             Case: 13-12967     Date Filed: 03/03/2015   Page: 1 of 20


                                                                         [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 13-12967
                           ________________________

                       D.C. Docket No. 1:08-cv-00034-RS


ANTONIO LEBARON MELTON,

                                                              Petitioner-Appellant,
                                      versus


SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,



                                                             Respondent-Appellee.

                          ________________________

                     Appeal from United States District Court
                       for the Northern District of Florida
                          _______________________
                                (March 3, 2015)

Before HULL, WILLIAM PRYOR, and MARTIN, Circuit Judges.

WILLIAM PRYOR, Circuit Judge:

      Antonio Melton moves to amend his motion to reconsider his application for

a certificate of appealability to include two new issues: (1) whether the Supreme

Court of Florida unreasonably applied clearly established federal law when it
             Case: 13-12967     Date Filed: 03/03/2015   Page: 2 of 20


decided that Melton’s prior conviction as a juvenile could be used as an

aggravating factor in his capital trial; and (2) whether the Supreme Court of Florida

unreasonably applied clearly established federal law when it denied Melton relief

without considering his “mental and emotional age.” Because neither issue is

debatable, we deny Melton’s motion.

                                I. BACKGROUND

      A Florida jury convicted Melton of armed robbery and first-degree felony

murder for shooting George Carter during a robbery of Carter’s pawn shop. Melton

v. State, 949 So. 2d 994, 1000 (Fla. 2006). The jury recommended a sentence of

death, and the trial judge imposed that sentence. Id. Melton was 18 years, 25 days

old when he committed the crime. The trial judge found as an aggravating factor

that Melton was previously convicted of first-degree felony murder. Id. Melton

committed that murder when he was 17 years old.

      Melton sought postconviction relief from the Supreme Court of Florida,

which denied Melton relief. Id. at 1015–16, 1021. Melton then filed a federal

petition for a writ of habeas corpus, 28 U.S.C. § 2254. He argued that, under Roper

v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005), the state courts violated his

rights under the Eighth Amendment when they relied on a juvenile conviction as

an aggravating factor in a capital case and when they failed to consider his “mental

                                         2
              Case: 13-12967     Date Filed: 03/03/2015   Page: 3 of 20


and emotional age.” The district court denied the petition and refused to grant a

certificate of appealability. Melton moved our Court to grant him a certificate of

appealability, and we denied his motion. Melton moved that we reconsider his

request for a certificate of appealability to include as new issues his arguments

based on Roper.

                          II. STANDARD OF REVIEW

      A petitioner seeking a certificate of appealability must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He “must

demonstrate that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484,

120 S. Ct. 1595, 1604 (2000). A petitioner seeking a certificate “must prove

something more than the absence of frivolity or the existence of mere good faith on

his . . . part.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S. Ct. 1029, 1040

(2003) (internal quotation marks and citation omitted). “We look to the District

Court’s application of [the Antiterrorism and Effective Death Penalty Act] to

petitioner’s constitutional claims and ask whether that resolution was debatable

amongst jurists of reason.” Id. at 336, 123 S. Ct. at 1039.




                                          3
              Case: 13-12967      Date Filed: 03/03/2015   Page: 4 of 20


                                  III. DISCUSSION

      In his motion to amend, Melton asks us to grant a certificate of appealability

on two new issues, each based on Roper v. Simmons, where the Supreme Court of

the United States held that a state cannot execute a convict who committed his

capital crime before he turned 18 years of age. 543 U.S. at 578, 125 S. Ct. at 1200.

First, Melton argues that the Supreme Court of Florida erred because it refused to

grant him a new trial even though the trial court found an aggravating factor that

was based on a conviction for murder that Melton committed when he was 17

years old. Second, Melton argues that, although he was 18 years old when he

committed the capital offense, his “mental and emotional age” was younger, and

he should not be subject to the death penalty for committing a crime with a “mental

and emotional age” below 18 years old. Melton fails to satisfy the requirements for

a certificate of appealability.

      When we review a request for a certificate of appealability, we ask whether,

in the light of the deference granted to state courts by the Antiterrorism and

Effective Death Penalty Act, “‘reasonable jurists would find the district court’s

assessment of the constitutional claims debatable.’” Cockrell, 537 U.S. at 338, 123

S. Ct. at 1040 (quoting Slack, 529 U.S. at 484, 120 S. Ct. at 1604). Because Melton

argues that the Supreme Court of Florida failed to apply Roper, he must establish

                                           4
                Case: 13-12967   Date Filed: 03/03/2015    Page: 5 of 20


that it is debatable whether the Supreme Court of Florida unreasonably applied

clearly established federal law, 28 U.S.C. § 2254(d)(1). And the Supreme Court of

Florida unreasonably applied clearly established federal law only if there “is no

possibility fairminded jurists could disagree that the state court’s decision conflicts

with” precedents of the Supreme Court of the United States. Harrington v. Richter,

562 U.S. 86, 102, 131 S. Ct. 770, 786 (2011).

      Melton must establish that reasonable jurists could debate whether no

fairminded jurist could come to the conclusions of the Supreme Court of Florida.

Melton cannot satisfy that burden under either of his legal theories. We discuss

each in turn.

      First, Melton fails to establish that there is a debatable question about

whether the Supreme Court of Florida unreasonably applied clearly established

federal law when it decided that “nowhere did the Supreme Court [of the United

States] extend [Roper] to prohibit the use of prior felonies committed [as a minor]

. . . as an aggravating circumstance during the penalty phase.” Melton, 949 So. 2d

at 1020. Roper prohibits only the imposition of the death penalty on a defendant

who committed the capital crime when he was younger than 18 years old. 543 U.S.

at 578, 125 S. Ct. at 1200. The Court in Roper did not consider the use of prior

convictions as aggravating factors. Nor has Melton pointed to any other Supreme

                                           5
              Case: 13-12967     Date Filed: 03/03/2015   Page: 6 of 20


Court precedent that even suggests that a prior conviction from youth may not

form the basis for an aggravating factor in a capital case. Because “clearly

established Federal law” consists of only Supreme Court precedent, 28 U.S.C. §

2254(d)(1), it is not debatable whether the Supreme Court of Florida violated any

such law.

      Second, Melton fails to establish a debatable question about whether the

Supreme Court of Florida violated clearly established federal law when it did not

consider Melton’s “mental and emotional age” in the light of Roper. Melton argues

that several of the factors considered relevant in Roper—for instance, a lack of

maturity and susceptibility to peer pressure—were present here. Even though

Melton was over the age of 18 at the time he committed his capital offense, he

argues that his sentence was invalid because some of the factors of youth were still

present when he committed the crime. But the Supreme Court of the United States

recognized that “[d]rawing the line at 18 years of age is subject, of course, to the

objections always raised against categorical rules,” as the “qualities that distinguish

juveniles from adults do not disappear when an individual turns 18,” and

nevertheless held that “a line must be drawn.” Roper, 543 U.S. at 574, 125 S. Ct. at

1197–98. Whatever one thinks of the abstract legal question about “mental and

emotional age,” we cannot say that it is debatable whether the Supreme Court of

                                          6
              Case: 13-12967     Date Filed: 03/03/2015   Page: 7 of 20


Florida unreasonably applied clearly established federal law. The Supreme Court

of the United States has not decided the issue, and dicta from the most relevant

decision suggest that the Supreme Court of Florida was correct in its resolution of

the issue. It is not “debatable amongst jurists of reason,” Cockrell, 537 U.S. at 336,

123 S. Ct. at 1039, whether the Supreme Court of Florida “unreasonabl[y]

appli[ed] . . . clearly established Federal law, as determined by the Supreme Court

of the United States,” 28 U.S.C. § 2254(d).

                                IV. CONCLUSION

      Melton’s motion for reconsideration is DENIED.




                                          7
              Case: 13-12967        Date Filed: 03/03/2015   Page: 8 of 20


MARTIN, Circuit Judge, dissenting:

      I would grant Mr. Melton a certificate of appealability on his claim that the

Eighth Amendment precludes the state from using his prior violent felony

conviction, committed before his eighteenth birthday, to obtain a death sentence in

his case. See Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005) Likewise,

I think Mr. Melton’s claim—that his mental and emotional age of less than

eighteen prohibits his execution—satisfies the certificate of appealability standard.

      My research reveals no Eleventh Circuit precedent addressing Mr. Melton’s

Simmons claims in the context of a capital case. Because the Simmons issues are

one of first impression, debatable, and likely to come up in other cases, I believe

they warrant a certificate of appealability. “[A] claim can be debatable even

though every jurist of reason might agree, after the COA has been granted and the

case has received full consideration, that petitioner will not prevail.” Miller-El v.

Cockrell, 537 U.S. 322, 338, 123 S. Ct. 1029, 1040 (2003). The Simmons issues

meet this low standard.

                               I.       BACKGROUND

      Mr. Melton was convicted of armed robbery and first-degree felony murder

and sentenced to death for shooting George Carter during a robbery of Mr. Carter’s

pawn shop. Melton v. State, 638 So. 2d 927, 928 (Fla. 1994) (per curiam) (Melton

                                             8
              Case: 13-12967    Date Filed: 03/03/2015    Page: 9 of 20


I). The jurors recommended death by an eight-to-four vote. Id. In sentencing Mr.

Melton to death, the trial court found two aggravating circumstances: “(1) Melton

was previously convicted of a violent felony . . . and (2) Melton committed the

homicide for financial gain.” Id. at 929. Mr. Melton’s prior violent felony was his

conviction for armed robbery and first-degree felony murder of Ricky Saylor in an

unrelated offense. See id. at 929 n.2; Melton v. State, 949 So. 2d 994, 1000 (Fla.

2006) (per curiam) (Melton II). Mr. Melton was eighteen years and twenty-five

days old when he committed the Carter murder, and seventeen years old at the time

of the Saylor crime.

      In Melton II, the Florida Supreme Court considered and rejected Mr.

Melton’s claim that Simmons “stands for the proposition that the Eighth

Amendment precludes reliance upon criminal acts committed before the age of

eighteen from serving as a basis for the imposition of the death penalty.” 949 So.

2d at 1020.

      Mr. Melton then raised his Simmons claims in Ground VIII of his federal

petition, making two distinct arguments. First, he argued the state’s use of his

prior juvenile conviction as an aggravator violated the Eighth Amendment.

Second, Mr. Melton asserted that he “suffered from a mental and emotional age of

less than eighteen years [at the time of the Carter offense], which renders the

                                          9
             Case: 13-12967     Date Filed: 03/03/2015    Page: 10 of 20


application of the death penalty in his case cruel and unusual.” The District Court

denied Mr. Melton’s Simmons claims on the merits, concluding that he “failed to

demonstrate that in rejecting this claim the state court relied on erroneous facts, or

applied law contrary to that established by the United States Supreme Court or in

an objectively unreasonable manner in light of such precedent.” The District Court

also denied Mr. Melton’s other habeas claims and denied him a COA.

      After his initial application for COA with this Court was denied, Mr. Melton

filed a motion for reconsideration of the denial of COA, and a motion to amend

request for COA that requested a COA on the Simmons issues.

                                II.    DISCUSSION

      Our Court may issue a COA from the denial of a § 2254 petition “only if the

applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). Mr. Melton must show that “reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were ‘adequate to

deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473,

484, 120 S. Ct. 1595, 1603–04 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880,

893 & n.4, 103 S. Ct. 3383, 3394 & n.4 (1983)). Applying this standard, I believe

reasonable jurists could debate the District Court’s resolution of Mr. Melton’s

                                          10
              Case: 13-12967       Date Filed: 03/03/2015      Page: 11 of 20


Simmons claims, or at a minimum, that his claims are adequate to deserve

encouragement to proceed further.

       In Simmons, the Supreme Court considered “whether it is permissible under

the Eighth and Fourteenth Amendments . . . to execute a juvenile offender who was

older than 15 but younger than 18 when he committed a capital crime.” 543 U.S.

at 555–56, 125 S. Ct. at 1187. Mr. Simmons committed murder when he was

seventeen and was tried and sentenced to death when he was eighteen. Id. at 556,

125 S. Ct. at 1187. During the penalty-phase closing arguments in Simmons, the

jury was instructed that it could consider Mr. Simmons’s age as a mitigating factor.

Id. at 558, 125 S. Ct. at 1188. The trial judge imposed the death penalty after the

jury recommended it. Id. at 558, 125 S. Ct. at 1189. In his state postconviction

proceedings, Mr. Simmons—like Mr. Melton 1—presented evidence that he “was

‘very immature,’ ‘very impulsive,’ and ‘very susceptible to being manipulated or

influenced,’” to support an ineffective-assistance-of-counsel claim. Id. at 558–59,

125 S. Ct. at 1189. Both state and federal courts denied postconviction relief. Id.

at 559, 125 S. Ct. at 1189.




1
  During Mr. Melton’s state postconviction hearing, Dr. Henry Dee testified that Mr. Melton
was a “strikingly immature boy for 18,” “had almost no social contact” when he entered high
school, and “could be easily manipulated.”
                                              11
             Case: 13-12967     Date Filed: 03/03/2015    Page: 12 of 20


      “After [Mr. Simmons’s first round of collateral proceedings] had run [its]

course, th[e Supreme] Court held that the Eighth and Fourteenth Amendments

prohibit the execution of [the intellectually disabled.]” Id. (citing Atkins v.

Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002)). Mr. Simmons then “filed a new

[state postconviction petition], arguing that the reasoning of Atkins established that

the Constitution prohibits the execution of a juvenile who was under 18 when the

crime was committed.” Id. “The Missouri Supreme Court agreed,” set aside Mr.

Simmons’s death sentence, and resentenced him to life imprisonment. Id. at 559–

60, 125 S. Ct. at 1189. The United States Supreme Court affirmed, holding that

“[t]he Eighth and Fourteenth Amendments forbid imposition of the death penalty

on offenders who were under the age of 18 when their crimes were committed.”

Id. at 578–79, 125 S. Ct. at 1200.

      In its opinion, the Supreme Court also acknowledged “sufficient evidence

that today our society views juveniles, in the words Atkins used respecting the

[intellectually disabled], as ‘categorically less culpable than the average criminal.’”

Id. at 567, 125 S. Ct. at 1194 (quoting Atkins, 536 U.S. at 316, 122 S. Ct. at 2249).

The Supreme Court identified three characteristics of juveniles younger than

eighteen to explain why “juvenile offenders cannot with reliability be classified

among the worst offenders.” Id. at 569, 125 S. Ct. at 1195. “First, as any parent

                                          12
             Case: 13-12967     Date Filed: 03/03/2015    Page: 13 of 20


knows and as the scientific and sociological studies . . . tend to confirm, a lack of

maturity and an underdeveloped sense of responsibility are found in youth more

often than in adults and are more understandable among the young. These

qualities often result in impetuous and ill-considered actions and decisions.” Id.

(alteration adopted) (quotation marks omitted). Second, “juveniles are more

vulnerable or susceptible to negative influences and outside pressures, including

peer pressure.” Id. Third, “the character of a juvenile is not as well formed as that

of an adult.” Id. at 570, 125 S. Ct. at 1195. Based on these three broad distinctions

between juveniles and adults, the Supreme Court declared:

      The differences between juvenile and adult offenders are too marked
      and well understood to risk allowing a youthful person to receive the
      death penalty despite insufficient culpability. An unacceptable
      likelihood exists that the brutality or cold-blooded nature of any
      particular crime would overpower mitigating arguments based on
      youth as a matter of course, even where the juvenile offender’s
      objective immaturity, vulnerability, and lack of true depravity should
      require a sentence less severe than death. In some cases a defendant’s
      youth may even be counted against him. In this very case, as we
      noted above, the prosecutor argued Simmons’ youth was aggravating
      rather than mitigating. While this sort of overreaching could be
      corrected by a particular rule to ensure that the mitigating force of
      youth is not overlooked, that would not address our larger concerns.

Id. at 572 –73, 125 S. Ct. at 1197 (citation omitted).

      Although Mr. Melton was convicted and sentenced to death for a murder he

committed when he was eighteen years and twenty-five days old, the state’s

                                          13
             Case: 13-12967     Date Filed: 03/03/2015    Page: 14 of 20


reliance on the murder he committed while a juvenile was arguably the weightiest

reason he was sentenced to death. See Silvia v. State, 60 So. 3d 959, 974 (Fla.

2011) (“[T]he prior violent felony aggravator is considered one of the weightiest

aggravators.”); cf. Wong v. Belmontes, 558 U.S. 15, 26, 130 S. Ct. 383, 390 (2009)

(recognizing that a capital petitioner’s participation in a prior murder is “the worst

kind” of aggravating evidence). Mr. Melton’s sentencer relied on his prior juvenile

offense to impose a death sentence, and the Florida Supreme Court relied on it to

conclude that death was a proportional sentence. Melton I, 638 So. 2d at 929–31.

Indeed, Mr. Melton’s trial judge said he gave “great weight to this aggravating

circumstance” in sentencing him to death. Doc. 1 at 4–5 (quoting Sentencing

Order). By comparison, the Florida Supreme Court has held that the pecuniary-

gain aggravating factor, Mr. Melton’s only other aggravating circumstance, is not

sufficient by itself to support a death sentence. See, e.g., Williams v. State, 707

So. 2d 683, 684, 686 (Fla. 1998); Sinclair v. State, 657 So. 2d 1138, 1140 n.1,

1142–43 (Fla. 1995) (holding pecuniary gain aggravating factor, even when

combined and merged with murder-during-robbery aggravating factor, was

insufficient to support death sentence where defendant had some mitigation).

      I believe reasonable jurists could debate whether the reasoning of Simmons

should apply (1) to juvenile convictions used as aggravation or (2) to a defendant’s

                                          14
             Case: 13-12967      Date Filed: 03/03/2015    Page: 15 of 20


“mental age.” On the one hand, Simmons did not directly consider either of these

issues. Simmons adopted a categorical cutoff of eighteen as “the age at which the

line for death eligibility ought to rest,” while acknowledging that drawing such a

line “is subject . . . to the objections always raised against categorical rules.” 543

U.S. at 574, 125 S. Ct. at 1197–98. I recognize, viewing the holding of Simmons

narrowly—that the Eighth and Fourteenth Amendments prohibit the execution of

only those who committed crimes as a juvenile—the state has a good argument that

the state court’s rejection of Mr. Melton’s Simmons argument was not an

unreasonable application of clearly established Supreme Court precedent. See 28

U.S.C. § 2254(d)(1).

      On the other hand, Simmons reaffirmed the idea that “[c]apital punishment

must be limited to those offenders . . . whose extreme culpability makes them the

most deserving of execution.” 543 U.S. at 568, 125 S. Ct. at 1194 (quotation

marks omitted). Mr. Melton could reasonably argue that he lacks extreme

culpability because (1) his weightiest aggravating factor was a juvenile conviction

and (2) his mental and emotional age was less than eighteen.

      Further, “AEDPA does not require state and federal courts to wait for some

nearly identical factual pattern before a legal rule must be applied.” Panetti v.

Quarterman, 551 U.S. 930, 953, 127 S. Ct. 2842, 2858 (2007) (quotation marks

                                          15
             Case: 13-12967     Date Filed: 03/03/2015    Page: 16 of 20


omitted). “Nor does AEDPA prohibit a federal court from finding an application

of a principle unreasonable when it involves a set of facts different from those of

the case in which the principle was announced.” Id. (quotation marks omitted).

Indeed, Simmons affirmed the Missouri Supreme Court’s extension of the

reasoning of Atkins—which had relied on the diminished culpability of the

intellectually disabled to bar their execution—to preclude the execution of juvenile

offenders. Simmons, 543 U.S. at 559–60, 125 S. Ct. at 1989–90.

      I am also mindful that Simmons recognized that “[t]here are a number of

crimes that beyond question are severe in absolute terms, yet the death penalty may

not be imposed for their commission.” Id. at 568, 125 S. Ct. at 1194–95 (citing

Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861 (1977) (rape of an adult woman)

and Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368 (1982) (felony murder

where defendant did not kill, attempt to kill, or intend to kill)). Nor may the death

penalty be “imposed on certain classes of offenders, such as . . . the insane, and the

[intellectually disabled], no matter how heinous the crime.” Id. at 568, 125 S. Ct.

at 1195. That is because “the death penalty is reserved for a narrow category of

crimes and offenders.” Id. at 569, 125 S. Ct. at 1195.

      Here, Mr. Melton argues that at the time of his capital offense, he “suffered

from a mental and emotional age of less than eighteen years, which renders the

                                          16
             Case: 13-12967     Date Filed: 03/03/2015   Page: 17 of 20


application of the death penalty in his case cruel and unusual.” Several of the

factors cited in Simmons, which the Supreme Court relied on to differentiate

between juvenile and adult offenders (such as lack of maturity, susceptibility to

peer pressure and negative influences) are present in Mr. Melton’s case. Id. at 5–6

& n.3; see also Simmons, 543 U.S. at 569–70, 125 S. Ct. at 1195–96 (discussing

three broad differences between juveniles and adults). Mr. Melton points to

evidence presented at his postconviction hearing which demonstrates that he “is a

follower, not a leader”; that his “chronological age, at the time of the crime was far

greater than his mental and emotional maturity”; and that his “immaturity resulted

in Melton being easily manipulated and susceptible to the influences of his more

experienced peers.” Despite being twenty-five days past the chronological cut off,

Mr. Melton argues he still possessed the kinds of characteristics attributed to

youthful offenders that the Supreme Court identified as justifying Eighth

Amendment protection. Thus, it is at least debatable that “[t]he mere fact of a

defendant’s chronological age should not qualify a defendant for death where the

measures of capacity render him lacking in culpability.” Henyard v. McDonough,

459 F.3d 1217, 1248–49 (11th Cir. 2006) (Barkett, J., concurring) (per curiam).

      It is also at least debatable whether a defendant should be sentenced to death

based on his juvenile record. Simmons tells us, as a categorical matter, that

                                         17
              Case: 13-12967       Date Filed: 03/03/2015      Page: 18 of 20


offenses committed by a juvenile are “not as morally reprehensible as that of an

adult.” 543 U.S. at 570, 125 S. Ct. at 1195 (quotation omitted).

       Although the Majority does not see these legal issues as debatable, they are

sufficient to justify issuance of a certificate of appealability for three other reasons.

First, they are issues of first impression in this Circuit. While this Court has

considered and rejected arguments that Simmons prohibits consideration of

juvenile convictions in the non-capital sentencing context,2 I have found no

Eleventh Circuit capital cases resolving the Eighth Amendment claims raised by

Mr. Melton. I would not rely on our non-capital cases to resolve the unique issues

presented by Mr. Melton’s capital case. In reviewing Eighth Amendment claims in

the capital-sentencing context, the Supreme Court has “imposed protections that

the Constitution nowhere else provides” because “death is different.” Harmelin v.

Michigan, 501 U.S. 957, 994, 111 S. Ct. 2680, 2701 (1991); see also Simmons,

543 U.S. at 568, 125 S. Ct. at 1194 (“Because the death penalty is the most severe

punishment, the Eighth Amendment applies to it with special force.”); Hoffman,




2
   See, e.g., United States v. Hoffman, 710 F.3d 1228, 1231–32 (11th Cir. 2013) (per curiam)
(finding, under plain-error review, that a mandatory-life-sentence enhancement under 21 U.S.C.
§ 841 predicated on juvenile convictions did not violate the Eighth Amendment and Simmons);
United States v. Wilks, 464 F.3d 1240, 1243 (11th Cir. 2006) (holding that Simmons does not
preclude use of juvenile convictions as predicate convictions for sentences under the Armed
Career Criminal Act, 18 U.S.C. § 924(e)).
                                              18
             Case: 13-12967     Date Filed: 03/03/2015   Page: 19 of 20


710 F.3d at 1232 (rejecting Simmons challenge in the non-capital sentencing

context in part because Simmons “concerned imposition of the death penalty”).

      The closest we have come to confronting this issue in the context of a capital

case was Henyard. There we noted the capital petitioner had an “alleged mental

and emotional age of thirteen,” although the defendant did not raise the issue in the

district court or on appeal. 459 F.3d at 1244 n.15. But one panel member

concurred separately to “address the separate and troubling issue of Henyard’s

mental age.” Id. at 1247 (Barkett, J., concurring). After reviewing the reasoning

of Simmons, Judge Barkett concluded two things: (1) “the mere fact of a

defendant’s chronological age should not qualify a defendant for death where the

measures of capacity render him lacking in culpability”; and (2) “[a]lthough it may

not be directly before us, at some juncture this issue must be addressed.” Id. at

1248–49. I say the time has come.

      Second, I believe the Simmons issues presented by Mr. Melton’s case are

likely to come up in pending and future capital habeas cases. Surely Mr. Melton is

not the only capital defendant sentenced to death based on aggravating

circumstances predicated on juvenile convictions. Neither is he likely to be the

only capital petitioner to claim that his mental age of less than eighteen precludes

his execution. Indeed, I am aware of at least one other case where a capital habeas

                                         19
              Case: 13-12967     Date Filed: 03/03/2015   Page: 20 of 20


petitioner raised the mental-age Simmons issue before this Court. See Initial Brief

of Petitioner-Appellant at 57–60, Barwick v. Sec’y, Fla. Dep’t of Corr., No. 14-

11711 (11th Cir. Aug. 4, 2014). The Florida Supreme Court found the petitioner

had procedurally defaulted the claim, see Barwick v. State, 88 So. 3d 85, 106 (Fla.

2011), so the Barwick panel may not reach its merits. But the fact that one panel

of this Court has already issued a COA on that Simmons issue demonstrates it is

debatable.

      Third, Mr. Melton’s case is a good opportunity to address these issues. The

Simmons issues were fairly presented in state court and the Florida Supreme Court

decided them on the merits. See Melton II, 949 So. 2d at 1020. There are no

procedural obstacles in the way of our establishing circuit precedent.

      For all of these reasons, I would grant Mr. Melton a limited certificate of

appealability on his Simmons claims so that he can have full appellate review and

we can decide these important issue of first impression in this Circuit. After fuller

development of these issues, I might agree that Mr. Melton cannot prevail on his

Simmons claims in light of the deference we must give the state court’s

adjudication and Supreme Court precedent. But at this stage, I believe he has met

the standard for a certificate of appealability.




                                           20
