          Supreme Court of Florida
                                    ____________

                                   No. SC17-1050
                                   ____________


                            JEREMIAH M. RODGERS,
                                  Appellant,

                                          vs.

                               STATE OF FLORIDA,
                                    Appellee.

                                  [February 8, 2018]

PER CURIAM.

      Jeremiah M. Rodgers, a prisoner under sentence of death who waived a

penalty phase jury, appeals the circuit court’s summary denial of a postconviction

motion filed pursuant to Florida Rule of Criminal Procedure 3.851 seeking

sentencing relief pursuant to Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v.

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

jurisdiction. See art. V, § 3(b)(1), Fla. Const.1




     1. We review the summary denial of a postconviction motion de novo.
Barnes v. State, 124 So. 3d 904, 911 (Fla. 2013).
      We have consistently held that the Hurst decisions do not apply to

defendants, like Rodgers, who waive a penalty phase jury. See, e.g., Mullens v.

State, 197 So. 3d 16, 40 (Fla. 2016) (affirming the death sentence of a defendant

who waived a penalty phase jury and explaining that a defendant “cannot subvert

the right to jury factfinding by waiving that right and then suggesting that a

subsequent development in the law has fundamentally undermined his sentence”),

cert. denied, 137 S. Ct. 672 (2017); Brant v. State, 197 So. 3d 1051, 1079 (Fla.

2016) (concluding that the Mullens Court’s holding in the context of a direct

appeal “necessarily preclude[s]” a defendant who waived a penalty phase jury from

raising a Hurst claim on postconviction).

      Rodgers, however, seeks to avoid this result by attacking the waiver itself,

arguing that an evidentiary hearing is required to determine if a recently diagnosed

condition of gender dysphoria, which Rodgers contends existed at the time of the

waiver, but went undiagnosed by prior evaluators, rendered Rodgers incompetent.

We agree with the circuit court that the time for Rodgers to contest the prior

competency determination has passed. See Fla. R. Crim. P. 3.851(d)(1). This

Court has long since affirmed Rodgers’ waiver of a penalty phase jury, see

Rodgers v. State, 3 So. 3d 1127, 1131-33 (Fla. 2009), and Rodgers has not

proffered any newly discovered evidence that would warrant revisiting the validity

of this waiver. Cf. Raleigh v. State, 932 So. 2d 1054, 1060 (Fla. 2006)



                                         -2-
(recognizing a “narrow exception to th[e] general procedural bar” of allowing an

Ake v. Oklahoma, 470 U.S. 68 (1985)-type claim of inadequate mental health

assistance that should have been raised on direct appeal to instead be raised on

postconviction for only those cases involving “psychiatric examinations so grossly

insufficient that they ignore clear indications of either mental retardation or organic

brain damage”) (quoting State v. Sireci, 502 So. 2d 1221, 1224 (Fla. 1987)).

      Accordingly, we affirm the circuit court’s summary denial.

      It is so ordered.

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

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

PARIENTE, J., concurring in result.

      The issue in this case is whether Rodgers’ waivers of the right to a penalty

phase jury and the right to postconviction proceedings and counsel should be

rendered invalid because Rodgers was suffering from undiagnosed and untreated

gender dysphoria2 when he made the waivers. See Rodgers v. State (Rodgers III),


       2. The American Psychiatric Association defines “gender dysphoria” as “a
conflict between a person’s physical or assigned gender and the gender with which
he/she/they identify.” What is Gender Dysphoria?, Am. Psychiatric Ass’n,
https://www.psychiatry.org/patients-families/gender-dysphoria/what-is-gender-
dysphoria (last visited Nov. 8, 2017).


                                         -3-
No. SC11-1401, 104 So. 3d 1087, 2012 WL 5381782, *1-2 (Fla. Oct. 17, 2012)

(unpublished); Rodgers v. State (Rodgers II), 3 So. 3d 1127, 1130 (Fla. 2009).

Because both the trial court and this Court were aware of Rodgers’ long history of

mental illness in determining Rodgers’ competency to make the waivers and in

reviewing Rodgers’ waivers, respectively, I agree that Rodgers’ waivers remain

valid and, therefore, he is not entitled to Hurst3 relief. See Silvia v. State, No.

SC17-337 (Fla. Feb. 1, 2018); Mullens v. State, 197 So. 3d 16, 38-40 (Fla. 2016). I

write separately to emphasize the troubling history of Rodgers’ mental illness.

                                Direct Appeal in 2006

        Rodgers pleaded guilty as a principal to the first-degree murder at issue in

this case. Rodgers v. State (Rodgers I), 934 So. 2d 1207, 1210 (Fla. 2006).

Rodgers then attempted to withdraw his plea and later waived his right to a guilt

phase jury trial, again entering a plea. Id. at 1214. After pleading guilty, Rodgers

was sentenced to death following the jury’s 9-3 recommendation for death. Id. at

1213.

        On direct appeal, this Court affirmed the trial court’s decision prohibiting

Rodgers from withdrawing his plea, finding that “Rodgers understood at the time

of his plea that his attorneys disagreed on whether he should enter the plea.” Id. at



      3. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct.
2161 (2017); see Hurst v. Florida, 136 S. Ct. 616 (2016).

                                          -4-
1216. As to Rodgers’ sentence of death, this Court reversed and remanded for a

new penalty phase after determining that the trial court erred in excluding evidence

related to two potential mitigating circumstances regarding domination by the

codefendant. Id. at 1219-20. As to the mitigation, including Rodgers’ difficult

childhood and his long history of suicide attempts, this Court explained:

      Angela Mason, a social worker, reviewed a variety of records from
      schools, institutions, hospitals, and law enforcement agencies. The
      records contained reports that Rodgers was given his first beer at two
      years of age and that he reported sexual abuse by his mother
      numerous times, starting at age three. At fourteen, Rodgers reported
      that his mother had full sexual intercourse with him on multiple
      occasions, first getting him high on marijuana that was laced with
      formaldehyde. Although Child Protection Services was called about
      the abuse, Mason was unable to find any investigative report.
      Another report stated that Rodgers’ father threatened to shoot him and
      put an unloaded gun to Rodgers’ head. At school, Rodgers was
      placed in a class for severely emotionally disturbed children. Rodgers
      attempted suicide five times by the age of thirteen, including slitting
      his wrists in a bathtub which left physical evidence.
             David Foy, a professor of psychology at Pepperdine University,
      reviewed Rodgers’ medical records and testified that six out of the six
      classic risk factors for mental illness existed in Rodgers’ childhood
      home life. Rodgers was diagnosed with post-traumatic stress disorder.
      Dr. Sarah Deland, a psychiatrist, testified as an expert regarding
      Rodgers’ mental health. Dr. Deland stated that Rodgers’ diagnoses
      were post-traumatic stress disorder, disassociative disorder, substance
      abuse in remission, and borderline personality disorder. She testified
      in depth about these particular diagnoses and how Rodgers’ life events
      shaped his development.

Id. at 1213. The Court concluded: “Given the extensive mitigation which

was presented in the case, including Rodgers’ significant mental health history, we

cannot say that the State has shown that there is no reasonable possibility that the


                                         -5-
error in excluding this evidence did not contribute to the sentence of death.” Id. at

1219-20 (emphasis added).

                    Direct Appeal from Resentencing in 2009

      On remand for resentencing, Rodgers waived his right to a penalty phase

jury. Rodgers II, 3 So. 3d at 1130. Rodgers also waived his right and did not

allow his attorneys to present evidence of mitigation other than his own testimony.

Id. The trial court again imposed a sentence of death. Id. at 1128.

      On appeal, this Court determined that Rodgers “clearly showed the capacity

to appreciate the proceedings and the nature of possible penalties; he showed that

he understood the adversarial nature of the legal process; he manifested appropriate

courtroom behavior; and he was able to testify in a relevant manner.” Id. at 1132-

33. Accordingly, this Court affirmed Rodgers’ sentence of death. Id. at 1135.

                                   Postconviction

      After this Court affirmed his sentence of death following resentencing,

Rodgers waived the right to postconviction proceedings and counsel. Rodgers III,

2012 WL 5381782, at *1. Following a Durocher4 hearing, the trial court “found

Rodgers competent and issued an order discharging counsel and dismissing the

proceedings.” Rodgers III, 2012 WL 5381782, at *1.




      4. Durocher v. Singletary, 623 So. 2d 482 (Fla. 1993).

                                        -6-
      Rodgers’ discharged counsel appealed to this Court, challenging the trial

court’s competency finding. Id. at *1-2. Reviewing the record, which contained

evidence of severe mental illness, this Court denied counsel’s claim, stating that

Rodgers had previously been found “competent to: (1) plead guilty to the crime for

which [Rodgers] was convicted and sentenced to death, and (2) waive [the] right to

a penalty phase jury during [the] second penalty phase, and this Court affirmed on

direct appeal.” Id. Also, the Court noted that “two mental health experts examined

Rodgers in preparation for the Durocher hearing, and both determined that

Rodgers was competent.” Id. at 2.

                                     This Case

      Rodgers now asserts that, for most of his life, he has suffered from

undiagnosed and untreated gender dysphoria, which undermines the trial court’s

and this Court’s former findings of competency in determining that his waivers

were valid. However, Rodgers does not raise his condition of gender dysphoria as

a claim of newly discovered evidence or ineffective assistance of counsel. See per

curiam op. at 2.

      From the age of 14, Rodgers spent most of his life incarcerated with mental

illness. In fact, Rodgers and his codefendant, Lawrence, who Rodgers testified

“appealed to [his] angry side,” Rodgers II, 3 So. 3d at 1130, met in a mental

hospital in Chattahoochee, Florida. Rodgers I, 934 So. 2d at 1209.



                                        -7-
      While in State custody, at the age of 14 and again at the age of 18, Rodgers

attempted self-castration. Amici Curiae Br. of Am. Civil Liberties Union

Foundation & Am. Civil Liberties Union of Fla. (ACLU Br.) at 5. Shortly before

waiving the right to postconviction proceedings and counsel, Rodgers wrote letters

to defense counsel stating that Rodgers’ gender identity disorder was the driving

force behind Rodgers’ desire to die, stating that “gender dysphoria and the trauma

and excruciating pain of [Rodgers’] life ha[d] caused [Rodgers] to lose [the] will to

live and to choose death over life.” Id. at 8. In other words, Rodgers waived both

the right to a penalty phase jury and the right to postconviction while struggling

with the effects of his untreated gender dysphoria. Id. at 6-7.

      According to the record, untreated gender dysphoria can cause severe harm

and lead to suicidality and debilitating depression. ACLU Br. at 4; see Appellant’s

Initial Br. at 10. In fact, when Rodgers pleaded guilty, Dr. Fredderic J. Sautter,

Ph.D. (a psychologist), opined in his report that Rodgers’ plea may have been

influenced by his mental illness and “wish to die.” Appellant’s Second Resp. to

State’s Mot. Suppl. R. & Withdrawal Req. for Protective Order at 12, Rodgers v.

State, No. SC01-185 (Fla. July 12, 2004). Likewise, the ACLU suggests that

Rodgers may have waived the penalty phase in an effort to commit suicide by

execution to escape the pain of the untreated condition. ACLU Br. at 2.




                                         -8-
Therefore, Rodgers’ reported suicidality, self-mutilations, and severe depression

are consistent with the severe symptoms of untreated gender dysphoria.

                                  CONCLUSION

      While it appears that untreated gender dysphoria has been a factor in

Rodgers’ mental health issues, this Court has already considered and affirmed

Rodgers’ waivers of a penalty phase jury, as well as postconviction proceedings

and counsel, with a record indicating severe mental illness. Thus, the recent

specific diagnosis of gender dysphoria, not raised as a newly discovered evidence

claim, does not invalidate Rodgers’ waivers. Therefore, I agree with the majority

that Rodgers is not entitled to have his waivers set aside.

An Appeal from the Circuit Court in and for Santa Rosa County,
     John F. Simon, Jr., Judge - Case No. 571998CF000274XXAXMX

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

      for Appellant

Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Senior Assistant
Attorney General, Tallahassee, Florida,

      for Appellee

Nancy G. Abudu, Daniel B. Tilley, and Jacqueline Nicole Azis of ACLU
Foundation of Florida, Inc., Miami, Florida,

      Amicus Curiae American Civil Liberties Union Foundation of Florida, Inc.




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