# Opposition — Stewart v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1373%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1983 - **Citation:** 460 U.S. 1103 ## Text CASE NO. 82-6187 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1982 ROY ALLEN STEWART, Petitioner, vs. THE STATE OF FLORIDA, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA TABLE OF CITATIONS..... By sss STATEMENT OF THE CASE.. SUMMARY OF ARGUMENT... . CONCLUSION. ............ CERTIFICATE OF SERVICE. ii 1-2 ae Pe Se 4 aes | 5 pe ret ) 8 v. Maroney, 399 U.S. 42 at 53 CATO k's heb cease bese enemas Edd . Oklahoma Cea SEO 6.Gb. O60 C1SORd Ski c i otis eee ern Hig h So. 94 997 Ob. SOGB ous acters thos ek Lockett v. Ohio, 438 U.S. S06 (197TB).. ners vecesaevaccccnevecsseies Rose y. TAMER 4B CURING. aye den’ Sede l sak oor eee Stewart v. State, 62"°Go,24 O62. (Pla. 1962). .cccsccccccscasecnvnces * Unites Fe 2d 881 wii Cir. 1978) r. cert den., 435 U.S. 955 BOPME ic uae ois c ec Ca cous cei akatnis Section 921.141(6)(b), (e) and (£)....-. eee e ween enees Rule 3.850, Florida Rules of Criminal Procedure....... pe Diie et 0 RG OP fe RE Te \, . = fi I STATEMENT OF THE CASE The Defendant, Roy Allen Stewart was indicted, con- victed and sentenced to death arising from his brutal rape, robbery and murder of an slderly women in her home in Miami, Florida. See, Stewart v. State, 420 So.2d 862 (Fla. 1982). On direct review to the Florida Supreme Court, the Defendant's convictions and sentence of death were affirmed. Id. Ang, he ee Bde Ur one Relative to the present petition, prior to the Defendant's trial, the Defendant was examine by three (3) court appointed psychiatrists Id. at 864. Nevertheless, defense counsel - persisted in asking the Florida Trial Court for the appoint- ment of yet other psychiatrist to examine the Defendant for purposes of presenting evidence of statutory mitigation under Section 921.141(6)(b), (e) and (f), which relate to the capa- city of the Defendant to appreciate the criminality of his conduct and whether or not the Defendant was under emotional “duress” or “mental or emotional disturbance". The three (3) court appointed psychiatrists found the Defendant competent to stand trial and able to assist in his defense. One of the psychiatrists, Jacobson, specifically found that the Defendant did appreciate the criminality of his conduct within the meaning of Section 921.141(6)(b) or (£). See Petitioner's Appendix at pages 25-42. All of the medical reports «hich _ Were rendered well before the trial, contained extensive — Lee ee eee mye Rees St, ieee | SUL A Niece eal EO ekr he ok SN ea Ae Ree Ne RE The State's trial court denied the Defendant's Motion for a Continuance finding that further psychological examinations were unnecessary and finding specifically that the Defendant : had two (2) trial attorneys preparing the present case for ‘ more than a month prior to trial. 420 So.2d at 864. Finally, because counsel vigorously argued that he had pee been denied the effective «sistance of counsel because of the trial court denying a “otion for a Continuance at the time of the sentencing phase, the Supreme Court of Florida consider- ed and rejected such a claim on direct appeal. Generally, in Florida ineffectiveness assistance of counsel claims are addressed through a Motion for Post Conviction Relief filed in , the trial court. See, Knight v. State, 394 So.2d 997 (Fla. 1981). 22 ¥ =o Mo ~e. Tt oe ee Oe ae ae? My : ‘ ¥ o£ Il The Defendant has failed to present a substantial ” federal question arising from the opinion of the Supreme aie Court of Florida in applying the death penalty to the Defen- dant. Soke ee ee aww =e IIl ARGUMENT The Defendant makes three (3) arguments urging this Court to exercise its discretionary jurisdiction herein. First of all, the Defendant contends that the denial of more court appointed psychiatrists to examine the Defendant again denied counsel the right to investigate and prosent relevant mitigating circumstances under Lockett v. Ohio, 438 U.S. 586 (1978). Thus, the Defendant contends that the death penalty herein was arbitrary applied under Eddings v. Oklahoma, ___U.S.___, 102 S.Ct. 869 (1982). Secondly, the Defendant makes a similar argument with regard to the denial of his counsel's request for a ccatinuance. Finally, the Defendant asserts that the Supreme Court of Florida in applying state rules and procedures tothe Defendant's claim of ineffective assistance of counsel constitutes an arbitrary and unreasonable departure from normal state procedures and thus « denial of due process. First of all, the Defendant's premise for asserting juris- diction herein is erroneous. The Defendant was examined by three (3) court appointed psychiatriss wo certainly could have been asked any questions by the defense counsel at any time prior to trial or during trial as to the evidence of the Defendant's duress or emotional disturbance in the present case. 420 $0.24 at 864, In fact, one of the psychiatrists aid consider and reject any evidence that the Defendant did not appreciate Lae criainelity of his conduct a 8 oe serine etr- The triai court's denial of the Defendant's Motion for a Continuance is also sounded. A summary allegation that counsel had insufficient time to prepare for trial does not raise a substantial federal question. See, Chambers v. Maroney, 399 U.S. 42, at 53-54 (1970); United States v. Gray, 565 F.2d 881, at 887 (Sth Cir. 1978), cert. den., 435 U.S. 955 (1978) (time spent in preparation in and of itself is not a showing of ineffective counsel). Further, as with the Defendant's central contention above regarding the necessity of additional psychiatric examinations, the additional evidence sought by the Defendant herein was merely cumulative to that already before the trial court and jury. In the Defendant's final contention, he complains that the Supreme Court of Florida considered his ineffective assistance of counsel claim on direct review contrary to its normal pro- cedure of requiring a separate Rule 3.850 Florida Rules of Criminal Procedure proceeding in the trial court. See, Knight v. State, 394 So.2d 997 (Fla. 1981). That the Florida Supreme Court choose to address the Defendant's complaint that he was denied effective assistance of counsel on direct review rather then under the Florida's separate procedure under Rule 3.850, is plainly a question of State law and procedure end therefore does not present a substantial federal constitutional question. See, e.g., Rose v. Hodges, 423 U.S. 19 (1975). Iv rs CONCLUSION i a WHEREFORE, on the foregoing, the Respondent, THE STATE OF FLORIDA, prays that this Honorable Cour* will deny the present Petition for a Writ of Certiorari. RESPECTFULLY SUBMITTED, on this day of March, 1983, at Miami, Dade County, Florida. JIM SMITH Attorney General ee . FOX, re Assistant Attorney General : Suite 820 401 N.W. 2nd Avenue ; i Miami, Florida 33128 ae (305) 377-5441 a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1373%3A2. Public record. Not legal advice.