Does the Florida Supreme Court's decision denying retroactive application of the Hurst decisions to Mr. Harvey violate the Eighth or Fourteenth Amendments because it uses an arbitrary cut-off point and other arbitrary factors—such as the timing of judicial decisions—to determine whether similarly situated death row prisoners will receive retroactive application of constitutional rights?

QUESTION PRESENTED This Court held in Hurst v. Florida (“Hurst I’) that Florida’s sentencing system in capital cases violated the Sixth Amendment because it required a judge, rather than a jury, “to find each fact necessary to impose a sentence of death.” 136 S. Ct. 616, 619 (2016). On remand, the Florida Supreme Court held in Hurst v. State (“Hurst IT’) that the death penalty may be imposed only when the jury wnanimously decides on that sentence. 202 So. 3d 40, 57 (Fla. 2016). The Florida Supreme Court later held that both Hurst I and Hurst IT apply retroactively, but only to prisoners whose death sentences became final after Ring v. Arizona, 536 U.S. 584 (2002). See Asay v. State, 210 So. 3d 1 (Fla. 2016); Mosley v. State, 209 So. 3d 1248 (Fla. 2016). The Question Presented is: Does the Florida Supreme Court’s decision denying retroactive application of the Hurst decisions to Mr. Harvey violate the Eighth or Fourteenth Amendments because it uses an arbitrary cut-off point and other arbitrary factors—such as the timing of judicial decisions—to determine whether similarly situated death row prisoners will receive retroactive application of constitutional rights?