S. 614, 620
(1998) (quoting Davis v. United States, 417 U.S. 333, 346 (1974))).
58

20

 proceeding.”59 Summerlin does not control the result here because the
majority opinion did not squarely decide that question.60 Hurst
confirms that a death sentence cannot be imposed where the judge, not
the jury, has made factual determinations.61
Admittedly, “in the years since Teague, [this Court] [has] rejected
every claim that a new rule satisfied the requirements for watershed
status.”62 But, the jury’s role in sentencing is “no mere procedural
formality, but a fundamental reservation of power in our constitutional
structure.”63 And, as this Court has recognized “[t]he historic link
between verdict and judgment and the consistent limitation on judges’

59

Id. (citations omitted)(“we give retroactive effect to only a small set of ‘watershed

rules of criminal procedure’ implicating the fundamental fairness and accuracy of
the criminal proceeding.”)
Marc E. Johnson, Everything Old Is New Again: Justice Scalia’s Activist
Originalism in Schriro v. Summerlin, 95 J. Crim. L. & Criminology 763, 797
(2005)(“It is interesting that Justice Scalia failed to even discuss whether Ring's
rule was of ‘watershed’ significance.”)
60

Hurst v. Florida, No. 14-7505, 2016 WL 112683, at *3 (U.S. Jan. 12, 2016)(“The
Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose
a sentence of death. A jury’s mere recommendation is not enough.”)
61

62

Whorton v. Bockting, 549 U.S. 406, 418 (2007).

63

Blakely v. Washington, 124 S. Ct. 2531, 2358-59 (2004).
21

 discretion to operate within the limits of the legal penalties provided
highlight the novelty of a legislative scheme that removes the jury from
the determination of a fact that, if found, exposes the criminal
defendant to a penalty exceeding the maximum he would receive if
punished according to the facts reflected in the jury verdict alone.”64
Thus, Hurst’s affirmation of the jury right should constitute a
watershed rule. Certiorari is appropriate to resolve this important
question.
IV. The State offers no compelling reason to deny Brooks a stay of
execution pending resolution of the legality of his death sentence.
The State concluded by arguing that the equities were against
granting a stay, because the crime in this case happened in 1992.65
While that is true, and while it is true that a State has a legitimate
interest in enforcement of its sentences, it has no interest in carrying
out a sentence that was obtained illegally. Mr. Brooks’ death sentence
was the result of a statutory sentencing scheme that violates the Sixth

64

Apprendi v. New Jersey, 530 U.S. 466, 482-83 (2000).

65

State’s BIO, p. 20.
22

 Amendment. A stay of execution is appropriate to allow this Court to
review the case, grant certiorari, and resolve this important
constitutional issue.
CONCLUSION
For the forgoing reasons, and those outlined in his initial petition,
the petition for a writ of certiorari should be granted and Mr. Brooks’
execution should be stayed.
Respectfully submitted,
Christine A. Freeman, Executive Director
Leslie S. Smith
John A. Palombi*
Assistant Federal Defender
Federal Defenders for the Middle District of Alabama
817 S. Court Street
Montgomery, Alabama 36104
Telephone: (334) 834-2099
*Counsel of Record

23