# Opposition Brief — Wainwright v. Smith

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1826%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1986
- **Citation:** 477 U.S. 905

## Text

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

-38-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1826%3A2. Public record. Not legal advice.