# Washington v. Strickland > Court of Appeals for the Fifth Circuit · December 23, 1982 · 693 F.2d 1243 URL: https://www.frixlaw.com/law-library/cases/8916100 ## Case - **Full name:** David Leroy WASHINGTON v. Charles E. STRICKLAND, Superintendent, Florida State Prison, Jim Smith, Attorney General of the State of Florida, and Louie L. Wainwright, Secretary of Department of Corrections - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** December 23, 1982 - **Citations:** 693 F.2d 1243; 12 Fed. R. Serv. 340 - **Precedential status:** Published - **Opinion:** Dissent by Roney - **Judges:** Anderson, Clark, Fay, Godbold, Henderson, Hill, Johnson, Kravitch, Ney, Roney, Tjoflat, Vance - **Cited by:** 174 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed on other grounds by Strickland v. Washington, 466 U.S. 668 (1984). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8916100 ## How later opinions describe it (automated extraction) - holding that judge may testify regarding "personal knowledge of historical facts or expert opinion[,]” but "may not.be asked to testify about his mental processes in reaching a judicial decision” ## Opinion text RONEY, Circuit Judge, with whom FAY and JAMES C. HILL, Circuit Judges, join dissenting: I respectfully dissent. Neither the rehearing en banc nor the recent opinion reversing the denial of a writ of habeas corpus in this case has changed my opinion from when I dissented from the panel majority’s decision of this case. Washington v. Strickland, 673 F.2d 879, 907 (11th Cir.1982). I will here merely echo what I wrote then. I sketch again the facts because the only constitutional issue on appeal is whether the defendant had counsel at sentencing adequate to fulfill Sixth Amendment requirements. Our common knowledge tells us that there are very few attorneys in the United States who have represented a defendant who pled guilty to three such torturous, horrendous and time-related murders as these. Counsel’s “effectiveness” cannot be considered without a full understanding as to what counsel was up against when Washington pled guilty to those brutal acts. On September 20, following carefully arranged plans, Washington stabbed to death Daniel Pridgen, a minister, while an accomplice restrained the victim and covered his face with a pillow. On September 23, in the presence of her three helplessly bound elderly sisters-in-law, petitioner murdered Mrs. Katrina Birk by stabbing her and shooting her in the head. Washington thereafter attacked the sisters-in-law with gun and knife, inflicting serious, permanent injuries. Finally, on September 29, Washington murdered Frank Meli, a twenty-year-old college student whom he had kidnapped two days before. While Meli was tied spread-eagled to a bed, Washington stabbed him 11 times. Although an accomplice had covered Meli’s face with a pillow, petitioner stated he heard his victim repeat the Lord’s Prayer “over and over” during *1286 the fatal attack. Thus, Washington’s victims included black and white, young and old, male and female, all intentionally murdered in torturous ways. The suggestion in one of the opinions that reviewing the facts somehow indicates a lessened interest in defendant’s constitutional rights misses the point. This was a sentencing hearing where the facts which established guilt were undisputed. That the facts would justify the death penalty under Florida law can hardly be questioned. Therefore counsel had to approach the case as one where mercy, not justice, was the goal. A lawyer who tried to argue that justice compels life, rather than death, might well foreclose his client’s opportunity for mercy. The court confuses the issue in relying on cases involving guilt-phase trials and the requirements of lawyers in those situations. There are not here the well-accepted standards that have been developed for the guilt phase of trials. Artistry is required, not a paint-by-numbers approach to advocacy. 1 Tunkey, Washington’s court-appointed counsel, was a competent and seasoned criminal lawyer, thoroughly experienced in criminal and capital cases. Relying on his experience in prior capital cases and his familiarity with his client and the trial judge, the attorney, faced with the above undisputed facts, reached a reasoned, tactical decision as to the only course of action which he thought could result in a sentence of life imprisonment rather than a death sentence. Tunkey testified that the only strategy he believed to have a chance of success, given the predilections of the sentencing judge with whom he had become familiar in the course of his practice in the area, was the strategy he pursued. 2 Aware the judge normally responded favorably to a free, unqualified, unbargained for admission of guilt, Tunkey thought the only hope of leniency, given the nature of the crimes, was for Washington to show remorse and seek mercy. 3 We have consistently held that counsel will not be regarded constitutionally deficient merely because of tactical decisions. See United States v. Guerra, 628 F.2d 410 (5th Cir.1980), cert. denied, 450 U.S. 934 , 101 S.Ct. 1398 , 67 L.Ed.2d 369 (1981); Buckelew *1287 v. United States, 575 F.2d 515 (5th Cir.1978); Williams v. Beto, 354 F.2d 698 (5th Cir.1965). Whether the tactic succeeds or fails is irrelevant. Indeed, even if the strategy chosen by counsel should appear clearly wrong in retrospect, constitutionally ineffective representation does not automatically result. Baty v. Balkcom, 661 F.2d 391 , 395 n. 8 (5th Cir.1981); Baldwin v. Blackburn, 653 F.2d 942, 946 (5th Cir.1981). Only if we apply 20/20 hindsight to second guess considered professional judgments, can we quibble with Tunkey’s assessment of the most efficacious strategy to employ at sentencing. See United States v. Johnson, 615 F.2d 1125 (5th Cir.1980); Easter v. Estelle, 609 F.2d 756 (5th Cir.1980). In fact, there is evidence in the record that supports Tunkey’s evaluation of the sentencing judge. 4 Moreover, there has been no showing on this record that any other strategy would have had any likelihood of dissuading the judge from imposing the death penalty. In my judgment, in the absence of some possibility that another course of action would have benefited his client, the record compels a finding that Washington’s attorney was not constitutionally ineffective. A remand is a fruitless prolongation of already protracted litigation because had the district judge come to any other conclusion on this record, he would have been in error as a matter of fact and wrong as a matter of law. As before, I dissent from the majority’s striking down the Florida Supreme Court’s standard for reviewing ineffective assistance of counsel claims set forth in Knight v. State, 394 So.2d 997 (Fla.1981), which followed United States v. Decoster, 624 F.2d 196 (D.C.Cir.) (en banc), cert. denied, 444 U.S. 944 , 100 S.Ct. 302 , 62 L.Ed.2d 311 (1979). The district court should not be reversed for following the same standard. The Decoster formulation of the requirement to show prejudice was not that defendant bear the burden of proving actual prejudice but that “defendant must demonstrate ... a likelihood of effect on the outcome. In that event, the Government would have the burden of showing that there was in fact no prejudice in the particular case.” 624 F.2d at 215 . The majority would replace this rule with its own formulation based on the explication in United States v. Frady, 456 U.S. 152, 159 , 102 S.Ct. 1584, 1590 , 71 L.Ed.2d 816, 832 (1982), of the prejudice portion of the cause and prejudice standard required to obtain collateral relief based on trial errors to which no contemporaneous objection was made. The majority requires a defendant to show that “ineffectiveness of counsel resulted in actual and substantial disadvantage to the course of his defense,” 693 F.2d at 1262, while reserving for the state “the ultimate burden of showing that any constitutional error that did occur was harmless beyond a reasonable doubt.” Id. at 1262. Once again semantics and appellate theory have been substituted for sound reasoning and real life requirements of the courtroom. How can counsel’s ineffectiveness at the sentencing phase of a capital case result in actual and substantial disadvantage to the defense without some likelihood of its affecting the outcome? *1288 In my view the majority has changed the words of the prejudice requirement without changing any practical effect. Yet by changing the formulation, the Court has drawn a bright constitutional line between what the Florida Supreme Court, several district courts in this Circuit, and other courts have found constitutionally acceptable. Not one circuit has specifically rejected Decoster , some circuits have standards of review that are similar, e.g., McQueen v. Swenson, 498 F.2d 207, 220 (8th Cir.1975), and others seem to assume that where prejudice must be shown, it must run to the outcome of the proceeding about which the petitioner is complaining. E.g., United States v. Williams, 575 F.2d 388, 393 (2d Cir.), cert. denied, 439 U.S. 842 , 99 S.Ct. 134 , 58 L.Ed.2d 141 (1978). Surely there is room in constitutional law to permit various ver-balizations. The district court here found there was no likelihood that what Tunkey could, have done, but did not, would have altered the sentence. 5 That finding should be sufficient to support the court’s denial of relief, no matter what standard may be developed ultimately as to the level of showing a defendant must make. Finally, the majority would reverse because the state sentencing judge testified at the federal evidentiary hearing as to the weight he accorded mitigating and aggravating factors in the case and as to whether the evidence Washington urges would have made a difference. I would not reverse on the impropriety of the admission of that téstimony. Even if the testimony were inadmissible, its admission was harmless error because there is insufficient evidence in the record to support a decision for Washington. This record compels the decision that Washington was not deprived of constitutionally effective counsel. Even if some fault can be found in his counsel’s conduct, there is no showing that it resulted in any disadvantage to Washington or that a different strategy at sentencing would have had any likelihood of affecting the sentence of the state court. I would affirm. . I agree with Judges Tjoflat and Hill that the initial inquiry as to whether a defendant who has the assistance of a lawyer at a sentencing hearing has otherwise been constitutionally deprived should focus on how the defendant might have been prejudiced by that assistance, before examining whether what the lawyer did rendered him ineffective. I also agree with Judge Hill’s observations concerning the impact of the affidavits upon which the majority has turned its decision. . As Tunkey explained at the habeas corpus hearing: Q. You mentioned Judge Fuller would be more responsive to someone who pled guilty to the crimes. A. This is a very hard question to answer. But I think, as a trial attorney, I think that certainly one of the things which a trial attorney is responsible for is knowing, at least to some extent, the quirks and differences of opinion, political philosophy, philosophical approach to the law which varying judges demonstrate in their day-to-day activities. One particular facet of Judge Fuller’s personality, if you will, as a Judge, was simply that it was my personal feeling that if a person were guilty and I preface it with that, that if a person were guilty and came before the Court and pled guilty as opposed to going to court and hoping to “beat the case” and then losing, that that person was- going to get a lighter sentence. In other words, if there was a conviction obtained in either of the circumstances, that the person who pled guilty was more likely to get the lighter sentence. I am not saying that is right, but that was my personal opinion of the Judge at that time. .Tunkey testifíed: To myself, I certainly thought if David had any chance at all, and I am really getting subjective, in front of this particular Judge, on these particular facts for these particular kind of crimes, that the one shot he perhaps had was the fact that he genuinely was coming before the Court and admitting his guilt, unlike some defendants who come in and plead guilty to avoid a harsher punishment. Later in his testimony: Q. Do you think that Judge Fuller would have been concerned about a defendant’s remorse? A. Oh, yes, I think that was all part and parcel of David’s attitude in court and also to me out of court. That is why I had the strong feeling that this was the most important thing he had going for him. (Emphasis added). . That Tunkey was correct in his assessment of the sentencing judge is illustrated by the following excerpts from the guilty pleas hearing: THE DEFENDANT: I would like to say this. I believe the crime fits the punishment and I don't want to die. You understand what I am saying, but I say if I got to sit up in some jail and rot I would rather get the chair. THE COURT: We will resolve the question of punishment. I want you to be satisfied that I have a great deal of respect for people who are willing to step forward and admit their responsibility. That is not an automatic key to the door nor is it anything else. I am certainly satisfied you have been represented up to this point and will continue to be represented through Mr. Tunkey and I find him to be a very able and competent counsel and that you have had ample opportunity to discuss this matter with him, and in fact, are entering pleas in this case that take away from him the opportunity of really being a lawyer that he would like to be for you. But, I respect you for that and I think it speaks in your favor. There certainly is a factual basis for the Court to accept your pleas in this case and on that basis I will do so. (Emphasis added). . The district court concluded that “reviewing the proposed character and psychiatric testimony, and weighing it against the detailed record of petitioner’s conduct initiating and carrying out three separate episodes of planned robbery, kidnapping and murder, there does not appear to be a likelihood, or even a significant possibility that the balancing of aggravating against mitigating circumstances under the Florida death penalty statute would have been altered in petitioner’s favor.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8916100. Public record. Not legal advice.