                   Cite as: 584 U. S. ____ (2018)            1

                     SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES
                JESSE GUARDADO
17–7171                 v.
      JULIE L. JONES, SECRETARY, FLORIDA
        DEPARTMENT OF CORRECTIONS

                STEVEN ANTHONY COZZIE
17–7545                   v.
                       FLORIDA
 ON PETITIONS FOR WRITS OF CERTIORARI TO THE SUPREME 

                  COURT OF FLORIDA

          Nos. 17–7171 and 17–7545. Decided April 2, 2018


  The petitions for writs of certiorari are denied.
  JUSTICE SOTOMAYOR, dissenting from the denial of
certiorari.
  Twice now this Court has declined to vacate and remand
to the Florida Supreme Court in cases where that court
failed to address a substantial Eighth Amendment chal­
lenge to capital defendants’ sentences, and twice I have
dissented from that inaction. See Truehill v. Florida, 583
U. S. ___, ___ (2017); Middleton v. Florida, 583 U. S. ___,
___ (2018). Four petitioners were involved in those cases.
Today we add two more to the list, for a total of at least six
capital defendants who now face execution by the State
without having received full consideration of their claims.
  It should not be necessary for me to explain again why
petitioners’ challenges are substantial, why the Florida
Supreme Court should have addressed those challenges, or
why this Court has an obligation to intervene. Neverthe­
less, recent developments at the Florida Supreme Court
compel me to dissent in full once again.
  As a reminder, like the petitioners in Truehill and Mid-
dleton, Jesse Guardado and Steven Cozzie challenge their
2                       GUARDADO v. JONES

                       SOTOMAYOR, J., dissenting

death sentences pursuant to Caldwell v. Mississippi, 472
U. S. 320 (1985). I summarized those challenges in Mid-
dleton as follows:
          “[Petitioners] were sentenced to death under a Flor­
       ida capital sentencing scheme that this Court has
       since declared unconstitutional. See Hurst v. Florida,
       577 U. S. ___ (2016). Relying on the unanimity of the
       juries’ recommendations of death, the Florida Su­
       preme Court post-Hurst declined to disturb the peti­
       tioners’ death sentences, reasoning that the unanim-
       ity ensured that jurors had made the necessary
       findings of fact under Hurst. By doing so, the Florida
       Supreme Court effectively transformed the pre-Hurst
       jury recommendations into binding findings of fact
       with respect to petitioners’ death sentences.” 583
       U. S., at ___–___ (slip op., at 1–2) (dissenting from de­
       nial of certiorari).
Reliance on those pre-Hurst recommendations, rendered
after the juries repeatedly were instructed that their role
was merely advisory, implicates Caldwell, where this
Court recognized that “the uncorrected suggestion that the
responsibility for any ultimate determination of death will
rest with others presents an intolerable danger that the
jury will in fact choose to minimize the importance of its
role,” in contravention of the Eighth Amendment. 472
U. S., at 333.
  Following the dissent from the denial of certiorari in
Truehill, the Florida Supreme Court has on at least two
occasions taken the position that it has, in fact, considered
and rejected petitioners’ Caldwell-based challenges.1 In
Franklin v. State, — So. 3d —, 2018 WL 897427 (Feb. 15,
——————
    1 The cases in which the Florida Supreme Court has taken this posi­
tion, i.e., that it has considered and rejected the Caldwell-based claims
discussed herein, are not the ones currently under review before our
Court in these petitions.
                 Cite as: 584 U. S. ____ (2018)           3

                   SOTOMAYOR, J., dissenting

2018) (per curiam), the Florida Supreme Court stated
that, “prior to Hurst, [it] repeatedly rejected Caldwell
challenges to the standard jury instructions.” Id., at *3.
The decisions it cited in support of that pre-Hurst prece­
dent rely on one fact: “Informing the jury that its recom­
mended sentence is ‘advisory’ is a correct statement of
Florida law and does not violate Caldwell.” Rigterink v.
State, 66 So. 3d 866, 897 (Fla. 2011) (per curiam); Globe v.
State, 877 So. 2d 663, 673–674 (Fla. 2004) (per curiam)
(stating that it has rejected Caldwell challenges to the
standard jury instructions, citing cases that similarly rely
on the fact that the instructions accurately reflect the
advisory nature of the jurors’ role). But of course, “the
rationale underlying [this] previous rejection of the Cald-
well challenge [has] now [been] undermined by this Court
in Hurst,” Truehill, 583 U. S., at ___ (slip op., at 2), and
the Florida Supreme Court must therefore “grapple with
the Eighth Amendment implications of [its subsequent
post-Hurst] holding” that “then-advisory jury findings are
now binding and sufficient to satisfy Hurst,” Middleton,
583 U. S., at ___ (slip op., at 2). Its pre-Hurst precedent
thus does not absolve the Florida Supreme Court from
addressing petitioners’ new post-Hurst Caldwell-based
challenges.
   The Florida Supreme Court in Franklin did not stop
there, however. It went on to state that it had “also re­
jected Caldwell-related Hurst claims” more recently, citing
Truehill v. State, 211 So. 3d 930 (Fla. 2017) (per curiam),
and Oliver v. State, 214 So. 3d 606 (Fla. 2017) (per cu-
riam), noting that “the defendants in Oliver and Truehill
petitioned the United States Supreme Court for a writ of
certiorari to review their Caldwell claims, which the Court
denied.” Franklin, 2018 WL 897427, *3. This is a surpris­
ing statement, because Quentin Truehill and Terence
Oliver were the two petitioners whose claims were at issue
in my dissent in Truehill. Franklin did not discuss that
4                       GUARDADO v. JONES

                       SOTOMAYOR, J., dissenting

dissent, joined by two other Justices, which specifically
noted that “the Florida Supreme Court has failed to ad­
dress” the important Caldwell-based challenge. Truehill,
583 U. S., at ___ (slip op., at 1). Earlier this month, in
rejecting a motion to vacate a sentence brought by peti­
tioner Jesse Guardado, the Florida Supreme Court again
held that it had “considered and rejected” post-Hurst
Caldwell-based challenges, citing Franklin, 2018 WL
897427, and Truehill, 211 So. 3d 930. Guardado v. State,
— So. 3d —, 2018 WL 1193196, *2 (Mar. 8, 2018).2
   It is hard to understand how the Florida Supreme Court
“considered and rejected” these Caldwell-based challenges
based on its decisions in Truehill and Oliver. Those cases
did not mention or discuss Caldwell. Nor did they men­
tion or discuss the fundamental Eighth Amendment prin­
ciple it announced: “It is constitutionally impermissible to
rest a death sentence on a determination made by a sen­
tencer who has been led to believe that the responsibility

——————
   2 As petitioner Guardado explained in his supplemental brief, in addi­

tion to the postconviction motion that forms the basis of the petition
currently before our Court, he also filed a motion to vacate his sentence.
See Supp. Brief for Petitioner 1. It was with respect to that motion that
the Florida Supreme Court issued the opinion stating that it had
“considered and rejected” the Caldwell-based challenge. No mention of
the Caldwell-based claim was made in the Florida Supreme Court
opinion directly under review in this petition. 226 So. 3d 213 (2017).
In fact, petitioner Guardado filed a motion with the Florida Supreme
Court for rehearing and clarification of the denial of his postconviction
motion, noting, inter alia, that the opinion “unreasonably omitted any
consideration or discussion of [his] arguments regarding the interplay
between Caldwell and Hurst.” App. to Pet. for Cert. in No. 17–7171, p.
68a. The Florida Supreme Court denied the motion in an unreasoned
one-line order. See id., at 7a. Petitioner Steven Cozzie also moved for
rehearing below, similarly arguing in part that the Florida Supreme
Court “overlooked the effect of instructing [his] jury many times that its
recommendation was advisory only,” citing Caldwell. App. to Pet. for
Cert. in No. 17–7545, p. 66a. The Florida Supreme Court also denied
the motion in an unreasoned one-line order. See id., at 43a.
                     Cite as: 584 U. S. ____ (2018)                    5

                       SOTOMAYOR, J., dissenting

for determining the appropriateness of the defendant’s
death rests elsewhere.” Caldwell, 472 U. S., at 328–329.
In neither Truehill nor Oliver did the Florida Supreme
Court discuss the grave Eighth Amendment concerns
implicated by its finding that the Hurst violations in those
cases are harmless, a conclusion that transforms those
advisory jury recommendations into binding findings of
fact. Although the Florida Supreme Court noted in
Truehill that the defendant in that case “contends that he
is entitled to relief pursuant to Hurst v. Florida because
the jury in his case was repeatedly instructed regarding
the non-binding nature of its verdict,” 211 So. 3d, at 955,
that was the first and last reference to that argument.
There was absolutely no reference to the argument in
Oliver. 214 So. 3d 606.3
   Therefore, the Florida Supreme Court has (again)4 failed
to address an important and substantial Eighth Amend­
ment challenge to capital defendants’ sentences post-
Hurst. Nothing in its pre-Hurst precedent, nor in its
opinions in Truehill and Oliver, addresses or resolves
these substantial Caldwell-based challenges. This Court
can and should intervene in the face of this troubling
situation.
   I dissent.




——————
  3 Tellingly, in neither Franklin nor Guardado did the Florida Su­

preme Court supply a pincite for its “consider[ation] and reject[ion]” in
Truehill and Oliver of these Caldwell-based claims.
  4 “Toutes choses sont dites déjà; mais comme personne n’écoute, il

faut toujours recommencer.” Gide, Le Traité du Narcisse 8 (1892), in
Le Traité du Narcisse 104 (R. Robidoux ed. 1978) (“Everything has been
said already; but as no one listens, we must always begin again”).
