Writ of Hebeas Corpus — Bullard v. Moore (No. 99-2087)

Supreme Court brief2000

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S. |

L\ FILED

992087 JUN 2 7 2000

OFFICE OF THE CLERK

No.00-

IN THE

Supreme Court of the Anited States

October Term, 2000

ESTON BULLARD, JR..,

Petitioner,

vs.

MICHAEL W. MOORE,

D.O.C. Secretary;

ROBERT A. BUTTERWORTH,

The Attorney General of the State of Florida,

Respondent(s)

PETITION FOR WRIT OF HABEAS CORPUS

EASTON BULLARD 008037

Union Correctional Institution

P.O. Box 221 Box K-21

Raiford, Florida 32083

SUMMARY OF THE

ISSUES PRESENTED

Petitioner was denied his Sixth

Amendment right to effective assistance of

counsel pursuant to this Court's decision

in Strickland v. Washington, 104 § «GE.

2052 (1984), wherein defense counsel

failed to object to an erroneous jury

instruction that added an improper element

- “temporary deprivation" - to the crime

of robbery, thereby reducing the State's

burden of proof and depriving Petitioner

of his Due Process right to a fair trial.

The lower court denied relief on this

issue by misapplying this Court's decision

in Lockhart v. Fretwell, 506 U.S. 364

(1993), holding that if Petitioner were

retried the erronecus jury instruction

would be repeated because. the State

Supreme Court had, some years after

Petitioner's alleged offense was

committed, added "temporary deprivation"

to the elements of robbery. Not only is

this a misapplication of Fretwell, it is

also directly in conflict with this

Court's decisions in Wainwright v. Stone,

94° S.Ct. 190 (1973); Celder rv. Bull, 3

U.S. 836 (1798); Bourse. -. City of

Columbia, 378 U.S. 347 (1964); Marks v.

United States, 430 U.S. 188 (177); among

others. ? Bae SP

The trial court's use of an erroneous

jury instruction that added an improper

element to the crime of robbery, thereby

lessening the State's burden of proof,

violated the Due Process Clause of the

Fourteenth Amendment. .

The lower court denied relief on this

issue by- holding that defense counsel's

failure to object to the erroneous

instruction was "sound trial strategy."

That decision is in conflict with this

Court's decision in &stelle v. McQuire,

502 U.S. 62 (1991); and Matthews v. ae

States, 485 U.S. 58 (1988).

III

Petitioner was denied his Sixth

Amendment right to effective assistance of

counsel, Strickland v. Washiagton, supra,

by Appellate Counsel's failure to raise on

direct appeal the state trial court's

denial of Petitioner's Motion for

Severance for the murder and _ robbery

charge. The issue was meritorious and

there was no strategic reason for not

raising the issue.

Petitioner was deprived of his Due

Process and Liberty Interest rights when

the state trial court’ disregarded

controlling Florida Supreme Court case law

and the mandate and law of the case

established by the State Appellate Court,

(and) resentenced Petitioner again to a

life sentence instead of the limited seven

‘7) to nine (9) year sentence prescribed

by the applicable’ state sentencing

guidelines.

+ memes wae eee oe +

ee et eee nee te ae ole ees

Petitioner's life sentence imposed on

resentencing violated the Ex Post Facto

and Due process Clauses of the’ Fifth and

Fourteenth Amendments, wherein the state

trial court relied on an aggravating

factor that was not approved by the State

Supreme Court until after the alleged

offense was committed.

iii

PARTIES

The Petitioner is Eston Bullard, Jr.,

a prisoner in the Florida Department of

Corrections prison systen.

‘The Respondents are Michael W. Moore,

Secretary of the Florida Department of

Corrections, and Robert A. Butterworth,

Attorney General of the State of Florida.

TABLE OF CONTENTS

PAGE

ISSUES PRESENTED......... uae as i-iii

edited (6085 Soe A yt iv

TABLE OF AUTHORITIES..............0-- vi-xi

cing BN SS i ccs 1-4

WL ICPION. « 5 cise oss eo etl coe 4-9

STATEMENT OF CASE...........eeeeeeeee 10-19

ISSUES PRESENTED.......0.eececeeeeees 20-49

ce CES ROI OO OTE Oe . .80

werieat108 a RS 50

TABLE 0F AUTHORITIES

Bailey v. State, 199 So.2d 726

(Pia. tet DCA 19GR. Ferree ee rk ees 20

Baker v. State, 466 So.2d 1144

(Fla. Dist. Ct. App. March 26, 1985)....47

Bastiste v. Blackburn, 786 F.2d 784

(Sth Cie, 1986) .5... 65600850585 i Fck ears

Bell v. State, 354 So.2d 1266

(Fla. 3rd DCA 1978)....... acepe sine haat .20

Bell v. State, 394 So.2d 979 rag

Pe EE a ok a ho 00 66 0d Oo ek Sa passin

Boute v. City of Columbia, 378 U.S. 347

oy ee re oh ae i, 26

Bullard v. State, 515 So.2d 1028

(Fla. Dist. Ct. App. 1987)...1,18,19,42,46

Bullard Vv. State, 529 So.2d 693

Cs ES 6 CN a cy chee wen eee Pale ek Ce ae oe oe 1

Bullard v. State; 559 So.2d 1140

OMS LT Be ee RS 2: Serene gare 1

Bullard v. State, 575 So.2d 656

[Pae. BAGt. CO. Bs See ks 00 ho ck EE ees 2

Bullard v. State, 600 So.2d 1105

[Pam BaRe< Chi Be AOE sk oe bas ha as 2

Bullard v. State, 603 So.2d 1278

(Paes DESt .: CE. Be Tepes 8 veka wes ove 2

sullard v. State, 613 So.2d 1 (Fla.1993).3

Bullard Vv. State, 626 So.2d 1367

Se Re) a 6 is 4 oo PAE OR eh eS Se:

Cohens v. State, 656 So.2d 525

CREO. DiSt: CES Bi. TIA ss Sak sees 49

Calder v. Bull, 3 U.S. 836 (1798)....1, 25

Coleman v. Thompson, 501 U.S. 722

RES 6. es eae eaREWACELS WORE RELS ES SEED? 5

Collin v. Youngblood, 497 U.S. 37

ty PORES Re EP oy ere a ee ee ree 26

Cummings v. Missouri, 71 U.S. 277

CRUE vis 6 os aaa seks Fe eb eee Oe eee Cees 25

Daniels v. State, 587 So.2d 460

iy 8 Bras oS re ep 22 Bay BOs Be

Dixon v. Thompson, 429 U.S. 1080

gy 8 PERO SOA E PD EER UE ES PERE LTO EE 8

Duncan v. Missouri, 152 U.S. 377

GEO ia inais wre papewne ne sage Ste tieag eves 26

Estelle v. McGuire, 502 U.S. 62

BL, 2 erm Rear ahaa eee ge ces Oks oes ar

Evitts v. Lucy, 469 U.S. 387 (1985)..... 39

Ex parte Peru, 318 U.S. 578 (1943)....... 8

Ex parte Abernathy, 320 U.S. 219 (1943)..8

Ex parte Tracy, 249 U.S. 551 (1919)...... 8

Gut v. State, 76 U.S. 35 (1870)........-.- 26

Hall v. State, 505 So.2d 657

(Fla. 2nd DCA 1987).......... Re eee ees: 28

Harris v. Welson, 394 U.S. 286, 290-91

2) SAS pre rarer Tee Re te S 7,9

vii

Harris v. State, 526 So.2d 689

(Fla. 3d DCA 1989)..... ae Ue ee as gh ge 42

Hayes v. State, 526 So.2d 167 |

(Fla. lst DCA 1906) « ois. ic cciee vwasec ce ns 43

Haynes v. Butler, 825 F.2d 923

(Sth Git. 3909)... ss ccc 46

Heath v.Jores, 941 F.2d 1126, 1132

(RARE ROWED be scesoseeevive tneeast im 39 -

Herring v. Estelle, 491 F. 2d 125

Ce. ees a 0b 00 oa} oS ee be he ee oe 30

Hicks v. Oklahoma, 447 U.S. 343 (1980)..46

In Re Winship, 397 U.S. 358, 364

CEOTS) tre vos BOOS s 6s RenOUEE LULA ae 36

Kring v. Missouri, 107 U.S. 221 (1883)..26

Lockhart v. Fretwell, 506 U.S. 364

Gi, : 3 Peer kero bers rer ee i,.32, 34, 38

Mallet v. North Carolina, 181 U.S. 589

CEOGE D oc-s 0 a cine Oo 04W ess aes eeenees 26

Malloy v. South Carolina, 237 U.S. 180

oy 4] Peerage rare we rr Oe ae Ph ay 26

Marks Vv. United States, 430 U.S. 188

(1977).. 6 8 4-0-8 eee eee eee eer er eeene 26, 48

icthews v. United States, 485 U.S. 58

+: ees eee ec eweuee wha 44, $2.

Mayo v. Henderson, 13 F.3d 528

(28 OLE. 3994) 666i ence eee eens 39

ee ee

—

Morganti v. State, 498 So.2d 557

oo BL” | A ene oe eres |

Morganti v.: State, 524°So.2d 641, 642

bg 3G) | Rae oe ere ee 44, 45

Miller v. Florida, 482 U.S. 423 (1987)..49

Minnesota ex rel . fearson v. Probate

Court, 309 U.S. 507, 514, 68 S.Ct. 665,

669, 92 L.Ed. 744: (1940). SP Pee et ee 23

Montsdoca v. State, 84 Fla. 82, 93 So. 157

WIE Sa i oo has hh cos Ra Eb wr ,20

Nix v. Whiteside, 475 U.S. 157 (1986).

Panzavecchia v. Wainwright, 658 F.2d 337

(5th Cir. 1981)............ ae ew eee ees 41

Paul v. State, 385 So.2d 1371

oo Met |, SER re poe pared ee tree 39

Patterson v. State, 513 So.2d 1263

CRM ROPE CEN Ci ves CKOW oe CER ER o Coc ck 49

Patterson v. Florida, 482 U.S. 924

POT Pe Celia sé ehOrs Ere eR 49

Pope v. State, 561 So. 2d 554

CPEs BOOUE bow VE EWN Cenle Ol ree ee ee. 49

Pratter v. Maggio, 686 F.2d 346

CG as eS 5 4% Ca oko We ne coo wee e's 46

Ricalday v. Procunter, 736 F.2d 203, 207

Cae 5 RD 65 6 ie oR we ee 29

Schact v. Gaited States, 398 U.S. 58

(1961). TES Lot Perens cea Seer eS Soo 5

Shull v. “Waseseahens =~ (So. 20:48 >. 2 toe Ss

(Fla. 1987.).. Pee yee 143% 44

State ws Baker, 483 So.2d: 423 - uct ath

(Fla. ‘February .6, 1986).........4 tk +s ae

State‘ % >Duninman,.427 So.2d: 166.

(1983) . (eee naehe is ta cneas -21, 22, a4, 28, 47

State Vv. Gray, “435 ‘So. ba 816 te

CRUE bc bcd cee 6: eo otras 6 ok tt Ss pee eee 28

Stewart v. State,‘ 420 50.24 862

CRIES « 66h we Od Sees oe hbk ees 21, 24; 28

Strickland'v. ‘Washington, 104 S.Ct. 2052

PRET 6 kde eae 4, 2d. 2c. By SOs eee

United States v. Brown, 479 F.2d 1170,

1173 (2d Cir. 1973)..... eee eeees betes 40

United States v. Hayman, 342 U.S. 205

bo. >} ee peseseceees ee eeeeeeseees 5

United States v. Hudson, 564 F.2d 1377

tie Bs te og» Pee Bene e eee eees 38

United States v. Mazurze, 415 U.S. 947

(19739) ccc ccsecscccvnceses Soo 5

Vaugh v. State, 460 So.2d 505

(Fla. 3rd DCA 1984)... eee Pre Tero Tee 28

Wainwright v. Stone, 94 §.Ct. 190

(1973) ......eeeeeeessdy 23, 24, 25, 31, 33

William v. Taylor, Slip No. 98-8384

(April 18, 2000)... .. cc eeeeeceeeeeseees 32

Winters v. New York, 333 U.S. 507, 514,

68 S.Ct. 665, 669 92 L.Ed. 840 (1948)...23

atte —-

Wyche v. State, 576 So.2d 884

Sak BOE. BEA SORES oi has a vee Pie ea ee 43

Yates v. Evatt, 500 U.S. 391 (1991)..34,37

CONSTITUTIONAL PROVISIONS

Fifth Amendment............. ees ey ee

Sixth Amendment............ ke oe

Fourteenth Aatndoent. ate ii, iii,? ,36,39, 48

Article I §10...... i eiwik suseas So ey oe 49

STATUTES AND RULES

BP ies BEORE: Shacas Sao, fi daa. Soc. 6

vo oak hb eet Lad ccs 8,9

SRD EO, SUBS eds oisinaas i cek cece: 4

EEG. MON ie ss che ths eccoa wks 3,4,5,6

Os a Cais 5b Oe ek} a 60a ae ke 49

Chapter 77-342, Laws of Florida..... 2i., 22

Chapter 92-155, Laws of Florida......... 22

Florida Rules of Criminal Procedure

pS ONES ORE gt SER Rea area ean Saran as 18

Florida Rules of Criminal Procedure

Bre Ba Maas be 6 kG Re ERR ES RA 39

Florida Rule or Criminal Procedure

BRT SS RE ak a MAC Kis ce CHE s CRS 2

Florida Rule of Criminal Procedure |

PS ae ee eee ee res ee ee 17

Florida Standard Jury Instructions in

Criminal Cases, 543 So.2d 1205, 1215

(CREB) sine Seds cave cdk kee orerees 555 16,22

FPiloOriae StAEGLe O° TTS GOR so. Bris CRS 17

Florida Statute §. $12.13

(ERTS) sic vik va saSeks unas sa cee 20,21,22,24

Florida Statute § 812,014......:....... 21

Florida Statute § 813.011 (1973)....... 20

Fla. R. Prof. R. 4-12(a), 4-1.4.......0.. 41

Florida Constitution,

Artiezeae FS fF US) o6.655 ho eA ee iw lees 48

United States Supreme Court

Po. RES } Pen errs ang Sry Gon y meng, 4 Urano 4

United States Supreme Court :

MUSOR SD B's 00 vn cece ee ween eee 5

<= -

PROCEEDINGS AND DISPOSITIONS BELOW

On March 14, 1986, the Circuit Court,

Fourth Judicial Circuit for Duval County,

Florida, after a jury verdict, adjudicated

Petitioner guilty of armed robbery and on

July 8 sentenced Appellaut to life in

prison. The Petitioner ‘sas found not

guilty of First Degree Murder.

The Florida District Court of Appeal,

First District, affirmed Petitioner's

judgment but remanded his cease for

resentencing. #fullard v.: State, 515 So.2d

1028 (Fla:- Dist. Ct. ‘App. 1987) cert.

denied, Bullard v. State,. 529 So.2d 693

(Fla.1988).

The Petitioner was resentenced to

life on March 3, 1989 by the trial court

and timely filed an appeal. The Florida

District Court of Appeal, First District

affirmed the Petitioner's life sentence by

its per curiam opinion dated April 12,

1990. Bullard v. State, 559 So.2d 1140

(Fla. Dist. Ct. App. 1990).

- Petitioner also filed: a Petition for

Writ of Habeas Corpus seeking a belated

appeal in the Florida District Court of

Appeal, First District which was denied by

an unreported per curiam opinion issued

October 17, 1989.

The Petitioner then filed a Motion

for Postconviction relief in the State

trial court which was denied by its order

dated August 2, 1990. The Petitioner

filed a direct appeal of that order which

was denied by Florida District Court of

Appeal, First District by its per curiam

opinion dated March 5, 1991. Sullard v.

State, 575 So.2d 656 (Fla. Dist, Ct. App.

1991). : |

The Petitioner next filed a Petition

for Writ of habeas Corpus in the Florida

Supreme Court which was denied: by per

curiam opinion dated May 29, 1981.

Bullard v. State, 575 So.2d 656

(Fla.1991). Petitioner then sought relief

in the trial court via a petition for Writ

of habeas Corpus which was denied by the

trial court's order dated September 12,

1991. The Petitioner appealed that order

to Florida District Court of Appeal, First

district. The appellate court affirmed

the trial court's order denying habeas

relief by its per curiam opinion. See

Bullard v. State, 603 So.2d 1278 (Fla.

Dist. Ct. App. 1992).

The Petitioner again sought relief in

the trial court by filing a second Motion

for Postconviction Relief which the trial

court denied by its order dated November

12, 1991. Once again the Petitioner filed

a direct appeal of that order to the

Florida District Court of Appeal, First ;

District. The appellate court affirmed

the trial court's order by its per curiam

opinion issued June 3, 1992. S#ullard v.

wee 600 So.2d 1105 (Fla. Dist. Ct. App.

1992).

The Petitioner then filed a Habeas

Corpus Petition in the Florida District

Court of Appeal, First District in case

number ' 92-3073 which was denied by an

unreported court order entered September

30, 1992. '

The Hebitiamue again veteraed to the

Florida Supreme Court by filing a petition

for Writ of habeas Corpus which was denied

by its per curiam opinion dated February

16, 1993. Sullard v. State, 613 So.2d 1

(Fla.1993). Last, Petitioner sought

relief in the Florida Supreme Court by

filing a Petition for Writ of Habeas

Corpus which the court denied by its per

curiam opinion dated December 8, 1993.

Bullard v. State, 626 So.2d 1367

(Fla.1993). | 7

Petitioner filed a petition for writ

of habeas corpus pursuant to 28 U.S.C.

§2254. An evidentiary hearing was held on

February 13, 1997, and on June 5, 1997 the

Magistrate issued a Report and

Recommendation recommending the petition

be denied. (R2-43).

Petitioner timely filed objections to

the Report and Recommendation.

On October 14, 1997 the District

Court judge adopted tthe Report and

Recommendation in its entirety and denied

the petition for writ of habeas corpus.

On November 4, 1997 Petitioner filed

a notice of appeal. (R2-53). Appellant's

motion for certificate of probable cause

to appeal was filed with the District

Court on November 26, 1997. The State did

not appeal or cross-appeal.

On December 12, 1997 the District

Court summarily granted Petitioner's

motion for a certificate of probable cause

I Petitioner will cite the record

as submitted to the Eleventh Circuit

Court of Appeals.

to appeal. (R2-55). Petitioner is

presently incarcerated at Union

Correctional Institution, Raiford,

Florida.

The order of the Eleventh Circuit in

the underlying cause is set out in

Appendix A to this petition. The order of

the Middle District Court of Florida is

set out in Appendix B to this petition.

The report and recommendation of the

federal magistrate judge is set out in

Appendix C to this petition. The decision

of the Florida First District Court of

Appeal is set out in Appendix D to this

petition.

Petitioner retained attorney John D.

Middleton (hereinafter "counsel"), who

filed a Petition for Writ of Certiorari in

this Court on April 15, 1999, from the

denial of a habeas corpus appeal (28 USC

§2254) in the United States Court of

Appeals for the Eleventh Circuit. On June

28, 1999, the Clerk of this Court refused

to accept the Petition for filing because

it was not filed within the required 90-

day time limit for civil cases. (Supp.

Appendix A - Clerk's Letter)

Counsel takes full:responsibility for

his failure to make a timely. filing for

Certiorari in this Court. (Supp. Appendix

B - Affidavit of John D. Middleton, Esq.).

JURISDICTION

This Court has jurisdiction pursuant

to 28 U.S.C. §1651, pursuant -to an

application for an original writ of habeas

corpus. Supreme Court Rule 20(4) (a)

As set forth above, Petitioner

retained a private attorney to file

timely Petition for Writ of Certiorari in

this Honorable Court, and counsel,

admittedly, failed to make a timely filing

as set forth in Rule 13.1 of this Court.

In criminal appeals, this Court has

long held that the 90-day time limit can

be extended for good cause, such as

counsel's failure’ to make a timely filing,

holding that the Sixth Amendment right to

effective assistance is applicable in such

circumstances. Schact v. United States,

398 U.S. 58 (1961); Mmrted States v.

Mazurie, 415 U.S. 947 (1973).

However, postconviction proceedings

under 28 U.S.C. 2254 have been deemed

"civil" in nature, even though they are

extensions of the criminal process, and

are therefore, for purposes of filing time

requirements, subject to the 90-day limit

for all civil cases. United States v.

Hayman, 342 U.S. 205 (1952). As such,

this Court has held that there is no Sixth

Amendment right to an attorney in state

postconviction proceedings because they

are "civil" in nature. With no right to

counsel, naturally there can be no claims

of a denial of effective assistance under

the Sixth Amendment. Coleman v. Thompson,

501 U.S. 722 (1991).

Clearly, Petitioner's case is the

result of habeas corpus proceedings under

a Rule 13.1 prescribes that a

Petition for a Writ of Certiorari be

filed within 90-days of the lower

tribunal's decision.

28 U.S.C. $2254, and under existing case

law Petitioner cannot claim ineffective

assistance under the Sixth Amendment, even

though counsel has readily admitted he

rendered ineffective assistance in failing

to make a timely filing for Certiorari.

But in the ends of § justice,

Petitioner submits, requires that some

relief be provided in a case such as this,

where a defendant, who relies exclusively

on the promises and due diligence of his

privately retained attorney, and through

no fault of his own, is deprived of his

substantive due process right to petition

the nations highest court for review of

non-frivolous issues showing his innocence

and illegal detention.

Certainly, if a defendant can prove

that he was improperly convicted - as

Petitioner contends the facts and law

clearly indicate in this case - he should

be set free. Therefore, if a defendant is

denied the opportunity to offer such proof

because of malpractice of his attorney,

fundamental due process requires that he

have a remedy that will address his future

incarceration. Thus, even though a

defendant does not necessarily have a

Sixth Amendment right to counsel in

postconviction proceedings, if he chooses

to retain an attorney, or even if an

attorney is appointed, a defendant should

be able to rely on such counsel's ability

to at least make required timely filings.

Therefore, Petittoner~-respectfully

submits that he had a clearly established

substantive due process right, pursuant to

28 U.S.C. $1291, to petition this Court

for review; however, that right was

ee 8 ee

effectively waived and/or thwarted by the

admitted malpractice of retained counsel.

Counsel's deficient performance has thus

denied Petitioner his right to meaningful

access to the. judicial process, a right

Petitioner claims is his under the Fifth

and Fourteenth Amendments. Accordingly,

if Petitioner is denied the right to

attack a presumably invalid conviction in

this Court because of counsel's admitted

error, then Petitioner has been denied his

right to due process.

As this Court has long held, "the

writ of habeas corpus is: the fundamental

instrument for safe-guarding individual

freedom against arbitrary and lawless

state action." AHarris v. Nelson, 394 U.S.

286, 290-91 (1969).

The scope and flexibility of the writ

- its capacity to reach all manner of

illegal detention - its ability to

cut through barriers of form and

procedural mazes - have always been

emphasized and jealously guarded by

courts. and lawmakers. The very

nature of the writ demands that it be

Id., 291.

The All Writ Act provides:

The Supreme Court .. . may issue all

writs necessary or appropriate in aid

of [its] . . . jurisdiction [] and

agreeable to the usages and

principles of law.

28 U.S.C. §$1651(a).

| In considering a petition for an

Original writ of habeas corpus, this Court

has set forth the following requirements:

(1) that the writ will be in aid of

the Court's appellate jurisdiction;

(2) that there are exceptional

circumstances warranting the exercise

of the Court's discretionary powers;

and

(3) that no adequate relief can be

obtained in any other form or from

any other court.

See: Dixon v. Thompson, 429 U.S. 1080

(1977); Mr parte Pere: 348° 08. 578:

(1943); 4x parte Abernathy, 320 U.S. 219

(1943); 2 parte Tracy, 249 U.8.- 551

(1919).

As set forth above, Petitioner

presents to this Court fully exhausted

issues of clear constitutional magnitude

which show that Petitioner's incarceration

is illegal. Because Petitioner alleges

the issues have been improperly decided by

a- federal appellate court, and within this

Court resides the only review of federal

appellate court decisions, and because

review of these issues by this Court has

been denied by Petitioner's counsel's

admitted failure to timely file a petition

for writ of certiorari, the only

jurisdiction available to allow this Court

to exercise its discretionary review is an

original writ of habeas corpus under 28

U.85.€.: $1652:

Exceptional circumstances exist in

that Petitioner has been denied his

substantive due process right to this

Court's discretionary review of the issues

presented, which Petitioner alleges were

improperly decided by the lower federal

court. As this Court noted in Harris,

Supra, a “petitioner, being' in custody, is

usually handicapped" and, as_ such,

Petitioner in this case relied completely

on the due diligence of: his retained

counsel to make a timely filing for

certiorari, which counsel failed to do.

Accordingly, because "[t]here is no

higher duty of a court, under our

constitutional system, than the careful

Processing and adjudication of petitions

for writs of habeas corpus" to prevent a

person's unlawful confinement, an

attorney's admitted failure to make a

required timely filing in this case

amounts to exceptional circumstances that

warrant this Court's discretionary review

under an original writ of habeas corpus.

Harris, at 292.

Lastly, and as set forth above,

Petitioner has fully and diligently ,

exhausted all his state and federal

remedies on the issues presented, and

within this Court resides. the only

jurisdiction to review the allegedly

erroneous decisions of a federal appellate

court. Therefore, if the issues presented

are to be reviewed, this: Court must

exercise its discretionary review under 28

U.S.C. §1651 in the form of an original

habeas corpus petition.

STATEMENT OF CASE

(a). The Underlying Charges:

Petitioner was initially charged by

information with Second Degree Murder of

Thomas Etheridge and Aggravated Assault

upon police officer C.E. Williams, both

offenses allegedly committed on July 15,

1985. (R1-12-1-4). The Information was

supplanted with grand jury indictments

charging Petitioner with First Degree

Murder and Aggravated Assault. (R1-12-1-

13,332: Finally, by third indictment,

Petitioner was charged with First Degree

Murder of Thomas Etheridge and Armed

Robbery of Officer Williams by taking her

police car. R1-12-1-31,32).

On July 15, 1985 around 2:45 a.m., a

drinking party was still in progress. All

the party members were drinking heavily,

including Petitioner. Petitioner was

having problems with James Etheridge who

ultimately pointed a gun at him and a

struggle ensued. During the struggle the

gun discharged killing Tommy Etheridge,

James Etheridge's brother. (R1-12-XI-900,

911, 949, 950).

The jury acquitted Petitioner on the

murder charge. (R1-12-XI-1027).

After the shooting accident,

Petitioner waited for the police to

arrive, which was around 3:00 a.m. Officer

Ritchey was the first officer to arrive.

Many of the party members had already

departed or was attempting to depart

except Petitioner.

Defense counsel questioning Officer

Ritchey:

Q. And they were scattered in every

direction?

A. Yes sir.

Q. Except for Mr. Bullard, who came

walking right up to you?

A. You sir.

Q. Okay, and I assume at that point in

time your revolver, you pulled your

service revolver, did you not, sir?

A. Yes sir.

Q. And you asked this man where "Junior"

was?

A. Right.

Q. And he said inside.

A. He pointed inside, said "Junior" was

still inside.

Q.° Okay. And I think you hed ded@iceted

that he had cut-off jeans and no shirt?

A. ‘Yes sic.

Q. Okay. So you didn't see any sign of a

weapon?

A. No sir.

(R1-12-VII-485, 486).

790: Based-pporn-Officer Ritehey' s, actions

- gun drawn etc etc: and Petitioner: s-

state of intoxication etc: Petitioner lied

to: Officer :Ritchey,- and:told. -him--he was

inside and left the scene on foot.,, -.-.

Around 4:10 a.m., some two miles: from

the shooting scene, female Officer Cc.

Williams -was. driving west-..on Trout -River

Boulevard and came upon.,Retitigqner who .was

walking west, “which was back. toward the

scene of the shooting. She did not: know

if he was a_ suspect. Petitioner was

wearing -no-.shoes, no shirt,,.and cut off

jeans... Officer.,Williams .drove 7 to 10

feet up. . behind, Petitioner,. and he

automatically turned to come toward her.

She thought Petitioner had something in

his hand, but she never saw anything, nor

did-she see him throw anything away. She

told Petitioner to get his hands up, and

he did not respond, but she wasn't sure he

heard her because she was sitting: in her

car. She pulled her revolver because

Petitioner did not put. his hands up,

therefore when Petitioner approached her

sitting in her.car he was looking down the

barrel of her 38. caliber revolver, and

out of fear moved out of harms way.

Defense. counsel questioning Officer

Williams:

Q. He walked by you and the driver's

side? . : ee

A. He rushed by me.

Q. Did he run?

A. No, he rushed by me. When I had ay

gun he probably thought I was going to

— =

shoot him, so he rushed by me.

Q. Did you point the gun at him?

A. As he was walking towards me, yes.

Q. Did he ever say anything to you at

this point in time? |

A. When he walked past me to the rear of

my car, I jumped out of the car with my

service revolver pulled. He said, "I

don't have anything, I don't have

anything." And he had his hands up then.

Obviously Petitioner did not hear

Officer Williams tell him to get his hands

up when approaching her.

In fact Petitioner was not armed. At

this point in time Officer Williams

admitted ‘that she was: so close to

Petitioner that she could have touched him

with her hand, and that she had her right

hand extended toward Petitioner with her

gun in normal firing position, waist

level, and that Petitioner grabbed her

wrist and put his thumb in the trigger so

she couldn't pull it to shoot him, took

her gun, ‘she said he pointed at her,

turned from her and got in her patrol car,

which had been left with the door open and

with the keys in it by Officer Williams,

and drove off with the only’ thing

Petitioner ever saying is. "I don't have

anything, I don't have anything." (RI-12-

120-127) (RI-12-VII-512, 518.)..

Around 4:20 a.m., with darkness still

complete, Officer Dover observed a

Jacksonville police car on U.S. 1 in

Nassau County near the Duval-Nassau County

line, he turned around and began following

a2. The car's driver turned off on a

public road and abandoned the car, leaving

the keys in it, before Officer Dover

arrived at the point where the car was

left. (RI-12-VII-522 through 525). The

suspect's car had been traveling

approximately 70 miles per hour. At no

time did Officer Dover turn on his blue

lights, flash his bright lights or make

any indication that he was a police

officer and wanted the driver of the car

to stop. He immediately called for back=

up which took approximately thirty minutes

to arrive. (RI-12-VIII-531, 532).

Oe Captain Misler of the Nassau County

Sheriff's Office arrived with his tracking

dog at the abandoned car between 4:30 to

4:45 a.m... The dog was put on the trail

between 4:45 and _ 5:00 a.m.. At

approximately 6:00 a.m. Petitioner was

spotted sitting in a truck at’ the

residence of Alton Conner. (RI-12-VIII- |

536, 539, 541).

Petitioner had knocked on Mr. Alton's

door and said something about "trouble."

Mr. Alton's neighbor had called the police

and Mr. Alton advised Petitioner that the

police had been called. Petitioner waited

for the police who arrived some fifteen

Minutes later and arrested Petitioner i

ear incident. (RI-12-VIII-542, 719- 4

720).

The facts show, before and after the

taking of the car, that Petitioner did not

have the required specific intent to rob

or the required specific intent to

permanently deprive the officer of her

car. Petitioner submits that he is

factually and legally innocent of the

crime of armed robbery.

b. The trial and defense counsel.

Attorney Randy Fallin was retained by

Petitioner to represent him as_ lead

counsel in the capital murder case.

Petitioner also hired attorney Baya

Harrison as “second chair" to work on the

death penalty issues and to help with

motions. Prior to trial Petitioner's

counsel filed a Notice of Insanity Defense

to the armed robbery charge. The defense

was not pursued when the trial court

denied Petitioner's Motion for Separate

Trials and Severance of Offenses.

Attorney Fallin filed a Motion for

Separate Trials and Severance of Offenses

because the elements of the offenses were

different; they occurred at different

times and places, and there were different

defenses to the two charges. Mr. Fallin

did not want Petitioner's prior criminal

record to come out in the murder case;

therefore, he did not pursue the insanity

defense based upon Petitioner's condition

the night of the incident. According to

Fallin, to pursue the insanity defense in

the robbery charge would require

Petitioner to take the stand which would

have been prejudicial in the murder case.

Additionally, there were alleged other

uncharged criminal offenses surrounding

the homicide, but which had no bearing on

the subsequent stolen police car incident.

The trial court initially granted the

severance motion from the bench, but in a

later written order the court denied the

motion without explanation for the change

in ruling.

The trial court held a preliminary

jury charge conference as both charged

offenses progressed to trial. At the

preliminary jury charge conference the

trial judge read the then Florida Standard

Jury Instruction defining robbery to the

prosecution and defense counsel.

Gentleman, this is the way the.

robbery will go. Before you can find

the defendant guilty of robbery, the

State must prove the following four

elements beyond a reasonable doubt:

number one, that the defendant took

the motor vehicle from the person or

custody of C.E. Williams; two, that

the taking was by force, violence,

assault, or by putting C.E. Williams

in fear; three, the property taken

was of some value; four, that the

defendant took the property from C.E.

Williams and at the time of the

taking intended to permanently

deprive C.E. Williams of the

property, to-wit: the motor vehicle.

eee

At the actual jury charge conference

the trial court added the words

"temporarily or" before the word

"permanently" as a fourth’ element,

altering the Florida Standard Jury

Instruction on robbery. Neither the

prosecution or defense counsel noticed the

judge had changed the robbery instruction.

The trial judge did not comply with

Florida Rule of Criminal Procedure 3.985

which required the judge to announce on

the record or in a separate written order

why the standard instruction was

"erroneous or inadequate and the legal

itil oa

basis of the judge's findings."

The judge also instructed the jury at

trial with the same non-standard jury

instruction without a contemporaneous

objection from defense counsel.

The jury found Petitioner innocent of

Count I, the murder charge, but found

Petitioner guilty on Count.II, the armed

robbery charge.

Attorney Fallin filed a Motion for

New Trial based in part on the giving of

an erroneous jury instruction then arguing

Petitioner did not have the requisite

intent to permanently deprive required in

robbery and the denial of the pre-trial

Motion for Severance. At oral argument on

the motion, Mr. Fallin acknowledged that

the erroneous jury instruction "got by me

. . + ." The motion for new trial was

denied.

At sentencing, Petitioner was found

to be a habitual offender and was given a

life sentence pursuant to Florida Statute

Section 775.084. Petitioner was found

indigent and appointed the Public Defender

for his direct appeal. Petitioner wrote

nine letters to the Public Defender

Michael Allen or Assistant Public Defender

P. Douglas Brinkmeyer which were never

responded to. As early as January 15,

1987, prior to the Initial Brief being

filed, Petitioner requested that his

appellate attorney raise the motion for

severance issue and jury instruction

issue. The Initial Brief served on

February 7, 1987 raised the following as

appellate points:

ISSUE I

THE LOWER COURT ERRED IN FINDING

APPELLANT TO BE A HABITUAL OFFENDER

AND IN USING HABITUAL OFFENDER STATUS

AS THE REASON FOR DEPARTURE FROM THE

RECOMMENDED GUIDELINES RANGE OF 12-17

YEARS. 3

ISSUE II

THE COURT'S INSTRUCTION ON THE INTENT

ELEMENT OF ROBBERY CONSTITUTED

FUNDAMENTAL ERROR AND A DENIAL OF DUE

PROCESS, DENYING THE DEFENDANT A FAIR

TRIAL ON THE ARMED ROBBERY CHARGE.

Appellate counsel did not raise the

trial court's denial of the severance

motion because, in his opinion, trial

counsel must renew a denied written pre-

trial motion for severance before or

during the trial in order for it to be

properly preserved for appeal. At the

hearing, appellate counsel could not cite

any case supporting this proposition.

Florida Rules of Criminal Procedure 3.153

requires a defendant's motion _for

severance be made before trial unless

there are reasons that it could not be

made before trial. The right to file such

motion is waived if it is not timely made.

Appellate counsel raised the jury

instruction as fundamental error because

trial counsel failed to contemporaneously

object to the non-standard jury

instruction on robbery. In #ullard v.

State, 515 So.2d 1028 (Fla. Dist. Ct. App.

1987), the Florida appellate court held

that the erroneous jury instruction was

ee ee ee

not fundamental error because, "There was

evidence that appellant did not abandon

the stolen car until hours after it was

stolen and only when a deputy sheriff in

another county began - following hin.

Appellant was obviously not: out for a joy

ride." Bullard, 515 So.2d at 1030.

The Florida appellate court, however,

erred when it concluded Petitioner had

possession of the police vehicle. for

hours; Petitioner was in the car

approximately 10 to 15 minutes. The State

finally admitted this error on appeal

before the Eleventh: Circuit: "First, we

agree that the First District Court of

Appeal misspoke when, in fullard v. State,

515 So.2d 1028 (Fla. ist DCA 1987), it

stated that Bullard had the stolen ear for

‘hours'". (State's Answer Brief at 8).

The State Court of Appeal, therefore,

would have overturned Petitioner's

conviction based on the jury instruction

but for its erroneous fact-finding. The

appellate court did overturn Petitioner's

life sentence finding that it was error

for the trial court to exceed _ the

guidelines based upon Petitioner's status

as a habitual offender. Bullard, 515

So.2d at 1029.

On resentencing, again the trial

court sentenced Petitioner to life without

parole. The guidelines sentence was

stipulated by the prosecution to be seven

to nine years at resentencing. The trial

court's departure from - Florida's

sentencing guidelines was based on the

fact that a police officer was the victim

of the robbery.

ISSUES PRESENTED

ISSUE 1:

THE PETITIONER WAS DENIED EFFECTIVE .

ASSISTANCE OF TRIAL COUNSEL

(a). History of Interpretation of

Florida Robbery Statute ad the Supreme

Court of Florida:

At common law and under the former

robbery statute, Section 813.011, F.S.

(1973) and its predecessor, an intent to

"permanently deprive" the owner of his

property was an essential element of the

offense. Montsdoca v. State, 84 Fla. 82,

93 So. 157 (1922); Bartley v. State, 199

So.2d 726 (Fla. 1st DCA 1967).

In 1975, the Florida Legislature

enacted Section 812.13, F.S., and in so

doing omitted the "felonious" taking from

the new statute.

In Bell v. State, 354 So.2d 1266

(Fla. 3rd DCA 1978), a Florida Appellate

Court determined that the new robbery

statute had done away with the element of

specific intent to permanently deprive.

However, the appellate court certified the

following question to. the State Supreme

Court:

Whether specific intent (i.e. the

intent to permanently deprive the

owner of property) is still a

requisite element of the crime of

robbery as now defined by Section

812.13, Florida Statutes (1975).

(emphasis added) |

Id. pg. 1267

In Bell v. State, 394 §So0.2d 979

(1981), the Supreme Court of Florida

answered that certified question in the

"affirmative," and held that the specific

intent to "permanently deprive" an owner

of property was still an element of the

crime of robbery in Florida.

In Stewart'v. State, 420 So.2d 862

(1982) the state Supreme Court reaffirmed

Bell, again stating that permanent

deprivation was a requisite element of

robbery.

In State v. Dunnman, 427 So.2d 166

(1983), the state Supreme Court,

responding to a clarification of Chapter

77-342, Laws of Florida, held that the

intent to “temporarily" or "permanently"

deprive an owner of property was 4a

required element of theft. (Section

812.014, F.S.) However, the Court again

reaffirmed Zel7, stating: —

While section 812.13 (Robbery) deals

with a similar subject, we do not

h cha 77-342

impact on [section 812.13]. e the

same token section 812.13 has no

impact on the sections involved in

this opinion. Therefore, we find

Vv fe) f i a

case. (emphasis added)

Id., 427 So.2d 169.

In State v. Gray, 435 So.2d 816

(1983), again reaffirmed Sell on the

element of permanent deprivation. —

To further demonstrate’ the _ state

Supreme Court's adherence to Sell, the

Florida Standard Jury Instructions in

Criminal Cases, 543 So.2d 1205, 1215

(1989), added the following to the jury

instruction for robbery (Section 812.13,

ee ae

4. The taking was with the intent to

permanently [deprive] (victim) of

property or any benefit from it.

Subsequently, the state Supreme Court

revisited this issue in Daniels v. State,

587 So.2d 460 (1991), and reversed its

position in Dunnman, supra, and held that

Chapter 77-342 did impact Section 812.13

(Robbery), and that the intent to

"temporarily" or "permanently" deprive

were required elements for robbery. In so

doing, the Court did not over turn Sel,

it merely "receded" from its previous

decision therein.

Accordingly, from at least 1922 until

1991, when Janziels was announced, the

specific intent to "permanently deprive"

an owner of property was a required

element of the crime of robbery in the

State of Florida.

As the state Supreme Court stated in

Daniels, “[t]he requirement of permanent

deprivation:. . . has never been a

statutory element of larceny or robbery."

Id. 587 So.2d 462. Of course, neither

"temporary" nor “permanent” deprivation

actually appeared as words in the statute

to include both those elements. See

Chapter 92-155, F.S., effective October l,

1992.

Therefore, until the aforementioned

legislative change in the robbery statute,

Beli and its progeny requiring "permanent"

deprivation as a requisite element of

robbery was the judicial interpretation of

the Florida robbery statute by the highest

court in the State.

(6b) United States Supreme Court Law —.

as it Applies to the Supreme Court of .

Florida's Interpretation of the Robbery

Statute;

In Watnwright v. Stone, 94 S.Ct. 190

(1973), this Court reversed the federal

court of appeals and held thats,

For the purpose of determining

whether a state statute is too vague

and indefinite to constitute valid

legislation "we must take the statute

as though it read precisely as the

e fe) the a has .

interpreted it." Minnesota ex rel.

Pearson v. Probate Court, 309 U.S.

507, 514, 68 S.Ct. 665, 669, 92 L.Ed.

744 (1940). When a state statute has

been construed to forbid identifiable

conduct so that "interpretation by

the sta ourt uts words in

the a as definit ae if 3

had been _so a d b e

legislature," claims of impermissible

vagueness must be judged in that

light. Winters v. New York, 333 U.S.

507, 514, 68 S.Ct. 665, 669 92 L.Ed.

840 (1948) (Emphasis added)

Id., at 94 §.Ct. 192.

In 1985 when the alleged robbery

offense occurred, the Robbery statute read

as follows:

812.13 Robbery |

(1) "Robbery" means the taking of

money or other property which may be

the subject of larceny from _ the

person or custody of another by

force, violence, assault, or putting

in fear.

It is obvious from reading the above

robbery statute that nothing in the

statute specifically refers to either

"permanent" or "temporary" deprival of

property. However, in interpreting that

statute, the State Supreme Court made

"permanent" deprivation a required element

of Robbery "as definitely as if it had

been so amended by the [state]

legislature." Jd., Stone, 94 §.Ct. 192.

See Bell v. State, Stewart v. State, State

v. Dunnman and State v. Gray, Supra.

Accordingly, -"“permanent" deprivation

was an essential, required element of the

crime of Robbery in the State of Florida

until the State Supreme Court -

reinterpreted that statute in JDanzels,

supra, (1991), naking "temporary"

deprivation also a required element.

The petitioner in Wainwright v. Stone

argued that a subsequent interpretation of

a state statute by the Supreme Court of

Florida, which was favorable to

the Robbery statute to include

"temporary" deprivation, effective

“October 1, 1992.

‘| The State legislature amended i

petitioner's position, should be

retroactively applied.

However, this Court held that:

The State Supreme Court did not over-

rule Jelaney with respect to pre-

Franklin convictions. Nor was it

constitutionally compelled to do so

or to make retroactive its new

construction of the Florida Statute:

"A state in defining the limits of

adherence to precedent may make a

choice’ for itself between the

principle of forward operation and

that of relation backward. It may

say that decisions of its highest

court, though later overruled, are

law none the less for intermediate

transaction." (citation omitted)

Stone, 92 §.Ct. 193.

The Supreme Court of Florida did not

make its decision in JDanzels, supra,

retroactive, nor could it have done so

without running afoul of both the state

and federal constitutional prohibitions

against criminalizing conduct after the

act was committed. The &x Post Facto

clause of both the State of Florida and

the United States Constitutions prohibit

retroactive application of Danzels. This

Court has long held that a change in the

standard of proof, so as to require less

proof than the law required at the time of

the commission of an offense, in order to

convict the accused, amounts to an ex post

facto violation within constitutional

prohibition. Calder v: Bull, 3 U.S. 836

(1798); Cummings v. Missouri, 71 U.S. 277

(1867); Gut v. State, 76 U.S. 35 (1870);

Kring v. Missourz, 107 U.S. 221 (1883);

Duncan v. Missouri, 152 U.S. 377 (1894);

Mallet v. North Carolina, 181 U.S. 589

(1901); Malloy v. South Carolina, 237 U.S.

180 (1915); Collin v. Youngblood, 497 U.S.

37 (1990).

Likewise, the Due Process Clause

would forbid the retroactive application

of Danzels in applying a jury instruction

for Robbery that -included an intent to

"temporarily" deprive. #oure v. City of

Columbia, 378 U.S. 347 (1964); Marks v.

United States, 430 U.S. 188 (1977). Boure

and Marks hold that jury instructions that

amount to a judicial enhancement of

liability under a criminal statute cannot

be applied retroactively.

When a. . . state-court construction

of a criminal statute is applied

retroactively to subject a person to

criminal liability for past conduct,

the effect is to deprive him of due

process of law in the sense of fair

warning that his contemplated conduct

constitutes a crime.

Bouze, 378 U.S. at 352.

(ec) The Petitioner Received

Ineffective Assistance of Trial Counsel

for Fatlure to Object to An Srroneous Jury

Instruction Adding the Intent to

"Temporarily" Deprive to a Charge of

Robbery. '

In Strickland v. Washington, 104.

S.Ct. 2052 (1984), this Court established

the now well-known, two-part test for

ineffective assistance of counsel:

First, the [criminal] defendant must

show that counsel's performance was

deficient. This requires showing

that counsel made errors so serious

that counsel was not functioning as

the "counsel" guaranteed the

defendant by the Sixth Amendment.

Second, the defendant must show that

the deficient performance prejudiced

the defense. This requires showing

that counsel's errors were so serious

as to deprive the defendant of a fair

trial, a> trial whose result is

reliable.

Id. 104 §.Ct. 2064.

(A) Trial Counsel was Deficient

Under Strickland

As shown above, under Florida law in

1985, the date of Petitioner's alleged

offense, "permanent" deprivation was an

essential element of the crime of robbery,

and “temporary" deprivation was not.

Petitioner's offense involved the

disarming of a deputy sheriff and then

driving away with her marked police car.

The trial record shows, and the State

agrees, that Petitioner kept the marked

police car for at most 10 to 15 minutes,

and then abandoned it on a public road,

leaving the keys in the ignition (R1-12-

VII-522-525).

Petitioner was convicted of robbery

by use of an erroneous and improper jury

instruction that included an intent to

"temporarily" deprive an owner of

property. Defense trial counsel failed

twice to object to the erroneous jury

instruction when the trial judge changed

the jury instruction without notice

between the preliminary charge conference

and the jury announcement. (R1-12-VIII-

601; R1-12-X-827; R1-12-XI-990).

Both defense trial counsels testified

at the federal evidentiary hearing that

they overlooked that the trial court had

spontaneously altered the jury instruction

previously discussed with defense counsel:

(R3-61; 161-162) Chief defense counsel

testified that he believed he _ was

ineffective for not objecting because ". .

it went to the heart of what the jury

got as the law, and it's -wrong. And

that's part of our job, is to make sure

that doesn't happen." (R3-66).

Bell v. State, (1981) held that the

specific intent to permanently deprive was

the only requisite intent to deprive in

the crime of robbery. This

notwithstanding, the jury was erroneously

instructed, without objection by defense

counsel, that Petitioner could be found

guilty of robbery if he had either the

deprive the owner of her property. (R1-12-

XI-990).

As noted above, several years before

and after Petitioner's trial, numerous

Florida appellate courts, relying on the

State Supreme Court's decisions in #SelJ,

Stewart, Dunnman, and Gray, held that an

instruction permitting a jury to find an

accused guilty of robbery by finding

anything other than the specific intent to

"Dermanently" deprive was reversible

error. See, Vaugh v. State, 460 So.2d 505

(Fla. 3rd DCA 1984); Halli v. State, 505

So.2d 657 (Fla. 2nd DCA 1987).

Therefore, the failure by

Petitioner's counsel to object to the

erroneous jury instruction "cannot be

considered to be within the 'wide range of

professionally competent assistance.'"

Ricalday v. Procunier, 736 F.2d 203, 207

(Sth Cir.1984) (quoting Strickland, 104

S.Ct. at 2066). :

(B) Petitioner was Prejudiced by

Trial Counsel's Defictent Assistance.

In order to demonstrate prejudice

under the second prong of Strickland,

Petitioner must demonstrate "that there is

a reasonable probability that, but for

counsel's unprofessional errors, the

result of the proceeding would have been

different. fe) obabi a

2 er ;

confidence in the outcome." Strickland,

104 §$.Ct. at 2068 (emphasis added).

Applying the prejudice standard to

Petitioner's case, the obvious question to

be answered: Is there a _ reasonable

probability that the jury would have had a

reasonable doubt as to Petitioner's guilt

if the words "temporarily deprive" had not

been included in the charge to the jury on

the elements of robbery?

As set forth te Se the evidence

presented at trial clearly showed

Petitioner took the marked police car,

then drove the marked police car some 8 to

9 miles away, and abandoned it on a public

road with the keys in the ignition. (R1-

12-VII=-522-525). Thus, there was more

than sufficient reason for the jury in

this case to conclude Petitioner did not

have the specific intent to "permanently"

deprive the officer of her police vehicle.

See, Herring v. Estelle, 491 F.2d 125 (5th

Cir. 1974) (Inmates who rushed and beat

jailer, then took his keys and escaped,

leaving keys in back door, not guilty of

‘robbery under Texas law because no intent

to permanently deprive existed).

Interestingly, trial counsel's so-

called strategy, as will be discussed

further infra, was to show no robbery

had occurred, merely a "theft." In 1985,

under Florida law, a person could be found

guilty of "theft" if he had the intent to

"temporarily" or "permanently" deprive an

owner of his property.

During deliberations the jury asked

the trial judge "can we charge the

defendant with aggravated assault and

Grand Theft or can we charge Grand Theft

with a weapon?" (R1-12-XI-1009). Thus,

the jury was clearly leaning toward a

"theft" conviction; however, the erroneous

jury instruction on robbery, regarding

"temporary" deprivation, appears to have

been the only justification for the jury's

guilty verdict on robbery. The jury was

allowed to convict Petitioner based upon

the illegal expanded element of robbery,

"temporary" deprivation; therefore,

Petitioner was prejudiced under the second |

prong of Strickland by trial counsel's

failure to properly object. As such, a

“reasonable probability" exists that

Petitioner would not have been convicted

of robbery except for counsel's error.

ES A LT TT te A ett ar tt te

Report and Recommendation:

First, the Magistrate's contention

that counsel's failure to object to the

erroneous jury instruction was reasonable

due to trial "strategy" flys in the face

of constitutional law and the

jurisprudence of this Court.

Pursuant to Wainwright v. Stone, the

State Supreme Court in fell] v. State made

the intent to "permanently" deprive an

essential element of robbery, just as if

the robbery statute had been so amended by

the legislature. Accordingly, -no

reasonable trial strategy could possibly

avoid putting the State to its

constitutional burden of proving all

elements beyond a reasonable doubt. Since

trial counsel's so-called strategy allowed

the state to avoid its burden of proof --

and certainly the state did not prove

Petitioner's intent to "permanently"

deprive - and the erroneous instruction

added an element (temporary deprivation)

that acted to relieve the state of its

burden to prove "permanent" deprivation.

This Court has held that "the

prosecution's burden to prove’ every

element of the crime is not relieved by a

.. . tactical decision not to contest an

essential element of the offense."

stelle: v. McGuire, 502 U.S. 62, 69

(1991).

Also, trial counsel must have seen

the error in their strategy because, as

noted by the Magistrate, counsel filed a

motion for new trial based upon the

erroneous instruction arguing Petitioner

did not have the requisite intent to

permanently deprive under Sell, supra.

And both trial counsels stated at the

federal evidentiary hearing that they

simply "missed" the trial court's

spontaneous addition of the erroneous

instruction, and their failure to object

had "no strategic" value whatsoever.

Accordingly, the Magistrate's finding

that counsel's failure to object to the

erroneous instruction was reasonable trial:

strategy has no basis in law, and is in

fact contrary to this Court's precedent in

McGuire and Mathews v. United States, 485

U.S. 58 (1988).

Second, the Magistrate misapplied the

Court's decision in Lockhart v. Fretwell,

supra, by finding the erroneous jury

instruction, which is now correct based on

subsequent case law, would be given if

Petitioner were retried on the robbery

charge. The Magistrate inccrrectly found

that Petitioner had ne "constitutional

right" to now have a jury instructed on

the elements of the offense (State of the

law) at the time the offense occurred.

This Court has recently clarified the

Fretwell decision, stating: _

Cases such as Wix v. Whiteside, 475

U.S. 157 (1986), and JZockart: v.

Fretwell, 506 U.S. 364 (1993), do not

justify a departure from a straight

forward application of Strickland

when the ineffectiveness of counsel

does deprive the defendant of a

substantial or procedural right to

which the law entitles hin.

William v. Taylor, No. 98-8384 (April 18,

2000).

The Magistrate seems to have missed

the fact that the erroneous jury

instruction set forth an essential element

of the crime of robbery - temporary

deprivation - that was not an essential

element of: that offense at that time,

according to the State Supreme Court's

interpretation of that statute. Thus,

that instruction criminalized conduct that

was not criminal at the time of the

offense.

As such, the 4x Post Facto and Due

Process clauses of the United States

Constitution would prohibit a state court

upon a re-trial of Petitioner's robbery

charge from using a jury instruction that

included the element of "temporary"

deprivation.

The Magistrate failed to note that

the State Supreme Court decisions, placing

first the element of "permanent"

deprivation, Bell v. State, and then

"temporary" or “permanent” deprivation as

elements, Daniels v. State, were judicial

interpretations of a state robbery statute

that, on its face, contained no mention of

either "permanent" or "temporary"

deprivation.

However, as set forth above, this

Court has long held that a State Supreme

Court's interpretation of a state statute

that defines the elements of that statute,

are just as binding as if "amended by the

[state] legislature." Wainwright Vv.

Stone, 94 S.Ct. at 192. Furthermore, an

accused must be tried under such a

judicially interpreted statute that was in

effect at the time of the alleged offense.

Id. at 193.

Since Petitioner was denied clearly

defined constitutional rights, and the

State Supreme Court's decision in Sel,

along with that Court's subsequent

decision affirming fell, were not "lawless

decisions" as defined in Fretwell, the

Magistrate's analysis under Fretwell is

clearly in error and has no basis in law.

Third, the Magistrate concluded that

the jury would have convicted Petitioner

even if the proper instruction had been

given. This clearly goes against the

evidence presented at trial.

A jury is presumed to follow

instructions. Yates v. &vatt, 500 U.S.

391 (1991). In this case, it is clear the

jury paid attention to the instructions, a

copy of which was given to the jury in

deliberations. And as noted above, the

jury asked tthe ttrial judge certain

pertinent questions about convicting

Petitioner of the lesser included offense

of Grand Theft, an offense where

"temporary" taking was a correct requisite

element. (RI-12-XI-1009).

There was also no evidence presented

at trial to show Petitioner had an intent

to permanently deprive the police officer

of her vehicle. The Magistrate did not

cite any record support for his conclusion

that the improper jury instruction did not

infect the outcome of the jury's verdict

on the robbery charge. Accordingly, the

Magistrate's conclusion to the contrary

has no basis in fact or law.

(d) The Petitioner Received

Ineffective Assistance for Failure To

Argue Specific Intent To Rob and/or

Permanently Deprive in the Robbery Case.

The State of Florida was required to

prove the Petitioner had the specific

intent to permanently deprive the owner of

her vehicle to prove robbery. Bell v.

State, 394 So0.2d 979 (Fla. 1981).

Petitioner's trial counsel, however, ~

failed to make the obvious argument to the

jury and trial court that Petitioner did

not intend to permanently deprive the

police officer of her vehicle.

As shown above, the evidence

presented at trial toward the robbery

charge lacked any proof that Petitioner

had the specific intent to permanently

deprive. Therefore, by failing to inform,

educate, and argue to the jury and trial

court’ that the State had failed to offer

proof of that requisite element, counsel

unwittingly relieved the State of its

burden of proof. Because this Court, over

30 years ago, declared that "the Due

Process Clause protects the accused

against conyiction except upon proof

‘beyond a reasonable doubt of every fact

, itut crime wi

which he is charged," Jn Re Winship, 397

U.S. 358, 364 (1970) (emphasis added).

Any decision, tactical or otherwise

labeled, to forego holding the State to

. Counsel failed to argue in the

Motion For judgment and Acquittal that

the State had failed to offer any proof

of the specific intent to permanently

deprive.

ats strict ‘burden of. proof on the: element

of intent to-.permanently. deprive, or

failing to. argue to the jury and;the: trial

court’ that. the. State... had:.not::met its

burden to show the requisite intent, was

not -a :‘"“reasonable": decisiom: under

Strickland. . Pe - :

As to-prejudice, -because the State

failed in its burden of proof on'‘intent,

prejudice is evident.: Petitioner has the

right protected under the Due Process

Clause, and the Fourteenth Amendment,

United States Constitution, against

conviction unless the State proves all

elements beyond a é reasonable doubt.

Jackson v. Virginia, 443 U.S. 307 (1979).

The Magistrate below concluded there

was sufficient testimony for a jury to

convict on the officer's testimony about

Petitioner taking the police car. (R2-43-

52). This reading of the police officer's

testimony is not reflected in the record

itself, and, is not supported in any

portion of the trial record. Furthermore,

taking all the evidence presented at trial

collectively, and in a light’ most

favorable to the State, the evidence, at

best, showed Petitioner's intent was to

"temporarily" deprive the officer of her

police car. And under the law at the time

in the State of Florida, Petitioner could

have only been convicted of grand theft

based on an intent to "temporarily"

deprive.

o-. aap oo ee noe

ISSUE II:

THE IMPROPER JURY INSTRUCTION FOR

ROBBERY VIOLATED THE DUE PROCESS

CLAUSE OF THE FOURTEENTH AMENDMENT.

“An erroneous jury instruction is

analyzed as fo "whether there is a

reasonable likelihood that the jury has

- applied the challenged instruction in ‘a

way" that violated the Constitution.

Estelle v. McGuire, 502 U.S. 62 (1991).

The Magistrate judge denied federal habeas

relief by stating the instruction did not

infect the whole trial with error.

As previously noted and argued, this

finding is based upon erroneous factual

conclusions which are used to support

illogical inferences. (See Issue I a. and

b. above).

The federal Magistrate appears to be

ruling that the jury would have convicted

Petitioner even if the proper instruction

had been given. This goes against the

evidence presented at trial.

A jury is -presumed to _ follow

instruction. Vates v. Evatt, 500 U.S. 391

(1991). In the present case, it is clear

the jury paid attention to the

instructions, a copy of which were given

to the jury in deliberations. During

deliberations the jury asked the trial

judge “can we charge the defendant with

aggravated assault and Grand Theft or can

we charge Grand Theft with a weapon?"

There was also no evidence that

Petitioner had an intent to permanently

deprive the police officer of her cruiser.

The Magistrate did not cite any

record support for his conclusion that the

improper jury instruction did not infect

the entire trial.

In United States v. Hudson, 564 F.2d

1377 (9th Cir. 1977), Audson was convicted

of armed post office robbery. the proper

jury instruction was “before it could find

that the defendant had put the postal

clerk's life in jeopardy by use of a

dangerous weapon, it must find that the

gun was loaded at the time of the crime."

The trial court explained the proper jury

instruction by giving an unobjected to

instruction that included exposing a

person to a risk or fear of death in

defining "jeopardizing." The Ninth

Circuit held *. . . the instruction

allowed for the possibility of conviction

on an improper basis. .. . we hold that

the error was plain and manifestly

prejudicial to substantial rights." Id.

note 3 at 1380. See also Sastiste v.

Blackburn, 786 F.2d 784 (5th Cir. 1986).

In the present case there is no

question that it is reasonably probable

that the jury convicted Petitioner on the

improper "temporary" deprivation part of

the jury instruction.

The Magistrate Judge also denied

relief because the Florida Supreme Court

changed the definition of robbery after

Petitioner's offense date. The Magistrate

conciudes the new definition will be given

at retrial, and therefore, no prejudice

results to Petitioner based on Lockfart v.

Fretwell, 506 U.S. 364 (1993). As shown

above, this is a misapplication of

Fretwell.

ISSUE III:

APMIMRONEP WAS JENUED <KRUWROTLWVE

ASSISTANCE OF APPELLATE COUNSEL

Petitioner is entitled to effective

assistance of appellate counsel. Evitts

vy. Lucy, 469 U.S. 387 (1985); Amends. VI,

XIV, U.S. Const. The failure to brief and

argue meritorious issues is ineffective

assistance of appellate counsel. Mayo v.

Henderson, 13 F.3d 528 (2d Cir. 1994).

This Court reviews whether the omitted

claims had a reasonable probaility of

_ success on direct appeal. Heath v.Jones,

941 F.2d 1126, 1132 (1ith Cir.1991). It

need not be assured that the omitted claim

would have prevailed had it been

presented. See Mayo v. Henderson, 13 F.3d

528, 533-34 (2d Cir. 1994).

‘In Petitioner's case, trial counsel

properly filed a motion for severance of

charges, which the trial court improperly

denied. The State charged Petitioner with

First Degree-Murder. occurring on Allen

Road around 2:30 a.m. and robbery with a

firearm at 4:15 a.m. at a different

location. The offenses were not related

temporally or by location, nor did they

affect the same victim. The charges were

not related in an "episodic" sense. /aul

vy. State, 385 So.2d 1371 (Fla. 1980).

Petitioner's appellate counsel failed to

raise the severance issue on direct

appeal, wrongly believing it had not been

preserved. Trial counsel filed a written

Motion for Severance as contemplated under

Fla. R. Crim. R. 3.216 upon which the

trial court had oral argument. (R1-12-2-

40-181). Trial counsel raised the court's

denial of the motion again in their motion

for new trial. (R1-12-2-303-305).

The Magistrate did not reach whether

counsel's performance was deficient. (R2-

43-44). Rather, the Magistrate below

found there was no prejudice resulting

because the severance issue could not

succeed on direct appeal in state court

under an abuse-of-discretion standard.

(R2-43-46 through 48). ;

The Magistrate's "no _ prejudice"

conclusion flatly contradicts the earlier

three assertions that failure to sever

charges prejudiced raising an

intoxication/insanity defense, (R2-43-15),

prejudiced raising the issue of intent to

permanently deprive, (R2-43-23), and

prejudiced raising the erroneous jury

instruction, (R2-43-31).

Further, the Magistrate correctly

recites the state court judge abruptly

reversed without explanation an éarlier,

reasoned ruling severing the charges. The

trial judge initially stated the reasons

for the severance in forceful language:

"I grant the motion for severance. I

don't think that there's any relationship

at all between the robbery and the murder.

I think the distance, the time, and the

space between one and the other have

nothing to do except that the defendant

was leaving the general area and I think

it would be error to try them both

together." (R1-12-IV-65-66). The sudden,

unexplained reversal by the state trial

judge trumpets abuse of discretion having

merit on direct state appeal. See United

States v. Brown, 479 F.2d 1170, 1173 (2d

Cir. 1973) ("A Sphinx-like silence on the |

court's part precludes anyone (including

the parties, the judge, and an appellate

tribunal) from learning whether he acted

in error."). Again it appears. the

Magistrate's findings are without factual

or legal basis.

Petitioner has an indubitable Due

Process right against improper joinder of

charges. Panzavecchia v. Wainwright, 658

F.2d 337 (Sth Cir. 1981). In this federal

habeas proceeding, the Magistrate

correctly notes Petitioner repeatedly

wrote to his appellate counsel with-

instructions to raise the severance issue,

and appellate counsel never once replied.

(R2-43-43). Besides violating the

professional duties of loyalty to and

communication with the client, Fila. QR.

Prof. Rg. 4-12(a), 4-1.4, appellate

counsel's refusal to respond to the client

destroyed any attorney-client

relationship. The undisputed failure of

appellate counsel to communicate with or

obey client orders effectively stripped

Petitioner of his right to counsel and

appeal. ‘

Petitioner's state appellate counsel

was further ineffective for failing to

raise on direct appeal the state trial

court's denial of trial motions for

judgment of acquittal and new trial based

on the insufficiency of evidence.

Appellate counsel, despite case law cited

by trial counsel, did not raise these

issues.

ISSUE IV:

PETITIONER WAS DEPRIVED OF HIS RIGHT

TO DUE PROCESS AND HIS_ LIBERTY

INTEREST ON RESENTENCING

The issue presented is whether the

trial ‘judge at resentencing of the

Petitioner arbitrarily and capriciously

abused his discretion thereby depriving

Petitioner of his due process and liberty

interest.

When originally sentenced the trial

court exceeded the guidelines

recommendation due to Petitioner's

qualifications as a habitual offender.

(RI-12-2-355-359).

Petitioner appealed. In reversing

Petitioner's sentence the First District

Court of Appeals found eS in

pertinent part:

"The trial court exceeded the

guidelines recommendation due _ to

appellant's qualifications ee

habitual offender. This was error

under the holding in Whitehead Supra,

wherein the Supreme Court held that

habitual offender status is not an

adequate reason to depart from the

sentencifigZQ guidelines."

See Bullard v. State, 515 So.2d 1028-1029

(Fla. lst DCA 1989) :

On December 28, 1987, the mandate in

Bullard, supra, was issued and_ the

aggravating departure reason, habitual

offender, was established as the "law of

the case."

Since the only ground assigned for

the first departure was the legally

insufficient one concerning Petitioner's

status as an habitual offender SfAulZ v.

Dugger, 515 So.2d 748 (Fla. 1987),

"mandates the conclusion that no

subsequent departure based on any other

ground may be allowed to stand." Aarris

We paca 520 So.2d 689 (Fla. 3d DCA

The rule under Shull supra, applies

"even if the only reason(s) given for

departure was valid at the time under

appellate decisions which had considered

it but was later invalidated by the

Supreme Court and new, valid reasons for

departure existed at the time of the

Original sentence." Id., at 749 See

Hayes v. State, 526 So.2d 167 (Fla. list

DCA 1988), the trial court based its

departure on the habitual offender

determination. t irst

3 i d w

t —ae u fe) r

reaso _" The First DCA

held:

"We cannot honor sh request. "The

Florida Supreme Court has ruled that

a trial court may not enunciate new

reasons to support a departure

sentence after the original reasons

have been held invalid by an

appellate court. Shull v. Dugger,

515 So.2d 748 (Fla. 1987) (emphasis

added). Therefore, we reverse and

remand for resentencing within the

guidelines recommendations." Id @

166. ;

See Wyche v. State, 576 So.2d 884 (Fla.

1$t DCA?-2991), in:which the @ourt also

departed for the habitual-offender ‘reason,

in' reversing : and * er First

District held:

"When all diparties reasons given

have been reversed 'on- appeal}. trial

court on'remand is not authorized to

articulate new reasons for

departure." citing SAull,. Supra.

In Morganti v. State, 498 So.2d 557

(Fla. 4th DCA 1986). On remand the trial

court again departed from the guidelines

for different reasons, and the appellate

court affirmed 510 So.2d 1182. However,

the Court certified the following

questions of great public importance:

Whether, when the sole _ reasons

initially given for departure from

’ the guidelines was_held to be valid

by appellate courts_at the time of

sentencing, but is subsequently held

invalid by the Supreme Court, the

trial court on remand may depart from

the guidelines, if the new reasons

- given existed at the time of the

Original sentencing and, are valid

reasons for departure.

The Supreme Court held:

We have answered the question in the

negative in Shull v. Dugger, 515

So.2d 748 (Fla. 1987), and today

reaffirm that holding. Accordingly,

the opinioa below is quashed and this

cause is remanded for proceedings

consistent with Shull. Because no

valid reasons remain for departure

> . the

District Court on remand shall direct

that petitioner be sentenced within

the guidelines. Morganti v. State,

924 So.2d 641, 642 (Fla. 1988).

The law is clear that trial courts

are not authorized under the law to depart

from a guidelines sentence after the

Original reason(s) for departure have been

reversed by an dppellate court as being

invalid, because no valid reasons remain

for departure. Morganti supra, Pope v.

State, 561 So.2d 554 (Fla. 1990). 7

. At the resentencing hearing the trial

judge admitted that he relied upon the

habitual offender statute to originally

depart (RI-12-Four Brown Folders Vol. II

41-43). That in the trial judges

subsequent sentencing order he also

admitted he relied on the habitual

offender statute to originally depart (RI-

12 Four Brown Folders Vol. 1-125). But

also in the trial judges subsequent

resentencing order after admitting he

Originally used the habitual offender

’ Statute to depart, on the very next page

he contradicts himself and states that in

his 1986 (original) sentence he "clearly

articulated two (2) reasons to exceed the

sentencing guidelines." (RI-12 Four Brown

Folders Vol. 1-126).

The trial judge went on to say that

he clearly articulated the habitual

offender and police officer victim reasons

by dividing paragraph 5, supra of his 1986

sentence order into the component parts.

The trial judge used _ the - police

officer victim aggravating departure

reason to exceed Petitioner's 7 to 9

guidelines sentence and again imposed

another life sentence with a mandatory

minimum three year sentence (RI-12- Four

Brown Folders Vol. 1-126-130).

The trial judge was required, and his

discretion was limited, as a matter of

law, to resentence Petitioner within his

recommended guidelines sentence of 7 to 9

years. ;

Petitioner has a right to due process

at sentencing. A deprivation of that

right is not merely a matter of state

procedural law, but is a liberty interest

that the Fourteenth Amendment preserves

against arbitrary deprivation by the

state. Haynes v. Butler, 825 F.2d 923

(5th Cir. 1987) citing Arcks v. Oklahoma,

447 U.8. 343° (i960). Although Azcks,

supra, dealt with discretion of a jury in

sentencing, the same rule applies to

judges. VPratter v. Maggio, 686 F.2d 346

(Sth Cir. 1982).

Relief may be required where

Petitioner, as here, is able to show that

the sentence, imposed . . . is wholly

unauthorized by law, devoid of discretion

or amounted to an arbitrary or capricious

abuse of discretion depriving the

Petitioner of his liberty. Haynes, supra,

at 924.

In the present case, the record

reflects that the trial judge overlooked

where the First District Court of Appeals

found that he originally exceeded

Petitioner's guidelines sentence solely

due to his qualification as a habitual

offender, Bullard at 1029, in which was

established as the "law of the case."

The record also reflects that the

trial judge overlooked controlling case

law, Shull, supra, and that he made an

incorrect statement that he relied also on

"Victim Police Officer" in his original

sentence as a departure reason.

Petitioner was denied due process at his

resentencing. Petitioner has a liberty

interest right: that the Fourteenth

Amendment preserves against arbitrary

deprivation by the state.

ISSUE V:

THE LIFE SENTENCE IMPOSED ON

RESENTENCING VIOLATED THE DUE

PROCESS/EX POST FACTO CLAUSES.

Petitioner challenged whether the

trial court's retroactive application of

the later developed aggravating departure

law consisting of the victim's police

officer status violated the Due process

and/or the Ex Post Facto Clause.

The Magistrate judge summarily ruled

the claim should be denied based on an

analysis presented somewhere between pages

10 and 34 of the Report and Recommendation

discussing ineffective assistance of trial

counsel. (R2-43-53).

The aggravating departure law, victim

law enforcement officer was approved in

Baker v. State, 466 So.2d 1144 (Fla. Dist.

Ct. App. March 26, 1985).

The Saker court, Third District,

stayed the issuance of its mandate upon

certification to the Supreme Court of

Florida. The Supreme Court in State v.

Baker, 483 So.2d 423 (Fla. February 6,

1986) approved the Third District's

decision on the departure law, and issued

its mandate on March 5, 1986, thereafter

the Third District issued its mandate on

March 11, 1986.

The constitutional provision

governing adoption of rules of practice

and procedure provides the Supreme Court

exclusive authority to adopt rules for

practice and procedure in all_ state

courts. Florida Constitution, Article V §

a <a.

Therefore, the aggravating departure

law was not effective law until approved

by the Supreme Court in State v. Saker,

Supra.

The State v. Baker, Supra, decision

occurred February 6, 1986. Petitioner's

offense occurred July 15, 1985. That the

trial court's utilization of an

unforeseeable judicial enlargement of the

guidelines statute in State v. Saker,

supra, to depart from Petitioner's

presumptive guidelines sentence of 7 to 9

years and instead imposed a life sentence

would be retroactively applied and

disadvantaged Petitioner operating

precisely like an Ex Post Facto law

depriving Petitioner of Due process which

is protected by and through the Fifth and

Fourteenth Amendments. Marks v. United

States, 430 U.S. 188-193 (1977).

Moreover, the Florida legislature did

not constitutionally enact "victim law

enforcement officer" until 1993 when it

passed Chapter 93-406 which amended §

921.0016(3) (h) to include this

aggravating factor. The Legislature noted

that in 93-406 that the amendment would be

effective January 1, 1994 to sentencing

for offenses that occurred on or after

that date. The Florida Supreme Court has

interpreted the statute in the same

manner. Cohens v. State, 656 So.2d 525

(Fla. Dist. Ct. App. 1995). There is no

dispute that retroactive application of

changes in the Florida Sentencing

guidelines that enhance a criminal penalty

violates the Ex Post Facto Clause of

Article a $ LO, United States

Constitution. Miller v. Florida 482 U.S.

423 (1987).

The United States Supreme Court

considers Ex Post Facto violations

fundamental error and will reverse even

where there is a guilty plea. Patterson

v. State, 513 So.2d 1263 (Fla. 1987)

overturned by the United States Supreme

Court at Patterson v. Florida, 482 U.S.

924 (1987). To the extent the Magistrate

relied upon the Report and Recommendation

conclusions for ineffective assistance of

trial counsel to deny relief on this

issue, Petitioner incorporates his

arguments presented in issue III above of

why those reasons are in error.

CONCLUSION :

WHEREFORE, for all the foregoing

reasons and for good cause shown,

Petitioner respectfully requests’ this

Court to Grant the writ.

Respectfully,

Dba loullige vr -

Eston Bullard Jr. 008037

Union Correctional Institution

P.O. Box 221 Box K-21

Raiford, Florida 32083

I UNDERSTAND THAT ANY FALSE STATEMENT

IN THIS APPLICATION WILL SUBJECT ME TO THE

PENALTIES OF PERJURY (A FINE OF $10,000 OR

IMPRISONMENT FOR FIVE (5) YEARS, OR BOTH).

I HEREBY DECLARE, under the penalty

of perjury that I have read the foregoing

Petition for Writ of Habeas Corpus and the

facts and matters are true and correct

pursuant to Florida Statute 92.525 (1999)

and 28 U.S.C. § 1746. areas

Executed this Rz day of June,

2000.

Respectfully,

lem Kicker! Jr.

Eston Bullard Jr. 008037

INDEX TO APPENDIX

Judgment of the Eleventh Circuit

Opinion of the Eleventh Circuit

Order of the United States District Court

Report and Recommendation

Opinion of Florida

First District Court of Appeals

SUPPLEMENTAL APPENDIX

Supp. Appendix A

Clerk's Letter

Supp. Appéndix B

Affidavit of John D. Middleton, Esq.

CERELFICATE (OF ICE

+I ; HEREBY; CERTIFY »:ithat- aneapy::6f the

foregoing Petition for Writ of Habeas

Corpus; hasi been furntished itor:j Office of

the Attorney General, The Honorable Robert

A;s;,Butterworth, Attorney General, State of

Florida, The Capitol, Tallahassee, Florida

32399-1050, by U.S. Mail on this: 3

day of WoNeQ 2000. ?

Respectfully,

+ Bin, Lilliigh VF. .¢n7 o

Eston Bullard Jr. 008037

SBEST AVAILABLE COPY.

United States of Appeals

FOR THE ELEVENTH CIRCU T

No. 97-3409

Non-Argument Calendar

District Court Docket No. 94-808-C 1v-J-20

ESTON BULLARD, JR,

Petitioner-Appellant,

versus |

HARRY K. SINGLETARY, JR,

ROBERT A. BUTTERWORTH,

The Attorney General of the

State of Florida,

Appeal from the United States District Court

for the Middle District of Florida

Before HATCHETT, Chief Judge, TJOFLAT and BARKETT,

Circuit Judges.

JUDGMENT

- This cause came to be heard on the transcript of the record from the

United States District Court for the Middle District of Florida, and

was taken under submission by the Court upon the record and briefs

on file, pursuant to Eleventh Circuit Rule 34-3;

UPON CONSIDERATION WHEREOE, it is now hereby ordered

and adjudged by this Court that the judgment of the said District -

Court in this cause be and the same is hereby AFFIRMED.

Entered: September 25, 1998For the Court: Thomas K. Kahn, Clerk

By: Marr Davidson

Deputy Clerk

Issued as Mandate Jan 15 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 97-3409

Non-Argument Calendar

D. C. Docket No. 94-808-Civ-J-20

ESTON BULLARD, JR,

Petitioner-

Appellant,

versus

HARRY K. SINGLETARY, JR,

ROBERT A. BUTTERWORTH, The

Attorney General of the State of Florida,

Respondent-

Appellee.

Appeal from the United States District Court

for the Middle District of Florida

(September 25, 1998)

Before HATCHETT, Chief Judge, TJOFLAT and BARKETT, Circuit

Judges. .

PER CURIAM:

In 1986, petitioner was convicted in Florida circuit court

of robbery with a firearm. On August 22, 1994, having

exhausted his state court remedies, petitioner filed a petition for

writ of habeas corpus in the district court seeking the vacation of

his conviction on five grounds: (1) ineffective assistance of

counsel at petitioner's trial and at sentencing; (2) ineffective ©

assistance of appellate counsel; (3) denial of due process of law at

petitioner's resentencing proceeding because the trial court used

illegal aggravations to sentence petitioner to life in prison

without parole; (4) denial of due process of law because the trial

court improperly instructed the jury on the elements of the

offense of robbery, thus bringing about petitioner's conviction of

that offense without proof beyond a reasonable doubt of every

element of the crime; and (5) violation of the ex post facto

clause when the trial court made an upward departure from the

sentencing guidelines on the ground that a police of ficer was the

victim of petitioner's offense.

After holding a day-long evidentiary hearing, the

magistrate judge to whom the case was assigned, recommended

in his report to the district court that the court deny the writ.

The district court, after entertaining petitioner's objections to

the magistrate judge's report and recommendation, adopted the

report and recommendation in full, and, incorporating the same

into its dispositive order, denied relief.

Petitioner now appeals. He contends that the district court

(1) erred failing "to undergo a § 2254 (d) analysis of the

State court findings of fact,” and in making "factual

findings not supported by the record";

(2) erred in concluding that petitioner was not denied

effective assistance of trial counsel - when counsel "(a)

failed to object to an erroneous jury instruction . . . (b)

failed to argue specific intent to rob and/or permanently

deprive in the robbery case . . . and (c) failed to object to

retroactive application of a sentencing guidelines

aggravation";

(3) erred in concluding that petitioner was not denied

effective assistance of appellate a counsel "when appellant

counsel failed to raise a meritorious severance issue on

direct appeal";

(4) erred in concluding that the trial court did not deny

petitioner due process of law in instructing the jury on

robbery";

(5) erred in concluding that the trial court did not

violate the ex post facto clause in resentencing petitioner;

and

(6) erred in concluding that the trial court did not deny

petitioner due process of law and his liberty interest in

resentencing him.

We find no merit in any of these claims of district court

error. The magistrate judge, in his report and recommendation

to the district court, examined meticulously and with great care

each of petitioner's claims, and found them wanting. The

magistrate judge's findings of fact are well grounded in the

record, and his conclusions of law are unassailable. The

judgment of the district court is, accordingly,

AFFIRMED.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ESTON BULLARD, JR.,

Petitioner,

v. Case No. 94-808-C-J-20

HARRY K. SINGLETARY, JR.,

et al.,

Respondents.

ORDER

On June 5, 1997, the United States Magistrate Judge

submitted a Report and Recommendation (Doc. No. 43). The

Magistrate Judge recommended that the Petition for Writ of

Habeas Corpus (Doc. No. 1) be denied. Petitioner filed

objections to the findings and recommendation of the

Magistrate Judge on July 25, 1997 (Doc. No. 46). Respondents

filed a reply to Petitioner's objections on August 20, 1997. Doc.

No. 48.

Petitioner's Motion to Strike Respondents’ Reply to

Objections (Doc. No. 49, filed September 2, 1997) is without

merit and is therefore DENIED. Rule 72(b) of the Federal Rules

of Civil Procedure explicitly authorizes the filing of a reply to a

party's objections. There is no authority, however, as 2 matter of

tight which would allow Petitioner to file a response to

Respondents’ Reply. The existing, well-developed record will

enable the Court to decide the marter. Accordingly, the

Respondents’ Reply will not be stricken, and in the Court's

discretion Petitioner will not be granted leave to file an

additional response.

Upon consideration of the Report and Recommendation,

the objections made thereto, and the Reply to the objections,

and upon conducting an independent de novo review of the

entire record in this matter, including the transcript of the

evidentiary hearing, the Court overrules the objections and

adopts and confirms the Magistrate Judge's findings.

Accordingly, it is ORDERED AND ADJUDGED that

the Magistrate Judge's Report and Recommendation is

ADOPTED, and it is specifically incorporated into this order.

Defendant's Petition for Habeas Corpus (Doc. No. 1) is

DENIED.

The Clerk is directed to close the file.

DONE AND ORDERED at Jacksonvilie, Florida this 10th day

of October, 1997.

HARVEY E. SCHLESINGER

United States District Judge

“ Copies to:

Hon. Timothy J. Corrigan, United States Magistrate Judge

John D. Middleton, Esq.

Assistant Attorney General (Menser)

Assistant State Attorney (Taylor)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ESTON BULLARD, JR.,

Petitioner,

vs. Case No. 94-808-Civ-J-20

HARRY K. SINGLETARY, et al.,

Respondents.

REPORT AND RECOMMENDATION

I. Status

Petitioner Eston Bullard, Jr., who is an inmate of the Florida

penal system, initiated this action by filing a Petition for Writ

of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 22,

1994. Petitioner is represented by counsel. He challenges his.

July 8,1986, state court (Duval County) conviction for robbery

with a firearm on five grounds: (1) ineffective assistance of trial

1 Any party may file and serve objections hereto within TEN

(10) DAYS after service of this opinion. Failure to do so shall

bar the party from a de nove determination by a district judge of an

issue covered herein and from contesting factual findings on appeal.

See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b), 6(a) and (e); Local

Rules 6.02(a) and 4.20(a), United States District Court for the Middle

District of Florida.

ey Os i ee ee ei ee ee ae

counsel at the trial and resentencing; (2) ineffective assistance

of appellate counsel; (3) denial of due process at resentencing

when the Court used illegal aggravations to resentence Petitioner

to life in prison without parole; (4) denial of due process when

the trial court improperly instructed the jury on the elements of

the offense of robbery under Florida law, which resulted in

Petitioner's conviction without proof beyond a reasonable doubt

for every element of the crime charged; and, (5) violation of the

ex post facto proscription when on resentencing the trial court

used the fact that a police officer was the victim for a departure

basis.

Respondents filed a Response to Petition for Writ of Habeas

Corpus (Doc. # 6) with an Appendix. Petitioner filed a Reply

(Doc.# 11) and Notices of Supplemental Authority (Docs. # 13,

16). The Court granted Respondents’ Motion to Amend

Response (Doc. # 23).

The Court granted Petitioner's request for an evidentiary

hearing on grounds 1 and 2. (Doc. # 17). Thus, the undersigned

conducted a day-long evidentiary hearing on February 13, 1997,

at which Petitioner called four witnesses. The parties have filed

Proposed Findings of Fact and Conclusions of Law (Docs. # 40,

a ;

Il. State Court Procedural History

On July 15, 1985, Petitioner shot Tommy Etheridge in the

presence of the victim's brother and other witnesses. Notice of

Filing Transcripts Pursuant to Court Order (hereinafter Record),

filed May 12, 1995, at 2, Arrest and Booking Report. Petitioner

fled on foot and was stopped by Jacksonville Sheriff’s Officer

C.E. Williams. Id. Petitioner disarmed Officer Williams and fled

to Nassau County in her patrol car (which he abandoned during

the chase). Id. Petitioner was later captured. Id.

Petitioner was initially charged by Information with second =

degree murder and aggravated assault. Record at 4, Information.

Petitioner retained two lawyers. Record at 6, 8. Defense counsel

began discovery immediately. Record at 7-8. On September 5,

1985, Petitioner was indicted for first degree murder and

aggravated assault. Record at 13, Indictment. The State filed a

“Notice of Similar Fact Evidence” on October 17, 1985, to

notify the defendant of its intent to use evidence of Petitioner's

October 14, 1973, attempted murder of Jerry Prevatt and his

October 14, 1973, assault with a deadly weapon upon David

Brumbaugh. Record at 20: On January 6, 1986, the defense filed

a motion in limine to exclude the State’s similar fact evidence.

Record at 25.

On January 9, 1986, another Amended Indictment was

returned, charging Petitioner with firs: degree murder and armed

robbery. Record ‘at 31, Indictment; Respondents’ Appendix 1.

The defense filed a "Notice of Insanity Defense,” motions

related to the death penalty, and a motion for severance of the

murder and robbery charges. Record at 35-36, 39, 40;

Respondents’ Appendices 2 and 3.

Pretrial hearings were conducted on the defense motions. The

trial court took the issues under advisement. Meanwhile, the

defense secured the services of Dr. Harry Krop, a psychologist.

Tr. at 119.

At the request of the defense, the trial court, on ihitaly

28, 1986, ordered a psychiatric evaluation of Petitioner to assess

his competence (for trial) and his sanity. Record at 253-55,

Order for Psychiatric Examination; Respondents’ Appendix 4.

Dr. Ernest C. Miller, M.D., and Patrick Kimball, L.C.S.W., were

appointed to perform the evaluation. Id, On March 5, 1986,

defense counsel filed an Amended Notice of Insanity Defense.

Record at 256-57; Respondents’ Appendix 5. On March 10,

1986, Dr. Miller wrote a letter to the state court trial judge,

With regard to the Court's specific

questions, it is our opinion the patient at the

present time merits adjudication of competence

for trial purposes and does not meet the criteria

for involuntary hospitalization. It is

further our opinion that at the time of the

alleged crime the patient was not insane, but

was able to understand the nature, quality and

wrongfulness of his acts.

Record at 368-71, 370, Letter, filed September 23, 1986;

Respondents’ Appendix 6. |

The similar fact evidence was not admitted into evidence at ~

the trial, and Petitioner did not allege insanity at the trial.

The theory of the defense was set out in opening argument.

Response, Appendix 9; Tr. at 616-23. The first degree murder

charge was defended on a theory of self defense while the

robbery charge was minimized as post-shooting confusion. Id.

Petitioner did not testify at the trial.

The defense (the same lawyers Petitioner now alleges to have

been ineffective) won an acquittal on the capital (first degree

murder) charge, but Petitioner was convicted on the armed

robbery charge. Record at 299-300, Verdicts. At sentencing,

Petitioner received a life sentence. Tr. at 1099. This sentence was

based on Petitioner's status as a habitual offender. Record at

339-42, 343-57; Respondents’ Appendix 10. :

Petitioner appealed to the First District Court of Appeal

and was represented.by the Public Defender's Office. On

January 14, 1987, the Assistant Public Defender filed a motion

requesting the state appellate court to relinquish jurisdiction to

the lower court in an effort to have Petitioner resentenced in the

state trial court to a reduced term. Respondents’ Appendix 11.

The First District Court of Appeal denied the request.

Respondents’ Appendix 12. Petitioner then filed an Initial Brief

raising the following two issues:

(1) the lower court erred in finding appellant to be a

habitual offender and in using habitual offender status

as the reason for departure from the recommended

guidelines range of 12-17 years. ;

(2) the court's instructions on the intent element of

robbery constituted fundamental error and a denial of

due process denying the defendant a fair trial on the

armed robbery charge.

Respondents’ Appendix 13.

The State filed an Answer Brief, but this event was

overshadowed in part by the Public Defender’s motion to

withdraw based upon criticism of its work by Petitioner.

Respondents’ Appendix 14. The case was remanded to the

Circuit Court for resolution of the conflict. The state trial judge,

after hearing testimony from Petitioner and the arguments of

counsel, denied the motion to withdraw. Respondents’ Appendix

15. The Assistant Public Defender then filed a reply brief.

The First District Court of Appeal upheld Petitioner's

conviction, bur reversed his sentence on the grounds raised by

the Public Defender's Office. Bullard v. State, 515 So.2d 1028

(Fla. lst DCA 1987) (The unpreserved jury instruction error

was deemed harmless in light of the evidence at trial). Petitioner

rehired his trial lawyer (Fallin), and the Public Defender's Office

withdrew while a request for rehearing was argued.

The case returned to the trial court where Petitioner was again

sentenced to life according to statute. He was not sentenced

under the guidelines, but received a statutory sentence of life as a

habitual offender. Respondents’ Appendix 16.

The next significant phase in this case began with a series of

collateral attacks on Petitioner's conviction and sentence in the

trial court. The Petition itself sets forth the various actions and

grounds raised. No evidentiary hearings were conducted in the

state courts on the collateral proceedings, but merits rulings were

entered on the issues raised in the Petition now before this

Court.

III. Findings of Fact and Conclusions of Law

A. Antiterrorism and Effeceive Death Penalty Act of 1996

The Respondents initially urged this Court to apply the new

habeas corpus standard of review set forth in the Antiterrorism

and Effective Death Penalty Act of 1996 (hereinafter AEDPA),

Pub.L. No. 104-132, 110 Stat. 1214. See Respondents’ Notice

Regarding Antiterrorism and Effective Death Penalty Act of

1996, filed February 13, 1997. They argued that the standard of

review for the issues of ineffective assistance of trial counsel and

appellate counsel has changed from de novo review to the limited

review authorized by § 104(d) of the AEDPA. See Id. at 2.

Title I of the Act significantly curtails the scope of collateral

review of convictions and sentences. Specifically, the

amended version of 28 U.S.C. § 2254 provides, in pertinent

part, that the writ of habeas corpus shall not be granted with

respect to any claim adjudicated on the merits in a state court

proceeding unless the adjudication of the claim

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.

AEDPA, § 104(d). In sum, Respondents concluded the new

standard of review precludes a de novo review and "compels the

Petitioner to identify either a direct conflict with a decision of

the United States Supreme Court or an unreasonable

determination of the facts." Respondents’ Notice at 3.

However, in their Proposed Findings of Fact and Conclusions of

Law, Respondents recognize that retroactivity of the AEDPA is ~

an unsettled issue which the Eleventh Circuit has not specifically

decided. Petitioner, on the other hand, relies on Huynh v. King,

95 F.3d 1052, 1055 n.2 (11th Cir. 1996), stating the Eleventh

Circuit has indicated it will not apply this section of AEDPA to

habeas corpus petitions filed prior to the effective date of the

Act. However, the Eleventh Circuit has corrected this opinion

and now merely states: "We decline to apply this section

retroactively in this case because neither party argues for such an

application.” See Huynh, 95 F.3d at 1055 n. 2 (corrected

opinion, November 27, 1996).

Because the Eleventh Circuit has not specifically decided this

retroactivity issue, this Court declines to speculate on how it will

resolve the issue, but notes that the Eleventh Circuit very

recently applied the de novo standard, Joiner v. U.S., 103 E3d

961 (llth Cir. 1997), petition for cert. filed, (U.S. Apr. 21, 1997)

(No. 96-8765), and therefore this Court will also apply that

standard in this case.

B. Ineffective Assistance of Trial Counsel

Petitioner claims ineffective assistance of trial counsel for

counsels’ 2 (a) failure to pursue an insanity or voluntary

intoxication defense to the armed robbery charge; (b) failure to

argue to the jury or in his motion for judgment of acquittal that

the defendant had not intended to “permanently”deprive the

victim of the object of the robbery; (c) failure to object to an

improper jury instruction on the elements the State needed to

prove robbery in that the trial court instructed the jury that it

could find the defendant guilty of robbery if he intended to

permanently or temporarily deprive the victim of property; and,

(d) failure to raise the constitutional ex post facto doctrine as an

objection to the departure sentence imposed at the resentencing.

Petitioners’ claim of ineffective assistance of counsel is

governed by the two-part test announced in Strickland v.

Washington, 466 U.S. 668, 687 (1984):

First, the defendant must show that counsel’s

performance was deficient. This requires showing

that counsel made errors so serious that counsel

was not functioning as the "counsel" guaranteed

? H.R. Fallin was lead counsel for Petitioner at the stare trial, and Baya

Harrison was “second chair.” Transcript of the Evidentiary Hearing,

held February 13, 1997, at 30-31.

the defendant by the Sixth Amendment. Second,

the defendant must show that the deficient ~

performance prejudiced the defense. This

requires showing that counsel's errors were so

serious as to deprive the defendant of a fair trial,

a trial whose result is reliable. Unless a defendant

makes both showings, it cannot be said that the

conviction or death sentence resulted from a

breakdown in the adversary process that renders

the result unreliable.

Id., Joiner, 103 F.3d at 962; Huynh v. King, 95 F.3d at 1056.

The performance prong of this standard was summarized in

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992),

cert. denied, 115 S.Ct. 2008 (1995):

Strickland held that in evaluating whether a trial

counsel's performance was deficient, the counsels

performance must be evaluated for “reasonableness —

under prevailing professional norms.” Id. at 688,

104 S.Ct. at 2065. The test has nothing to do with

what the best lawyers would have done. Nor is the

test even what most good lawyers would have done.

We ask only whether some reasonable lawyer at the

trial could have acted, in the circumstances, as

defense counsel acted at trial. Courts also should at

the start presume effectiveness and should always

avoid second guessing with the benefit of hindsight.

Id. at 689, 104 S.Ct. at 2065. Strickland encourages

reviewing courts to allow lawyers broad discretion to

represent their clients by pursuing their own strates-

We are not interested in grading lawyers’

performances; we are interested in whether the

adversarial process at trial, in fact, worked

adequately.

“Therefore, the cases in which habeas petitioners can properly

prevail on the ground of ineffective assistance of counsel are few

and far between. “Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.

1994),

To show prejudice, petitioner “must show that there is a

reasonable probability that, but for counse!’s unprofessional

errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 n.s. at 694. "This ‘reasonable

probability’of a different result is simply a probability a

sufficient to undermine confidence in the outcome of the case; a

standard less than proof by 2 preponderance of the evidence.”

Agan u. Singletary, 12 F.3d 1012, 1018-19 (11th Cir. 1994)

(quoting Strickland, 466 U.S. at 694). The proceeding must

have been rendered unfair and the results unreliable. Lockhart v.

Fretwell, 506 U.S. 364 (1993); White v. Singletary, 972 E2d at

1220.

Ground I(a)-

Failure to Pursue Insanity and Intoxication Defenses

Petitioner contends:

Petitioner was charged with armed robbery, a specific

intent crime for which under Florida law, insanity is

a defense as well as voluntary intoxication. Prior to

trial, at least one psychologist determined that

Petitioner was not sane at the time the offense was

committed. Further, there was more than ample

evidence available that the defendant was extremely

intoxicated during the time that the alleged crime

was committed. Defense counsel failed to present

evidence or argue evidence in the record or request

the appropriate available jury instruction on either

defense. The failure of counsel to pursue these

defenses was extremely prejudicial to Petitioner since

the basic facts of the case were not in dispute.

Petition at 13. :

At the outset, this Court recognizes that H. Randolph Fallin

and Baya Harrison are and were, at the time of Petitioner's state

court trial, able and experienced criminal trial attorneys.

Transcript of the February 13, 1997, Evidentiary Hearing

(hereinafter EH Tr.), filed April 14, 1997. On January 28, 1986,

Petitioner's defense counsel filed a Notice of Insanity Defense, in

which they stated:

[I]t has been determined that the Defendant herein

has had severe mental laspes [sic] in regard to the

events transpiring after the shooting of the victim,

Tommy Ethridge, up to and including his capture by -

officers of the Nassau County and Duval County

Sheriff's Offices. His actions after the shooting

aforesaid are difficult to follow due to the apparent

shock of being involved in the subject shooting, as

well as having firearms pointed at Defendant.

Petitioner's Composite Exhibit, Exhibit 1, filed February 13,

1997; Record at 35-36.

On March 5, 1986, Petitioner's defense counsel filed an

Amended Notice of Insanity Defense, in which they stated:

[I]t has been determined that the Defendant herein

has had severe mental laspes [sic] in regard to the

events transpiring after the shooting of the victim,

Tommy Ethridge, up to and including his capture by

officers of the Nassau County and Duval County

Sheriff's Offices. His actions and motivations for

wvities } TF ed en ep

Record at 256-57 (emphasis added to language added to the

amended notice of insanity). Defense counsel stated they

intended to call Dr. Harry Krop as a witness for the defense, id.,

but then at trial did not pursue the insanity defense.

At the evidentiary hearing, Mr. Fallin testified he met with

Petitioner prior to the trial to discuss possible defenses, and

Petitioner had a good recollection of the events of the homicide,

bu: he blacked out during the robbery. EH Tr. at 39, 76. Mr.

Fallin stated the insanity or voluntary intoxication defense was

not pursued because their severance motion? was denied. Id. ar

41, 83-84. He noted he could not develop an alcohol or a

~ blackout defense without having Petitioner testify, and then

Petitioner would have been questioned on the stand regarding

other uncharged crimes he was involved in prior to the shooting.

Id. at 43, 64-65, 79. He concluded if the murder and robbery

charges had been severed, the defense could have pursued the

voluntary intoxication or insanity defense concerning the

robbery. Id.

While defense counsel explored and considered the voluntary

intoxication and insanity defenses, they decided the most viable

defense for the armed robbery was to argue it was grand theft,

not robbery. Id. at 87-89. Thus, the defense for the taking of the

police car was that the car was only a means to leave the area and

that there was no intent to take it to deprive the police officer of

her car. Defense counsel essentially minimized the charged crime

of armed robbery and argued it as an auto theft.

Nothing has been shown to prove that counsels’ decision not

to raise the voluntary intoxication or insanity defense was

beyond the range of reasonable professional judgment. Further,

this Court notes that Petitioner now concedes “(d)efense

counsel's explanation (at the evidentiary hearing) of why those

defenses were not pursued, to wit: the trial judge denied

3 Petitioner has not raised a claim of ineffective assistance of trial

counsel regarding the severance issue. It is clear from the record that

defense counsel filed a written motion for severance in an effortto ~~

persuade the trial judge to sever the murder and armed robbery charges

Petitioner from having to Petitioner's Motion for Severance, was

based on clear trial strategy designed to ke(ep) Petitioner from

having to testify on his behalf.” Petitioner’s Proposed Report and

Recommendation, filed April 21, 1997, at 14. Thus, defense

counsels’ performance in not pursuing the voluntary intoxication

or insanity defense was not deficient and was based on rational

trial strategy.

Even assuming arguendo counsels’ performance was deficient,

there was no prejudice. Mr. Fallin conceded that insanity and

intoxication defenses are very difficult to sustain and that juries

are hostile to these types of defenses. EH Tr. at 80. Further, in

this case, the defenses were inconsistent with the deliberateness

of Petitioner's actions. He had the presence of mind to take the

police car at gunpoint and to drive to another county to a

friend’s house to flee the scene of the shooting. These acts are

hardly consistent with a person so impaired as to be unable to

form the intent required for committing the crime charged.

Additionally, the charged crimes were not severed, and the

defense for the murder was that it was an accidental or

unintentional shooting, id. at 81, which the jury believed since

he was acquitted of the murder charge. “Although inconsistent

and alternative defenses may be raised, competent trial counsel

know that reasonableness is absolutely mandatory if one hopes

to achieve credibility with the jury.” Harich v. Dugger, 844 F.2d

1464, 1470 (11th Cir. 1988)(en banc), cert. denied, 489 U.S.

1071 (1989) (suggesting to the jury that Harich was so drunk

that he could not have intended the consequences of his acts

would have totally undermined the position by Harich himself

when he testified).

Ground 1(b)- Failure to Argue No Intent to “Permanently”

Deprive

Petitioner claims defense counsel was ineffective for failure to

argue to the jury or in his motion for judgment of acquittal that

the defendant had not intended to “permanently” deprive the

police officer of her patrol car. Specifically, Petitioner argues that

Florida law defined “robbery,” at the time, as an offense which

required proof of “intent to permanently deprive” as a key

element of the crime. Petitioner contends that trial counsel failed

_ to argue this point and thus rendered ineffective assistance.

The decision to defend the robbery charge without utilizing

“intent to permanently deprive” was a Proper strategic uccision.

The announced strategy of the defense was to defend the

robbery charge on the theory that this case involved a “theft”

rather than a “robbery.” Mr. Fallin “never felt the robbery was a

robbery.” EH Tr. at 78. The defense of the robbery was centered

upon the argument that Petitioner used the patrol car to get

away and that it was not a robbery. Id. at 84. Concerning the

strategy of the defense, Mr. Fallin testified, on cross-

examination, as follows:

. Q. Whar was the defense that you put on as to the

taking of the car?

A. If my memory serves — I haven't read the

transcript in ten, 12 years - but as I recall, that it

was a means to leave the area and get away from that

area, and that was it. (He) had no intent to take it or

use it or sell it or hide it or keep it in any way

permanently. It was a means to get from one place to

another; it wasn’t a robbery.

Q. So you were asking the jury to find him guilty of

grand theft on that count?

A. That's right.

Q. Your decision, when you decided to defend that

particular count, was to minimize the crime itself

that is, the taking of the police officer's car, and tried

to achieve a lesser-included offense?

A. No, sir, no, sir, I didn’t try to minimize it. I tried

to have the jury convict him of what he did, which

was take a car, an auto theft, not a robbery.

Id. at 87-88.

Mr. Baya Harrison described the strategy of the robbery

defense in greater detail since he was more involved in this

defense than Mr. Fallin:

Our strategy as far as that issue was concerned, the °

robbery issue, was not whether it was a temporary or

a permanent taking. Our strategy was to contest

whether or not there was a robbery at all.

In other words, the facts were that Junior was

just walking down the road. He was not armed. He

wasn't running. He was just walking. He didn’t

want any trouble from this police officer. She

stopped him. She was a very inexperienced law

enforcement officer and she panicked. She at first

tried to stop him while she was in the car. I mean it

was very clumsy. She then gets out of her car, she

pulls out this .38 special and sticks it in Junior's face.

In fact, she said on deposition that she believed that

Junior thought she was going to kill him, and she

says in her testimony somewhere that she tried to

pull the trigger and Junior got his finger in there

between — you know, so as — so that the gun would

not go off.

My feeling was -- and I could be wrong, I could

definitely be wrong — that this was not a robbery.

The fact of what was in Junior's mind when he took

that car was not what was important. What we were ~

trying to do was get a lesser included offense of

conviction here of grand larceny.

Id. at 162.

The trial transcript, particularly the cross-examination of the

victim (Officer Williams), supports Mr. Harrison's testimony

that “intent to permanently deprive” was not the focus of the

robbery defense, but rather the defense challenged the elements

of “force” and “putting in fear.” Mr. Harrison cross-examined

Officer Williams at the trial. Officer Williams admitted that

Petitioner was unarmed when she drew her gun on him and that

he had put his hands in the air and declared he was unarmed.

Tr. at 510-11.

Q. Now I think you testified that at some

point in time Mr. Bullard, once he got possession of

the gun, he pointed it at you; is that correct?

A. Yes.

Q. All right. And you backed away just three or four

feet; correct?

A. Yes.

Q. Now at that point in time he put the

gun down; didn't he? Or he pointed the gun

away from you; didn’t he?

A. I don’t know. He turned around and got into the

car and drove off.

Q. You don't remember that?

A. (No response).

Q. Did Mr. Bullard ever say anything to

you other than, “I don't have anything, I

don’t have anything”?

A. No.

Q. Okay. And no shots were fired; were they?

A. No.

Q. Mr. Bullard never said to you -- once ,

he had that pistol, he never said anything

like get your hands up, I’m going to take your

car; did he?

A. No.

Q. In fact, you were surprised when he

got in your car and drove off; weren't you?

A. Yes.

Q. All right. So the emotion, when His

Honor phrased the question earlier to ask

about your emotion, the emotion that you had

when he got in that car and took off was one

not of fear but of surprise; wasn’t it?

A. After he got in the car and drove off

I was surprised.

Q. Ma'am, you were surprised when he hopped in

the car and took off, right?

A. Yes.

Q. Because — because the incident with

him tussling with you with the gun was really

separate and apart from him hopping in the car and

taking off, now really, wasn’t it?

Id. at 514-16. This line of questioning verifies Mr. Harrison’s

testimony at the evidentiary hearing that the strategy of the

defense was to attack the “robbery” issue by challenging the

“force or violence,” prong (by separating the tussle over the gun

from the taking of the car) and by showing that the victim was

not placed in fear by or as a part of any taking of the car. As Mr.

Fallin testified, the defense was that the facts showed an auto

theft and not a robbery.

After the State rested, the defense gave its opening statement

and never addressed the “robbery” or “intent” issue, thus

reflecting that the primary focus of the defense was on the

murder/death penalty charge. Id. at 617-22. In closing

argument, defense counsel concluded “(t)his is not an armed

robbery, this may be auto theft, that’s what it would be.”

Id. at 942.

The elements of the robbery count will be explained

to you and it will be ~ and it will be explained to

you in great detail by the judge. But the part of it I

think is the most important is that it requires the

taking by force, violence or assault or putting the

person in fear to take it. Not that the woman was

afraid, but that was the reason she was in fear was

Mr. Bullard was stealing her car. I submit that was an

afterthought, she was afraid of him wrestling with

her was not, though, to commit a robbery. That was

an afterthought to get that car and drive off.

And, again I emphasize you don't hear robbery

victims surprised by them taking something of value

as Ms. Williams was.

Id. at 952-53.

Petitioner was on trial for his Pg, aR ar

capital murder. The charges of murder and robbery were not

severed. Defense counsel did not want Petitioner to testify due to

the dangers of impeachment. EH Tr. at 64-65, 79, 187. And, no

one else could testify to Petitioner's intent to “temporarily” rather

than “permanently” take the car.

Mr. Harrison noted at the evidentiary hearing:

Okay. Mr. Fallin’s closing argument is

exactly the theory that we -- and the strategy

that we proceeded on regarding the issue that

this was not a robbery case at all, that it

was a grand larceny case. Now, you are saying

we should have used -- made a big deal out of

the temporary versus permanent deprivation of

that vehicle. Respectfully, at the time, I beg to

differ with you. I don't think that was the best

strategy, I don't think — I can't speak for Randy

(Fallin), but I don't think he did either. That

was what we understood the facts to be. It seemed

truthful. To this day I believe it was true. This

issue about whether it was temporary or

to me, I don't thi ej

ve t r

Id. at 185-86 (emphasis added). Mr. Harrison thought that any

argument regarding an intent to “temporarily versus permanently

deprive” would have required placing Petitioner on the stand to

testify and would probably have resulted in a conviction of first

degree murder. Id. at 187.

Given the fact the defense used a strategy of attacking the

robbery as an unplanned event and a spontaneous taking

separate from the tussle over the gun (thus eliminating the -

elements of force, violence, and putting the victim in fear),

rather than a defense based on Petitioner's intent to either

“temporarily or permanently deprive, the ineffective assistance

claim based on this issue is merely an unfounded attack upon

counsels’ trial strategy. Petitioner has not established deficient

performance on the part of Mr. Harrison or Mr. Fallin‘.

Ground I(c)- Failure to Object to Erroneous Jury Instruction

Petitioner claims ineffective assistance of trial counsel for

failure to object to an improper jury instruction on the elements

of robbery. The trial court instructed the jury that it could find

the defendant guilty of robbery if he intended to permanently or

temporarily deprive the victim of property. At the preliminary

jury instructions charge conference, the trial judge described the

jury instruction to be used for robbery in violation of Florida

Statutes § 812.13:

Gentleman, this is the way the robbery

will go. Before you can find the defendant

guilty of robbery, the State must prove the

following four elements beyond a reasonable

doubt: number one, that the defendant took

the motor vehicle from the person or custody

of C.E. Williams; two, that the taking was by

force, violence, assault, or by putting C.E.

Williams in fear; three, the property taken

was of some value; four, that the defendant

took the property from C.E. Williams and at

Petitioner's Composite Exhibix, Exhibit 20, Tr. at 604 (emphasis

added). At this time, defense counsel was justified in believing

the trial judge would give a jury instruction that included only

the words “intended to permanently deprive.”

However, at the jury instructions charge conference, the trial

judge included the word “temporarily.” Petitioner's Composite

Exhibit, Exhibit 21, Tr. at 827. Finally, when the trial judge read

the jury instruction on robbery to the jury, he again included the

word “temporarily”:

* Because counsels’ performance was not deficient,

no discussion of prejudice is required. |

Before you can find the defendant guilty of robbery,

the State must prove the following four elements

beyond a reasonable doubt: number one, that the

defendant took the motor vehicle from the person or

custody of C.E. Williams; and two, that the taking

was done by force, violence, assault, or by putting

C.E. Williams in fear; and three, that the property

taken was of some value; and four, that the defendant

took the motor vehicle from the person or custody of

C.E. Williams and at the time of the taking intended

to temporarily or permanently deprive C.E. Williams

of the motor vehicle.

Petitioner’s Composite Exhibit, Exhibit 22, Tr. at 990;

Petitioner’s Composite Exhibit, Exhibit 13; Record at 283

(emphasis added).

Neither Mr. Fallin nor Mr. Harrison caught the inclusion of

the word “temporarily” at the time it was read>. Both attorneys

agreed that the jury instructions, which were quite lengthy,

contained one single adverb (“temporarily”) to which they, by

hindsight, would have objected if they had noticed the inclusion

of the word. Defense counsel later became aware of the inclusion

of the word “temporarily” in the jury instruction and filed a

Motion for New Trial addressed to this issue. Petitioner’s

Composite Exhibit, Exhibit 4, Motion for New Trial, filed

March 24, 1986; Record at 303-04. The motion stated “(t)he

Court erred in instructing the jury on the elements of armed

robbery.”Id. Additionally, they filed a Memorandum of Law in

5 Ar the evidentiary hearing, Petitioner testified he told Mr. Harrison,

his defense counsel, thar the trial judge had misstated the law

regarding robbery by including the word “temporarily” in the jury

instruction; however, Mr. Harrison did not object to the misstatement

during the in-court proceedings. Transcript of the Evidentiary

Hearing, held February 13, 1997, at 215.

Support of Defendant Bullard’s Motion for New Trial and

argued the issue to the trial judge. Petitioner's Composite

Exhibit, Exhibit 5; Record at 305-15; Petitioner’s Composite

Exhibit, Exhibit 23; Tr. at 1033-45. Aiter argument by counsel,

the trial judge denied the Motion for New Trial, stating:

All right. I deny the motion. I think the instruction

was properly given. I think it’s a complete statement

of the or accurate statement of the law.

Tr. at 1046; Record at 316.

Defense counsel heard the correct standard jury instruction on

robbery at the preliminary jury instructions charge conference,

but missed th misstatement when the trial judge read the jury

instruction on robbery to the jury. Pursuant to Fla.R.Crim.P

3.390(d), defense counsel should have objected to the jury

instruction. Petitioner's Composite Exhibit, Exhibit 14. (Further,

at the evidentiary hearing, Petitioner argued that pursuant to

Fla.R.Crim.P. 3.985 defense counsel should have requested the

_ trial judge to enter a written order or explain on the record why

he was deviating from the standard jury instruction. Petitioner’s

Composite Exhibit, Exhibit 15. This issue was never raised in the

state courts and is procedurally barred. Moreover, the issue is not

one of federal constitucional proportion.)

Mr. Fallin testified at the evidentiary hearing that he was

ineffective for failing to object to the misstatement in the jury

instruction. EH Tr. at 66. Further, Mr. Harrison testified he

area and that there was no “robbery” intent to take her police

car. Id. at 84. It was not the defenses position that Petitioner

merely intended to temporarily take the police car. Id. at 162.

The theory of the defense was to “get a lesser-included offense of

",: Grand larceny.” Id. Thus, defense counsel were arguing that

this was not a robbery at all, id., and the “temporary” versus

“permanent” distinction was not part of the defense theory. See

Ground 1(b), supra.

Strickland does not define deficient performance as every

mistake made by counsel. In fact, Strickland holds that counsel is

not expected to try a perfect case, and that not every error, even

if professionally unreasonable, renders counsel ineffective.

Neither is Mr. Fallin’s confession of error entitled to controlling

weight. Harris v. Dugger, 874 F.2d 756, 761 n.4 (11th Cir.

1989). In this case, the attorneys “missed”, a single word -

(“temporarily”) in a jury instruction. However, Mr. Harrison

testified he would not have argued to the jury that Petitioner

intended to take the police officer’s car temporarily and not

permanently. EH Tr. at 164. Moreover, defense counsel, in

closing argument, summarized its theory of the case, which was

not an argument that Petitioner intended to only temporarily

take the police officer's car. Tr. at 941-42. Specifically, defense

counsel stated:

Certainly he took the car and he had no permission

to, but he didn't rob her for the car.

Now this again is a good example as to what I think

of the State’s problem with their case of overcharging.

Perhaps Mr. Bullard stole a police car, no question he

didn't have permission to drive off in it, but this isn't

an armed robbery. This is what we need to pay

close attention to the elements and the opportunities

you'll have to decide what if any criminal offenses

were committed right there. This is not an armed

robbery, this may be auto theft, that's what it would

be.

The elements of the robbery count will be explained

to you and it will be — and it will be explained to

? you in great detail by the Judge.

But the part of it

. *.

sre i-* £i&D (UL)

person in fear to take it. Not that the woman was

afraid, but that was the reason she was in fear was

Mr. Bullard was stealing her car. I submit that was an

afterthought, she was afraid of him wrestling with

her was not, though, to commit a robbery. That was

an afterthought to get in that car and drive off

Id. at 906, 941-42, 953 (emphasis added). At the evidentiary

hearing, Mr. Harrison concluded the jury would not have

accepted the “temporary taking” argument since the facts of the

case did not present a joy ride situation. EH Tr. at 164, 171.

Further, he stated because of the facts of the case concerning

how Petitioner took the car from Officer Williams it would not

have made a difference if the jury had been charged on the

“temporary taking” issue. Id. at 186. Finally, he noted if defense

counsel had argued that Petitioner intended only to temporarily

take the car, Petitioner may have needed to testify. Id. at 187. He

stressed how important it was to this case to avoid placing

Petitioner on the stand. Id. Thus, defense counsels’ performance

in not objecting to the jury instruction was not deficient becaus

the “temporary taking” of the car was not part of the defense

trial strategy, which strategy was rational if not resourceful.

In any event, the jury instruction as given by the trial judge

was later held by the Florida Supreme Court to be a correct

statement of the law. In Daniels v. State, 587 So.2d 460 (Fla.

1991), the Florida Supreme Court held that the specific intent

required to coramit robbery is intent to steal, i.e., to deprive the

owner of the property either permanently or temporarily. Thus, if

this case were to be tried again, the word “temporarily” would be

properly included in the jury instruction, just as it was at

Petitioner's trial.

The prejudice prong focuses on the inquiry of whether.

counsel's deficient performance renders the result of the trial

unreliable or the proceeding fundamentally unfair. Strickland,

466 U.S. at 687. “Unreliability or unfairness does not result if

the ineffectiveness of counsel does not deprive the defendant of

any substantive or procedural right to which the law entitles

him.” Lockhart v. Fretwell, 506 U.S. at 371. Further, it is clear

“(che assessment of prejudice should proceed on the assumption

that the decisionmaker is reasonably, conscientiously, and

impartially applying the standards that govern the decision.” Id.

at 373 (quoting Strickland, 466 U.S. at 695) (Justice O'Connor,

concurring opinion). The United States Supreme Court, in

Fretwell, concluded that a court determining the prejudice prong °

of the two-part test “may not consider the effect of an objection

it knows to be wholly meritless under current governing law

even if the objection might have been considered meritorious at

the time of its omission.” Id. That is precisely the case here.

Because Petitioner has no constitutional right to be tried again

under what is now an incorrect jury instruction, his ineffective

assistance claim is without merit because he cannot show

prejudice. Moreover, no prejudice has been shown because even

if the trial judge had not included the (now correct) term

“remporarily” in the jury instruction on robbery, it would not

have changed the outcome of the jury trial.

Ground I(d)- Failure to Raise Ex Post Facto Issue on

Resentencing

Petitioner contends counsel was ineffective for failure to raise

the constitutional ex post facto doctrine as an objection to the

departure sentence imposed at the resentencing. Specifically,

Petitioner alleges the trial court imposed an allegedly illegal

sentence at resentencing because the trial judge relied upon the

victim's status as a police officer as a basis for departure.

According to Petitioner, this factor was created in “1987” by the

Florida Supreme Court's decision in State v. Baker, and thus

applying it to his case constituted an ex post facto application.

Thus, Petitioner concludes counsel erred by failing to object.

Even assuming arguendo that the ex post facto prohibition

applies in this situation, this claim is meritless because Petitioner

relies upon the wrong year (1987) in citing to State v. Baker, and

incorrectly contends that the case was decided after Petitioner's

offense and conviction. See Petitioner's Proposed Report and

Recommendation, filed April 21, 1997, at 20; Petitioner's

Memorandum of Law in Support of Petition for Writ of Habeas

Corpus, filed August 22, 1994, at 7. To the contrary, the

decision was actually reported on February 6, 1986 (before

Petitioner's trial), as State v. Baker, 483 So. 2d 423 (Fla. 1986),

and it affirms a decision in Baker u. State, 466 So. 2d 1144 (Fla.

3rd DCA 1985) (decided March 26, 1985, before Petitioner’s

offense). Thus, the relevant decision was rendered before

Petitioner's crime and was affirmed by the Florida Supreme

Court before Petitioner's sentencing; application of Baker’

teachings to Petitioner's case did not create any ex post facto

problems. For this reason, Petitioner's ineffective assistance of

trial counsel claim on this ground is without merit.

C. Ineffective Assistance of Appellate Counsel

As ground 2, Petitioner claims his appellate counsel‘ was

ineffective for failing to raise on direct appeal (a) the trial court’s

denial of Petitioner's Motion to Sever the first degree murder and

armed robbery charges, and (b) the trial court’s denial of the

motion for a judgment of acquittal based on the insufficiency of

the evidence on the robbery charge.

In Heath uv. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991)

(citations omitted), cert. denied, 502 U.S. 1077 ( 1992), the

Eleventh Circuit recognized: “(t)his circuit has applied the

Supreme Court's test for ineffective assistance at trial, see

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984), to guide its analysis of ineffective assistance

of appellate counsel claims. Therefore, (Petitioner) must show

that his appellate counsel’s performance was deficient and that

this performance prejudiced the defense. “See page 11, supra.

6 P Douglas Brinkmeyer, an Assistant Public Defender, was Petitioner's

appellate counsel. Transcript of Evidentiary Hearing, held February 13,

1997, at 106.

In applying the Strickland components,

[a] court need not determine whether counsel's

performance was deficient before examining the

prejudice suffered by the defendant as a result of the

alleged deficiencies . . . . If it is easier to dispose of an

ineffectiveness claim on the ground of lack of

sufficient prejudice, which we expect will often be §0,

that course should be followed.

Smith v. Wainwright, 777 F.2d 609, 616 (11th Cir. 1985)

(quoting Strickland, 466 U.S. at 697), rehg denied, 785 F.2d

1037 (11th Cir.), cert. denied, 477 U.S. 905 (1986).

Thus, in reviewing appellate counsel’s performance, the

inquiry is whether it was a reasonable decision under prevailing

professional norms to not raise the issue on direct appeal. The

Court should presume effectiveness. Strickland, 466 U.S. at 690.

The reasonableness of counsel’s assistance is reviewed in light of

the facts and law that existed at the time of the challenged

conduct. Chateloin v. Singletary, 89 F.3d 749, 753 (11th Cir.

1996). Finally, the “Sixth Amendment does not require appellate

advocates to raise every non-frivolous issue.” Heath, 941 F.2d at

1130-31.

[E] fective advocates “winnow out" weaker

arguments even though the weaker arguments may

be meritorious. . . . [A]n appellate advocate who

review[s] the entire record, th[inks] about various

claims, and then cho[oses] to pursue [some] claims

on appeal ha[s] furnished effective appellate

assistance. . . . [E]ven though a non-appealed issue

might have been successful, the appellate advocacy

ha[s] to be judged in its entirety.

13. at 1131.

; To determine prejudice, this Court must review the merits of

the omitted claim. If “the omitted claim would have had a

reasonable probability of success on appeal, then counsel’s

performance necessarily resulted in prejudice.” Joiner v U.S.,

103 F.3d 961.

Ground 2(a)- Failure to Raise Denial of Severance on Appeal

Petitioner contends his appellate counsel was ineffective for

ili § to raise on direct appeal the trial court’s denial of

Petitioner's Motion to Sever the first degree murder and armed

tobbery charges. Prior to the trial, defense counsel filed a Motion

for Separate Trials and Severance of Offenses and a

Memorandum of Law and Fact in Support of His Motion to

Sever Counts One and Two and for Separate Trials Thereon.

Petitioner's Composite Exhibit, Exhibits 2 and 3; Record at 40,

181-87. Defense counsel addressed the Motion to Sever with the

trial judge on February 21, 1986, but argument on the motion

was continued. Petitioner's Composite Exhibit, Exhibit 16;

Record, Volume III, Tr. at 20-24.

On February 25, 1986, counsel Presented the Motion to Sever

to the trial judge. Petitioner's Composite Exhibit, Exhibit 17;

Record, Volume IV, Tr. at 49-68. In support of the motion,

defense counsel submitted a memorandum of law and the

was robbed. Record, Volume IV, Tr. at 50. Initially, the trial

judge read the facts from defense counsel's memorandum of law

in support of the Motion to Sever and asked if counsel could

agree On a statement of facts. Id.

The trial judge summarized the issue:

allegedly shot Tommy Ethridge at about 2:30 a.m. on

March 15th, 1985(,) at the home of Bucky Peeples

Then left those premises. Approximately two hours

later Bullard was arrested by Jacksonville police

Officer Charnita Williams as he was walking

westbound down the road. Bullard was unarmed.

Ms. Williams pulled out her .38 revolver and told

Bullard to get his hands up. She pointed her gun at

Bullard.

The point the defendant emphasizes here is that

Ethridge and Williams incidents are separate and

distinct. 3

Mr. Bullard was casually walking down the street

when arrested by Officer Williams. He just wanted to

be left alone. The officer admits aiming her revolver

at him so that he thought she was going to shoot

him on the spot. She also acknowledges that Bullard

grabbed her gun in order that she not shoot him.

Bullard then hopped in her squad car and to get

away from her.

Under Publ v. State, it says that —cites that 1983,

Fourth DCA is squarely on point, that around 8:00

p-m. Puhl! kidnapped a woman and took her to the

convenience store where she escaped. Then between

two and a half hours later he robbed three other

people, used the same gun in the robberies that he

used in the kidnapping incident.

The appellant could find - the appellate court found

kidnapping and robberies were not based on the

same transaction, or two or more connected acts or

transactions and therefore that the trial court had

erred in not granting the defendant(‘s) pretrial

motion for severance of the counts.

The Court is in exactly the same situation as the

Puhl case because the robbery of the police officer's

car took place about two hours after the alleged

homicide and had nothing in common with that

alleged homicide.

Four, there's another very important aspect in the

Puhl case in which the evidence of the defendant's

guilt in the kidnapping and subsequent robbery was

overwhelming as to each individual count. The

Court held nevertheless the harmless error rule was

inapplicable since where there is a disjoinder of

counts that rule does not apply.

Can we agree on those facts generally as to time, place and so

on?

Id. at 50, 52-53.

The State informed the trial judge that the time and dates

were incorrect, noting the shooting took place on July 15, 1985,

at 3:30 a.m., not March 15, 1985, at 2:30 a.m. Id. at 53-54.

Further, the State noted the robbery/attempted arrest by Officer

Williams occurred at 4:05 a.m. Id. at 54. The State repeatedly

contended the robbery occurred thirty-five minutes or “some 40

minutes” after the shooting. Id. at 54, 55, 66. Further, the State

argued the shooting and the robbery were within “walking

distance” and were within a “couple of miles” of each other. Id.

at 54. Finally, the State concluded "(t)he evidence of the armed

robbery would be admissible in the murder case because

Bullard’s flight from a police officer when the police officer

attempted to make an arrest would be admissible to show his

escape to avoid prosecution or his flight to avoid prosecution.”

Id. at 55. The State cited two cases’, id. at 56, 59, in support of

its argument, but the trial judge concluded neither case was

similar to the issue before the court. Id. at 59, 64.

7King v. State, 390 So.2d 315 (Fla. '980); Bundy v. State, 455 So.2d

330 (Fla. 1984).

Defense counsel stated the robbery was about two hours after

the shooting. Id. at 538, 62, 66. Further, defense counsel argued

Publ v. State, 426 So.2d 1226 (Fla. 4th DCA 1983) was

controlling and the shooting and robbery incidents were “not the

same episode” since they were two hours and “quite some

distance” apart. Tr. at 62-63.

Even after the State noted it would like to provide case law

with regard to the flight to avoid prosecution issue, the trial

judge stated he was ready to make a ruling. Id. at 65. The State °

responded “(w)hatever the Court's preference.” Id.

Okay. I grant the motion for severance. I don’t think

that there's any relationship at all between the

robbery and the murder. I think the distance, the

time, and the space between one and the other have

nothing to do except that the defendant was leaving

that general area and J think it would be error to try

them together.

Id. at 65-66.

The State again informed the trial judge that counsel had not

agreed on the facts (the time between the shooting and the

robbery; the mileage/distance between where the shooting

occurred and where the robbery took place), that counsel had

not submitted anything regarding the mileage between where

the shooting and the robbery occurred, and that defense counsel

had only cited the Publ case in support of their motion. Id. at

66-68. The trial judge asked the State if it needed more time,

and the State responded affirmatively. Id. Thus, the trial judge

8The trial judge quoted defense counsel's contentions contained in his

Memorandum of Law and Fact in Support of His Motion to Sever

Counts One and Two and for Separate Trials Thereon. Petitioner's

Composite Exhibit, Exhibit 3; Record at 183.

os . - - er eee

took the Motion for Separate Trials and Severance of Offenses

under advisement until February 28, 1986. Id. On February 28,

1986, the rrial judge denied the Motion for Separate Trials and

Severance of Offenses without a written opinion or any further

discussion. Record, Volume II at 248-49,

Petitioner was represented on direct appeal by P. Douglas

Brinkmeyer, an Assistant Public Defender. EH Tr. at 106. Mr.

Brinkmeyer has practiced criminal law since 1975 and did two

years of trial work and three years of appellate practice with the

Public Defender’s Office of the Tenth Circuit before moving to

Tallahassee in 1981. Id. Since 1981, he has done criminal

appellate work in the Appellate Division of the Public Defender’s

Office for the Second Circuit. Id. Mr. Brinkmeyer testified that

the severance issue was not preserved for appellate review:

My understanding was at that time and still is that

any pretrial motion must be made in writing prior to

trial, and the trial lawyer has an obligation to present

it to the court in a timely fashion and to get any

ruling on it before trial because trial judges do not

like motions coming in on the day of trial which

could have been made pretrial. And if the motion is

denied pretrial, then the lawyer has an obligation to

renew the motion at the beginning of the trial.

Id. at 118, 120-21. However, both Mr. Fallin and Mr. Harrison

testified they had properly preserved the severance issue for

appeal. Id. at 54, 56-57. -

As Petitioner's appellate counsel, Mr. Brinkmeyer’s

responsibility was to insure that the state court record was

complete and “to review the record and look for possible points

on appeal.” Id. at 122. Mr. Brinkmeyer described his duty as an

“obligation to raise any arguable meritorious issues... .” Id. at

122-23. He noted that some issues are arguable, but not

meritorious since the First District Court of Appeai “is a very

conservative appellate court.”? Id. at 123. He concluded his

“policy is that (he) will present only those issues that (he) can

honestly sign (his) name to the brief that (he) believe(s) have

merit.” Id. at 137.

Mr. Brinkmeyer and Petitioner did not agree on the issues to

be raised on appeal, and Petitioner wrote more than one letter to

Mr. Brinkmeyer and his office demanding that additional

matters be raised on appeal. Id. at 123-26. Priorto Mr. ~~

Brinkmeyer’s filing of the appellate brief, Petitioner asked him to

raise the severance issue on direct appeal. Id. at 126. Mr.

Brinkmeyer never responded in writing to any of Petitioner's

letters. Id. at 132. However, Mr. Brinkmeyer did talk with Mr.

Fallin regarding the appeal, and Mr. Fallin urged him to raise the

habitual offender sentencing and the jury instruction issues.

Id. at 128.

Thus, while Mr. Brinkmeyer was aware of the severance issue,

he concentrated on the habitual offender sentencing and the jury

instruction issues pursuant to Mr. Fallin’s instructions. Id. at

126-29. Mr. Brinkmeyer had “no independent recollection” of

why he did not raise the severance issue, but had “some ideas

about why (he) didn’t raise that issue.” Id. at 127, 129. In

reviewing the record, he knew he had two other meritorious

issues on which he could likely prevail. Id. at 127-29. Indeed,

appellate counsel did ultimately prevail on the sentencing issue

on appeal. Bullard, 515 So.2d 1028. |

Petitioner claims Mr. Brinkmeyer did not raise the severance

issue because he believed it was not preserved for appeal, and

Mr. Brinkmeyer’s testimony reflects this. This Court does not

9 The First District Court of Appeal, in 1992, denied without opinion

Petitioner's Petition for Writ of Habeas Corpus on the severance issue.

Petitioner's Petition at 10-11; Transcript of the Evidentiary Hearing,

held February 13, 1997, at 138-39.

need to address whether a written severance motion, denied

pretrial, needs to be renewed at trial to properly preserve the

issue for appellate purposes. This is because, putting aside the

issue of whether Mr. Brinkmeyer's performance was deficient in

failing to raise this issue, no prejudice has been shown as the

severance issue would not have had a reasonable probability of

success on appeal.

The standard of review in Florida appellate courts on a trial

court's denial of a motion for severance is and was in 1986 a

showing that the trial court abused its discretion. Panzavecchia v.

Wainwright, 658 F.2d 337 (5th Cir. 1981); Crossley u State, 596

So. 2d 447 (Fla. 1992); Menendez v. State, 368 So.2d 1278 (Fla.

1979). The mere fact that the appellate court “might have

decided the motion differently if it had been the trial court” will

not warrant reversal. Canakaris v. Canakaris, 382 So.2d 1197

(Fla. 1980) (Judicial discretion is abused when judicial action is

arbitrary, fanciful, or unreasonable, or where no reasonable man

would take the view adopted by trial court; however, if

reasonable men could differ as to the propriety of action taken

by trial court, then it cannot be said thar trial court abused its

discretion.).

While the trial court in this case was initially receptive to

severance, Ir. at 65-66, the court eventually exercised its

discretion and denied the severance motion. Record, Volume II

at 248-49. While the record does not show why the trial judge

changed his mind, the record does show the denial of the

severance motion was within the trial court’s discretion. Tr. at

52-53. The principal case cited by defendant in support of

severance, Publ v. State, 426 So.2d 1226 (Fla. 4th DCA 1983), is

clearly distinguishable from the case now before this Court. In

Publ, before trial, Pu] moved for a severance of four charges

involving the kidnapping victim from the eight charges involving

five other victims, but the trial court denied the n.otion. The

evidence at trial showed that Puhl held a gun on a woman and

kidnapped her on September 6 at 8:00 p.m. About two and one-

half hours later on the same night, he robbed three other

persons, fired shots at them and at two other persons. The ~

Fourth District Court of Appeal stated, “(t)he only similarity

between the offense against the kidnapping victim and the other

victims was the use of a handgun by Puhl. “Publ, 426 So.2d at

1226. It concluded “offenses may not be joined if they are not

based on the same act or transaction or two or more connected

acts or transactions and that a severance must be granted upon a

timely motion if two or more offen: s are improperly joined.

Id. at 1226-27.

Here, unlike Publ, Petitioner's two charges (first degree murder

and robbery) were episodically connected! since Petitioner was

fleeing the homicide scene when Officer Williams came upon

him. Apparently, the trial judge agreed with the State that

Petitioner was in flight from the homicide when he took the

police officer’s car. In closing argument, the State reminded the

jury of the flight or fleeing the scene by Petitioner, Tr. at 893,

and the trial court did give a flight jury instruction. Td. at 982-

83. The record supports the trial court's decision to deny

severance since the trial court was within its discretion to

determine that the zobbery of Officer Williams aiid the taking of

her car were clearly parr of Petitioner's flight from the scene of

the homicide and were within close proximity timewise and

logistically.

10 In Wright u. Sate, 586 So.2d 1024, 1029 (Fla. 1991), the

Florida Supreme Court reiterated that joinder of criminal

charges is not proper for charges based on similar but separate

episcdes, separated in time, which are connected only by similar

circumstances and the accused's alleged guilt in both or all

instances. The charges must be "episodically connected,” not

distinct. Id.

Petitioner's contention that the charges were not connected is

unconvincing!!. Petitioner himself has argued that the robbery

and the homicide occurred “close” in time, Petitioner's

Memorandum at Petitioner further contended at trial that he

blacked out during the robbery due to the stress of the homicide,

so he implicitly concedes the connection between the events

while sacrificing the ability to allege that the taking of the police

car was not a part of his flight from the homicide.

Thus, Petitioner cannot show the trial court abused its

discretion in denying severance, a prerequisite to reversal on

appeal. Therefore, Petitioner has failed to show a reasonable

probability that Petitioner would have prevailed on this issue on

appeal, and the ineffective assistance claim based on appellate

counsel's failure to raise the severance issue is without merit.

11 None of the cases cited by Petitioner in support of his contention

are factually similar to this case. See Petitioner's Proposed Report and

Recommendation, filed April 21, 1997, at 23 n.1. The closest case,

Jones v. State, 497 So.2d 1268 (Fla. 3rd DCA 1986), review denied,

506 So.2d 1043 (Fla.), cert. denied, 484 U.S. 823 (1987), reversed a

denial of a motion to sever but on factually distinguishable grounds.

Moreover, Jones has been called into question by the Florida Supreme

Court in Crossley v. State, 596 So.2d 447, 450 (Fla. 1992). This

Court has independently reviewed additional Florida case law on

severance and is satisfied that the trial judge did not abuse his

discretion in denying severance on these facts and that therefore

Petitioner was not prejudiced by appellate counsel's failure to raise the

issue on direct appeal. See Gudinas v. State, No. 86070, 1997 WL

166238 (Fla. Apr. 10, 1997) (affirming denial of severance (joinder));-

see also Brown v. State, 502 So.2d 979 (Fla. 1st DCA 1987).

Ground 2(b)- Failure to Raise Denial of

Motion for Judgment of Acquittal on Appeal

Petitioner claims ineffective assistance of appellate counsel for

his failure to raise on direct appeal the trial court's denial of the

motion for a judgment of acquittal based on the insufficiency of

the evidence on the robbery charge. Defense counzi, at the close

of the State's case, argued the motion for judginent of acquittal:

As to Count II (robbery), Your Honor, I'd like

you to really take a hard look at this and ask you if

you would agree with me that while there may have

been an unlawful taking of this police officer's

vehicle, this is not a robbery. She testified that the

defendant approached her, he was frightened, he put

up his hands, he said, “I don’t have anything. I don't

have anything,” and then he acted in taking away her

gun only to protect herself pardon me, protect

himself from being shot by this police officer.

And the important thing about that is there is a

real kind of a splinter dichotomy between the

incident with the wrestling with the gun and the

taking of the car. In other words, the taking of the

car was kind of an afterthought.

What I am saying is I don't think Mr. Bullard

ever put this lady — let me rephrase it, he never took

this vehicle by putting this officer in fear by

assaulting her or by doing anything else that's set

forth in the robbery statute. There's just not that

nexus between the taking of the car and the wrestling

of the gun.

If you remember that she said that Mr. Bullard

put his finger - thumb in the hammer portion of the

gun in order to prevent her from shooting him. It

was kind of a defensive thing.

And I just think the nexus for robbery just isn't

there and I would ask that you grant a judgment of

acquittal as to Count II.

Tr. at 613-14. The trial court denied the motion for judgment of

acquittal, stating the State had shown a prima facie case: :

On the charge of robbery, I deny the motion for

judgment of acquittal on that for the reason I feel as

though the State's made out a prima facie case,

they've proven time, date, place, identity. They've

had testimony of the victim in this case that that [sic]

defendant did use force, violence, assault upon her in

taking her gun, and that she said she was in fear at

the time he took it she was in fear and she was also

surprised. Those are also not necessarily mutual

exclusive emotions, one does not exclude the other

that he took the car, but the reason he took the car is

because she was in fear. She couldn't stop him, that's

what her testimony was. He had a gun he wrestled

from her.

And the fact he may feel as though there were — was

a dichotomy of events, I don’t agree with you

whether there was or not. She was still placed in fear

and he took the motor vehicle from her. And in my

opinion it's not the ordinary standard robbery where

you hold up, give me your money or your life,

nonetheless it meets all the elements of a robbery.

And I don't know that the ~ in any event, I feel as

though the State's made out a prima facie case

sufficient to go to the jury on the charge of armed

robbery.

Id. at 614-15. Further, when the moti-cn was renewed, the trial

court denied the motion, stating there was prima facie evidence

sufficient to submit the case to the jury. Id. at 879.

Petitioner has not shown his appellate counsel's performance was

deficient. Petitioner, at the evidentiary hearing, did not inquire

as to why Mr. Brinkmeyer did not raise this issue on appeal.

Further, Petitioner did not address this issue in his Proposed _

Report and Recommendation. See Petitioner's Proposed

Report and Recommendation at 24-25. This Court is of the

opinion that appellate counsel's failure to raise the denial of the

motion for judgment of acquittal was not deficient because the

trial court did not err in denying the motion. Further, Mr.

Brinkmeyer spoke with Mr. Fallin and raised on direct appeal

the two arguable and meritorious issues suggested by Mr. Fallin.

Thus, this Court is not convinced that Mr. Brinkmeyer was

deficient in not raising this issue on appeal.

Robbery is defined as the taking of money or other property

which may be the subject of larceny from the person or custody

of another when in the course of the taking there is the use of

force, violence, assault, or putting in fear. Fla. Stat. § 812.13(1)

(1989). The trial judge read the following instructions to the

jury:

Before you can find the defendant guilty of robbery,

the State must prove the following four elements

beyond a reasonable doubt: number one, that the

defendant took the motor vehicle from the person or

custody of C.E. Williams; and two, thar the taking

was done by force, violence, assault, or by putting

C.E. Williams in fear; and three, that the property

taken was of some value; and four, that the defendant

took the motor vehicle from the person or custody of

C.E. Williams and at the time of the taking intended

to temporarily or permanently deprive C.E. Williams

of the motor vehicle.

Tr. at 990. :

Under Florida law, “(i)n moving for a judgment of acquittal,

(Petitioner) admits not only the facts stated and the evidence

adduced, but he also admits, for the purpose of the motion,

every conclusion favorable to the State that a fact-finder might

reasonably infer from the evidence.” Lynch v. State, 293 So. 2d

44, 45 (Fla. 1974). The testimony of Officer Williams describes

the taking of the car by Petitioner. From that testimony, the trial

court was correct in denying the motion for judgment of

acquittal, concluding that the jury could reasonably find that

Petitioner had committed a robbery.

On appeal, when faced with an issue of whether the trial court

erred by denying a motion for judgment of acquittal, the

appellate court reviews the evidence to determine if the evidence

is sufficient to create a jury question. See Smithson v. State, 689

So. 2d 1226, 1228 (Fla. 5th DCA 1997). This Court believes

that there was sufficient evidence on the robbery count to

submit the question to the jury, and this issue would not have

had a reasonable probability of success on appeal.

D. Remaining Claims

In ground 3, Petitioner claims the state courts misapplied state

sentencing guidelines. This Court agrees with Respondents’

contention that this ground does not present a violation of

federal constitutional dimension. It is clear that federal habeas

corpus cannot be used to ask federal courts to reapply state

sentencing law and substitute their own sentences for those of

the state courts. In ground 4, Petitioner contends he was denied

a fair trial because of the use of an improper jury instruction on

robbery due to the inclusion of the word “temporarily.” For the

reasons stated in Section B of this Report and Recommendation

and because the improper jury instruction (later found to be

proper) did not so infect the entire trial that the resulting

conviction violated due process, see Estelle v. McGuire, 502 US.

62 (1991), this claim is without merit. Finally, as ground 5,

Petitioner claims an ex post facto violation at resentencing. For

the reasons stated in Section B of this Report and Recomm-

endation, this claim is without merit.

IV. Recommendation

That the Petition for Writ of Habeas Corpus (Doc. # 1) filed

herein be DENIED.

ENTERED at Jacksonville, Florida, this 5th day of June, 1997."

UNITED STATES MAGISTRATE JUDGE

sc 6/4

c: The Honorable Harvey E. Schlesinger,

United States District Judge

John D. Middleton, Esquire

Assistant Attorney General (Menser)

Assistant State Attorney (Taylor)

SOUTHERN REPORTER, 2d SERIES

Eston BULLARD, Jr.,

Appellant,

STATE of Florida, Appellee.

No. BO-61.

District Court of Appeal of

Florida,

First District.

Oct. 28, 1987.

Rehearing Denied

Dec. 8, 1987.

Defendant was convicted by

jury in the Circuit Court,

Duval County, R. Hudson

Olliff, J., of armed robbery

and was sentenced to life

imprisonment with three-year

mandatory minimum, and he

appealed. The District Court

of Appeal, Booth, J., held

that: (1) defendant's habitual

offender status could not be

used as reason for departure

from guidelines

recommendation of 12 to 17

years, and (2) instruction on

_ intent element of robbery,

that State had to prove

defendant's intent to

temporarily or permanently

deprive robbery victim of

property, was not fundamental

error in absence of issue with

respect to that element.

Affirmed in part, reversed in

part, and remanded.

1. Criminal Law - 1203.32

Armed robbery defendant's

habitual offender status could

not be used as reason for

departure from sentencing

guidelines recommendation.

2. Criminal Law ~1038.1(4)

Instruction on intent

element of robbery, that State

had to prove defendant's

intent to temporarily or

permanently deprive robbery

victim of property, was not

fundamental error in absence

of issue with respect to that

element.

Michael E. Allen, Public

Defender, and P. Douglas

Brinkmeyer, Asst. Public

Defender, Tallahassee, for

appellant.

Robert A. Butterworth,

1, Although Snete x Neil , 457 So.2d 481, 487 (Fla. 1984) expressly left open the

question, we assume, without deciding, thar the decision is applicable xo other than

racial groups. Of course, we have already decided thar the holing in Neil applies to

civil cases. See City of Miami u Cornett, 463 s0.2d. 399 (Fla. 3d DCA 1985).

Arty. Gen., and John M.

Koenig, Jr., Asst. Atty. Gen.,

Tallahassee, for appellee.

BOOTH, Judge.

This cause is before us on

appeal from a judgment of

conviction entered on a jury

verdict of guilty of armed

robbery and sentence to life

imprisonment with a three-

year mandatory minimum.

On appeal, the issues are: first,

whether the trial court erred

in using appellant's habitual

offender status as the reason

for departure from the

sentencing guidelines

recommendation of 12 to 17

years; and second, whether the

court's instruction on the

intent element of robbery

constituted fundamental error.

We affirm appellant's

conviction, but are required to

reverse his sentence and

remand for resentencing due

to the decision of the Supreme

Court of Florida in Whitehead

v. State, 498 So.2d 863

(Fla.1987).

The facts are that

Jacksonville Police Officer

Charnita Williams observed

appellant walking along a road

as she responded to a radio

call that there had been a

murder in the area. As the

officer pulled her car over

appellant walked towards the

car with something in his

hand. The officer drew her

gun and got out of the car as

appellant rushed to the rear of

the car. After raising his

hands, appellant grabbed

the officer's wrist and took the

gun, pointing it ar her. As the

officer backed away, appellant

got into the marked patrol car

and drove away.

Later that day, Nassau

County Deputy Sheriff W.G.

Dover identified the stolen

patrol car exceeding the speed

limit and followed it onto a

road where he found the car

abandoned. Appellant was ap-

prehended after being tracked

by a police dog.

[1] The trial court exceeded

the guide-lines

recommendation due to

appellant's qualification as a

habitual offender. This was

error under the holding in

Whitehead supra, wherein the

Supreme Court held that

habitual offender status is not

an adequate reason to depart

from the sentencing

guidelines. In Brown wv. State,

508 So.2d 776 (Fla. lst DCA

_——— oo wn mm pr e- . 5 sees. -.+

1987), this court further

tuled that conviction of a

first-degree felony coupled

with a habitual offender status

does not require a mandatory

sentence of life impriso

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.