                  Cite as: 583 U. S. ____ (2018)             1

                     BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES
               DALE GLENN MIDDLETON
17–6580                  v.
                      FLORIDA

                  RANDY W. TUNDIDOR
17–6735                   v.
                      FLORIDA
 ON PETITIONS FOR WRITS OF CERTIORARI TO THE SUPREME 

                  COURT OF FLORIDA

      Nos. 17–6580 and 17–6735. Decided February 26, 2018


  The petitions for writs of certiorari are denied.
  JUSTICE BREYER, dissenting from the denial of certiorari.
  For the reasons set forth in my concurring opinions in
Hurst v. Florida, 577 U. S. ___, ___ (2016) (opinion concur-
ring in judgment), and Ring v. Arizona, 536 U. S. 584, 613
(2002) (same), I would vacate and remand these cases for
the Florida Supreme Court to address the Eighth
Amendment issue in the first instance. I therefore agree
with the dissenting opinion of JUSTICE SOTOMAYOR. In my
view, “the Eighth Amendment requires individual jurors
to make, and to take responsibility for, a decision to sen-
tence a person to death.” Id., at 619. I respectfully
dissent.
                  Cite as: 583 U. S. ____ (2018)             1

                   SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES
               DALE GLENN MIDDLETON
17–6580                  v.
                      FLORIDA

                  RANDY W. TUNDIDOR
17–6735                   v.
                      FLORIDA
 ON PETITIONS FOR WRITS OF CERTIORARI TO THE SUPREME 

                  COURT OF FLORIDA

      Nos. 17–6580 and 17–6735. Decided February 26, 2018


   JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
joins, dissenting from the denial of certiorari.
   Yet again, the Florida Supreme Court has failed to
address an important Eighth Amendment claim raised by
capital defendants regarding the propriety of jury instruc-
tions that repeatedly emphasized that the jurors’ role in
sentencing the defendants to death was merely advisory. I
dissented once before from the denial of certiorari in
Truehill v. Florida, ante, p. ___, based on the same failure.
Because two more capital cases have now come and gone
without any change, from either the court below or this
Court, I feel compelled to elaborate further.
   Like the two petitioners in Truehill, Dale Middleton and
Randy Tundidor were sentenced to death under a Florida
capital sentencing scheme that this Court has since de-
clared unconstitutional. See Hurst v. Florida, 577 U. S.
___ (2016). Relying on the unanimity of the juries’ rec-
ommendations of death, the Florida Supreme Court post-
Hurst declined to disturb the petitioners’ death sentences,
reasoning that the unanimity ensured that jurors had
made the necessary findings of fact under Hurst. By doing
so, the Florida Supreme Court effectively transformed the
2                 MIDDLETON v. FLORIDA

                   SOTOMAYOR, J., dissenting

pre-Hurst jury recommendations into binding findings of
fact with respect to the petitioners’ death sentences.
   Having so concluded, the Florida Supreme Court con-
tinually refuses to grapple with the Eighth Amendment
implications of that holding. If those then-advisory jury
findings are now binding and sufficient to satisfy Hurst,
petitioners contend that their sentences violate the Eighth
Amendment because the jury instructions in their cases
repeatedly emphasized the nonbinding, advisory nature of
the jurors’ role and that the judge was the final deci-
sionmaker. This Court has unequivocally held “that it is
constitutionally impermissible to rest a death sentence on
a determination made by a sentencer who has been led to
believe that the responsibility for determining the appro-
priateness of the defendant’s death rests elsewhere.”
Caldwell v. Mississippi, 472 U. S. 320, 328–329 (1985).
   At least four times now, capital defendants in Florida
have come to this Court, their last resort before their
death sentences become final, seeking our intervention on
this issue. Each time, this Court has refused to act, let-
ting stand the petitioners’ death sentences despite the
substantiality of their unaddressed Eighth Amendment
challenges. Because I continue to believe that “the stakes
in capital cases are too high to ignore such constitutional
challenges,” Truehill, ante, at 2, I again dissent from this
inaction and would vacate and remand these cases to the
Florida Supreme Court.
