Petition — ADAMS v. WAINWRIGHT (No. 83-5701)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1983

6880050060005 „„%%%%„%%% %%% %% %%% %%%

JAMES ADAMS,

Petitioner,

vs.

LOUIE L. WAINWRIGHT, Secretary,

Department of Corrections,

Respondent.

se, — S 8050086050580 088095908 8985 SS8S889880500500808°

PETITION POR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS POR THE ELEVENTH CIRCUIT

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of Plorida

224 Datura Street/l3th Floor

West Palm Beach, Flor tds 33401

(305) 837-2150

RICHARD . BURR, 111

Of Counsel

TATJANA OSTAPOF?P

MICBAEL A. MELLO

Assistant Public Defenders

Counsel for Petitioner

QUESTIONS PRESENTED

1. Whether the Sixth and Pourteenth Amendments permit the

Genial of a claim of ineffective assistance of counsel in @

capital sentencing trial -- on the basis of a presumption that

counsel provided effective assistance -- where the record shows

that counsel decided: (a) to present no evidence of sitigating

circumstances, despite the available but uninvestigated evidence

of very substantial mitigating circumstances; (b) to inform the

jury and the court in the sentencing trial that “{wje [the

defense] have no evidence"; and (c to present a closing argument

which conceded the persuasiveness of the reasons for imposing

Geath, provided no reasons for imposing life instead of death,

and apologetically asked the sentencer to “consider” imposing

life despite there being no reason he could think of for doing

20.

2. Whether the sentencing court's application of non-

premeditated felony surder as an aggravating circumstance

justifying the imposition of the death penalty conflicts with the

Court's recent pronouncement in Zant v. Stephens, U.S, „ 103

S.Ct. 2733, 2747 (1983), prohibiting capital sentencing tribunals

from treating as aggravating “conduct that actually should

militate in favor of a lesser penalty.”

3. Whether the Plorida courts’ procedural default rule,

which is haphazardly applied in capital cases, can serve as an

"independent and adequate state procedural ground“ under

Wainwright v. Sykes, 433 U.S. 72 (1977) and “hus bar federal

habeas corpus review of capital sentencing issues.

Questions Presented a PST E CCTV TTT TCCCTTT TTT TTT

Authorities Cited „ % % „ „ „ eee eee „% „% „ „ „ „% „ „ „ „„ „ „ „„ „ „ „ „ „6

Citat ions to Opinions Be low eee % 9 „ „% „ „ „ „ „ „ „ „ „ „4 „ „6 6 „„

Jurisdiction “eevee „% % % % % % F ‚—— r- „„ „ „ „ „ „ „ „ „ „„

Constitutional and Statutory Provisions

Involved eee „ „ „„ „ „% % „% „% „% „% % % % „% % % % „% „% % % „% % „% „% „ „ „ „ „ „ „ „ „ „6 „

Statement of the Case

A. Course of Prior Proceedings ...ccescccccccecece

B. Statement of Material FPact® ..ccssccecccsceees

How the Pederal Questions Were Raised and

Decided in the Courts Below see eneneeeeeneeeeneerenveee

Reasons for Granting the Writ

I. THE COURT SHOULD GRANT CERTIORARI TO

DETERMINE THE PROPER ROLE OF THE PRESUMPTION

Or ATTORNEY COMPETENCE IN THE ANALYSIS OF A

CLAIM OF INEPPECTIVE ASSISTANCE OF COUNSEL

IN A CAPITAL SENTENCING TRIAL, BECAUSE THAT

PRESUMPTION IS BEING UTILIZED TO DENY CLAIMS

OF INEPFPECTIVE ASSISTANCE--EVEN THOUGH

DEPENSE COUNSEL PRESENTED NO MITIGATING

EVIDENCE (DESPITE THE AVAILABILITY OP

SUBSTANTIAL MITIGATING EVIDENCE) AND ARGUED

IN EPPECT THAT DEATH WAS APPROPRIATE-~SOLELY

POR THE REASON THAT FORMER DEFENSE COUNSEL

HAS NOT (OR WILL NOT) ADMIT A PAILURE TO

INVESTIGATE OR OTHER DEFAULT IN HIS DUTY OF

REPRESENTATION. OOo

11. THIS COURT SHOULD GRANT CERTIORARI BECAUSE

THE LOWER COURT'S APPROVAL OF THE FELONY

MURDER AGGRAVATING CIRCUMSTANCE IN THIS CASE

DIRECTLY CONFLICTS WITH THIS COURT'S RECENT

PRONOUNCEMENTS In 5845 1 STEPHENS

CONCERNING THE WNECE

STATUTORY AGGRAVATING CIRCUMSTANCES ......++++

III. THE COURT SHOULD GRANT CERTIORARI TO

DETERMINE WHETHER FLORIDA'S HAPHAZARDLY

APPLIED PROCEDURAL DEFAULT RULE CAN BAR

PEDERAL HABEAS CORPUS REVIEW OF CAPITAL

SENTENCING Issues „ „% „% „ „„ „ „ „ „ „% „% „ „ „% „% „ eee „ „ „ „ „ „6 „»

Conclusion eevee % „% % ee % % ee eee evr Fwm. , eee ee eee ee

iii-iv

1

1

1-2

2-3

3-8

9-11

12-22

22-25

25-30

31

AUTBORITIES CITED

CASES CITED

Adams v. Wainwright, 709 P.24 1443 (llth Cir. 1963)

Adems v. State, 341 8. 20 765 (Pla. 1976),

cert. denied, 434 U.S. 878 (1977)

cert. denied, 439 U.S. 947 (1978)

Adams v. State, 380 8. 2d 421 (Pla. 1980)

Aldridge v. State, 351 So.24 942 (Pla. 1977)

Alvord v. State, 396 8. 2d 184 (Pla. 1981)

Antone v. State, 410 80. 2d 157 (Pla. 1982)

Armstrong v. State, 429 80. 2d 287 (Pla. 1983)

Barr v. City of Columbia, 378 U.S. 146 (1964)

County Court of Ulster County v. Allen, 442 U.s.

140 (1979)

Demps v. State, 416 80. 2d 608 (Pla. 1982)

Dobbert v. State, 409 80. 2d 1053 (Pla. 1982)

Douglas v. State, 373 60. 2d 895 (Pla. 1979)

Douglas v. Wainwright, 714 . 2d 1532 (llth Cir.

1983)

Eddings v. Oklahcaa, 455 U.S. 104 (1982)

Enaune v. Plorida, 9.8. 102 S.Ct. 3368 (1982)

Pord v. State, 407 80. 2d 907 (Fla. 1931)

Pord v. Strickland, 696 . 2d 804 (llth Cir. 1983)

(en banc)

Purman v. Georgia, 408 U.S. 238 (1972)

Gardner v. Florida, 430 U.S. 349 (1977)

Goode v. State, 365 80. 2d 381 (Fla. 1979)

Goode v. State, 403 80. 2d 931 (Pla. 1981)

Ball v. State, 420 80. 20 872 (Fla. 1982) .

Hargrave v. State, 366 80. 2d 1 (Fla. 1979)

Senry v. Wainwright, 666 . 20 311 (Sth Cir. 1982)

(Onit )

Jacobs v. State, 396 So.24 713 (Fla. 1981)

King v. Strickland, 714 F.2¢ 1481 (llth Cir. 1963)

LeDuc v. State, 365 8. 2 149 (Pla. 1978)

Lockett v. Ohio, 438 0.8. 586 (1978)

NcCampbell v. State, 421 So.24 1072 (Fla. 1982)

McCaskill v. State, 344 80. 2 1276 (Fla. 1977)

28,29

24,25

30

29

17,20,21

29

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449

(1958)

Palmes v. State, 425 80. 2d 4 (Fla. 1983)

Pickens v. Lockhert, 714 F.24 1455 (8th Cir.

1983)

Proffitt v. Plorida, 428 U.S. 242 (1976)

Ruffin v. State, 420 680. 2d 591 (Pla. 1982)

Smith v. Balkcom, 660 P.2d 573 (Sth Cir. 1981)

(Unit B)

Smith v. State, 400 So.2d 956 (Pla. 1981)

Songer v. State, 322 80. 2d 481 (Pla. 1975)

Songer v. State, 419 80. 2d 1044 (Pla. 1982)

Stanley v. Zant, 697 r. 2d 955 (llth Cir. 1983)

State v. Dizon, 283 80. 2d 1 (Pla. 1973)

State v. Gillies, 662 P. 20 1007 (Ariz. 1983)

State v. Schad, 633 P. 20 366 (Ariz. 1981), cert.

Genied, 455 U.S. 983 (1982)

State v. Zarogoza, 654 P. 2d 22 (Ariz. 1983)

Straight v. Wainwright, 422 80. 20 827 (Pla. 1982)

Thomas v. State, 421 80. 2d 160 (Pla. 1982)

Wainwright v. Sykes, 433 U.S. 72 (1977)

Washington v. Strickland, 693 F.2d 1243 (Sth Cir.

S.Ct. 2451 (1983)

Washington v. Watkins, 655 f. 2d 1346 (Sth Cir.),

reh.denied, 662 F.2d 1116 (Sth Cir. 1981), cert.

denied, 456 U.S. 949 (1982)

Zant v. Stephens, 9.8. „ 103 8. ct. 2733 (1983)

STATUTES AND COURT RULES

Pla. Stat. 121.141

Pla. Stat. §921.141 (6) (4)

Rule 3.850, Florida Rules of Criminal Procedure

28 U.S.C. $1254 (1)

OTHER AUTHORITIES

Dressler, uri of th By Another:

nt, 0 e be

LaPave § Scott, Handbook on Criminal Law (1972)

28,29

12,18,

19,21

27,28,29

29

10,11,26,

28

18,21,22

26

9,22,25 ™

24

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1963

SSSSSSSSSSSSSSSSSSSCSSSSSSSSHESSESSSESSSSSSESSSSESSESESESESEE EEE EEE SESS

JAMES ADAMS,

Petitioner,

vs.

LOUIE L. WAINWRIGAT, etc.,

Responder.

PETITION POR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS POR THE ELEVENTH CIRCUIT

Petitioner, JAMES ADAMS, prays that a writ of certiorari

issue to review the judgment of the United States Court of

Appeals for the Eleventh Circuit filed July 18, 1983. Rehearing

was denied on September 12, 1983.

CITATIONS TO OPINIONS BELOW

The opinion of the court of appeals is reported at 709 P.2d

1443 (llth Cir. 1983), and is set out at pages la-8a of the

Appendix.! The order denying rehearing is set out at App. 9a.

JURISDICTION

The judgment and opinion of the court of appeals were filed

on July 18, 1983, and petitioner's timely petition for rehearing

was denied on September 12, 1983. Jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1)

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the sixth amendment to the Constitution

which provides in relevant part:

In all criminal prosecutions, the accused shall

enjoy the right ... to be confronted with the

witnesses against him ... and to have the

assistance of counsel for his defense;

1 Citations to the Appendix accompanying this petition are

designated p

-l-

ee

the eighth emendsent to the Constitution which provides in

relevant pert:

Excessive bail shell not be required, nor

excessive fines imposed, nor cruel and unusual

punishments inflicted;

and the fourteenth amendment to the Constitution which provides

in relevant part:

[Njor shall any State deprive any person of

life, liberty, or property, without duc process

of lew ...«-

It also involves Section 921.141, Florida Statutes (1973), which

is set out at App. 102-112.

STATEMENT OF THE CASE

A. Course of Prior Proceedings

Petitioner was indicted for ficst degree murder in St. Lucie

County, Plorida on December 11, 1973, solely upon & theory of

felony murder and not upon & theory of premeditated intent.

(R. 6-7)2 He was thereafter convicted of first degree felony

murder on March 15, 1974, and was immediately thereafter

sentenced to death.

Petitioner appealed his conviction and sentence to the

Supreme Court of lor tds, and both were affirmed. Adams v.

State, 341 8.24 765 (Pla. 1976) (Boyd and Hatchett, Judes

dissenting), cert. denied, 434 U.S. 878 (1977). [This opinion

is set out at App. 12a~1l7a.)

Thereafter, pursuant to this Court's decision in Gardner v.

Plorida, 430 U.S. 349 (1977), petitioner filed an application for

relief in the Supreme Court of Florida. The application was

2 peferences to the record in the courts below will be abbreviated

as follows:

“9,° the transcript of the trial in the circuit

Court of the Nineteenth Judicial Circuit of

Plorida, March 12-15, 1974;

“a,” the record on direct appeal to the Supreme

Court of Plorida from the judgment of

conviction of first-degree murder and

sentence of death;

"pct," the transcription of the evidentiary hearing

on petitioner's moticn for post-conviction

— in the state trial court, January 25,

1 .

Genied. Adams v. State, 355 80. 2d 1205 (Pla. 1978), cert.

denied, 439 U.S. 947 (1978). {This opinion is set out at App.

18a-1$a.)

Petitioner then commenced and prosecuted state post-

conviction and federal habeas corpus proceedings. His motion for

post-conviction relief pursuant to Pla.R.Crim.P. 3.850 was denied

by the Circuit Court in St. Lucie County, and that order was

afficmed by the Supreme Court of Florida. Adams v. State, 380

$0.24 423 (Pla. 1980) [This opinion is set out at App. 20a-22a.)

He then filed a petition for a writ of habeas corpus in the

United States District Court for the Southern District of

Plorida. Pollowing the denial of this petition in an unreported

order and opinion [which is set out at App. 23a-32a)], petitioner

appealed to the United States Court of Appeals for the Eleventh

Circuit. On July 18, 1983, a panel of the Eleventh Circuit

affirmed the District Court's denial of habeas corpus relief.

Adams ». Wainwright, 709 r. 2d 1443 (llth Cir. 1983) [App. la-8a).

On Avgust 8, 1983, a timely petition for rehearing and

suggestion for rehearing en banc was filed in the Eleventh

Circuit concerning the panel opinion. Rehearing was denied by

order, dated September 12, 1983. (App. 9a)

B. Statemen* of Material Pacts

The evidence at trial showed that on the morning of November

12, 1973, ger Brown was found injured in his home (r. 441).

Apparently the perpetrator had entered the residence unarmed

while no one was in the house (T. 267, 324-325, 442-446).

Sometime later the decease. returned home and discovered the

perpetrator (T. 241, 324-325). There was a struggle, during

which the deceased received injuries from a fireplace poker kept

in the hcuse. He died the next day.

The State presented evidence that a car like that owned by

Mr. Adams was seen at the deceased's home the morning the crise

occurred (r. 325, 358). Mr. Adams’ car was located later thet

Gay at a paint and body shop where he had left directions that it

be repainted (r. 524), a course he had been considering sonths

earlier (T. 865, 930). Mr. Adams established that his vehicle

hed been driven the morning of the offense et shout 10:00 or

e Oe — ee BA see,

10:15 a.m., one-half hour before the assault on the deceased (T.

352), by his friend, Vivian Nickerson, and another san, Willies

Crowley (r. 861, 862, 938). ‘The trunk of the car was defective

and could be opened without a key (T. 881).

The only State witness who saw a man leave the Brown house

did not identify Mr. Adams even though the witness conversed with

the person he saw. In fact, he said that person was blacker than

Mr. Adams (T. 366). The witness had heard a woman's voice before

seeing the man (T. 365).

Both the State and the defense presented evidence showing

that on November 12, 1973, Mr. Adams was in the process of moving

back to his wife's house from a friend's house where he had been

staying during a short separation (T. 634). Mr. Adams testified

that he transferred his belongings from the friend's house to his

car and then to his wife's car (r. 865). In his wife's car,

which was searched after Mr. Adams was arrested on the instant

charge, were found several items identified as belonging to Edgar

Brown or members of his family (T. 648, 808, 810, 812, #16, 822).

Mr. Adams had approximately $200 on his person at the time of his

arrest on November 12, 1973 (T. 586), although State witnesses

testified that the deceased always carried between $700 and $1000

cash, which was missing when he was found (r. 615).

Throughout pre-trial and trial proceedings, Mr. Adams

consistently denied any involvement in the homicide of Edgar

Brown. During the guilt-innocence trial, he testified in great

Getaii concerning his activities during the time of the homicide,

none of which put him anywhere near the Brown residence (T.

837-927). Prior to the imposition of his death sentence, after

the trial judge asked Mr. Adams if he had anything to say, Mr.

Adams responded, “All I would like to say one thing, Mr. Brown's

murderer is still out there. I didn't do it.” (T. 1192)

At the close of the evidence in the guilt-innocence trial,

prior to closing erguments, a charge conference wes held. During

this conference, both the trial judge and the prosecutor agreed

thet there was no premeditation involved in this thing.*

(r. 1004) The prosecutor further declared that this was a case

Z ˙ ll N eS 1

“where premeditated intent or design is not involved. (T. 1006)

Accordingly, the trial judge determined that he would instruct

the jury only on felony murder. (T. 1015)

Thereafter, the prosecutor argued to the jury that

the issue in this case is one thing. It is for

you to determine whether or not James Ad ass,

while he was engaged in the perpetration or the

attempt to perpetrate a robbery did kill Edgar

Brown here in St. Lucie County on November 12,

1973. I submit to you that that is the sole

issue for you to decide.

(T. 1050) Consistent with the determination in the charge

conference and with the prosecutor's argusent, the Court then

instructed and subsequently reinstructed the jury that it could

return a verdict of guilty of first degree murder only upon @

finding that petitioner had killed the deceased during a robbery

or attempted robbery “even though there is no premeditated design

or intent to kill." (r. 1126, 1145)

At the penalty trial, the State adduced evidence that Mr.

Adams had been convicted of rape in 1963 in Tennessee, and was

sentenced to 99 years in prison for that charge. Also placed in

evidence was testimony that Mr. Adams escaped from prison in 1972

(T. 1163-1174). The sole witness to these facts was Sheriff

Cribbs of Dyer County, Tennessee, who was permitted to identify

Mr. Adams using pictures and fingerprints taken at a Tennessee

police station in 1956.

On behalf of Mr. Adams at the penalty trial, defense counsel

said, “we have no evidence.* (T. 1175) The only other presenta~

tion by the defense during the penalty trial consisted entirely

of the following one minute closing argument:

May it please the Court. Ladies and gentlemen,

you have heard all the evidence and you have

found James Adams to be guilty of first degree

murder.

1 understand how Mrs. Brown felt during her

testimony, recalling the testimony in which she

saw her husband lying there in the condition he

was. I understand Mr. Brown's reputation in

the community. I think you understend the

situation. You have heerd all the evidence.

The only thing we can ask you here today is to

consider whether or not the death ty is

opprepe tose in this cese. Wow, Ploride

Legislature has declared in its infinite wisdos

appropriately advise the Court that this man

should be put to death and yet I find it

necessary to ask for you to consider that you

save his life in spite of all this and let this

man live, for no other reason than that he is a

man. Thank you.

(1. 1175-116003

At the hearing on Mr. Adams’ motion to vacate, two witnesses

testified. The first was Bruce Wilkinson, who had served as

co-counsel in a support capacity during Mr. Adams" trial and who

had represented Mr. Adams in subsequent clemency proceedings. Mr.

Wilkinson testified that the trial judge told mr. Adams’ trial

attorney during an unreported conference in chambers that he was

limited in the presentation of mitigating circumstances to those

enumerated in the statute and that nothing else would be allowed

(PCT. 14). Trial counsel had confirmed Mr. Wilkinson's recol-

lection in a conversation with the latter (PCT. 14). Mr.

Wilkinson was thoroughly familiar with the trial file, which

detailed substantial investigation as to the guilt phase of Mr.

Adams’ trial (PCT. 14-15, 22-24). But there was no specific

delineation of any matter which was considered for the penalty

phase, even though Mr. Wilkinson readily discovered, in his own

investigation for the clemency proceedings, evidence which was

available at the time of trisl, which could have been presented

in mitigation of sentence, but which, inexplicably, was not. This

evidence included the circumstances of Mr. Adams’ background:

that he was one of eleven children of sharecroppers in rural

Tennessee, who was required to begin working at about 10 years of

age to help support the family. He received little or no

education, since he was allowed to attend school only when it

rained, and was consequently illiterate. When Mr. Adams was 16,

his feather died and he became the head of the household, working

two or three jobs simultaneously to support his smother, and the

other children who remained et home. He continued working until

he was charged with rape when he was 28 (PCT. 30-31). Also

aveilable et the time of triel wes local information thet fr.

3 wot isingly, the jury thereafter recommended (T. 1188), end

the ei (tT. 1193), „ @eeth sentence. Among the

findings relied upon by the judge in Ir

commission * murder in the course of commission of «

robbery CR. .

1 en

A TLD

Adams was active in the church and counselled children (PCT. 25,

31), and evidence that Mr. Adams had a good employment record

while in Port Pierce (PCT. 23).

Moreover, although Mr. Adams had testified at trial in

response to the State's cross-examination that he had “five or

more “convictions (T. 926), Mr. Wilkinson readily discovered

that only the 1962 rape conviction was even superficially legal

(PCT. 15, 16). Two other misdemeanor convictions--all that there

was record of--had been uncounselled and there had not been an

offer of counsel. And one of those convictions was for the 1956

larceny of a pig Mr. Adams and his brother had taken for food

(PCT. 16, 18, 26). {The trial judge had relied upon Mr. Adams’

erroneous testimony in justifying the sentence of death (R. 84).)

In addition Mr. Wilkinson testified that he discovered that

Mr. Adams’ rape trial was before a jury which may well have been

the product of racially selective procedures. In any event, all

the jurors were white, and the courtroom was racially segregated;

Mr. Adams’ family had to sit in the balcony. Mr. Adams hiaself

was shackled throughout the trial, although there was no indica-

tion he acted in a way which would have justified such a prejud-

icial treatment, which was apparently standard procedure (PCT.

20-21).

Pina.ly, Mr. Wilkinson determined that Mr. Adams’ prison

record in itnnessee was excellent: indeed, he had been on

trustee status assigned to a women's correctional institution.

There was no violence involved in his escape, which occurred when

he drove away in a State vehicle to which he had free access

because of his status. (PCT. 27)

Also testifying at the hearing was Richard Lubin, a criszinal

Gefense attorney with substantial experience in capitel trials,

who opined thet mr. Adems' defense counsel at trial did not

render effective essistance because of his failure to sdequetely

investigate and prepare mitigation for the penalty phase, coupled

with his totally ineffectual closing argument and his feilure to

challenge the rape conviction, exzplein Sr. Adems' cristina!

record, or object to certein inflemmeatory remarks sede by the

prosecutor during his closing summation (PCT. 54, 62-63, 70-71).

-J-

eae

with no further hearing having been held in federal court,

it is upon the foregoing facts that the death sentence and death

sentencing procedure for James Adams have been approved.

I N THE BELOW

1. Mr. Adams first raised his claim that he had been denied

effective assistance of counsel in his sentencing trial in state

post-conviction proceedings pursuant to Pla.R.Crim.P. 3.850. on

the appeal to the Florida Supreme Court in these proceedings, the

Court rejected ur. Adams’ claim that counsel was ineffective for

his failure to investigate and present available mitigating

evidence on the following basis: “it is our view that the

mitigating and ameliorating evidence suggested in appellant's

allegations would not have affected the sentence, and was, in

fact, already negated to a large extent by the appellant's own

testimony during the guilt-innocence portion of the trial.*

(App. 22a) Mr. Adams raised the same claim in his federal

habeas petition 1200) of the petition], and the Gistrict court

rejected the claim for essentially the same reason as the Florida

Supreme Court. (App. 30a) Pinally, Mr. Adams presented this

claim as one of the issues on his appeal to the Eleventh Circuit.

The Eleventh Circuit's disposition of the claim is discussed at

length in the “Reasons...” section of the petition.

2. Mr. Adams first raised on direct appeal to the Florida

Supreme Court his claim that the felony murder basis of his

conviction entitled him to have the non-intentional-homicide

finding associated with that conviction considered as mitigating

against death. (Appellant's Second Supplemental Brief, Case No.

45,450, at 8-13)4 The Plorida Supreme Court nonetheless

approved, without discussion, the consideration of the felony

murder aspect of the homicide as an aggravating circumstance.

(App. 16a) Mr. Adams raised the same claim in his federal habeas

corpus petition [412(a) of the petition], and the district court

rejected the claim:

4 In the state courts and the federal courts--until this Court's

decision in Zant . Stepnens — 0.8. „ 103 2. Ct. 2733 (1983)

— Mr. Adams rais 7 issue primarily as a death-is-dispro-

portionate issue because of the non-intentional aspect of the

murder. Only after Zant did he include expressly the clais that

the felony murder s 1d have been considered a mitigating

circumstance. However, the argument--that pure“ felony surder is

a mitigating circumstance instead of an aggravating circumstance

— was contained within ail of his "“death-is-disproportionate”

presentations of the issue. Thus, he submits that the issue as

framed is properly raised herein.

-9-

Petitioner's contention that the death penalty

is being imposed as punishment for a non-

deliberate killing in this case is erroneous.

The deliberateness of the act is presumed from

the evidence at petitioner's trial that the

beating that resulted in the victim's death

occurred during the perpetration of a robbery.

The felony surder rule simply obviated the

necessity of proving the defendant's state of

mind.

(App. 24a) Finally, Mr. Adams presented this claim as one of the

issues on his appeal to the Eleventh Circuit. The Eleventh

Circuit held that death is not disproportionate for the actual

killer in a felony murder homicide, without regard to whether the

killer actually intended to kill. (App. 4a-Sa) On rehearing,

Mr. Adams raised the Zant aspect of this issue--that even if

Geath is not disproportionate for a pute“ felony murder (one for

which the conviction is solely for felony surder, not for both

premeditated and felony murder), the lack of actual intent to

kill must at least be considered as mitigating and not aggrava-

ting -- and rehearing was denied without opinion. (App. 9a)

3. Mr. Adams first presented his claim that the trial judge

improperly limited the consideration of mitigating factors to

those enumerated in the death penalty statute in his state

post-conviction proceedings. On the appeal to the Plorida

Supreme Court in these proceedings, the court focused only on

that aspect of this claim regarding the trial judge's exclusion

of potential evidence of nonstatutory mitigating factors. (App.

2la) In his federal habeas corpus petition, Mr. Adams raised

both aspects of this claim again--arguing that his Eighth and

Pourteenth Amendment rights were violated by both the exclusion

of potential evidence of nonstatutory mitigating circumstances

and the restriction of the jury's consideration of mitigating

factors, to those enumerated in the statute, in the penalty trial

charge to the jury [412(b)(3) of the petition). Although the

state argued that review of the jury instruction aspect of this

issue was barred under Wainwright v. Sykes, 433 U.S. 72 (1977)--

by virtue of no objection having been made to the instructions at

trial--the district court reached the merits: “The judge tracked

the language of the statute in charging the jury, and did not

instruct the jury not to consider other nonstatutory mitigating

-10-

factors." (App. 26a) Mr. Adams raised this issue on his appeal

to the Eleventh Circuit, but the court refused to review the

merits of the issue because of the procedural default in raising

the issue. (App. 6a-7a) Prior to the publication of the

Eleventh Circuit's opinion, however, Mr. Adams had sought the

court's leave to file a supplemental brief arguing that Plorida's

procedural default rule was so inconsistently applied to the

state court's review of capital sentencing issues that it could

not bar federal review under Sykes. Although the motion was

Gisallowed, the court did permit this brief to be considered in

connection with Mr. Adams" petition for rehearing. Rehearing,

however, was denied without opinion. (App. 9a)

-ll-

REASONS FOR GRANTING THE WRIT

I. THE COURT SHOULD GRANT CERTIORARI TO DETERMINE THE

PROPER ROLE OF THE PRESUMPTION OF ATTORNEY COMPETENCE

IN THE ANALYSIS OF A CLAIM OF INEFFECTIVE ASSISTANCE OF

COUNSEL IN A CAPITAL SENTENCING TRIAL, BECAUSE THAT

PRESUMPTION IS BEING UTILIZED TO DENY CLAIMS or

INEPPECTIVE ASSISTANCE--EVEN THOUGH DEFENSE COUNSEL

PRESENTED NO MITIGATING EVIDENCE (DESPITE THE AVAIL-

ABILITY OF SUBSTANTIAL MITIGATING EVIDENCE) AND ARGUED

IN EPPECT THAT DEATH WAS APPROPRIATE--SOLELY POR THE

REASON THAT PORMER DEFENSE COUNSEL HAS NOT (OR WILL

NOT) ADMIT A PAILURE TO INVESTIGATE OR OTHER DEFAULT IN

HIS DUTY OF REPRESENTATION.

The Eleventh Circuit's approval of James Adams’ capital

sentencing trial and resulting death sentence--over his claim

that counsel provided ineffective assistance in that trial--is a

grave miscarriage of justice. The sole reason for this injust-

ice, as will be demonstrated in the succeeding paragraphs, is the

uncontrolled and arbitrary operation of the principle that

attorneys are presumed to be competent. The Court should grant

certiorari to determine (a) whether this presumption should

operate at all once “a defendant who claims his lawyer was

ineffective [has] come forward with specific complaints about

what the lawyer failed to do, and with specific arguments about

how this failure hurt his case, Stanley v. Zant, 697 f. 2d 955,

974 (llth Cir. 1983) (Arnold, J., dissenting), and (b) if it is

to operate beyond this point, to what specific issues it applies

and how, in relation to those issues, it can be rebutted.

To enable the Court to appreciate fully the gravity of the

injustice done to Mr. Adams--and consequently the extraordinary

‘mportance of granting certiorari to rectify this injustice to

him and to prevent its systematic recurrence in other cases-~a

review of Mr. Adams’ sentencing trial is necessary. Through the

incorporation of the evidence adduced in the guilt-innocence

trial (r. 1175) and the presentation of additional evidence in

the sentencing trial (T. 1163-1174), the state presented suff-

icient evidence to persuade the trial judge to find

that aggravating circumstances, far outweighing

any mitigating circumstances, are as follows:

1. The capital felony of murder in the

first degree was committed by the defendant,

James Adams, while he was under sentence of

imprisonment for 99 years by the Court of

General Sessions, Dyer County, Tennessee after

a conviction on the charge of rape.

~12-

ne

2. The defendant was previously con-

victed of a capital felony, same being the

charge of rape above referred to and being @

felony involving also the use or threat of

violence to the person.

3. The capital felony of murder in the

first degree was committed while the defendant

was engaged in the commission of or in an

attempt to commit the crime of robbery.

4. The capital felony of murder in the

first degree was committed for the purpose of

avoiding or preventing = lawful arrest.

5. The capital felony of murder in the

first degree was committed for pecuniary gain.

6. The capital crime of murder in the

first degree was especially heinous, atrocious,

and cruel.

By his own admission the defendant was

previously convicted of crimes on at least five

occasions and the further undisputed evidence

shows the defendant has & record invoiving

crimes of violence; that he is an escapee of

the State Prison Systes of the State of

Tennessee and that the body of the victim was

mutilated, mangled and disfigured unnecess~-

arily.

(R. g4-85)° To counter the evidence of these aggraveting

factors, Mr. Adams’ counsel declared, before the jury and the

judge in open court, “we have no evidence.” (7. 1175) while

counsel might have qualified this declaration by saying, "we have

no new evidence fol loved by an explanation that the evidence of

guilt left enough room for doubt about Mr. Adams’ actual guilt

that death should not be imposed [see Smith v.- Balkcom, 660 F.2d

573, 580-581 (Sth Cir. 1961) (Unit B) (recognizing that residval

doubt about guilt, which is insufficient to be *reasonable”* doubt

and foreclose conviction, can de @ significant mitigating

factor))}--counsel did not do so. Instead, he informed the jury

and the court that he had no evidence to present, and thereby

gave the impression that there was no aitigating evidence.

Shortly thereafter, counsel strengthened and reconfirmed

this impression in his one-minute closing argument in support of

why the jury should recommend life imprisonment. Far from being

an argument in support of life, the argument was an apology to

the court for having to ask for life in the face of such @

5 py approving only the trial judge's finding of the aggravating

circumstances enumerated as 1, 2, 3, and 6 in these findings, the

Plorida Supreme Court impliedly held that circumstances 4 and

should not have been found.

as -13-

Geath-appropriate case. Counsel opened his argument by allying

himself with the horror felt by the victia’s wife and the outrage

felt by the community at the homicide of such s prominent

citizen. (T. 1179-1180) Counsel then referred to the wisdom of

the legislature in providing for @ death penalty and to the

state's position and evidence supporting its position that Ar.

Adams should appropriately be put to death under this statute.

(1. 1180) men, without any reference to evidence in support of

the view that life imprisonment should be imposed, he concluded,

ee I find it necessary to ask for you to

consider that you save his life in spite of all

this end let this man live, for no other reason

than that he is a gan.

(1. 1160/6 Counsel thus gave the trial court no reason to impose

life instead of death, conceded the strength of the reasons for

imposing death, and apologetically, asked for the imposition of

life despite there being no reason he could think of for doing

so.

Not surprisingly (from a lawyer who would represent @

capital defendant in this manner), when he was faced with @ clais

that the foregoing amounted to ineffective assistance in state

post-conviction proceedings, Mr. Adams’ trial counsel refused to

cooperate with post-conviction counsel. Nonetheless, through the

effort of <he attorney who assisted trial counsel in the week

before and the week of his trial, and who thereafter represented

Mr. Adams in clemency proceedings, Mr. Adams demonstrated that

much mitigating evidence was available and could have been

presented in his case. Affiraatively he could have produced

evidence of favorable character traits. Having been born into a

black sharecropper's family in rural Tennessee, Mr. Adams grew up

under desperately poor conditions and was uneducated and

functionally illiterate as a result, but he nonetheless assumed

the role of heading his parents’ household and supporting his

family at the age of sixteen and did so successfully for twelve

years thereafter (until he was imprisoned for the Tennessee rape

charge). (PCT. 25-26, 30-31) During this time and after, Mr.

Adams was an active church member with a special interest in

6 fhe entire closing argument is set forth in the Statement of

Material Pacts, supra.

14

counseling chiléren. (PCT. 31) Sy way of mitigating the effect

of the aggravating factors against him, he could also have

presented considerable evidence. He could have shown that his

conviction for rape was, in all likelihood, unconstitutional --

having been obtained, as it was, for the rape of a white woman

through a racially segregated, highly prejudicial proceeding,

involving a segregeted courtroom, an all-white jury, and the

continuous highly visible confinement of Mr. Adams in shackles

throughout the trial (without cause, because of a routine

practice). (PCT. 20-21, 27) Se could have shown that during the

course of his ten-year incarceration for this charge, he became a

trustee at a correctional facility for young women, and that his

escape from custody in Tennessee involved no violence but simply

his driving a truck, which he was, as & trustee, authorized to

drive, away from this institution. (PCT. 26-27) Pinally, he

could have shown that, notwithstanding his trial testimony that

he had been previously “convicted of a crime....{m)aybe five or

more times” ‘T. 926), he had been convicted only three previous

times--one of which was the rape conviction, and the other two of

which (misdemeanors) were constitutionally invalid because they

were uncounselled. (PCT. 18, 26)

The sssistant counse) who testified about the post-trial

investigation in which he unearthed all of this evidence further

testified that trial counsel's file included nothing that would

indicate trial counsel's investigation of, or even awareness of,

this evidence. (PCT. 23-32) When asked what the trial file

revealed as to any investigation of mitigating evidence that

could be presented in Mr. Adams’ sentencing trial, this attorney

testified as follows:

There were references to his wife here in town

and some of the neighbors and their recol-

lections of his behavior in the neighborhood

for the approximately one year that he lived

here prior to this trial. There was also a

reference in the trial file to the fact that

his wife knew his entire background. There

were also indications during the interview of

several of the state's witnesses, who were also

his former employers, as to the potential for

presenting evidence as to his fairly favorable

work habits and I believe there were at least

two previous jobs that were mentioned in the

file, during the investigation of the case,

that could have been used.

-15-

(PCT. 23) This was all that the file revealed as to potential

mitigating evidence, but counsel noted that the file did not in

any way refer to these matters as “mitigating evidence” or as

„penalty phase matters. (PCT. 24)

To avoid finding counsel ineffective on this vecord, the

Eleventh Circuit utilized two presumptions derived from the

general presumption thet lawyers represent their clients effect-

ively. Pirst, the court presumed, without explicitly saying so,

that counsel always conduct reasonably substantial ("adequate")

investigation of plausibie defenses. Nothing but such @ presump-

tion can explain the court's analysis of the "investigation

issue here:

Adame has failed to establish that the

decision to ask the jury for mercy reflected

less ‘han reasoned professional judgment.

Adams did not call trial counsel to testify at

the state hearing and gave no indication to the

district court es to how triel counsel would

testi*y at any district court hearing. Support

counsel did testify before the state court that

the tritl file revealed no specific investiga-

tion into certain matters, such as Adams" work

record, church activity and lack of education,

but acknowledged that the file showed counsel

had interviewed Adams’ wife, neighbors and

former employers. Notes in the file indicated

the wife knew Adams’ background completely. In

short, there is no basis in this record for

nding thet counse not su ciently

Investigate Adams’ background.

(App. 3a-4a) (emphasis supplied). Even though the testimony of

*support counsel” is inaccuretely recounted here--by omitting

reference to most of the mitigating evidence, summarized supra,

which support counsel discovered and which was not reflected in

the trial file--the court nonetheless at least recognized that

the file lent support to the contention that there had been “no

specific investigation into certain matters...." Purther the

court recognized that there had been some investigation of

potential sources of mitigating evidence. With the facts thus

showing some lack of investigation, as well as some preliminary

investigation of material facts and sources of material facts,

the court nonetheless concluded that “there is no basis in this

record for finding that counsel did not sufficiently investigate

Adams' background." (d.) (emphasis supplied). Put another way,

the record failed to show conclusively that counsel did not

/

/

-16-

conduct an adequate investigation--despite evidence that there

was “no specific investigation into certain satter because

there was an underlying, unspoken presumption that counsel will

always conduct an adequate investigation. ”

Second, the court presumed that trial counsel's decision not

to present any mitigating evidence was tactical, and--since it

was based upon adequate investigation (by virtue of a previous

presumption)--was not ineffective.

Assuming counsel's decision tu forego pre-

senting evidence of Adams’ background was one

of tactics, it does not appear to have been

patently unreasonable. As the @istrict court

noted, counsel may have feared that if he

presented evidence ebout defendant's back-

ground, the state could have refuted it by

calling attention to damaging evidence in the

record. Por example, if counsel had offered

evidence of Adams’ family life, the state could

have emphasized that Adams was separated from

his wife at the time of the murder because of

his relationship with a sixteen-year old girl.

Similarly, if counsel had presented evidence of

Adams’ religious devotion, the state could have

noted that he spent the Sunday before the

Monday murder gambling. Counsel could have

reasonably decided that raising Adams’ back-

ground might do more harm than good, and that

the best strategy was to ask for mercy. See

Stanley v. Zant, 697 r. 24 955, 965 (llth Cir.

1983).

7

To corroborate the operation of this presumption here, compare

King ». Strickland, 714 F.2d 1481 (llth Cir. 1983), where this

presumpt.on was not applied. In King, the petitioner made the

same claim of capital sentencing trial ineffectiveness as Mr.

Adams. The record underlying this claim was the following: (a)

trial counsel moved for a one-day continuance of the penalty

trial in order to discuss the proceeding with his client and to

“speak to possible defense witnesses"; (b) the motion was denied,

but defense counsel presented the testimony of one character

witness anyway, referred the jury to mitigating aspects of the

guilt phase testimony, and informed the jury of King's former

attorney's favorable view of King's character; (e) in post-

conviction proceedings, King demonstrated the availability and

testimony of additional character witnesses who were asked to be

at trial by defense counsel but who did not testify. Id. at

1490. In effect, therefore, King's record lent even greater

support than Mr. Adams’ record to the conclusion that counsel had

reasonably investigated mitigating evidence--if a presumption

that counsel had done so were to be applied. Counsel there had

obviously investigated mitigating evidence, produced such

evidence, and had available witnesses he did not call. zone

theless, the court found upon this record precisely the opposite:

the court found that “[t)here are indications in record t

tigatior for

evidence,” id. 8 suppii . upon

5 1 subsequently counsel ineffective, in part for his

failure to investigate, 185 at 1490-1491. Accordingly, a

presumption of adequate gta eae had to be operative in

Adene~ san order to defeat his claim of inadequate investige-

tion--for the * of failure to 2 emg

mitigating evidence was gr r in than in .

disparate results in these 2 cases — be explai n any

other fashion.

17

(App. 4a).

The Eleventh Circuit's analysis in Adams thus approved

capital sentencing trial representation in which counsel will be

presumed to have acted reasonably and provided effective assist-

ance even though (1) he has neither presented nor drawn the

sentencer’s attention to available, substantial mitigating

evidence; (2) he has argued to the sentencer that while death

seems appropriate, he is obliged nonetheless to ask the jury to

impose life though he can think of no factual reason to do 80;

and (3) he has not testified in subsequent post-conviction

proceedings as to why he pursued this line of defense.

This result, as well as the reasoning in support of this

result, has created conflicts concerning the proper analysis of

Claims of ineffective assistance of counsel within the Eleventh

Circuit and between the Pifth, Eleventh and Eighth Circuits which

this Court should resolve. These conflicts include the

following:

PIRST, whether the presumptions that attorneys conduct

reasonably substantial investigation anc tgke action based upon

strategic choices have a proper role at all in the analysis of a

Claim that counsel has provided ineffective assistance in

connection with a capital sentencing proceeding. While Mr.

Adams' case is unique in the ttb or the Eleventh Circuits

insofar as the presumption of adequate investigation has been

applied, both Circuits have expressly held that even if a lawyer

fails to conduct a substantial investigation into a plausible

line of defense, they will “presume, in accordance with the

general presumption of attorney competence, that counsel's

actions [thereafter] are strategic.” Washington v. Strickland,

693 fr. 2d 1243, 1257 (Sth Cir. 1982) (Unit B) (en banc), cert.

granted, U.S. „ 103 S.Ct. 2451 (1983). Accord, Stanley v.

Zant, 697 F.2d 955 (lith Cir. 1983). This presumption can be

rebutted “when trial counsel testifies credibly at an evidentiary

hearing that his choice was not strategic, ... or when certain of

counsel's actions do not conform to a general pattern of a

rational trial strategy." Washington, 693 T. 2d at 1257-1258.

Accord, Stanley, 697 F.2d at 966.

-186-

The Eighth Circuit has impliedly rejected the use of either

of thes presumptions in the analysis of capital sentencing trial

Claims of ineffective assistance in Pickens v. Lockhart, 714 . 2d

1455 (8th Cir. 1983). Paced with a district court decision

Genying a claim of ineffective assistance for failure to present

any mitigating evidence due to the district court's presumption

~~ without any testimony from trial counsel to support it--that

the decision not to present such evidence was strategic, the

Eighth Circuit flatly disapproved this sethod of analysis:

We cannot view the record to support such a

conclusion. Given the severity of the potent-

ial sentence and the reality that the life of

[trial counsel's] client was at stake, we find

that it was incumbent upon Pickens’ counsel to

offer mitigating proof. There exists no

indication in the record that [trial counse

mace any tactica ecision; it appears muc

more likely that he abdicated all respons-

ibility for defending his client in the

sentencing phase. We cannot view such an

abdication as meeting the level of effective

assistance required under the Sixth Amendment.

714 F.2d at 1467 (emphasis supplied). By requiring that the

record disclose the tactical basis for the failure to present

mitigating evidence--and presuming no tacticel basis if it does

mot--the Bignth Circuit has squarely rejected the presumption

which the Pifth and Eleventh Circuits utilize (which presumes a

tactical basis for action unless the record contradicts the

presumption). It has accordingly, shifted the burden to the

state to put on evidence that what appears to be ineffective

assistance was in fact e reasonable trial strategy.®

SECOND, if presumptions of attorney competence are per-

missible resumption that counsel always conduct

adequate pretrial investigations should be permitted. There is

clear conflict within the Bleventh Circuit concerning the

whether the

utilization of this presumption. As previously noted, this

presumption was applied in Mr. Adams’ case, but it was not

— —

—

8 his view is further confirmed by Judge Arnold's joining the

majority opinion in Pickens. Judge Arnold sat by designation on

the Eleventh Circuit panel which decided 15 v. Zant, Pikes.

However, Judge Arnold filed a dissenting opinion In stanle

sharply disagreeing with the utilization of the — at

trial strategy. Judge Arnold opined that [it ie not asking too

much, when life is at stake, to require the State or counsel

himself to explain a choice to present no evidence in

mitigation.” 697 r. 20 at 974-975 (emphasis in original).

Pickens embodies the rule advocated In Judge Arnold's Stanley

ssent.

-19-

applied in the nearly identical case of King v. Strickland,

Supra. See n.7?, supra. As illustrated by these two cases, the

consequences of the utilization or non-utilization of this

presumption are extraordinary. In King, where the presumption

was not utilized, the court held that “counsel failed to conduct

an exhaustive investigation for potential mitigating evidence

714 F.2d at 1490. As a result, the failure to present additional

mitigating evidence, “[could] not be deemed a strategic dec-

ision...," id. (emphasis supplied), and the ineffective assis-

tance claia was resolved in the capital defendant's favor. By

contrast in Adams, where the presumption was utilized, the court

held that counsel had conducted an adequate investigation of

potential mitigating evidence (App. 4a), thereby bringing into

play the presumption that counsel's decision to forego present-

ing evidence of Adams’ background was one of tactics.” Id. With

this, the court applied the most difficult of all tests for a

habeas corpus petitioner to meet: "a strategic decision to

pursue less than all plausible lines o: defense...if counsel

first adequately investigated the rejected alternatives...will be

held ineffective only if it was so patently unreasonable that no

competent attorney would have chosen it. (App. 3a, 4a) Pursuant

to this test, Mr. Adams’ claim filed.“ Since the presumption of

adequate investigation thus produced opposite results in nearly

identical cases, the propriety of its use aust be resolved by

this Court.

9 Even under this test, however, the claim should not have failed.

The presumed reasonable basis for foregoing the presentation of

mitigating evidence was the tendency of such evidence to invite

the state to emphasize some negative aspects cf Mr. Adams’

character already in evidence: his gambling and his “running

around” with a young woman not his wife. ‘App. 4a) However, the

vast majority of the unpresented mitigating evidence--see pr.

6-7,supra--would have been absolutely unaffected by “emphasis” by

the state of this evidence. The unpresented evidence focused

instead upon Mr. Adams’ overcoming extraordinary odds to become

@ responsible, dependable adult from the age of 16 on (a trait

recognized even by the prison authorities in Tennessee) and upon

the mitigating aspects of the aggravating factors lined up

against him. In no fashion would this evidence have been

“refuted” by the “damaging* evidence of gambling and “running

around. Moreover, when the failure to present the available

evidence is viewed in this light and is coupled with counsel's

wre age ge | damaging closing argument--a “contextual* view

which the Eleventh Circuit failed to undertake--the “patently

unreasonable* strategic choice of counsel not to present sitiga-

ting evidence becomes clear.

-20-

THIRD, if presumptions of attorney competence are permiss-

ible, whether the presumption that counsel's actions are

strategic must he tested by the entirety of the record or can be

tested instead by limited reference to selected portions of the

record. As previously noted, both the Pifth and Eleventh

Circuits have held that the presumption that counsel's actions

are strategic can be rebutted, when ounsel testifies that they

were not strategic or “when certain of counsel's actions do not

conform to a general pattern of a rational trial strategy.*

Washington v. Strickland, supra, 693 . 20 at 1258. Accord,

Stanley v. Zant, supra, 697 P.2d at 966 (“where the circumstances

clearly show that counsel's failure to offer mitigating evidence

could not have been based on reasonable strategy"). When testing

counsel's actions in Mr. Adams’ case against a “general pattern

of a rational trial strategy, however, the Eleventh Circuit did

not examine the entire record. It examined only that evidence in

the record which might have become more damaging if counsel had

presented mitigating evidence, concluding that the decision to

“forego” mitigating evidence was, in context, part of an overall

rational strategy. (App. 4a) Had it examined the entire record,

however, the court could not have reached this same conclusion,

for it would necessarily have faced counsel's seriously damaging

closing argument. In two other cases, King v. Strickland, supra,

and Douglas v. Wainwright, 714 F.2d 1532 (llth Cir. 1983), the

court has recognized that a damaging closing argument can turn an

Otherwise proper strategic choice not to present asitigating

evidence into an ineffective strategy, because

a vital difference exists between not producing

any mitigating evidence and emphasizing to the

ultimate sentencer that the defendant is a bad

person or that there is no asmitigating

evidence.

Douglas, at 1557. Such a closing argument makes the finding of

ineffectiveness leryl out from a reading of the transcript.

id. Thus, only because the court in Mr. Adams' case refused to

review counsel's “no evidence strategy” in light of counsel's

overall sentencing trial effort on behalf of Mr. Adams did it

reach the result it did. Accordingly, the scope of counsel's

effort against which his choice not to present sitigating

evidence must be tested is the final iseve in need of resolution

by thie Court.

While the Court's grant of certiorari in Washington v.

Strickland, supra, say include a resolution of these issues

regarding the proper use of presumptions in the analysis of

ineffective assistance of counsel claims, it also may not resolve

these issues. As framed, the questions presented by Washington

focus on the degree of prejudice which must be shown in order for

an ineffective assistance claim to succeed. Wonetheless, as

powerfully demonstrated by Mr. Adams’ case, the presumption

issues are just as soch in need of resolution by this Court as is

the prejudice issue. Por this reason, justice demands that the

issues be resolved--in one case or the other--and that the

egregious injustice done to Mr. Adams be corrected, by granting

hie detit ion for a writ of certiorari.

II. THIS COURT SHOULD GRANT CERTIORARI BECAUSE THE LOWER

COURT'S APPROVAL OF THE FPELONY MURDER AGGRAVATING

CIRCUMSTANCE IN THIS CASE DIRECTLY CONPLICTS WITH THIS

COURT'S RECENT PRONOUNCEMENTS IN ZANT N. STEPHENS

CONCERNING THE NECESSARY PUNCTION OF STATUTORY

AGGRAVATING CIRCUMSTANCES.

The Eleventh Circuit correctly recognized that Mr. Adams was

indicted for and convicted only of felony surder (App. 4a). The

state sentencing court relied upon felony murder as an aggrava-

ting circumstance to support the death sentence. But, in Plorida

as elsewhere, individuals conv.cted of felony murder, as dirting-

uished from premeditated murder, are deemed less deserving of

deat’. Yet the sentencing court in Mr. Adams’ case used felony

murder as the basis of an aggravating circumstance. Thus, the

sentencing court “attached the ‘aggravating’ label ... to conduct

that actually should militate in favor of a lesser penalty." Zant

v. Stephens, _U.S.__, 103 S.Ct. 2733, 2747 (1983). ‘This case

should be remanded for reconsideration in light of Zant v.

Stephens.

As the statement of the facts in this petition makes clear,

this was from start to finish a felony murder case only. The

indictment was based solely upon a theory of felony surder and

hot upon any theory of premeditated intent to take « human life.

The state's case at trial was grounded exclusively on a theory of

felony murder. In his closing argument, the prosecutor stated

that the only issue in the case was whether the deceased was

killed during a robbery (T. 1050), thus relying solely upon

felony murder. During the jury charge conference, both the

prosecutor and the judge agreed that there was “no premeditation

involved in this thing” (r. 1004), and the prosecutor further

underscored that this was a case where “premeditated intent or

des 1% is not involved® (r. 1006). Thus, it was agreed that the

jury would only be instructed on felony murder (T. 1015) and in

fact the oniy ground on which the jury was instructed that it

could return a verdict of guilty of first degree surder was upon

a finding that Mr. Adams had killed the deceased dur ing the

course of a robbery “even though there is no premeditated design

or intent to 1117 (r. 1126, 1145). In light of these instruc-

tions, the jury's general verdict (T. 1151) could only have been

based upon a finding of felony murder. Moreover, the sentencing

judge's firdings in support of the desth sentence do not include

any finding that the killing was deliberate. The Plorida Supreme

Court offered the death sentence on the basis of felony murder,

Adams v. State, 341 So.2d 765, 767-68 (Pla. 1977), and the

Eleventh Circuit affirmed the denial of habeas corpus relief

Gespite treating the homicide solely as a felony murder (App.

4a-Sa).

The element of felony murder in this case is a mitigating,

mot an aggravating, circumstance. In Florida, as in most states,

those convicted of felony, rather than premeditated, murder are

considered less deserving of the death penalty. See generally

Dressler, The Jurisprudence of Death By Another: Accessories and

Capital Punishment, 51 U. COL. L. REV. 17 (1979); Mote, The

Constitutionality of Imposing the death Penalty for Felony

Murder, 15 U. HOUSTON L. REV. 356 (1978). ‘The Plorida Supreme

Court stated in McCaskill v. State, for example, that juries

"have been reluctant to recommend the imposition of the death

penalty in all but the most aggravated [robbery-msurder) cases

despite general knowledge and concern of the citizenry over the

-23-

ee

substantial increase in crime." 344 So. 2d at 1280. Similarly,

the Arizona Supreme Court has held that “the giving of a felony

murder instruction may be considered as a mitigating circum-

stance." State v. Schad, 633 P. 2d 366, 383 (Ariz. 1981), cert.

denied, 455 U.S. 983 (1982). See also State v. Gillies, 662 P. 2d

1007, 1020-22 (Ariz. 1983); State v. Zarogoza, 654 P. 2d 22, 29

(Ariz. 1983). It was not considered az a mitigating circumstance

in this case by the judge or jury -- the jury was not instructed

that i* could consider the lack of intent as a mitigating factor.

It is important to define what Mr. Adams means by “felony

murder." On the one hand, the term embodies our society's

judgment that deliberate, intentional and premeditated murders,

when they occur in the course of certain felonies, may justify

imposition of the death penalty. This is the principle embodied

in Plorida's felony murder aggravating circumstance, Pla. Stat.

$921.141 (6)(4), approved by this Court in Proffitt v. Plorida,

42@ U.S. 242 (1976). But the meaning of “felony murder” relevant

to this case is quite different. Under this variant of the

felony murder doctrine, one whose conduct brought about an

unintended death in the commission of a felony is guilty of

murder. See generally LaFave & Scott, Handbook on Criminal Law,

545-561 (1972). In this sense, a finding of felony murder is a

mitigating circumstance because it is based on a legal fiction:

the notion that the specific intent for the underlying felony may

be transferred so as to satisfy the specific intent requirement

of first degree murder. Such a fiction may generally benefit

society by deterring those engaged in felonies from killing

recklessly or negligently. But such fictions will not do when

the issue is life or death. This Court recognized as much in

Enmund v. Plorida U.S.__, 102 S.Ct. 3368 (1982). Enmund was

an aider and abettor only to the underlying felony; he did not

intend the murder that ensued. This Court surveyed the felony

murder statute nationally and considered that our society

considers death a disproportionate penalty for crimes similar to

2%

Enmund's. “American criminal law has long considered a defend-

ant s intention -- and therefore his moral guilt -- to be

critical to the degree of his criminal culpability.” Id. at,

102 S.Ct. at 3378.

Enmund makes clear that the intent“ at issue in deciding

who dies is the real intent possessed by the defendant at the

time of the crime, not some intent artificially manufactured to

satisfy the felony murder doctrine. The facts of this case

present a graphic illustration of why felony murder should, in

the sense of non-premeditated murder, be deemed a mitigating,

rather than an aggravating circumstance. The crime in Ar. Adams’

case was a non-deliberate killing. The perpetrator entered the

residence unarmed. At the time the perpetrator entered, no one

was at home (T. 267, 324-25, 442-46). Sometime later, the

deceased returned and came upon the perpetrator (T. 241, 324-25).

A struggle then ensued in which the deceased received injuries

From biows by a fireplace poker, which caused his death the next

day. The deceased was conscious at the time he was found, which

was shortly after the perpetrator departed (T. 447-48).

Petitioner has shown that (1) he was indicted, tried,

convicted and sentenced on the basis of felony murder alone; (2)

in Plorida, as elsewhere, felony murder. as opposed to premed-

itated murder, is deemed less deserving of death; (3) but in this

case felony murder formed the basis of an aggravating circua-

stance. The danger foreseen by this Court in Zant v. Stephens

came to pass here: the sentencer “attached the ‘aggravating’

label to conduct that actually should militate in favor of a

lesser penalty. U.S. at „ 103 3.Ct. at 2747. This case

should be remanded for reconsideration in light of Zant .

Stephens.

III. TRE COURT SHOULD GRANT CERTIORARI TO DETERMINE WHETHER

PLORIDA'S HAPHAZARDLY APPLIED PROCEDURAL DEFAULT RULE

CAN BAR FEDERAL HABEAS CORPUS REVIEW OF CAPITAL

SENTENCING ISSUES.

The jury instructions at Mr. Adams’ capital sentencing

trial, which merely tracked the language of the Florida statute,

could have led a reasonable juror to believe that he or she was

limited to considering only statutory mitigating circumstances,

in violation of the requirement of Lockett v. Ohio, 438 U.S. 586

(1978) and Eddings v. Oklahoma, 455 U.S. 104 (1982) that the

sentencer consider all relevant mitigating evidence. This

reasonable construction of the court's charge would have pre-

cluded the consideration of significant factors in mitigation.

Mr. Adams raised this issue in federal habeas corpus proceedings

relying primarily on the controlling decision in Washington v.

Watkins, 655 f. 2d 1346, 1367-1368 (Sth Cir.), red, den:, 662 . 2d

1116 (Sth Cir. 1981), cert. den., 456 U.S. 949 (1982). The Court

of Appeals, however, rejected this claim, solely on procedural

grounds, holding that Mr. Adams‘ procedural default in the state

courts!® precluded review because he failed to demonstrate

“prejudice” as required by Wainwright , Sykes, supra. (App.

6a-7a)

Certiorari should be granted on this issue to resolve an

extraordinarily important question pertaining to the application

of Wainwright v. Sykes. FPlorida applies its procedural default

rules to the review of capital sentencing issues in a haphazard,

fundamentally inconsistent manner -- reviewing in one case the

merits of an issue despite a procedural default in raising it and

in the next, raising the very same issue, declining to review the

issue on the merits because of a procedural default. Because the

review of a capital sentencing issue on the merits in federal

court can mean the difference between life and death, certiorari

should be granted to decide whether Plorida's application of its

procedural default rules to capital sentencing issues can bar

review of those issues in federal court.

The application of the procedural default principles of

Wainwright v. Sykes is warranted only if the state courts have

rejected a claim “on the basis of an independent and adequate

state procedural ground that bars the federal courts from

addressing the issue on habeas corpus. County Court of Ulster

County v. Allen, 442 U.S. 140, 148 (1979). Under Wainwright v.

Sykes the failure to raise a claim in the manner and at the time

10 mr. Adams “did not object to the instruction as required by

Pla.R.Crim.P. 3.390 (0). “ (App. 6a)

required by the state law, which results in the state courts’

refusal to entertain the merits of the claim, is such an “indep-

endent and adequate state procedural ground. However, if the

procedural default rule is followed in one case but not in

another raising the same issue in the same default“ posture, the

refusal to review the issues in the first case for procedural

default cannot be an “independent and adequate state procedural

ground." In that cese, the procedural default rule“ is merely a

device by which the state court can turn on or off at will its

receptivity to constitutional claims. Barr v. City of Columbia,

378 U.S. 146, 149-50 (1964). See also NAACP v. Alabama ex rel.

Patterson, 357 U.S. 449, 458 (1958). This is precisely the case

with Plorida's procedural default rule.

In Straight v. Wainwright, 422 So.2d 827 (Pla. 1982), the

defendant raised the very same instructional issue in the very

same procedural posture as that presented by Mr. Adams. There,

however, the Plorida court did not refuse to entertain the issue

because of the defendant's failure to object to it at trial.

Rather, it entertained the issue on the merits without even the

slightest reference to Straight'’s procedural default. Straight

involved an appeal of the denial of 2 motion for state pos

conviction relief, coupled with an original petition for a writ

of habeas corpus in the Plorida Supreme Courc raising the

ineffective assistance of former counsel on the direct appeal. In

his original petition for a writ of habeas corpus, Straight

asserted that the failure of his former counsel to raise the

instructional issue on direct appeal denied him the effective

assistance of counsel. 422 80. 2d at 829-830. In his post-

conviction proceeding appeal, Straight also raised the jury

instruction issue on its merits. 422 80. 2d at 831. The Plorida

Supreme Court reached and denied the ineffective assistance

Claim, and it also entertained and decided the merits of the

claim as raised in the Rule 3.850 proceedings, with no reference

at all to Straight's procedural default:

Rule 3.850 Appeal

Appellant argues that the imposition of the

sentence of death upon him was violative of the

Eighth and Pourteenth Amendments to the United

States Constitution in that the instructions to

1

the jury had the effect of restricting mitiga-

ting considerations to the statutory mitigating

circumstances. Appellant cites Lockett v.

Ohio, 438 U.S. 586, 98 8. ct. 2954, Ed.

373 (1978), for the proposition that such

restrictive instructions may render a death

sentence violative of the Eighth Amendment.

As we stated above in responding to the

argument on ineffective appellate counsel, this

contention is without merit. Our capital

felony sentencing law and jury instructions

based thereon do not limit consideration to

statutory mitigating circumstances. See Peek

v. State, 395 80. 20 492 (Pla.), cert.denied,

TFT U.S. 964, 101 S.Ct. 2036, 68 L. Id. Id 342

(1981); Songer v. State, 165 80. 20 696 (Fla.

1978) (on rehearing), cert.denied, 441 U.S.

956, 99 S.Ct. 2185, 60 -d 1060 (1979).

422 So.2d at 831.

The absolute inconsistency in the Plorida Supreme Court's

application of Plorida's procedural default rule, as illustrated

by the court's treatment of this issue in Straight, is by no

means rare. It has occurred with such frequency in the Plorida

court's treatment of capital sentencing issues that this Court

must recoqnize and rule that there is no procedural default rule

with respect t> capital sentencing issues in Plorida that can

serve as an “independent and adequate state procedural ground“

under Wainwright v. Sykes.

The opinions of the Plorida Supreme Court in the Rule 3.850

appeals of capital defendants over the past four years reveal an

almost pathological approach-avoidance conflict to the procedural

default rule. In some Rule 3.850 cases that have raised errors

in the consideration of aggravating and mitigating circumstances

or in the scope of the circumstances considered, the Plorida

court has flatly refused to reach the merits of the issues

presented because of procedural default. See Alvord v. State,

396 80. 2d 184 (Pla. 1981); Smith v. State, 400 80. 2d 956, 958-959

(Pla. 1981); Goode v. State, 403 80. 2d 931, 932 (Pla. 1981);

pobbert v. State, 409 80. 2d 1053, 1058 (Pla. 1982); Demps v.

State, 416 80. 2d 808, 809 (Pla. 1982); Songer v. State, 419 80. 2d

1044, 1047 (Pla. 1982). In other cases raising the same issues

in precisely the same posture, however, the court has reached the

merits of the issues without any reference at all to a procedural

default bar. See Douglas v. State, 373 80. 2 895, 896-897 (Fla.

1979); Adams v. State, 380 80. 2d 423, 424 (Pla. 1980); Demps v.

-28-

State, supra, 416 80. 20 at 90911 nuffin v. State, 420 80. 24 591,

594 (Pla. 1982); Ball v. State, 420 80. 2 872, 873 (Pla. 1982).

In some 3.850 cases raising errors in the penalty trial instruc-

tions concerning the scope of the aggravating or mitigating

circumstances (as in Mr. Adams’ case) or the manner in which

aggravating and mitigating circumstances sust be weighed agsinst

each other, the Florida court has also flatly refused to reach

the merits of the issues because of procedural default. See

Smith v. State, supra, 400 80. 2d at 958-959; Goode v. State,

supra, 403 80. 2d at 932; Pord ». State, 407 So.24 907, 908 (Fla.

1981); Antone ». State, 410 80. 2d 157, 163 (Pla. 1982); Thomas v.

State, 421 80. 2d 160% 162 (Pla. 1982). Yet in other cases

raising precisely the same instructional errors in precisely the

same posture, the court has reached the merits of the issues

without mentioning the procedural default “rule.” See Hall v.

State, supra, 420 So.2d at 874; Straight v. Wainwright, supra,

422 So.2d at 831. There can be only two explanations for this

inconsistency: the Plorida Supreme Court has acted arbitrarily

or there is no procedural default rule with respect to capital

sentencing issues.!2 under either theory, the federal courts

11 In Demps, the court refused on procedural default grounds to

reach another similar issue respecting the scope of mitigating

circumstances admitted into evidence.

12 the Plorida Supreme Court has recently provided a partial, though

Catch-22-like explanation for the inconsistency among these

rulings. Since the effective date of the current death penalty

statue, as this Court recognized in Proffitt v. Plorida, the

lor ide court has consistently held that Tt has an independent

duty to review the propriety of the imposition of the death

penalty in connection with the direct appeal of each capital

case. See, e.g. State v. Dizon, 283 So.24 1 , 10 (Pla. 1973);

Songer v. State, 322 50.20 4601 (Pla. 1975); aldr idge v. State,

74 $42, 944 (Pla. 1977); Sargrave v. ate,

* . *

4-5 (Pla. 1979); acc 11 v. State, * 72, 1074 (Pla.

1982). This 1 duty requires the court to “examine the

record to be sure that the imposition of the death sentence

complies with all the standards set by the Constitution, the

legislature and the Courts." Goode v. State, 365 80. 20 361, 384

(Pla. 1979). In the exercise of this Independent duty on direct

appeal, therefore, the court can and does review any issue

concerning the penalty trial even though that issue has not been

raised by the parties. See, e.g., LeDuc v. State, 365 8. 2 149,

150 (Pla. 1978); Goode v. State, 365 50.20 at 384; Jacobs v.

State, 396 80. 2d 715, 717-7108 (Fla. 1981).

The catch is this: In two cases decided this year, the Plorida

court explained that the independent review conducted on direct

appeal has sometimes included penalty trial issues which were not

raised. Thus, when the petitioner raised such issues for the

first time in Rule 3.850 proceedings, the court rejected them on

the ground that they had already been determined — albeit sua

sponte and without direct reference -- on direct appeal. Palmes

-23-

should reach the merits of any capital sentencing issue for which

state remedies have been exhausted because there is no “adequate”

state ground. 13

Accordingly, certiorari should be granted to resolve this

critical question. The determination of a capital sentencing

issue on its merits can mean the difference between life and

death. Without a resolution by this Court, some capital defend-

ants may live because in their cases, the Plorida courts did not

find a procedural default on issues raised for the first time in

collateral proceedings. At the same time, others may die because

in their cases, the Plorida courts did find a procedural default

on the very same issues raised in the very same procedural

posture. The lightning-like arbitrariness of Plorida's procedural

default “rule” cannot therefore be sanctioned, because it results

in the same random cruelty condemned in Purman v. Georgia, 408

U.S. 238 (1972).

v. State, 425 80. 2d 4, 6 (Pla. 1983); Armstrong v. State, 429

. Id 787, 288-289 (Pla. 1983).

13 despite its en banc decision in Ford z. Strickland, 696 r. 24 804

(llth Cir. 1983), upon which the Eleventh Circuit based its

disposition of this instructional issue in Mr. Adams’ case, the

Eleventh Circuit (acting as Unit B of the Pifth Circuit) had

previously recogcized that in death cases, the Florida Supreme

Court exercises a special scope of review enabling them to excuse

procedural defaults." Henry v. Wainwright, 686 . 2d 311, 314

(Sth Cir. 1982) (Unit B). 12 . in part, led the

court to reaffirm the propriety of its decision on the merits of

the issue presented in Henry, despite a question concerning

procedural default under Florida's procedural default rule.

Thus, to the extent that the court, acting as the Pifth Circuit

(Unit B), has already adopted, in Henry, the principle which mr.

Adams now urges this Court to cons r, there is a conflict

between “circuits* also in need of resolution.

CONCLUSION

Por the reasons expressed herein, the petition for a writ of

certiorari should be granted.

Respectfully Submitted,

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of Plorida

224 Datura Street/l3th Ploor

West Palm Beach, Florida 33401

(305) 837-2150

TATJANA OSTAPOFPF

MICHAEL A. MELLO

Assistant Public Defenders

RICHARD RN. BURR, III

Of Counsel

—

* Kichad U Yu. T

—

Counsel for Petitioner

October 31, 1983

. | RECEIVED |

. 893-5701 * 4

7 „ Ut

IM THE |_ SUPREME romaT Hs

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1983

JAMES ADAMS,

Petitioner,

vs.

LOUIE L. WAINWRIGAT,etc.,

Respondent.

MOTION POR LEAVE TO PROCEED IN PORMA PAUPERIS

The Petitioner, JAMES ADAMS, who is imprisoned on Plorida’s

Death Row, asks for leave to file the accompanying Petition for

Writ of Certiorar: without pre-payment of costs and to proceed in

forma pauperis pursuant to Rule 46 of the Rules of this Court.

Petitioner proceeded in forma pauperis at all times in the state

and feceral courts below. Undersigned court-appointed counsel

has at all times represented Mr. Adams. Petitioner has attached

hereto his affidavit in substantially the form prescribed by Ped.

Rules App. Proc., Porm 4, and the Rules of this Court.

Respectfully Submitted,

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of Plorida

224 Datura Street/l3th Ploor

West Pals Beach, Flor ide 33401

(30S) 837-2150

„C

RICHARD H. BURR, III

Of Counsel to the Public Defender

Counsel for Petitioner.

} RECEivep

wo. ¥3-S701 NOV 1 6.1983

rr

IN THE rr

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1983

JAMES ADAMS,

Petitioner,

vs.

LOUIE L. WAINWRIGHT,etc.,

Respondent.

APPIDAVIT IN SUPPORT OF RE-UEST TO PROCEED IN PORMA PAUPERIS

I, JAMES ADAMS, being first duly sworn, depose and say that

I am the petitioner in the above entitled cases; that in support

of my motion to proceed without being required to prepay fees,

costs or give security therefor, I state that because of my

poverty I am unable to pay the ccsts of said proceeding or to

give security therefor; that I believe I am entitled to relief.

I further swear that the responses which I have made to

questions and instructions below are true.

1. Are you presently employed? yes I No Ta)

a. If the answer is “Yes", state the amount of your salary

Or wages per month, and give name and address of your employer.

d. If the answer is “No”, state the date of last employment

and the amount of the salary and wages per month which you

received. 22

2. Have you received within the past twelve months any money

from any of the following sources?

a. 3 profession or from self employment? res

No |

d. Rent payments, interest or dividends? Yes [| } No 1%

c. Pensions, annuities or life insurance payments? res

No [

4. Gifts or inheritance? Yes,[ I No [ }

e. Any other sources? res 1% wo [ }

If the answer to any of the above is yes, describe each

source of money and state the amount received from each during

the past twelve months.

Zs Zs 2 Fi we

3. Do you own cash, or do you have money in a checking or saving

account? Yes [ No II (Include any funds in prison accounts)

If answer is yes, state the total value of the items

owned. Pesan Acsauat £100.

4. Do you own any real estate, stocks, bonds, automobiles, or

other valuable property (exclyding ordinary household furnishings

and clothing)? Yes [ } Wo [|

If the answer is yes describe the property and state its

approximate value.

5. List the persons who are dependent upon your support, state

your relationship to those persons and indicate how much you

contribute toward their support. Nave

I understand that a false statement to any questions in this

affidavit will subject me to penalties for perjury.

“I declare under penalty of perjury that

the foregoing ig true and correct.

EXECUTED on ys hey ¢/7p

Date

—

9 — 4”

(SighSture)

STATE OF FLORIDA )

COUNTY OF BRADPORD )

JAMES ADAMS being first duly sworn under oath, presents that

he has read and subscribed to the above and states that the

information therein is true and correct.

—

—

ra ——— — —

2 hai

Signature of Petitioner

2)

SUBSCRIBED and SWOHN to before me this . day of K 1983.

{ / i

4 1 |

LV y “4 —

2 NOTARY PUBLIC j

r

My Commission Expires: