# Opposition Brief — Florida v. Grosvenor > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1258%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2004 - **Citation:** 543 U.S. 1000 ## Text (2) i a Cot US | _ OCT 29 2004 No. 04-295 | OFFICE OF THE CLERK | In The Supreme Court of the Anited States , v STATE OF FLORIDA, Petitioner, Vv. TRACI ANN GROSVENOR, Respondent. y vw On Petition For A Writ Of Certiorari To The Supreme Court Of Florida b vw BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI ROBEET S. GRISCTI, Esq. ASHLEIGH A. BARTKUS, ESQ. Counsel of Record Counsel on Brief LAW FIRM OF ROBERT S. GRISCTI, P.A. 204 West University Avenue, Suite 6 Post Office Box 508 Gainesville, Florida 32602 (352) 375-4460 Counsel for Respondent COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 QUESTION PRESENTED Whether the Supreme Court of Florida correctly applied the “prejudice” prong of Strickland v. Washington, 466 U.S. 668 (1984), Hill v. Lockhart, 474 U.S. 52, 59 (1985) and Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000) in this post-conviction proceeding. TABLE OF CONTENTS Page Le EET EMEP cdeconsccsnssccedsnevsscsnonvencxaosennn i Ey SII sciciainsinccediiseindiubannassiinaibineddupstinisiignapeee 1 CONSTITUTIONAL PROVISIONS INVOLVED ....... 1 STATEMENT OF THE CASE ................cccccssecesseeeeees 1 SUMMARY OF THE ARGUMENT........................0000 3 I che acs nc biisddugansahéudensenmndabioasbausstdsiaeesens 4 il TABLE OF AUTHORITIES Page CASES Boykin v. Alabama, 395 U.S. 238 (1969) ........ ce eeeeeeees 4 Grosvenor v. State, 874 So.2d 1176, rehearing denied, 2004 Fla. LEXIS 947 (Fla Mar. 26, 2004).............. 1, 2, 3,8 Grosvenor v. State, 816 So.2d 822 (Fla. 5th DCA UTE ciniesasashusi-dondiaesiabahdaniichceguhcinta di diadbdarbanhavenentinsiinsiensiaaliadcabeninis 1 Hill v. Lockhart, 474 U.S. 52 (19885) ........0...... i, 3, 4, 5, 6, 7 Holmes v. United States, 875 F.2d 1545 (11th Cir. SUTIN iibisclinalintihcaniasliiidahe planed amiiesatiiinusdonsanendensdaasnananibeaaeannes 7 Iaea v. Sunn, 800 F.2d 861 (9th Cir. 1986) ....... ee 7 Johnson v. Zerbst, 304 U.S. 458 (1938).......... ccc cecceeeeeeeeees 4 Jones v. BTID, Ge CE aes FE EE cadiicneesensnscstrcnresssscccesens 4 Miller v. Champion, 262 F.3a 1066 (10th Cir. 2001) ...... 6, 7 Powell v. Alabama, 287 U.S. 45 (1932) ...........cccecccceeeeeeees 4 Roe v. Flores-Ortega, 528 U.S. 470 (2000) ................... i, 3,5 Strickland v. Washington, 466 U.S. 668 (1984)...i, 3, 4, 5, 8 United States v. Giardino, 797 F.2d 30 (lst Cir. BI cc eaiielhiciicbbnlt aide ladinsliailad nahn tid eileen ieee ence lela al 7 Warner v. United States, 975 F.2d 1207 (6th Cir. a ae idecarenerans 7 Weeks v. Snyder, 219 F.3d 245 (3d Cir. 2000)............0......... 6 Witherspoon v. Purkett, 210 F.3d 901 (8th Cir. 2000).......... 6 iv TABLE OF AUTHORITIES — Continued Page CONSTITUTIONS Peis as MINIS WF cnicsisancecéesscnmbinemnnahiabensiadanashitieicaniannen 1,4 Bs is I Waitt. secccachacescdacactnsednceinedebunansianeans 1,5 es ee I BI BW oiiicisssasaccacsnnstanenncssareiiienienians 1 RULES NN I SEIU ecicaneassashchcotasschekiiastacs asada cdennesitsbeetaenailnandiaiaioiaoice 8 1 BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI OPINION BELOW The decision of the Supreme Court of Florida is reported at Grosvenor v. State, 874 So.2d 1176, rehearing denied, 2004 Fla. LEXIS 947 (Fla. Mar. 26, 2004). The Florida Supreme Court’s opinion rever*ed Grosvenor v. State, 816 So.2d 822 (Fla. 5th DCA 2002). On remand, the Fifth District Court of Appeal issued mandate and denied the Petitioner’s request for stay of mandate. 2 v CONSTITUTIONAL PROVISIONS INVOLVED This case involves the Fifth Amendment to the United States Constitution, which provides in relevant part that “[nJo persons shall be .. . deprived of life, liberty, or prop- erty, without due process of law”; the Sixth Amendment to the United States Constitution, which provides in relevant part that “[iJn all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defence”; and the Fourteenth Amendment to the United States Constitution, which provides in Section I in rele- vant part that “nor shall any State deprive any person of life, liberty, or property, without due process of law... .” 4 Vv STATEMENT OF THE CASE Respondent Traci Ann Grosvenor plead nolo conten- dere to first-degree murder and related charges and was sentenced to two life terms, two fifty-year terms, and one five-year term, all running concurrently. Grosvenor v. 2 State, 874 So.2d 1176, 1176-77 (2004). Grosvenor was represented by the Public Defender’s Office of the Fifth Judicial Circuit, State of Florida. Jd. Grosvenor told her attorneys that she had used drugs and alcohol on the day of the incident, a fact that was supported by a laboratory report “ m testing immediately following Grosvenor’s arrest uu: the incident that resulted in her prosecution, _ which revealed traces of marijuana and cocaine in Grosve- nor’s system. Grosvenor’s counsel did not advise her about the availability of a voluntary intoxication defense to all of the charges against her. Jd. Grosvenor reluctantly agreed to her counsel’s advice to plead nolo contendere to the charges against her, but only after she initially entered a guilty plea that the trial Court vacated sua sponte when Grosvenor told a newspaper reporter that she would have gone to trial if she had a “split hair’s chance” of defense. Following sentencing, Grosvenor filed a _ post- conviction motion seeking to vacate her guilty plea, alleg- ing that “had [she] been informed of her viable defense of voluntary intoxication ... she would not have entered the plea agreement and instead would have proceeded to trial.” Jd. The trial Court granted an evidentiary hearing on the issue of ineffective assistance of counsel. 874 So.2d at 1177. The Court agreed to assume for purposes of the initial hearing that trial counsel’s performance was defi- cient and consider only whether Grosvenor suffered prejudice. Id. The deposition of Grosvenor’s lead trial attorney stated that he (trial counsel) considered the voluntary intoxication defense, but, without consulting Grosvenor, “decided it was not a valid defense.” The record in Grosvenor’s case is replete with evi- dence that Grosvenor resisted entering her pleas and unequivocally advised her counsel and the trial Court that 3 she wanted to proceed to trial. (R. IX-T52-53). There is no evidence that Grosvenor’s trial counsel advised her about the strengths and weaknesses of the defense of voluntary intoxication so that she could make an informed choice whether to enter a plea or go to trial. Not only did Grosve- nor’s trial counsel fail to make a reasonable effort to discover her defenses, but counsel ignored Grosvenor when she specifically told counsel that if she had a defense she wanted to proceed to trial. This fact was not only pre- sumed in the bifurcated procedure used in the post- conviction proceeding, but was also established without contradiction at the post-conviction hearing. (Grosvenor’s Initial Brief to the Supreme Court of Florida, pp. 6-8, 10). +. vv SUMMARY OF THE ARGUMENT The Supreme Court of Florida held that Grosvenor, in order to successfully demonstrate ineffective assistance of counsel relating to her guilty plea, must demonstrate a reasonable probability that, but for counsel’s errors, she would not have pleaded guilty and would have insisted on going to trial. Grosvenor v. State, 874 So.2d at 1177. This holding iterates the standard of this Court originally set forth in Strickland v. Washington, 466 U.S. 668 (1984), and reaffirmed in both Hill v. Lockhart, 474 U.S. 52, 59 (1985) (“[t]he defendant must show that there is a reason- able probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial”) and Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000) (defendant need not demonstrate grounds for meritorious appeal or even “specify the points he would raise were his right to appeal reinstated”). 4 | The holding of the Supreme Court of Florida properly recognizes that the focus of the prejudice prong of Strick- land is whether a defendant can show that it is reasonably probable that she would have insisted on going to trial ) based on the totality of the circumstances. This interpreta- | tion has been applied by state and federal courts since Strickland and Hill. For these reasons and reasons more | fully explained below, the State of Florida’s Petition for | Writ of Certiorari should be denied. , Vv ARGUMENT The decision of the Supreme Court of Florida is in accord with this Court’s clear and longstanding precedent. The seminal case of Strickland v. Washington, 466 U.S. at 688, imposes a “basic duty” upon counsel to consult with the client as to “important” matters. The Constitution guarantees that, when faced with critical decisions, a criminal defendant receive “the guiding hand of counsel.” Powell v. Alabama, 287 U.S. 45, 69 (1932). This duty to consult applies to the “fundamental” decision whether to plea guilty or take a case to trial.’ Without at least some ‘ This Court has recognized that there are four “fundamental decisions” that only the defendant, and not counsel, can make: (1) whether to plead guilty; (2) whether to waive a jury: (3) whether to testify; and (4) whether to take an appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983). These decisions are “fundamental” because they involve the waiver of “important” rights. Johnson v. Zerbst, 304 U.S. ! 458, 464 (1938) (a waiver is typically an “intentional relinquishment or abandonment of a known right or privilege”). The decision to plead guilty is a particularly important right as the decision to plead guilty involves a waiver of a panoply of trial rights. Boykin v. Alabama, 395 U.S. 238 (1969) (due process requires that the court closely question the (Continued on following page) LE PCLT ee TTR eee 5 level of consultation and explanation, the client’s decision whether to plead guilty cannot be a meaningful one. An attorney who fails to discuss potential affirmative defenses with the client fails to fulfill his or her Sixth Amendment duty of effective representation. In Strickland, this Court established the familiar two- pronged test for proving ineffective assistance of counsel: first, a defendant must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”; and second, that the defendant was prejudiced because coun- sel’s errors rendered the outcome of the state court’s proceedings unreliable. Id., 466 U.S. at 687. This Court has established that “prejudice” under Strickland requires only a showing of a reasonable prob- ability that, but for counsel’s deficient performance, the defendant would have taken his case to trial, see Hill, 474 U.S. at 59, or the defendant would have directed his lawyer to pursue an appeal, see Flores-Ortega, 528 U.S. at 482. In each instance, the legal standard turns on what the criminal defendant would have elected to do if compe- tently counseled, and is designed to restore the defendant to the position he or she would have occupied if counsel had satisfied the Sixth Amendment. Attorney conduct that results in the denial of the client’s fundamental right to a trial is constitutionally deficient. Under Strickland, “prejudice” does not require the defendant to demonstrate that an affirmative defense would have been meritorious or successful. Any defendant defendant, on the record, to ensure that the waiver is a fully knowl- edgeable one). 6 denied the right to make an intelligent and informed waiver of the fundamental rights associated with a trial by jury has been prejudiced. Practically, a system whereby the trial Court was required to prejudge the likelihood of success of a defense without the assistance of the defense attorney would be unworkable. The Hill standard of “prejudice” properly focuses on the basic decision whether - to plead guilty, rather than impractically forcing the trial Court to guess the ultimate outcome of the trial. The latter process would require the trial Court to identify meritori- ous issues that defendant could have asserted if afforded the assistance of counsel. The federal Courts of Appeals have dealt squarely with this issue and held that “[i]t is not necessary for the defendant to show that he actually would have prevailed at trial.” Miller v. Champion, 262 F.3d 1066, 1069 (10th Cir. 2001). Rather than simply relying on a defendant’s “mere allegation” that he would have insisted on trial but for his counsel’s errors, courts look to factual circum- stances surrounding the plea to determine whether the - defendant would have proceeded to trial. Jd. at 1072. “While other circuits have considered the strength of the prosecution’s case as circumstantial evidence of whether a petitioner would have changed his plea, and therefore whether he was prejudiced, none has held a petitioner must show that the case would likely have failed had it gone to trial.” Jd. at 1%74; see, e.g., Weeks v. Snyder, 219 F.3d 245, 259-60 (3d Cir. 2000) (“[iJn order to examine the prejudice issue, we must ... determine whether there is a reasonable probability that if [the defendant] had been informed of the results of [trial counsel’s] research, he would have insisted on going to trial”); Witherspoon uv. Purkett, 210 F.3d 901, 903-04 (8th Cir. 2000) (“[w]e conclude 7 that there is not reasonable probability that [the defen- dant] would have continued to plead not guilty and would have insisted on going to trial” thus failing to make the necessary showing of prejudice); Warner v. United States, 975 F.2d 1207, 1214 (6th Cir. 1992) (defendant’s testimony “that he would have p'ed not guilty and gone to trial but for the misadvice of his attorney” constituted prejudice); Holmes v. United States, 876 F.2d 1545, 1551 (11th Cir. 1989) (in order to satisfy the Hill v. Lockhart standard, defendant must prove that “he would not have pleaded guilty and would have insisted on going to trial had his attorney not misled him with faulty information”); Jaea v. Sunn, 800 F.2d 861, 865-66 (9th Cir. 1986) (where “[t]he record is replete with evidence that [defendant] was very reluctant to plead guilty and that [defendant’s counsel and brother] had a great deal of trouble convincing him to do so,” the Court found a sufficient showing of actual preju- dice); United States v. Giardino, 797 F.2d 30, 32 (1st Cir. 1986) (sufficient prejudice shown where defendant “explic- itly says he would have gone to trial had he known the truth about [a witness’] likely testimony”). Instead, the lower Courts usually consider the strength of the defendant’s case only to the extent “it offers circumstantial evidence of what the petiticner would have done had his counsel not proved to be ineffective.” Miller, 262 F.3d at 1074 The Court in Miller aptly held that, in light of the “overwhelming weight of authority among the other federal circuits” and this Court’s opinion in Hill, “the district court erred by requiring [the defendant] to prove a reasonable probability existed not only that he would have insisted on trial but for his counsel’s mistakes, but also that there was a likelihood that he would have prevailed at trial.” Id. 8 Accordingly, the foregoing demonstrates that there is no compelling basis for this Court’s exercise of jurisdiction by certiorari review under Rule 10 of the Rules of the Supreme Court of the United States, as the correct legal standard for the prejudice prong of Strickland has been applied uniformly by the lower Federal Courts and reiter- ated by the Supreme Court of Florida in Grosvenor uv. State, 874 So.2d 1176, rehearing denied, 2004 Fla. LEXIS 947 (Fla. Mar. 26, 2004). , _ CONCLUSION Respondent Traci Ann Grosvenor respectfully requests that this Court deny the State of Florida’s Petition for Writ of Certiorari herein. Respectfully submitted, ROBERT S. GRISCTI, Esq. Counsel of Record for Respondent Grosvenor -204 W. University Ave, Suite 6 Gainesville, FL 32601 (352) 375-4460 Dated this 1st day of November, 2004 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1258%3A2. Public record. Not legal advice.