Opposition Brief — Wainwright v. Smith

Supreme Court, U.S.

S24, 6B DD

MAY 30 1986

90 seat SPANIOL, JR

TERK |

IN THE

Supreme Court of the Gnited States

October Term, 1985

LOUIE L. WAINWRIGHT,

Secretary, Florida Department

of Corrections

Petitioner,

Vv.

JIMMY LEE SMITH,

Respondent.

RESPONSE TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE ELEVENTH CIRCUIT

HOLLAND & KNIGHT

Sarah M. Bleakley Gregg D. Thomas

1829 Combs Road Counsel of Record

Tallahassee, FL 32301 Julian Clarkson

(904) 878-6471 Steven L. Brannock

Post Office Box 1288

Tampa, Florida 33601

(813) 223-1621

QUESTION PRESENTED FOR REVIEW

I. WHETHER THE ELEVENTH CIRCUIT

CORRECTLY RULED THAT AN

EVIDENTIARY HEARING IS NECESSARY

TO DETERMINE SMITH'S CLAIMS OF

INEFFECTIVE ASSISTANCE OF COUNSEL.

z. An Evidentiary Hearing Is

Needed To Test Smith's Claims

That He Was Unconstitutionally

Denied Effective Assistance of

Counsel.

B. Smith Has Not Procedurally

Defaulted On His Ineffective

Assistance Claim.

G. Smith's Petition For Habeas

Corpus Presents A Sufficient

Predicate For The Relief

Granted By The Eleventh

Circuit Court of Appeals.

aie

TABLE OF CONTENTS

Question Presented for Review .....ii

zaplie o£ Contemte .. s+ «'s oem eee ;

sable Of Citations . . « + & «= wee

Statement of the Case and Facts... .41

Summary of the Argument........2

APQUMORS . «is ee ee 8 ee eee eee

I. THE ELEVENTH CIRCUIT CORRECTLY

RULED THAT AN EVIDENTIARY HEARING

IS NECESSARY TO DETERMINE SMITH'S

CLAIMS OF INEFFECTIVE ASSISTANCE

OF COUNSEL.

A. An Evidentiary Hearing Is

Needed To Test Smith's Claims

That He Was Unconstitutionally

Denied Effective Assistance of

Counsel.

B. Smith Has Not Procedurally

Defaulted On His Ineffective

Assistance Claim.

c. Smith's Petition For Habeas

Corpus Presents A Sufficient

Predicate For The Relief

Granted By The Eleventh

Circuit Court of Appeals.

Comciusiom « « « 6 s «ss ae ee eee

oiia

TABLE OF CITATIONS

CASES

Birt v. Montgomery,

725 F.2d 587 (11th Cir.

cert. denied,

U.S.

1984),

PAGE(S)

105 S.Ct. 232, 83 L.Ed.2d 161 (1984)

Boyer v. Patton,

579 F.2d 284 (3d Cir.

Brewer v. Williams,

430 U.S. 387 (1977)

Capital Films Corp.

Vv.

Charles Fries Productions, Inc.,

1978)

628 F.2d 387 (Sth Cir.

Carrier v. Hutto,

754 F.2d 520 (4th Cir.

cert. granted,

U.S.

1980)

1985),

105 S§.Ct. 3523, 87 L.Ed.2d. 649 (1985)

Edwards v. Arizona,

451 U.S. 477 (198

1)

Estelle v. Williams,

425 U.S. 501 (1976)

Faretta v. California,

422 U.S. 806 (197

Gray v. Greer,

>)

778 F.2d 350 (7th Cir.

Hanson v. Polk County Land, Inc.,

1985)

608 F.2d 129 (5th Cir.

Johnson v. Blackburn,

778 F.2d 1044 (5th Cir.

-iii-

1979)

1985)

19,

y +

30

15

24

11

27

26

32

24

33

Johnson v. Zerbst,

304 U.S. 458 (1938)

Jurek v. Estelle,

593 F.2d 672 (5th Cir. 1979),

on rehrg, 623 F.2d 929,

cert. denied, 450 U.S. 1001 (1981)

Michigan v. Mosley,

423 U.S. 96 (1975)

Miller v. Fenton,

v.8. , 206 &.Ct. 445,

88 L.Ed.2d 405 (1985)

Miranda v. United States,

384 U.S. 436 (1966)

Moran v. Burbine,

54 U.S.L.W. 4265 (March 11, 1986)

Morrison v. Kimmelman,

4o@ F.2d 918 (3d Cir.),

cert. granted, uU.s. ,

106 S.Ct. 59, 88 L.Ed.2d 47 (1985)

Oregon v. Elstad,

U.S. , avo 8.6. 3260,

84 L.Ed.2d 222, (1985)

Pate v. Robinson,

383 U.S. 375 (1966)

Rhode Island v. Innis,

446 U.S. 291 (1980)

Smith v. State,

445 So.2d 323 (Fla. 1983)

Smith v. Wainwright,

777 E.2d 609 (llth Cir. 1985)

-iv-

+

ha,

Xe

ro

12

30

17

13

16

14

27

11

29

ome ome

Stone v. Powell,

428 U.S. 465 (1976) 33, 34

Strickland v. Washington,

466 U.S. 668 (1984) (i. a Soe! ae

27, thse Ban oes

35, 36

Townsend v. Sain,

372 U.S. 292 (1963) he Be oe

United States v. Bayer,

331 U.S. 532 (1947) 14

United States v. Cronic,

466 U.S. 648 (1984) 2, 60. £203: 2

22, 0s 24s. 28s

Sae S02 wea oO

Wainwright v. Sykes,

433 U.S. 72 (1977) 28, 30, 3i

Witherspoon v. Illinois,

391 U.S. 510 (1968) 18

OTHER AUTHORITY

Rule 11, Rules Governing

Section 2264 Cases 28

Rule 56(c), Fed. R. Civ. P. 23

Rule 3.850, Fla. R. Crim. P. 23

~-~V-

STATEMENT OF CASE AND FACTS

Smith accepts the Court of Appeals'

statement of the case and facts with one

point of clarification. The State's

statement of the case gives the impression

that the Eleventh Circuit reversed on the

basis of the underlying substantive

issues. In fact, the ruling below is

interlocutory in nature because it

concerned only the necessity of further

factual development under Townsend vy.

Sain, 372 U.S. 293 (1963).?

1 In this Response, the record below

is referred to as ("RV [Volume], [Page]").

For example, RV 3, 23 refers to page 23 of

volume 3 of the record. "A." refers to

petitioner's appendix. "Pet." refers to

the State's petition for writ of

certiorari in this case.

SUMMARY OF THE ARGUMENT

Smith petitioned for habeas corpus

relief alleging that his trial counsel was

ineffective under the standards of

Strickland v. Washington and United States

v. Cronic. The Eleventh Circuit ruled

that it needed more facts to properly

analyze Smith's ineffective assistance of

counsel claims and remanded the case _ to

the district court for an evidentiary

hearing. In essence, the Eleventh Circuit

ruled that it would be premature to

address Smith's claims on an inadequate

factual record. Despite the interlocutory

nature of the Eleventh Circuit's decision,

the State asks this Court to rule on the

underlying issue of ineffective assistance

of counsel.

The State's attempt to seek review at

this "interlocutory" stage of the proceed-

ing should be denied. Substantial facts

remain to be developed concerning the

confessions that Smith's counsel failed to

move to suppress below. These questions

include Smith's attempt to invoke his

right to counsel prior to interrogation by

the State, the circumstances surrounding

Smith's "waiver" of his right to counsel,

whether Smith's confessions were coerced,

and the State's interference with coun-

sel's attempt to effectively represent

Smith during the interrogation. Substan-

tial questions also remain concerning the

reasonableness of counsel's decision not

to move to suppress the confessions and

the soundness of numerous other actions

that counsel took (or failed to take) in

Smith's defense.

Smith has not procedurally defaulted

on his claims of ineffective assistance of

counsel. These allegations were raised at

each previous proceeding at which Smith

had an opportunity to challenge his coun-

sel's effectiveness. Nor is the State

correct in its argument that Smith's peti-

tion did not state a basis for the relief

granted by the Eleventh Circuit. To the

contrary, both the district court and the

Eleventh Circuit ruled that Smith's peti-

tion adequately set forth facts that, if

true, would state a basis for granting the

writ of habeas corpus. These courts were

correct. The petition describes in great

detail the ineffective assistance alleged

and the prejudice that resulted from coun-

sel's actions. The writ of certiorari

should be denied.

iain ici i |

ARGUMENT

- THE ELEVENTH CIRCUIT CORRECTLY

RULED THAT AN EVIDENTIARY HEAR-

ING IS NECESSARY TO DETERMINE

SMITH'S CLAIMS OF INEFFECTIVE

ASSISTANCE OF COUNSEL.

The State completely misses the point

of the decision below. The Eleventh

Circuit has done nothing more than decide

that it needs an evidentiary hearing

before it rules on Jimmy Lee Smith's

allegations of ineffective assistance of

counsel. Largely skirting the narrow

issue of whether an evidentiary hearing is

necessary, the State prematurely bicenee

this Court to the merits of Smith's under-

lying Fifth, Sixth and Fourteenth

Amendment claims.

The State faces a heavy burden in

this petition. It must convince this

Court that Smith could not prove he was

denied effective assistance of counsel

under any conceivable set of facts

consistent with the allegations in his

petition. The Eleventh Circuit correctly

rejected the State's approach by holding

that a ruling on the substantive issues in

this case should await the development of

a complete factual record.

The State's brief also misperceives

the purpose of the writ of certiorari.

The writ is designed to enable this Court

to resolve substantial unanswered federal

questions or to settle important conflicts

between the circuits. The writ does not

serve aS a second appeal. The Eleventh

Circuit's decision to require an

evidentiary hearing hardly represents a

substantial issue worthy of the limited

resources of this Court. Nor does’ the

decision present a conflict. Indeed, the

State's brief often leaves this Court to

guess the names of the cases that

allegedly conflict with the Eleventh

Circuit's decision below. Incredibly,

none of the conflicts suggested by the

State concern the ultimate issue in this

proceeding, the grant or denial of an

evidentiary hearing. The State's applica-

tion for the writ of certiorari should be

denied.

A. An Evidentiary Hearing Is

Needed To Test Smith's

Claims That He Was’ Uncon-

stitutionally Denied Effec-

tive Assistance of Counsel.

Smith's habeas corpus petition

alleges that his appointed public defender

failed to provide him effective assistance

of counsel at the guilt-innocence and

sentencing phases of his trial. Smith's

claim is primarily based upon his’ coun-

sel's failure to move tec suppress’ the

admission at trial of four (4) confessions

secured by the State while Smith was in

custody and after counsel had been

appointed to represent him. To succeed in

his petition, Smith must prove that his

appointed counsel erred (by showing that

the confessions were in fact

suppressible), that he was prejudiced by

counsel's error, and that counsel's fail-

ure to move to suppress the confessions

was not reasonable trial strategy.

Strickland v. Washington, 466 U.S. 668

(1984). The State's argument primarily

addresses the first of these issues, the

underlying suppressibility of the

confessions.” (Pet. at 13-19).

; As to the issue of whether’ the

failure to move to suppress was reasonable

trial stragegy, both the District Court

and the Eleventh Circuit agreed that the

reasonableness of counsel's decision could

be determined only after an evidentiary

hearing. (See A. 42-44, 96, 98-99). The

State does not argue this point other than

to say that the strategy question can be

resolved solely by reference to trial

counsel's self-serving affidavit. See

21-24, infra. On the issue of whether

Smith was prejudiced by the failure to

suppress, the State notes in its statement

of facts that the Eleventh Circuit and the

Supreme Court of Florida disagree about

Four confessions were entered into

evidence against Smith at his trial. The

facts show that the earliest confession

offered as evidence against him was

secured May 5, 1978 at approximately 12:10

p.m. (RV 3, 23; RV 4, 392, 395).% Prior

whether Smith would have been convicted in

the absence of the confessions. However,

other than to note that disagreement in

its factual statement, the State does not

argue that the Eleventh Circuit's disa-

greement forms a basis for granting the

writ. The prejudice issue is a mixed

question of law and fact and therefore the

Eleventh Circuit is not subject to rulings

of the Supreme Court of Florida or the

District Court on the subject. Strickland

v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674, 700 (1984). In any

event, the Eleventh Circuit is correct.

In the absence of the confessions, the

State's case is entirely circumstantial.

The State had no alternative evidence of

premeditation to support a conviction for

first degree murder (A. 37-40). Moreover,

the Supreme Court of Florida completely

overlooked the fact that the only evidence

supporting the death penalty was contained

in the confessions. Certainly, Smith has

been prejudiced by the wrongful imposition

of a death sentence.

3 An earlier confession was obtained

on May 4, 1978, but it was never entered

into evidence against Smith. Thus, noth-

to that confession, Smith had attended two

first appearances before a Magistrate.

Smith unequivocally invoked his’ right to

counsel at each of those hearings (A. 124,

Lge). The affidavit of trial counsel

submitted by the State (the "State's Affi-

davit"), shows that Smith had counsel

appointed for him as early as May 3, 1978

(A. 109-112). According to the State's

Affidavit, by the time of the May 5, 1978

confession, trial counsel had established

an attorney-client relationship with Smith

and had visited him at the jail on May 2,

3, and 4 (A. 108-113).

Smith's interrogators knew that he

had invoked his right to counsel, yet the

State's Affidavit shows that the State

initiated further questioning of Smith in

the absence of appointed counsel (RV 3, 7;

A. 110). Smith alleges that the

confessions elicited during this question-

ing is known about the circumstances

surrounding the first confession

(A. 44-45).

ing in the absence of counsel were

unconstitutionally coerced. (Petition

at 14, 15, 44, 45).

Smith had the right to have counsel

present during the State's interrogations.

Miranda v. United States, 384 U.S. 436

(1966). Interrogation of an accused with-

out assistance of counsel is inherently

coercive. According to this Court,

"compulsion" is inherent in custodial

surroundings. Miranda at 439. See Rhode

Island v. Innis, 446 U.S. 291 (1980);

Michigan v. Mosley, 423 U.S. 96 (1975).

Thus, where an accused invokes his right

to have counsel present during custodial

interrogation, interrogation must cease

until counsel is provided. Edwards v.

Arizona, 451 U.S. 477 (1981). According

to Edwards, a confession obtained from a

defendant after a request for counsel

violates a defendant's Fifth, Sixth, and

ali«

ee ACO .

Fourteenth Amendment rights to have coun-

sel present.

The State argues that any procedural

error in the State's questioning was

waived by Smith. However, the inherently

coercive nature of custodial interrogation

imposes a heavy burden upon the State to

demonstrate the voluntary nature of the

waiver of privileges against the

self-incrimination and the right to coun-

sel. Johnson v. Zerbst, 304 U.S. 458, 464

(1938). Whether the confession is volun-

tary depends on whether it is the product

of an essentially free and unconstrained

choice by the accused. Johnson, 304 U.S.

at 464.

To rule on Smith's habeas petition,

the court must determine whether the State

coerced Smith's confessions.” It is

“ The question of the voluntariness

of the confession concerns a matter of law

«ite

impossible to make that determination on

the evidentiary record as it now exists.

According to the Eleventh Circuit, the

following substantial fact questions must

be resolved before the suppressibility

issue can be reached:

(1) Was the May 4, 1978 confession

coerced and, if so, had the coercion

dissipated by the time of the subsequent

confessions? There are virtually no facts

in the record concerning the critical

initial confession. Indeed, the fact that

the State chose not to seek the admission

of that confession into evidence indicates

that even the State may have had questions

regarding its admissibility. While proof

that an initial confession is improper

will not automatically invalidate subse-

that is subject to complete review by the

Eleventh Circuit. Miller v. Fenton,

U.S. , 106 S.Ct. 445, 88 L.Ed.2d 405

(1985).

ai 3~@

quent confessions, subsequent confessions

must be excluded if coercion following the

first statement had not dissipated at the

time of subsequent statements. United

States v. Bayer, 331 U.S. 532, 541 (1947).

Here, the confessions that were introduced

into evidence took place in rapid sequence

following the May 4 confession (A. 8).

The grouping of the confessions raises the

fact question of whether the taint of the

first confession infected the later

confessions. See Oregon v._ Elstad,

U.S. A 105 $§.Ct. 1285, 84 L.Ed.2a 222

(1985) ("the finder of fact must examine

the surrounding circumstances and the

entire course of police conduct with

respect to the suspect in evaluating the

voluntariness of his statements").

(2) Did Smith's counsel instruct the

State not to interrogate Smith in coun-

sel's absence? If not, why not? Smith's

trial counsel had several conversations

Ade

with the interrogators. The record does

not reveal what the interrogators told

counsel. There is nothing in the record

to indicate what instructions, if any,

trial counsel gave the interrogators about

questioning Smith. Nor, if there were no

instructions, does the record reveal why

counsel did not instruct the interrogators

to cease their ex parte interrogation of

Smith. Had defense counsel requested a

termination of the interrogation in his

absence, the State's initiation of addi-

tional questioning would violate Smith's

Fifth, Sixth, and Fourteenth Amendment

rights to counsel. See Brewer Vv.

Williams, 430 U.S. 387 (1977).°

5 The State's reliance on Moran v.

Burbine, 54 U.S.L.W. 4265 (March 11, 1986)

is misplaced. Moran was decided by this

Court on the basis of a full evidentiary

hearing. Thus, in Moran, the circum-

stances surrounding counsel's attempt at

contact and the defendant's waiver were

fully understood. Indeed, the defendant

o1$-

(3) Did Smith receive Miranda

warnings during the interrogations? The

record does not reveal whether the

interrogators properly advised Smith of

his Fifth Amendment right to remain silent

and of his right to the presence of coun-

sel during questioning as required under

Miranda v. Arizona, 384 U.S. 436 (1966).

(4) Did the State honor Smith's

right to remain silent if it was invoked?

If Smith was advised of his rights, the

record is silent as to whether he invoked

those rights. The question is "whether

his ‘right to cut off questioning' was

in Moran conceded that his confessions

were given voluntarily (aside from the

question raised by his ignorance of coun-

sel's attempt to contact him). Moran's

claims were also rejected because his

right to counsel had not yet attached at

the time of the interrogation. By way of

contrast, an evidentiary hearing is needed

in this case to determine if Smith's right

to counsel had attached at the time of the

confessions (A. 48-53).

ati.

"scrupulously' honored." Michigan vv.

Mosley, 423 U.S. 96 (1975).

(5) Was counsel's decision not to

move to suppress the confessions reason-

able trial strategy? The record is virtu-

ally silent on the critical issue of

whether counsel's choice not to move to

suppress the confessions was a reasonable

strategic decision. Other than the

untested affidavit of counsel, the facts

concerning the reasonableness of trial

counsel's strategy remain undeveloped.

In the words of the Eleventh Circuit,

"these are but a few of the factual

questions which must be resolved before we

can address the issue of whether Smith

received ineffective assistance of counsel

at the guilt-innocence phase of his trial"

fA. Sa). This Court has held that an

evidentiary hearing is required whenever

crucial facts are not developed at the

state court level. Townsend v. Sain, 372

-17-

U.S. 293 (1963). Because the crucial

facts remained undeveloped, the Eleventh

Circuit correctly determined that an

evidentiary hearing on the Strickland

ineffective assistance claim was

necessary.

Smith has also alleged that his trial

counsel's overall performance was so defi-

cient that prejudice should be presumed

under the standard enunciated in United

States v. Cronic, 466 U.S. 648 (1984).°

’ Smith contends that his trial

counsel was deficient in several respects,

including: (1) failing to conduct an

adequate voir dire of prospective jurors

consistent with the precepts of

Witherspoon v. Illinois, 391 U.S. 510

(1968); (2) failing to investigate and

present evidence of Smith's mental state

at the time of the alleged murders;

(3) failing to inform the trial court that

Smith had attempted suicide while in jail

pending trial, and thus, pursuant to his

physican's instructions, Smith was taking

Psychotropic medication while awaiting

trial, and of other evidence tending to

show that Smith was incompetent;

(4) failing to request a competency hear-

ing under Pate v. Robinson, 383 U.S. 375

o19<

The Eleventh Circuit ruled that the Cronic

claims, like Smith's Strickland claims,

could not be addressed until the facts

were further developed. For example, the

record contains no explanation of trial

counsel's decisions and, consequently, it

is impossible to determine whether those

decisions were reasonable strategic deci-

sions or mere inadvertence. The Eleventh

Circuit concluded:

Prejudice is presumed under the

Cronic analysis. The emphasis,

therefore, is upon the circum-

stances under which counsel

performed or whether counsel

performed in a truly adversarial

manner. Here, as under the

Strickland analysis, the facts

must be more fully developed

before we can determine whether

(1966); (5) failing to investigate and

present mitigating evidence at the penalty

phase of Smith's trial; and (6) stipulat-

ing to the admission of a videotaped

confession of Smith clothed in prison garb

during the penalty phase in violation of

the precepts of Estelle v. Williams, 425

¥.8. 501 (1976).

atte

Smith has met his purden of

proof under Cronic.

(A. 56-57).

The failure to develop facts cannot

be attributed to Smith. The Eleventh

Circuit accurately noted that Smith had

requested an evidentiary hearing, along

with the State, when the ineffectiveness

Claim was first presented to the state

trial court in March, 1983. Similarly,

Smith requested an evidentiary hearing

before the District Court in July, 1984.

Even the District Court noted that an

evidentiary hearing would have been help-

ful:

I think it would have been pref-

erable to have held an

evidentiary hearing at the trial

court level. I certainly would

encourage state trial judges to

do so, because it would allevi-

ate a lot of the concern that

comes before federal judges when

the matter gets to this almost

critical stage.

«2O=

Smith v. Wainwrignt, (N.D. Fla. July ll,

1984) (A. 99).’

Petitioner contends that the

unrebutted affidavit of trial defense

counsel should negate an evidentiary hear-

ing into counsel's alleged ineffective-

ness. However, as a result of the circum-

stances under which counsel's affidavit

was prepared, filed, and presented, reli-

ance on the affidavit would be

procedurally unsound and fundamentally

unfair.

7 The Florida Supreme Court and the

district court denied the requests for an

evidentiary hearing, not because factual

development was unnecessary, but because

they erroneously determined that Smith was

not prejudiced by the admission of the

four confessions. The Eleventh Circuit

disagreed, correctly noting that the

State's evidence was otherwise weak and

circumstantial. Moreover, there was no

evidence outside the confessions to

support a conviction for first degree

murder or to prove the aggravating circum-

stances necessary for the imposition of

the death penalty (A. 37-40).

ote

Ee oS.”rrC FC Cr

Smith's first petition for writ of

habeas corpus to be considered on _ the

merits was filed on Monday, July 9, 1984,

in the United States District Court for

the Northern District of Florida. On that

Same day, trial defense counsel executed

his affidavit. The affidavit and the

State's motions to dismiss and for summary

judgment were contemporaneously served on

Smith's counsel on the next day, July 10,

1984. The ‘District Court held a hearing

on the petition on the following day,

July 11, 1984. After oral argument, the

Court dismissed the petition. However, in

the process of ruling on the petition, the

District Court noted that Smith had no

opportunity to respond to the affidavit:

The State has filed an

affidavit. where is some ques-

tion as to how that affidavit

should be considered by the

court. For purposes of summary

judgment proceedings obviously

Smith's attorneys have not had

an opportunity to at least

=i

respond to the affidavit in some

way, out I find the affidavit is

properly filed with the Court.

But I'm not going to consider it

for purposes of ruling either on

a motion to dismiss or a motion

for summary judgment.

Smith v. Wainwright, (N.D. Fla., July 11,

1984) (A. 97).

The District Court's decision not to

consider the affidavit in the context of a

motion for summary judgment or a motion to

dismiss is correct. Rule 11, Rules

Governing Section 2254 Cases, provides

that:

The Federal Rules of Civil

Procedure, to the extent that

they are not inconsistent with

these rules, may be applied,

when appropriate to petitions

filed under these rules.

Rule 56(c), Federal Rules of Civil Proce-

dure, which governs summary judgment

procedures, states in pertinent part that:

"The motion shall be served at least ten

(10) days before the time fixed for the

hearing." In this case the affidavit and

~LPZe

motions were served the day before the

hearing. This procedural infirmity is not

an unimportant technicality, but a critial

element which incorporates due process

considerations. See Capital Films Corp.

v. Charles Fries Productions, Inc., 628

F.2d 387, 391-2 (5th Cir. 1980); Hanson v.

Polk County Land, Inc., 608 F.2d 129, 131

(Sth Cir. 1979). The Eleventh Circuit

agreed:

Assertions in affidavits are a

far cry from assertions made

under circumstances which

subject them to probing

cross-examination.

Smith, at A. 213. The evidentiary hearing

ordered by the Eleventh Circuit will

provide Smith with his first opportunity

to present testimony to rebut trial

defense counsel's affidavit and to prove

Smith's allegations of ineffective assist-

ance of counsel.

a2hn

Finally, the State contends that

Smith's pervasive lack of cooperatior. was

the sole reason for trial defense coun-

sel's ineffective assistance and thus

there is no need for an evidentiary review

of Smith's claims under United States v.

Cronic, 466 U.S. 648 (1984). The State's

claim is self-defeating. To the extent it

wishes to rely on Smith's interference

with counsel, the facts are woefully

underdeveloped. Here, the evidentiary

hearing requested by the Eleventh Circuit

will delve not only into the facts which

are supportive of Smith's claims, but will

also explore the State's claims regarding

Smith's uncooperative behavior.

Furthermore, the State's legal argu-

ment is defective. In essence, the State

is arguing that Smith waived his right to

counsel at the guilt-innocence phase of

trial. See Petition at 42. This Court's

decision in Faretta v. California, 422

=

U.S. 806, 835-36 (1975), requires a "know-

ing and intelligent" relinquishment of the

right to counsel. At the guilt-innocence

phase of the trial, there was no de facto

Waiver, much less a waiver in which the

court participated and advised Smith of

his rights. The State has cited no case

which holds that waiver can be established

by defendant's hindrance of counsel. Even

if hindrance could constitute a waiver,

the State offers no explanation for coun-

sel's failure to notify the court of these

"impediments" or to withdraw if effective

representation was impossible.

In any event, the deficiencies that

Smith cites to support his Cronic ineffec-

tiveness arguments could not conceivably

have been caused by Smith. See n.6,

supra. Smith is not responsible for coun-

sel's defective voir dire. Smith did not

control counsel's faulty investigation of

Smith's mental background. Smith did not

athe

order his counsel not to reveal the cact

of Smith's attempted suicide or the fact

that he was taking psychotrophic drugs

while awaiting trial. Smith did not

instruct his counsel not to request a

competency hearing under Pate v. Robinson,

383 U.S. 375 (1966). Smith did not ask

his counsel to stipulate to the admission

of a videotaped confession of Smith

clothed in prison garb during the penalty

phase in violation of the principles of

Estelle v. Williams, 425 U.S. 501 (1976).

The Eleventh Circuit clearly and

definitively decided that the existing

record in this case failed to develop the

material facts necessary to evaluate

respondents’ Strickland and Cronic claims.

The failure to adequately develop’ the

facts is attributable neither to neglect

nor deliberate bypass. Accordingly, the

Eleventh Circuit correctly held under the

precepts of this Court's ruling in

«27e

Townsend v. Sain that an evidentiary hear-

ing was required before proceeding to the

merits of Smith's claims.

B. Smith Has Not Procedurally

Defaulted On His’ Ineffec-

tive Assistance Of Counsel

Claims.

The State incorrectly maintains that

Smith is procedurally barred from raising

the ineffectiveness of counsel issue by

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

Under Wainwright v. Sykes, Smith is barred

to the extent he failed to raise the inef-

fectiveness issue in the appropriate

proceeding below. However, Smith has

sought review of the effectiveness of his

trial counsel at each stage of collateral

review. The issue was raised in Smith's

first petition for post-conviction relief

pursuant to Rule 3.850, Florida Rules of

Criminal Procedure. Smith unsuccessfully

appealed that unfavorable disposition to

-28<

the Supreme Court of Florida. Smith v.

State, 445 So.2d 323 (Fla. 1983). Smith

again raised the issue in his’ habeas

corpus petition to the District Court for

the Northern District of Florida. He

raised the issue again in the Eleventh

Circuit Court of Appeals and was finally

granted the evidentiary hearing which he

had sought every step of the way. It is

absurd to suggest that Smith has defaulted

on the ineffectiveness claim.

The State's brief confuses the inef-

fectiveness of counsel issue with the

underlying suppressibility of the

confessions. Smith's counsel did proce-

durally default on the suppression issue

by failing to object to the admission of

the confessions at trial. Thus, only if

Smith were attempting to litigate the

underlying suppressibility issue itself,

would the Eleventh Circuit Court of

Appeals have been obligated to test

@29-

Smith's claims under the Wainwright v.

Sykes criteria. *

Here, Smith's claim encompasses far

more than the suppression issue. Smith

* Even under Wainwright v. Sykes, if

Smith can prove cause and prejudice he can

litigate the underlying suppression issue.

Several circuits, including the Eleventh

Circuit, have held that the cause require-

ment of Wainwright v. Sykes is satisfied

when counsel is found to be ineffective

and the procedural default was a result of

that ineffectiveness. See Birt Vv.

Montgomery, 725 F.2d 587, 597 (11th Cir.

1966), ¢ext. denied, V.d. ., i%@5

S.Ct. 232, 83 L.Ed.2d 161 (1984). See

also Jurek v. Estelle, 593 F.2d 672 (5th

Cir. 1979), on rehearing, 623 F.2d 929,

cert. denied, 450 U.S. 1001 (1981); Boyer

v. Patton, 579 F.2d 284, 287-88 (3d Cir.

1978).

This Court granted certiorari to

review a Similar ruling in Carrier v.

Hutto, 754 F.2d 520 (4th Cir. 1985), cert.

granted, U.S. , 405 $.Ct. 3523, 87

L.Ed.2d 649 (1985). However, the Fourth

Circuit there allowed a claim of ineffec-

tiveness that did not violate a defend-

ant's Sixth and Fourteenth Amendment

rights to constitute "cause" within the

meaning of Wainwright v. Sykes. Smith has

alleged (and the Eleventh Circuit

requires) a showing of ineffectiveness

that rises to the level of a constitu-

tional violation. Birt, 725 F.2d at 597.

a30q

asked the ~£leventh Circuit Court of

Appeals to remand for an evidentiary hear-

ing on his claim that he was denied effec-

tive assistance of counsel under

Strickland v. Washington. No doubt the

suppressibility of the confessions is one

element of Smith's ineffectiveness claim.

However, counsel's error on the

suppression issue is but one of several

elements that must be proven by Smith to

prevail. Moreover, Smith has raised inef-

fectiveness claims under the Cronic

standard. The suppression issue forms

only a minor portion of the many issues

supporting Smith's Cronic claim.

Apparently, the State wishes to over-

lay the requirements of Wainwright v.

Sykes onto the requirements of Strickland

v. Washington. Thus, the State would

eliminate all avenues for review of coun-

sel's performance where counsel's

ineffectiveness caused a prodedural

aSi~@

default. In effect, federal courts would

be placed in the untenable position of

having the ability to review bad decisions

of counsel while being precluded from

review when counsel has failed to act

altogether.

Federal courts have not reached such

an absurd conclusion. Where ineffective

assistance of counsel claims have been

raised and properly preserved, as in this

case, the federal courts have not looked

to Wainwright v. Sykes as’ preliminary to

review on the Strickland or Cronic inef-

fectiveness clain:. Ir Gray v. Greer, 778

F.2d 350 (7th Cir. 1985), the Seventh

Circuit Court of Appeals analyzed a claim

under Strickland that appellate counsel

was ineffective in failing to file an

appeal, resulting in default ona signif-

icant constitutional claim. As in this

case, the court held that analysis under

Wainwright v. Sykes was unnecessary to the

a$2e

analysis of the ineffectiveness issue

because it had been properly preserved.

In Johnson v. Blackburn, 778 F.2d 1044

(Sth Cir. 1985), the Fifth Circuit Court

of Appeals clearly distinguished between

the underlying defaulted claim (which

concerned faulty jury instructions) and

the defendant's complaint that counsel's

failure to object to those instructions

constituted ineffective assistance. Id.

at 1048. The ineffective assistance of

counsel claim was analyzed independently

under the Strickland test and was not

barred by Wainwright v. Sykes. Id. at

1048-49.°

* The issue here should be distin-

guished from that presented in Morrison v.

Kimmelman, 752 F.2d 918 (3d Cir.), cert.

granted, U.8. , 106 $.Ct. 59, &

L.Ed.2d 47 (1985). Kimmelman concerns a

defendant's right to argue that ineffec-

tiveness of counsel was to blame for the

failure to exclude evidence obtained in

violation of the Fourth Amendment. A

defendant is prohibited under Stone v.

o33-

The Eleventh Circuit below was not

misled by the state's attempt to turn

Smith's claim of ineffective assistance of

counsel into a claim on the underlying

Powell, 428 U.S. 465 (1976), from raising

a Fourth Amendment claim in the context of

habeas relief. Stone was based on this

Court's determination that the privacy

interests protected by the Fourth Amend-

ment were too remote from the point where

federal review occurs to warrant the

intrusion into the judicial process that

would result from habeas review. Id. at

482-83. Even if this Court extends’ the

reach of Stone to ineffective assistance

claims, the analogy should not be drawn to

ineffective assistance claims based on

underlying Fifth and Sixth Amendment

violations. Those Amendments are not

based upon remote privacy interests but

instead preserve the integrity of the

criminal process itself.

Even if this Court reversed Kimmelman

and decided in the context of this

"interlocutory" proceeding to apply its

logic to the Fifth and Sixth Amendment

claims asserted here, an evidentiary hear-

ing would still be necessary on Smith's

Cronic claims where default is not an

issue.

a3én

issue of the suppression of the

confessions. Smith is not in procedural

default on his Strickland and Cronic inef-

fective assistance claims.

Smith's Petition For Habeas

Corpus Presents A _ Suffi-

cient Predicate For The

Relief Granted By The Elev-

enth Circuit Court Of

Appeals.

Q

Both the district court for the

Northern District of Florida and the Elev-

enth Circuit Court of Appeals found that

Smith's Petition for Habeas Corpus relief

pleaded sufficient detail of counsel's

ineffective acts and omissions to warrant

the finding of ineffective assistance.’

1® The district court's oral order

stated that "the specific omission or

overt act upon which the claim of ineffec- ,

tive assistance of counsel is based must |

be detailed in an appropriate pleading. I

find that that has been done here" (empha-

sis added) (A. 94).

Upon review of Smith's allegations,

the Eleventh Circuit expressly concluded

aSGa

In their analyses of Smith's right to

effective counsel under Strickland v.

Washington, the two courts differed only

on the issue of whether the ineffective

assistance of counsel actually prejudiced

Smith. ?*? Despite the clear holdings of

the courts below, the State now claims

that Smith's petition was insufficient.

To the contrary, the sixty-page peti-

tion sets forth specific allegations that,

if true, support a finding of ineffective

assistance of counsel. The Petition for

Writ of Habeas Corpus alleges substantive

facts which show that Smith's inculpatory

that the “allegations, if true, are suffi-

cient to state a constitutional violation"

(A. Ja).

11 While the district court claimed

to be ruling on the State's Rule 12(b)(6)

motion for failure to state a claim upon

which relief can be granted, the order

clearly reflects a reliance on the under-

lying record in its determination that no

prejudice resulted. Therefore, in effect,

the court's ruling is in the nature of a

Rule 56 summary judgment.

uBGeq

statements were suppressible, that his

trial counsel failed to move to suppress

those statements, and that such failure

worked to his prejudice at trial.’*?

The fact finding ordered by the Elev-

enth Circuit directly related to those

allegations in the petition. The State's

insufficient pleading argument is without

merit and should be rejected.

12 Relevant allegations are found in

paragraphs 22-25, 50-51, 99-104, and

111-112 of the Petition for Habeas Corpus.

CONCLUSION

For all the foregoing reasons’ the

State's petition for writ of certiorari

Kl how

Gregg D. Thomas

Counsel of Record

Steven L. Brannock

Julian Clarkson

Post Office Box 1288

Tampa, Florida 33601

(813) 223-1621

should be denied.

Sarah M. Bleakley

1829 Combs Road

Tallahassee, FL. 32301

(904) 878-6471

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