          Supreme Court of Florida
                                  ____________

                                  No. SC16-801
                                  ____________

                            ERIC KURT PATRICK,
                                  Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  ____________

                                  No. SC17-246
                                  ____________

                            ERIC KURT PATRICK,
                                  Petitioner,

                                        vs.

                             JULIE L. JONES, etc.,
                                 Respondent.

                               [June 14, 2018]
                           [CORRECTED OPINION]

PER CURIAM.

      Eric Kurt Patrick, a prisoner under sentence of death, appeals an order

denying his motion for postconviction relief filed under Florida Rule of Criminal
Procedure 3.851. Patrick also petitions this Court for a writ of habeas corpus. We

have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that

follow, we affirm in part and reverse in part the postconviction court’s denial of

Patrick’s postconviction motion and remand for an evidentiary hearing on one

claim. We grant Patrick’s petition for writ of habeas corpus, which raises a valid

claim under Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v. State (Hurst),

202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017).

                                I. BACKGROUND

      In 2009, Patrick was convicted of the kidnapping, robbery, and first-degree

murder of Steven Schumacher. Patrick v. State, 104 So. 3d 1046, 1054 (Fla.

2012). On direct appeal, we affirmed his convictions and sentences, including a

sentence of death for the murder, and summarized the guilt-phase evidence as

follows:

             Eric Kurt Patrick was recently released from prison and
      homeless when he met Steven Schumacher at Holiday Park during a
      rain shower when both men took shelter under a pavilion.
      Schumacher invited Patrick to lunch, then to stay with him at his
      home until Patrick was back on his feet. On the night of Sunday,
      September 25, 2005, Patrick beat Schumacher to death. Patrick left
      Schumacher’s apartment and took Schumacher’s truck and parked it
      at the Tri–Rail station. Patrick withdrew approximately $900 from
      Schumacher’s bank account using his ATM card in three separate
      transactions. Patrick was arrested after a separate, unrelated
      encounter with Deputy Kurt Bukata. Patrick [later] confessed to
      beating Schumacher, stated that he was afraid Schumacher was dead,
      and that he didn’t mean to kill him.
             ....

                                         -2-
       On the night of the murder, Patrick and Schumacher drank
beers and went to bed. Patrick gave Schumacher a massage, then they
both lay naked in bed. According to Patrick, Schumacher attempted
anal sex, which Patrick refused. Patrick stated that Schumacher was
“riding up on [him] squeezing [him].” After Patrick told him to stop,
Schumacher stopped but tried again later. Patrick then explained that
he “cut loose on [Schumacher].”
       Patrick admitted and the evidence verified that Patrick beat
Schumacher in the bedroom, beginning in the bed. He began hitting
Schumacher with his fists but also beat him with a wooden box
because his hands hurt so badly. Schumacher’s nose was broken and
his face was cut. He was hit so hard that his teeth were broken.
Patrick then tied up Schumacher using a telephone cord at the base of
the bed, then taped his mouth when Schumacher yelled for help.
Patrick did not want Schumacher “to go to the law” on him. Patrick
put Schumacher in the bathtub on his side where Schumacher was
later found dead.
       Jenny Scott and Robert Lyon, Schumacher’s friends, usually
saw him daily. They last saw Schumacher on [Sunday,] September
25, 2005 . . . . Scott did not hear from Schumacher [after that time,]
and she also noticed his truck was missing. When Scott went to check
on Schumacher on Tuesday, he did not answer so she called the
Sheriff’s Department.
       Deputy James Snell responded to Scott’s call. They both went
into the apartment and saw that the bedroom was dark and disarrayed.
Both Deputy Snell and Scott saw blood stains throughout the room.
At that point, Scott ran out of the apartment. Deputy Snell found
Schumacher’s body in the bathtub. The body was very bloody and the
hands and ankles were bound in the back; the head and face were
taped, with the face resting on the drain. The pants were pulled down
although still on the body. The body was cold and stiff and the blood
had pooled. The ankles were bound with torn sheets and a knotted
lamp cord. The wrists were bound by a telephone cord and tape.
There was bruising on an elbow, the chin, and the top of the head.
The tape on the head went both horizontally and vertically and there
was a pillow case folded over the mouth under the tape. The tape
seemed to be one continuous piece. Deputy Snell informed Scott that
Schumacher was dead. Scott then provided the police with a
description of Patrick.


                                -3-
              The deputies found no evidence of forced entry into the
      apartment. Additionally, they discovered that the air conditioning was
      set at sixty degrees so all the windows had condensation on them. In
      the kitchen trash, the deputies found tape matching that used on
      Schumacher’s face. Schumacher’s wallet was in the living room.
      There were bloody footprints on the tile, a large blood stain on the
      bedroom carpet, and blood spatter on the dresser and wall. The
      bedroom lamp was cracked and missing its cord. A cord was in the
      bed under the sheets. There was blood spatter on the sheets and
      headboard. Teeth were found in the bedclothes. A broken box with
      blood on it was under the dresser.
              Deputy Kurt Bukata ran into Patrick at a gas station and
      arrested him on an outstanding warrant. Patrick had injuries on his
      knuckles and was carrying a duffel bag. Patrick also had some
      abrasions on his upper body. Bukata inventoried the duffel bag and
      found blood-stained boots, jeans, briefs, and socks. . . . DNA tests
      identified Schumacher’s blood on Patrick’s jeans.

Id. at 1053-54.

      Patrick’s jury recommended a death sentence by a vote of seven to five. The

trial court followed the jury’s recommendation, finding seven aggravators1 and

sixteen nonstatutory mitigating circumstances.2 On appeal, this Court struck one



       1. The aggravators the trial court found were the following: (1) Patrick was
under a sentence of imprisonment (great weight); (2) Patrick had a prior violent
felony (great weight); (3) the murder occurred in the course of a felony,
specifically robbery or kidnapping (great weight); (4) pecuniary gain (merged with
the in the course of a felony aggravator); (5) the murder was especially heinous,
atrocious, or cruel (great weight); (6) the murder was cold, calculated, and
premeditated (great weight); and (7) the victim was particularly vulnerable due to
advanced age (seventy-two) or disability (great weight).

       2. The mitigating circumstances found were the following: (1) Patrick’s
father was physically and mentally abusive (little weight); (2) Patrick had a tragic
youth (little weight); (3) his childhood was unstable (little weight); (4) there was
family abuse (some weight); (5) substance abuse from an early age (little weight);

                                        -4-
aggravator (cold, calculated, and premeditated) but affirmed the death sentence,

finding the consideration of this aggravator harmless error. Id. at 1055, 1068.

Patrick’s death sentence became final in 2013. Patrick v. Florida, 571 U.S. 839

(2013).

      Thereafter, Patrick timely filed his initial motion for postconviction relief

under Florida Rule of Criminal Procedure 3.851, followed by a corrected motion,

raising seven claims with subparts.3 Patrick later sought leave to amend his rule



(6) Patrick suffered from severe drug abuse at the time of the crime (some weight);
(7) Patrick sought absolution and forgiveness (little weight); (8) Patrick had
remorse (some weight); (9) he loves his family (little weight); (10) Patrick is close
to his mother (some weight); (11) his brother attended the trial (little weight); (12)
Patrick confessed (little weight); (13) he had good conduct throughout the trial
(little weight); (14) he suffered from emotional stress combined with a history of
family dysfunction (little weight); (15) he had experienced childhood sexual abuse
and exploitation (some weight); and (16) he had some mental health history as
discussed in number 14 (little weight). Patrick, 104 So. 3d at 1055 n.2.
       3. Patrick raised the following claims in his corrected rule 3.851 motion: (1)
application of the one-year time limit of rule 3.851 to Patrick’s case violates his
rights to due process and equal protection; (2) section 27.7081, Florida Statutes
(2014), and Florida Rule of Criminal Procedure 3.852 are unconstitutional both
facially and as applied because public records in the possession of state agencies
have been withheld; (3) Patrick is being denied various constitutional rights
because of the rules prohibiting his attorneys from interviewing jurors to determine
the extent to which constitutional error is present; (4.1) trial counsel was
ineffective for failing to properly challenge Patrick’s waiver of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966), and the voluntariness of his confession;
(4.2) trial counsel was ineffective for failing to raise a challenge to the shoeprint
evidence under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); (4.3) the State
failed to disclose that much of the testimony of Martin Diez was false and coerced;
(4.4) the cumulative effect of counsel’s ineffective assistance, prosecutorial
misconduct, and the other errors in this case entitles Patrick to a new trial; (5) trial

                                          -5-
3.851 motion to add a Hurst v. Florida claim. The postconviction court accepted

the amendment and, after an evidentiary hearing on certain claims, denied the

motion in its entirety. As to the Hurst v. Florida claim, the postconviction court

noted that this Court had not yet determined whether the holding in that case would

have retroactive effect and denied the claim without prejudice to Patrick’s filing a

future motion on the same grounds once this Court resolved the retroactivity issue

in then-pending cases.

      Patrick appealed the denial of his rule 3.851 motion and filed a petition for

writ of habeas corpus with this Court, requesting relief under Hurst v. Florida and

Hurst. In his appeal, Patrick argues that the postconviction court erred with respect

to the following claims: (1) that he is entitled to a new penalty phase under Hurst v.

Florida; (2) that trial counsel was ineffective for failing to contest Patrick’s

Miranda waiver and the voluntariness of his confession; (3) that trial counsel was

ineffective for failing to raise a Frye challenge to shoeprint evidence or otherwise

contest its credibility; (4) that trial counsel was ineffective for failing to investigate

and present certain mitigation evidence at Patrick’s penalty phase; and (5) that trial



counsel was ineffective in failing to investigate and present available mitigation
evidence; (6) section 922.105, Florida Statutes (2014), and Florida’s existing
procedure for lethal injection violate article II, section 3 and article I, sections 9
and 17 of the Florida Constitution and the Eighth Amendment of the United States
Constitution, both as applied and facially; and (7) trial counsel was ineffective for
failing to adequately question or challenge two jurors.


                                           -6-
counsel was ineffective for failing to adequately question or challenge two jurors

during voir dire. We find no reversible error in the postconviction court’s

procedural ruling that Patrick’s Hurst v. Florida claim was premature, as it was

presented to the postconviction court before this Court decided the retroactivity of

that decision and Hurst in Mosley v. State, 209 So. 3d 1248, 1276 (Fla. 2016).

However, as explained below, we grant Patrick a new penalty phase under Hurst v.

Florida and Hurst in accordance with his petition for writ of habeas corpus.

Because Patrick is entitled to a new penalty phase as argued in his petition for writ

of habeas corpus, the other penalty-phase claim raised before the postconviction

court is moot and need not be addressed. We address each of the remaining claims

in turn.

                        II. POSTCONVICTION APPEAL

       Each of the non-Hurst claims at issue on appeal alleges ineffective

assistance of trial counsel. Some of these claims were denied after an evidentiary

hearing and some summarily. We review the summarily denied claims de novo,

accepting their allegations as true to the extent they are not conclusively refuted by

the record and reversing for an evidentiary hearing if they are facially sufficient to

show entitlement to relief and raise an issue of fact. Ault v. State, 213 So. 3d 670,

677-78 (Fla. 2017). As to the claims denied after an evidentiary hearing, we “defer

to the postconviction court’s factual findings as long as they are supported by


                                         -7-
competent, substantial evidence in the record” and review the postconviction

court’s legal conclusions de novo. Seibert v. State, 64 So. 3d 67, 78 (Fla. 2010).

      Substantively, each ineffective assistance of counsel claim required Patrick

to show the following, in accordance with Strickland v. Washington, 466 U.S. 668

(1984):

      First, the claimant must identify particular acts or omissions of the
      lawyer that are shown to be outside the broad range of reasonably
      competent performance under prevailing professional standards.
      Second, the clear, substantial deficiency shown must further be
      demonstrated to have so affected the fairness and reliability of the
      proceeding that confidence in the outcome is undermined.

Abdool v. State, 220 So. 3d 1106, 1111 (Fla. 2017) (quoting Bolin v. State, 41 So.

3d 151, 155 (Fla. 2010)). These two prongs of the ineffective assistance of counsel

test present mixed questions of law and fact, Sochor v. State, 883 So. 2d 766, 771

(Fla. 2004) (citing Strickland, 466 U.S. at 698)), but the ultimate conclusions on

both prongs are matters of law, Peterson v. State, 221 So. 3d 571, 584 (Fla. 2017)

(quoting Everett v. State, 54 So. 3d 464, 472 (Fla. 2010)).

                                   A. Confession

      Patrick argues that the postconviction court erred in denying the claim that

his attorneys were ineffective for failing to consult a psychopharmacologist or

addictionologist for the purpose of challenging the validity of his Miranda waiver

and the voluntariness of his confession that followed. The motion would have

been based on the premise that Patrick was experiencing cocaine withdrawal,

                                        -8-
which combined with his preexisting conditions of depression and post-traumatic

stress disorder to render him unable to comprehend his rights sufficiently to waive

them or have the mental capacity to withstand police coercion and speak

voluntarily thereafter. Because counsel cannot be deficient for failing to file a

meritless motion, see Merck v. State, 124 So. 3d 785, 800 (Fla. 2013), we affirm

the postconviction court’s denial of this claim.

      The confession at issue was given during a video-recorded custodial

interrogation after Patrick was read his Miranda rights, said he understood them,

agreed to waive them, and signed a waiver form. To establish that the proposed

motion would have been successful, Patrick presented the postconviction court

with the video of the interrogation and the testimony of Dr. William Morton, a

psychopharmacologist. After considering the video and Dr. Morton’s testimony,

the postconviction court made the following significant finding:

      While, arguably, an expert could point out the subtleties that would
      show withdrawal, that is exactly what they would have been in this
      case. In other words, there was no glaring behavior that would have
      led a reasonable judge or jury to believe that [Patrick] was under the
      influence of any drugs or alcohol or manifesting any drug withdrawal
      symptoms.

The court also stated that it noted no signs of impairment and that Patrick’s

answers to the detective’s questions were relevant and responsive. Patrick argues

that the lack of “glaring behavior” does not invalidate his claim but proves the

need for expert testimony. Consistent with this position, Dr. Morton testified that

                                         -9-
he was able to detect nuances that would not be observed by the average lay

person. Even so, the essential point of the postconviction court’s finding—that the

video belies Patrick’s claim, even after consideration of his expert’s testimony—

remains valid.

      Indeed, while tired and distressed concerning his crimes, Patrick seemed

intelligent, reflective, and engaged during the interview, even drawing a map for

the interviewing officer to show where he left the victim’s keys, while providing

detailed instructions. Moreover, although Dr. Morton indicated that Patrick would

have been experiencing a significant level of physical and emotional discomfort

from drug withdrawal, he did not testify that Patrick was incapable of

understanding the Miranda rights and the consequences of waiving them, and he

found that Patrick’s withdrawal symptoms were only “mild to moderate.” Also,

although Dr. Morton opined that Patrick showed “confusion” and “some episodes

of slow thinking,” Patrick made direct comments during the interview indicating

that he understood the likely consequences of his statements. This evidence

supports the postconviction court’s findings and leads us to conclude that Patrick

gave his statements with “full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon it,” such that his

Miranda waiver was valid. Ramirez v. State, 739 So. 2d 568, 575 (Fla. 1999)

(quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). Accordingly, a motion to


                                       - 10 -
suppress challenging the validity of Patrick’s Miranda waiver would have been

unsuccessful. Cf. Buzia v. State, 82 So. 3d 784, 793 (Fla. 2011); Orme v. State,

677 So. 2d 258, 262-63 (Fla. 1996).

      Likewise, Patrick could not have succeeded on a motion to suppress his

confession due to his experience of withdrawal symptoms during the questioning

itself, as this component of the motion would have relied on his subjective mental

state, not any specific examples of external pressure from the police beyond the

inherent pressure of a custodial interrogation. See Colorado v. Connelly, 479 U.S.

157, 165 (1986) (“[W]hile mental condition is surely relevant to an individual’s

susceptibility to police coercion, mere examination of the confessant’s state of

mind can never conclude the due process inquiry.”); Thomas v. State, 456 So. 2d

454, 458 (Fla. 1984); see also Rigterink v. State, 193 So. 3d 846, 865 (Fla. 2016).

      For these reasons, we affirm the postconviction court’s denial of this claim.

                               B. Shoeprint Evidence

      Patrick also argues that the postconviction court erred in summarily denying

his claim that counsel was ineffective for failing to request a Frye hearing

concerning expert testimony that the boots found in his duffel bag matched bloody

shoeprints at the scene, or to challenge the credibility of that evidence. This claim

was based on articles indicating that the FBI has questioned the validity of

shoeprint identifications. At trial, Patrick’s counsel advised the court that he did


                                        - 11 -
not raise a Frye challenge to this evidence because, “candidly, there [was] so much

other evidence” and the defense was not contesting that Patrick was at the murder

scene. He also noted that he probably would not cross-examine the State’s expert

about the new studies because he did not find them “anywhere near important

enough.”

      At the time of Patrick’s trial, “new or novel scientific evidence” was

admissible in Florida trials only when it passed the test set forth in Frye v. United

States, 293 F. 1013, 1014 (D.C. Cir. 1923).4 We have previously rejected a claim

that shoeprint evidence is “new or novel.” Ibar v. State, 938 So. 2d 451, 467-68

(Fla. 2006). Thus, the postconviction court properly ruled that if a Frye hearing

had been requested, it would have been denied.

      Whether counsel was ineffective for failing to cross-examine the State’s

expert concerning the validity of shoeprint identification is a separate question.

This Court has explained that “strategic decisions do not constitute ineffective

assistance of counsel if alternative courses have been considered and rejected and

counsel’s decision was reasonable under the norms of professional conduct.”

Darling v. State, 966 So. 2d 366, 382 (Fla. 2007) (quoting Howell v. State, 877 So.



       4. The Florida Legislature has since amended the Evidence Code to replace
the Frye test with the test of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993). We have declined to adopt that test to the extent it is procedural.
In re Amends to the Fla. Evid. Code, 210 So. 3d 1231, 1238-39 (Fla. 2017).


                                        - 12 -
2d 697, 703 (Fla. 2004)). A decision that lodging a particular challenge to the

validity of evidence would be a waste of resources in light of counsel’s knowledge

of corroborating facts can be a reasonable strategic decision. Id. Here, the record

establishes that counsel made a decision not to explore defects in shoeprint

identification in part because he had chosen as a matter of strategy, and

consistently with Patrick’s confession and other evidence, to admit Patrick’s

presence at the scene. Accordingly, the record establishes that counsel’s decision

was a reasonable strategic one and, therefore, not deficient. See id. Moreover,

given the concession both in defense argument and in Patrick’s confession that

Patrick was at the scene, there is no reasonable probability that a successful

challenge to the validity of shoeprint comparison as a field would have affected the

outcome of Patrick’s trial. In other words, our confidence in the outcome is not

undermined. Thus, we affirm the postconviction court’s denial of this claim.

                                     C. Jurors

      In the last of the appellate issues that we address, Patrick argues that the

postconviction court erred in summarily denying the claim that counsel was

ineffective for failing to challenge or adequately question two jurors concerning

alleged biases. We address this claim as to only one of the jurors, as the claim

concerning the other juror relates to the penalty phase, and we have determined




                                        - 13 -
that the penalty-phase claims are moot.5 In pertinent part, Patrick claims that his

trial counsel was ineffective for failing to challenge a juror who was biased against

him based on his drug use and participation in sexual acts with the male victim.

We affirm the denial of this claim except as it relates to statements this juror made

regarding the effect evidence of homosexuality would have on his deliberations.

For the reasons explained below, we reverse and remand for an evidentiary hearing

on that aspect of the claim.

      A valid claim of ineffective assistance of counsel for failing to challenge a

juror must demonstrate that “one who was actually biased against the defendant sat

as a juror,” meaning that the juror had a “bias-in-fact that would prevent service as

an impartial juror.” Carratelli v. State, 961 So. 2d 312, 323-24 (Fla. 2007). The

evidence of the juror’s actual bias must amount to “something more than mere

doubt about that juror’s impartiality.” Mosley, 209 So. 3d at 1265. Otherwise, the

defendant cannot show prejudice. Carratelli, 961 So. 2d at 324. Our cases



       5. Assuming arguendo that Patrick’s claim that he was denied a fair trial
because of the other juror’s views concerning the death penalty extends to how the
juror’s views would have affected his guilt-phase deliberations, we note that the
denial of the claim was proper. Patrick argues that this juror indicated a strong
predisposition for recommending the death penalty by declaring that he leaned
toward the death penalty at a level of “eight or nine” on a scale of one to ten.
However, this juror later said that he was “[r]ight in the middle” concerning the
death penalty, would “go by the law,” and would have to “hear everything.” His
comments do not show actual bias. Cf. Guardado v. State, 176 So. 3d 886, 899
(Fla. 2015).


                                        - 14 -
addressing such claims tend to focus on this prong of the Strickland test, as it is

necessary to establish that the juror was actually biased before proving that counsel

performed deficiently by failing to challenge that juror due to bias. See, e.g., Hall

v. State, 212 So. 3d 1001, 1016 (Fla. 2017); State v. Bright, 200 So. 3d 710, 742

(Fla. 2016). Accordingly, our analysis of this issue begins with the prejudice

prong.

      The juror at issue said that he would give a witness’s testimony less weight

or credence if the witness was on drugs at the time that he observed the things

about which he testified. These comments do not show bias, but rather reflect the

reality of the effect that drug use can have on a person’s ability to see, understand,

and remember events. See Trease v. State, 768 So. 2d 1050, 1054 (Fla. 2000)

(quoting Edwards v. State, 548 So. 2d 656, 658 (Fla. 1989) (describing the

circumstances under which evidence of a witness’s drug use is relevant for

impeachment purposes)). Therefore, this aspect of the claim was properly denied.

      In contrast, the juror showed actual bias stemming from Patrick’s sexual

activity. He said that he “would have a bias if [he] knew the perpetrator was

homosexual.” When asked if he would still hold the prosecutor to the proper

burden of proof, he answered, “Put it this way, if I felt the person was a

homosexual, I personally believe that person is morally depraved enough that he




                                        - 15 -
might lie, might steal, might kill.” The juror said “yes” when asked if this bias

might affect his deliberations.

      The State contends that this juror’s bias was not against the defense, as there

was no evidence that Patrick was homosexual, and instead suggested more bias

against the victim. However, the evidence and arguments at trial indicated that,

while Patrick denied being homosexual, he willingly participated in sexual and

intimate acts with the male victim before the encounter in question and that he had

engaged in similar activity in the past with other men.6 Applying this evidence to

the juror’s voir dire answers establishes that, by the juror’s own acknowledgement

on the record, he was predisposed to believe that Patrick is morally depraved

enough to have committed the charged offenses. Although Patrick does not

identify as homosexual and indicated in his confession that his sexual activity with

men was for material support rather than personal fulfillment, these points do not

eliminate the bias that this juror said he would feel based on the evidence that trial

counsel and the trial court knew the jury would hear during trial. Also, the fact

that the juror’s bias would have extended to the victim does not refute the bias he

acknowledged or render him impartial.



        6. Patrick’s counsel was aware that this evidence would be presented at
trial, as it was part of his confession, and Patrick’s counsel acknowledged at a
sidebar before the voir dire questioning at issue that there would be evidence of
“[h]omosexual acts.”


                                        - 16 -
      Because the juror’s voir dire answers concerning homosexuality meet the

Carratelli test for prejudice, the validity of the summary denial of this claim

depends on the performance prong. Failure to raise a meritorious issue is not

deficient performance when it results from the exercise of professional judgment

after considering alternative courses. Occhicone v. State, 768 So. 2d 1037, 1048

(Fla. 2000). As the State argues, the record in this case suggests possible strategic

grounds, relating to both phases of the trial, for not striking this juror. We need not

detail these grounds but note that when applying Strickland, “[g]enerally, an

evidentiary hearing is required to conclude that action or inaction was a strategic

decision.” Pineda v. State, 805 So. 2d 116, 117 (Fla. 4th DCA 2002). On this

record, we can neither ignore the possibility that counsel’s failure to challenge this

juror was strategic nor conclude that it was. Therefore, we reverse the

postconviction court’s denial of this claim and remand for an evidentiary hearing.

              III. PETITION FOR WRIT OF HABEAS CORPUS

      While Patrick’s postconviction motion was pending before the circuit court,

the United States Supreme Court issued its decision in Hurst v. Florida, in which it

held that Florida’s former capital sentencing scheme violated the Sixth

Amendment because it “required the judge to hold a separate hearing and

determine whether sufficient aggravating circumstances existed to justify imposing

the death penalty” even though “[t]he Sixth Amendment requires a jury, not a


                                        - 17 -
judge, to find each fact necessary to impose a sentence of death.” Hurst v. Florida,

136 S. Ct. at 619. On remand from this decision, we reached the following

holding:

      [B]efore the trial judge may consider imposing a sentence of death,
      the jury in a capital case must unanimously and expressly find all the
      aggravating factors that were proven beyond a reasonable doubt,
      unanimously find that the aggravating factors are sufficient to impose
      death, unanimously find that the aggravating factors outweigh the
      mitigating circumstances, and unanimously recommend a sentence of
      death.

Hurst, 202 So. 3d at 57.

      We have held that Hurst applies retroactively to “defendants whose

sentences became final after the United States Supreme Court issued its opinion in

Ring[ v. Arizona, 536 U.S. 584 (2002)].” Mosley, 209 So. 3d at 1276. Because

Patrick’s death sentence became final in 2013, Hurst applies retroactively to him.

See id. And because the jury recommended the death penalty by a vote of seven to

five, Patrick’s death sentence violates Hurst. See Kopsho v. State, 209 So. 3d 568,

570 (Fla. 2017).

      Accordingly, we must consider whether the error is harmless beyond a

reasonable doubt:

      The harmless error test, as set forth in Chapman[v. California, 386
      U.S. 18 (1967),] and progeny, places the burden on the state, as the
      beneficiary of the error, to prove beyond a reasonable doubt that the
      error complained of did not contribute to the verdict or, alternatively
      stated, that there is no reasonable possibility that the error contributed
      to the conviction.

                                        - 18 -
Hurst, 202 So. 3d at 68 (quoting State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla.

1986)). While at least three of the aggravators in this case are such that no

reasonable juror would have failed to find their existence,7 based on the jury’s

seven-to-five recommendation for a sentence of death, we cannot determine that

the jury unanimously found that the aggravating factors were sufficient to impose a

sentence of death. Nor can we “determine that the jury unanimously found that the

aggravators outweighed the mitigation.” Kopsho, 209 So. 3d at 570. “We can

only determine that the jury did not unanimously recommend a sentence of death.”

Id. Therefore, because we cannot say that there is no reasonable possibility that

the error contributed to the sentence, the Hurst error in Patrick’s sentencing was

not harmless beyond a reasonable doubt. Cf. id.

      Accordingly, the petition for writ of habeas corpus is hereby granted. We

vacate the death sentence and remand to the circuit court for a new penalty phase.

See Hurst, 202 So. 3d at 69.

                                IV. CONCLUSION

      For the foregoing reasons, we affirm the denial of postconviction relief

except as to the ineffective assistance of counsel claim concerning juror bias on the



       7. Specifically, no reasonable juror would have failed to find that Patrick
was under a sentence of imprisonment, that he had a prior violent felony, or, in
light of the guilt-phase verdict, that the murder occurred in the course of a felony.


                                        - 19 -
basis of homosexuality, and we grant Patrick’s petition for writ of habeas corpus.

Accordingly, we reverse the denial of the postconviction claim concerning juror

bias and remand for an evidentiary hearing. We also vacate Patrick’s death

sentence and instruct the circuit court to hold a new penalty phase in the event that

Patrick’s conviction for first-degree murder is confirmed after the rule 3.851

motion at issue in this appeal is finally resolved at both the circuit court level and

this level.

       It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and LAWSON, JJ., concur.
POLSTON, J., concurs in part and dissents in part with an opinion, in which
CANADY, J., concurs.

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

POLSTON, J., concurring in part and dissenting in part.

       I concur with the majority’s decision to affirm in part and reverse in part the

postconviction court’s denial of Patrick’s postconviction motion and to remand for

an evidentiary hearing on one claim. I dissent as to its grant of Patrick’s petition

for writ of habeas corpus and vacating of the death sentence pursuant to Hurst. See

Mosley v. State, 209 So. 3d 1248, 1285 (Fla. 2016) (Canady, J., dissenting on

retroactivity of Hurst). I would also affirm the denial of Patrick’s other penalty

phase claims.

CANADY, J., concurs.

                                         - 20 -
An Appeal from the Circuit Court in and for Broward County,
     Ilona M. Holmes, Judge - Case No. 062005CF016477A88810
And An Original Proceeding – Habeas Corpus

Neal A. Dupree, Capital Collateral Regional Counsel, and Suzanne Myers Keffer,
Chief Assistant Capital Collateral Regional Counsel, Southern Region, Fort
Lauderdale, Florida,

      for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Lisa-Marie Lerner and
Ilana Mitzner, Assistant Attorneys General, West Palm Beach, Florida,

      for Appellee/Respondent

Billy H. Nolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender,
Tallahassee, Florida,

      Amicus Curiae The Capital Habeas Unit of the Office of the Federal Public
      Defender for the Northern District of Florida




                                      - 21 -
