Downs v. Wainwright, 66116

• Decision Date: 29 August 1985
• Docket Number: No. 66116,66116
• Citation: 10 Fla. L. Weekly 477,476 So.2d 654
• Court: Florida Supreme Court
• Parties: 10 Fla. L. Weekly 477 Ernest Charles DOWNS, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida, Respondent.

Page 654

476 So.2d 654

10 Fla. L. Weekly 477

Ernest Charles DOWNS, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida, Respondent.

No. 66116.

Supreme Court of Florida.

Aug. 29, 1985.

Rehearing Denied Nov. 4, 1985.

Maurice N. Nessen of Kramer, Levin, Nessen, Kamin & Frankel, New York City, for petitioner.

Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for respondent.

ALDERMAN, Justice.

Alleging that he was denied effective assistance of appellate counsel and that the appellate review was based on an improper record, Ernest Charles Downs petitions for writ of habeas corpus. We find no merit to his contentions and deny his petition for writ of habeas corpus.

Ernest Downs was convicted of the first-degree murder of Forrest Harris, Jr., and of conspiracy to commit first-degree murder and was sentenced to death after a jury recommendation that the death penalty be imposed. Downs appealed and argued fifteen points on appeal. This Court affirmed his conviction and death sentence. Downs v. State, 386 So.2d 788 (Fla.), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 238 (1980). On June 21, 1982, Downs filed a motion to vacate, set aside, or correct convictions and sentences and to order a new trial. He alleged that he did not receive effective assistance of trial counsel, that his attorney's contingent fee contract with him created a conflict of interest, that his statements to the authorities were not voluntary and should have been excluded from evidence, that certain jurors were improperly excluded, and that the manner and fact of the state's giving co-conspirator Johnson immunity rendered Johnson's testimony unreliable. In this motion, he challenged his sentence of death on the basis of disproportionality; ineffective assistance of counsel; restriction of mitigating factors; instruction on heinous, atrocious, or cruel; unconstitutionality; Brady ^* violation; and the Supreme Court's review of psychiatric reports. In a supplemental motion to vacate, Downs contended that there were further Brady violations by the state relating to certain tapes, the existence of the cellmate as a potential defense witness, and the state attorney's written questions to Johnson and his written responses. After evidentiary hearings held in October 1982 and January 1983, the trial court denied Downs' 3.850 motions and in its order dealt with each of the points raised by Downs. Specifically, the court found that the record and evidence reflected that trial counsel did conduct a reasonable pretrial investigation and that his challenged decisions were strategic trial matters. Other grounds were found by the trial court to be inappropriate grounds for post-conviction relief. We affirmed. Downs v. State, 453 So.2d 1102 (Fla.1984).

Downs now comes to this Court seeking what he terms to be a "conditional writ," asking that he be given an opportunity to brief and argue his appeal anew. Contending that the criteria for determining prejudice established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), does not apply in the present case, Downs argues that a different standard is to be applied in deciding claims of ineffective assistance of appellate counsel than is applied in deciding claims of ineffective assistance of trial counsel. The burden upon him at this time, he contends, is only to show that there is some substance to his claim. In support of his position, he relies upon Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). We disagree that Evitts establishes a different standard for judging claims of ineffective assistance of appellate counsel.

In Downs v. State, 453 So.2d 1102 (Fla.1984), wherein we affirmed the trial court's denial of Downs' 3.850 motion, we explained in detail the test for ineffectiveness of counsel announced by the Supreme Court of the United States in Strickland. Therein, we stated:

The benchmark for judging claims of ineffectiveness, the Supreme Court held, is whether the conduct of counsel "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 2064. In order for a defendant to succeed on a claim of ineffectiveness of counsel so as to obtain a reversal of a conviction or death sentence, the Supreme Court held that he must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense. The measure of an attorney's performance, the Court stated, is reasonableness under prevailing professional norms, reasonableness considering all the circumstances.

Id. at 1106-07. Relative to the requirement that prejudice be demonstrated, we stated:

Furthermore, the Supreme Court held, even if defendant can demonstrate that counsel's performance was deficient under these guidelines, this will not warrant setting aside the judgment of a criminal proceeding if counsel's errors had no effect on the judgment. In order to constitute ineffective assistance under the constitution, counsel's deficiencies in performance must be prejudicial to the defendant. Defendant must affirmatively prove prejudice. The Supreme Court explained:

Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice. Nor can they be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid. Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense.

It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.

....

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

....

... When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.

Id. at 1108 (emphasis added).

Since Strickland, we have consistently applied this test to claims of ineffectiveness of trial and appellate counsel. In Adams v. State, 456 So.2d 888 (Fla.1984), in rejecting Adams' claim raised in a petition for writ of habeas corpus that he was denied effective assistance of appellate counsel, we recited the...