King v. Strickland, 82-5306

• Decision Date: 03 December 1984
• Docket Number: No. 82-5306,82-5306
• Citation: 748 F.2d 1462
• Parties: Amos Lee KING, Jr., Petitioner-Appellant, v. Charles G. STRICKLAND, Jr., Warden, Florida State Penitentiary, Louis L. Wainwright, and Jim Smith, Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1462

748 F.2d 1462

Amos Lee KING, Jr., Petitioner-Appellant, v. Charles G. STRICKLAND, Jr., Warden, Florida State

Penitentiary, Louis L. Wainwright, and Jim Smith,

Attorney General, Respondents-Appellees.

No. 82-5306.

United States Court of Appeals, Eleventh Circuit.

Dec. 3, 1984.

Baya Harrison, III, Tallahassee, Fla., for petitioner-appellant.

Michael J. Kotler, Asst. Atty. Gen., Tampa, Fla., for respondents-appellees.

Appeal from the United States District Court for the Middle District of Florida.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before RONEY and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge.

RONEY, Circuit Judge:

Amos Lee King, Jr. was convicted of first degree murder and sentenced to death in Florida. After state procedures were completed, the federal district court subsequently denied his petition for a writ of habeas corpus. We affirmed the district court on all issues related to the conviction but reversed the failure to grant relief as to the death sentence on the ground that counsel was ineffective during the penalty phase. The case was remanded for entry of an appropriate writ that would lead to resentencing. King v. Strickland, 714 F.2d 1481 (11th Cir.1983). The Supreme Court, --- U.S. ----, 104 S.Ct. 2651, 81 L.Ed.2d 358, vacated our judgment and remanded for further consideration in light of its decision in Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Having applied the principles announced in Washington, we adhere to our earlier decision.

The facts are more fully set forth in our previous opinion. 714 F.2d at 1484. King was convicted of the first degree murder of Natalie Brady, robbery of her home, arson, involuntary sexual battery, attempted murder of a prison counselor and escape from prison. The Florida Supreme Court affirmed a death sentence, King v. State, 390 So.2d 315 (Fla.1980), cert. denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 825 (1981). The state courts denied collateral relief. King v. State, 407 So.2d 904 (Fla.1981).

The question before us is whether the Supreme Court's holding in Strickland v. Washington requires a decision that King received effective assistance of counsel at his sentencing. The Court has considered the supplemental briefs of the parties on the point.

Counsel's failure to render adequate legal assistance can deprive a criminal defendant of the Sixth Amendment right to counsel. Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A claim of ineffectiveness must establish that "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id., --- U.S. ---- at ---- - ----, 104 S.Ct. at 2063-65, 80 L.Ed.2d at 692-93. A capital sentencing hearing is sufficiently similar to a trial to require the same protection for the defendant. Id. at ----, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

The Washington Court held that a claim of ineffective assistance of counsel has two components. First, a defendant must show that counsel's performance was deficient by identifying specific acts and omissions. Counsel's conduct, viewed as of the time of the actions taken, must have fallen outside of a wide range of reasonable professional assistance. In assessing a right to counsel's claim, an attorney's actions are strongly presumed to have fallen within that range, and a court must examine counsel's conduct without the use of judicial hindsight.

Second, the defendant must show that the deficient performance was prejudicial. The Washington Court followed a standard that requires a showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at ----, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. A defendant challenging a death sentence must show that without the error there is a reasonable probability that "the balance of aggravating and mitigating circumstances did not warrant death." Id. A defendant's failure to establish either the performance or the prejudice component results in denial of his Sixth Amendment claim.

In applying the standards of Washington, we note that they differ little from the standards applied in our initial decision in this case. We recognized that King had the burden of establishing both ineffectiveness and prejudice, that the proper standard for attorney performance is that of "reasonably effective assistance," that the totality of the circumstances should be reviewed, that specific acts and omissions of counsel must be identified, and that strategic decisions made by counsel after a reasonable investigation into the alternatives deserve deference. Nevertheless, we concluded that King's attorney's failure to present available character witnesses in mitigation and his weak closing argument constituted both an unreasonable professional performance by the attorney and impermissible prejudice to King, thereby denying him effective assistance of counsel at the penalty stage of his trial.

The totality of the circumstances of this case differs markedly from that in Washington. Washington involved questioning the performance of an experienced criminal lawyer, but King's attorney at the capital sentencing, Thomas Cole, had never tried a capital case before and...