Does waiving a state-law right to have a jury make an advisory sentencing recommendation constitute a knowing and intelligent waiver of the federal constitutional right to have a jury make all requisite findings for the imposition of death, particularly when the latter right did not exist at the time of the waiver?

QUESTION PRESENTED This Court in Hurst v. Florida, __ U.S. _, 1386 S. Ct. 616 (2016), declared Florida’s capital sentencing scheme unconstitutional because it did not require the jury to make all the necessary findings to impose the death penalty, and instead provided only for an advisory “jury recommendation.” The Florida Supreme Court has deemed that decision retroactive, affording relief to 130 death-row prisoners sentenced to death under the invalid Florida capital sentencing procedure. But the court has denied relief to all death-row defendants, including petitioner, who, prior to Hurst, waived the statutory right to a jury’s advisory sentencing recommendation. It did so even though the statutory right is materially different from the constitutional right recognized in Hurst. And it did so even though at the time of their waivers, binding precedent from this Court and the Florida Supreme Court had held that the constitutional right later recognized in Hurst did not exist. This petition raises the following question: Does waiving a state-law right to havea jury make an advisory sentencing recommendation constitute a knowing and intelligent waiver of the federal constitutional right to have a jury make all requisite findings for the imposition of death, particularly when the latter right did not exist at the time of the waiver? i