Is Ohio's death penalty scheme unconstitutional under Hurst v. Florida?

QUESTION PRESENTED In Hurst v. Florida, _ U.S. _, 1386 S. Ct. 616 (2016), this Court: (a) overruled Spaziano v. Florida, 468 U.S. 460-65 (1984) and Hildwin v. Florida, 490 U.S. 638 (19890, (b) invalidated Florida's capital punishment statute, and (c) held that all facts necessary to impose a sentence of death must be based on a jury's verdict, not a judge’s fact finding. Hurst, 136 S. Ct. at 624. Under Ohio's capital punishment statute, “[a]ll the power to impose the punishment of death resides in the trial court which oversees the mitigation or penalty phase of the trial” and renders specific factual findings necessary to impose the death penalty. State v. Rogers, 28 Ohio St.3d 427, 429, 505 N.E.2d 52, 55 (Ohio 1986). The Supreme Court of Ohio, citing Spaziano, has repeatedly held that Ohio’s death penalty statutory scheme procedure does not violate the Sixth or Eighth Amendments. Nathaniel Jackson was sentenced under this judge-sentencing scheme where a jury’s death verdict is merely a recommendation. The judge alone makes findings essential to the death penalty and decides whether to sentence a defendant to life or death. Mr. Jackson moved the trial court to vacate his death sentence in accordance with Hurst. The state trial court denied his motion, the state court of appeals affirmed that decision, albeit for different reasoning, and the Supreme Court of Ohio declined to exercise its discretionary jurisdiction to review the court of appeals’ decision. Given that this Court in Hurst explicitly overruled Spaziano, and the Supreme i Court of Ohio repeatedly relied on Spaziano, in upholding Ohio’s death scheme in which the trial judge independently makes the ultimate decision as to whether the aggravating circumstances outweigh the mitigating factors and the defendant should be sentenced to death, the following question is presented: Is Ohio's death penalty scheme unconstitutional under Hurst v. Florida? ii