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May 17, 2010

Can and should Florida's Governor commute the sentence of Joe Sullivan in light of the SCOTUS Graham ruling?

I will have lots and lots of coming commentary of the Graham ruling ASAP, but I want to start the discussion with some debate over the likely and appropriate fate of Joe Sullivan's sentence.  As this prior post briefly explains, due to procedural complications with his case, Sullivan may not be able to get relief from his LWOP sentence in Florida state courts.  But, in light of the substance of the Supreme Court's Graham ruling, I have to think some folks in Florida should be a bit troubled keeping his sentence in place. 

Consequently, I wonder if Florida's Governor has the authority and the good sense to get Joe Sullivan's case out of the courts by providing relief through clemency.  This issue strikes me as interesting and important not only because of how it impact Sullivan's fate, but also concerning how other juveniles (or others) now serving LWOP sentences might look to use the Graham ruling to support a pitch for clemency in lieu of (or in addition to) making a formal legal Eighth Amendment argument in state or federal court.

UPDATE:  A helpful reader sent me this note in response to my post here:

I wanted to point you to today's order in Sullivan [available here], which as you can see does not mention any procedural bar and is not a procedural ruling.  There was no need to issue a separate decision in Sullivan because Joe Sullivan is entitled to relief under the categorical, retroactive ruling in Graham.

To the extent that it seems clear that Graham ensures that Joe Sullivan will get relief in the courts, my comments in this post about the PR benefits that SCOTUS gets from simply doing a DIG in Sullivan are even more important.

May 17, 2010 at 10:40 AM | Permalink


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Not going to happen before November.

Posted by: . | May 17, 2010 10:48:24 AM

I am not up on Florida law, but why won't Sullivan be able to seek relief in Florida courts under Graham? I understand that Florida denied his claim because it held that Roper did not apply to his claim and he therefore did not meet Fla. R. Cr. P. 3.850(b)(2)'s requirement that "the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively." Is the idea that Florida, by its lockstep provision, is bound to federal determinations on retroactivity and Graham won't meet the Teague test? Atkins/Penry would seem to indicate otherwise, but I don't do post-conviction work so I will definitely defer to the other commenters and our esteemed host!

(I am a first-year federal criminal defense attorney.)

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