Sullivan v. Wainwright, No. 81-5843

CourtU.S. Court of Appeals — Eleventh Circuit
Writing for the CourtBefore RONEY, TJOFLAT and FAY; FAY; TJOFLAT
Citation695 F.2d 1306
Decision Date17 January 1983
Docket NumberNo. 81-5843
PartiesRobert A. SULLIVAN, Petitioner-Appellant, v. Louie L. WAINWRIGHT, etc., et al., Respondents-Appellees.

Page 1306

695 F.2d 1306
Robert A. SULLIVAN, Petitioner-Appellant,
v.
Louie L. WAINWRIGHT, etc., et al., Respondents-Appellees.
No. 81-5843.
United States Court of Appeals,
Eleventh Circuit.
Jan. 17, 1983.
Rehearing and Rehearing En Banc Denied May 17, 1983.

Page 1307

Roy E. Black, Miami, Fla., for petitioner-appellant.

Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, Fla., for respondents-appellees.

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

Before RONEY, TJOFLAT and FAY, Circuit Judges.

FAY, Circuit Judge:

Robert A. Sullivan appeals the district court's denial of his habeas corpus petition challenging his conviction for first degree murder and sentence of death and raises five issues: 1) whether the death sentence was unconstitutionally imposed on the basis of the state trial court's findings or instructions to the jury; 2) whether petitioner Sullivan received ineffective assistance of counsel; 3) whether excusal of four prospective jurors for cause violated his constitutional right to a fair trial; 4) whether the testimony of a state witness regarding a polygraph constituted constitutional error; and, 5) whether the denial of petitioner's leave to amend was improper. After careful consideration of the issues raised on appeal, we affirm the denial of the writ of habeas corpus.

Facts

On the night of April 8, 1973, Sullivan, along with Reid McLaughlin, robbed a Howard Johnson's restaurant in Homestead, Florida, where Sullivan had formerly been employed. Sullivan and McLaughlin abducted the assistant manager, Donald Schmidt, taped his wrists behind his back, and drove him to a swampy area. Sullivan struck Schmidt twice on the back of the head with a tire iron and then shot him twice in the back of the head, each time with both barrels of a double barrel shotgun.

When Sullivan was arrested, the police found Schmidt's credit cards and watch. The police also found a shotgun, a handgun, white adhesive tape and a tire iron in Sullivan's car. Sullivan subsequently confessed to the murder of Schmidt and implicated McLaughlin. McLaughlin also confessed, but entered into a plea bargain with the state. McLaughlin was promised a life sentence in exchange for his testimony at Sullivan's trial.

Sullivan was convicted by a jury in Dade County, Florida in November 1973. The jury recommended a sentence of death and the state trial judge imposed the death penalty pursuant to Fla.Stat. Sec. 921.141 (1973).

Sullivan appealed to the Florida Supreme Court, which affirmed. Sullivan v. State, 303 So.2d 632 (1974). The United States Supreme Court denied certiorari. Sullivan v. Florida, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976). Sullivan, represented by new counsel, filed a motion in the state

Page 1308

court for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. The state court held an evidentiary hearing without Sullivan's presence on the sole issue of ineffective assistance of counsel. The court thereafter denied the motion. Sullivan appealed to the Florida Supreme Court. While that appeal was pending, the Governor of Florida signed a death warrant for Sullivan. The Florida Supreme Court denied Sullivan's motion for stay of execution and affirmed the denial of Sullivan's motion for post-conviction relief. Sullivan v. State, 372 So.2d 938 (Fla.1979).

Sullivan then filed a petition for writ of habeas corpus and motion for stay of execution pursuant to 28 U.S.C. Sec. 2254 in the United States District Court for the Southern District of Florida. The district court granted the motion for stay of execution. The magistrate conducted an evidentiary hearing on Sullivan's habeas corpus petition. Sullivan testified and was given every opportunity to present evidence. After post-hearing submissions of briefs by the parties, the magistrate entered a lengthy report recommending that the petition for writ of habeas corpus be denied on its merits. State and Sullivan filed written objections to the magistrate's report and recommendation. The district court entered its Final Order of Dismissal on June 4, 1981, denying the petition for writ of habeas corpus. This appeal followed.

Ineffective Assistance of Counsel

On this appeal, Sullivan contends he was denied his sixth amendment right to the effective assistance of counsel at the penalty phase and on direct appeal to the Florida Supreme Court. The magistrate held an evidentiary hearing on the ineffective assistance of counsel claims, 1 and found that counsel was "reasonably likely to render and did render reasonably effective assistance of counsel," applying the standard enunciated in MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir.1960), adhered to en banc, 289 F.2d 928 (5th Cir.) cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). 2 The district court concurred in the magistrate's conclusions and found that "petitioner's main claim that he was denied effective assistance of counsel [was] totally without merit. The record clearly demonstrate[d] that his counsel throughout discharged their grave and solemn duty to petitioner in a manner consistent with the highest technical and ethical standards of their profession." (R., Vol. III, p. 589, Final Order of Dismissal).

Whether defense counsel has rendered adequate assistance is a mixed question of law and fact that requires the application of legal principles to the historic facts of the case. Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980); Young v. Zant, 677 F.2d 792, 798 (11th Cir.1982). The district court's conclusion on this issue is entitled to no special deference and this court must review counsel's performance and determine independently whether the constitutional standard was met. Proffitt v. Wainwright, 685 F.2d 1227 at 1247 (11th Cir.1982), citing, Washington v. Watkins, 655 F.2d 1346, 1355 (5th Cir.1981). Similarly, the state courts' finding that Sullivan's ineffective assistance of counsel claim was without merit, Sullivan v. State, 372 So.2d at 939, is not entitled to a presumption of correctness under 28 U.S.C. Sec. 2254(d). Goodwin v. Balkcom, 684 F.2d 794 at 803 (11th Cir.1982).

We must assess whether counsel's performance constituted "reasonably effective assistance." The standard is not errorless counsel or counsel judged with the benefit of 20/20 hindsight. Proffitt v. Wainwright,

Page 1309

at 1247; Mylar v. State, 671 F.2d 1299, 1301 (11th Cir.1982). Rather, the assistance rendered must be evaluated from the perspective of counsel, taking into account all the circumstances of the case, but only as those circumstances were known to counsel at that time. Proffitt v. Wainwright, at 1247. Although on this appeal Sullivan only raises counsel's effectiveness during the penalty phase and on direct appeal to the Florida Supreme Court, a consideration of the totality of circumstances encompasses the quality of counsel's assistance from the time of appointment through the appeal. Goodwin v. Balkcom, 684 F.2d at 804 (11th Cir.1982).

Sullivan's contention that counsel rendered ineffective assistance at the penalty phase is based on his assertion that "it does not seem inappropriate to require counsel in a capital case to give an extensive and perhaps impassioned plea for his client's life." Brief of Appellant at 41. Sullivan also asserts that counsel did not make appropriate objections or sufficiently rebut the prosecutor's argument requesting the death penalty. We decline to adopt a rigid rule which would require counsel to argue to the jury in a specific manner or to make particular objections during the penalty phase of a capital case. Each case turns on its own facts and the effectiveness of counsel must also be judged on the facts and conduct of those involved in each case. Goodwin v. Balkcom, at 804. We have carefully reviewed counsel's performance during the penalty phase, in light of the totality of the circumstances as they were known to counsel at that time, and find that counsel's performance did not fall below the "reasonably effective assistance" standard.

Sullivan also contends that counsel was ineffective because he did not raise certain issues on direct appeal to the Florida Supreme Court. Counsel did file a brief on appeal which argued and supported several substantive legal claims, such as the admission of testimony relating to a polygraph. This is not a situation similar to Mylar v. Alabama, 671 F.2d 1299, 1302 (11th Cir.1982), where we held that failure to file a brief in a nonfrivolous appeal falls below the standard of competency expected and required of counsel in criminal cases and therefore constitutes ineffective assistance of counsel. 3 Sullivan's appellate counsel functioned as an active advocate on behalf of his client. Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). The failure of counsel, in 1974, to advance certain points on appeal which subsequently gained judicial recognition does not render counsel ineffective. Sullivan acknowledges that he was one of the first defendants to be tried under Florida's post-Furman death penalty statute. At the time of trial and appeal in 1973-74, the law concerning capital sentencing was in a state of reformation. Sullivan does not direct us to any case decided at that time and overlooked by counsel. Counsel's failure to divine the judicial development of Florida's capital sentencing does not constitute ineffective assistance of counsel. Accord, Proffitt v. Wainwright, supra.

Thus, we find that Sullivan received reasonably effective assistance of counsel during the penalty phase and on direct appeal.

Sullivan's Substantive Constitutional Claims

Sullivan argues that his trial, including the penalty phase, contained the following errors which render the imposition of the death penalty unconstitutional. Sullivan contends that four prospective jurors who voiced reservations about...

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71 practice notes
  • Cochran v. State, 6 Div. 726
    • United States
    • Alabama Court of Criminal Appeals
    • March 17, 1989
    ...to raise issues on appeal that only later gain 'judicial recognition' does not constitute ineffectiveness, id.; Sullivan v. Wainwright, 695 F.2d 1306, 1309 (11th Cir.), cert. denied, U.S. , 104 S.Ct. 290, 78 L.Ed.2d 266 (1983), 'and counsel need not brief issues reasonably considered to be ......
  • Moore v. Kemp, No. 84-8423
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 27, 1987
    ...(the failure to raise an issue that only later gains judicial recognition does not render counsel ineffective); Sullivan v. Wainwright, 695 F.2d 1306, 1309 (11th Cir.), cert. denied, 464 U.S. 922, 104 S.Ct. 290, 78 L.Ed.2d 266 (1983) 13 The district court stated that Because Petitioner hims......
  • Birt v. Montgomery, No. 82-8156
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 11, 1983
    ...ineffective assistance. Bare claims of ineffective assistance are insufficient to establish the requisite cause. Sullivan v. Wainwright, 695 F.2d 1306, 1311 (11th Cir.1983); Lumpkin v. Ricketts, 551 F.2d 680, 682 (5th Cir.), cert. denied, 434 U.S. 957, 98 S.Ct. 485, 54 L.Ed.2d 316 (1977). A......
  • Hargrave v. Dugger, No. 84-5102
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 13, 1987
    ...707 F.2d 1339, 1347 (11th Cir.1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2375, 80 L.Ed.2d 847 (1984); see Sullivan v. Wainwright, 695 F.2d 1306, 1311 (11th Cir.), cert. denied, 464 U.S. 922, 104 S.Ct. 290, 78 L.Ed.2d 266 At the time Hargrave filed his appellate brief in state court, Coope......
  • Request a trial to view additional results
71 cases
  • Cochran v. State, 6 Div. 726
    • United States
    • Alabama Court of Criminal Appeals
    • March 17, 1989
    ...to raise issues on appeal that only later gain 'judicial recognition' does not constitute ineffectiveness, id.; Sullivan v. Wainwright, 695 F.2d 1306, 1309 (11th Cir.), cert. denied, U.S. , 104 S.Ct. 290, 78 L.Ed.2d 266 (1983), 'and counsel need not brief issues reasonably considered to be ......
  • Moore v. Kemp, No. 84-8423
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 27, 1987
    ...(the failure to raise an issue that only later gains judicial recognition does not render counsel ineffective); Sullivan v. Wainwright, 695 F.2d 1306, 1309 (11th Cir.), cert. denied, 464 U.S. 922, 104 S.Ct. 290, 78 L.Ed.2d 266 (1983) 13 The district court stated that Because Petitioner hims......
  • Birt v. Montgomery, No. 82-8156
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 11, 1983
    ...ineffective assistance. Bare claims of ineffective assistance are insufficient to establish the requisite cause. Sullivan v. Wainwright, 695 F.2d 1306, 1311 (11th Cir.1983); Lumpkin v. Ricketts, 551 F.2d 680, 682 (5th Cir.), cert. denied, 434 U.S. 957, 98 S.Ct. 485, 54 L.Ed.2d 316 (1977). A......
  • Hargrave v. Dugger, No. 84-5102
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 13, 1987
    ...707 F.2d 1339, 1347 (11th Cir.1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2375, 80 L.Ed.2d 847 (1984); see Sullivan v. Wainwright, 695 F.2d 1306, 1311 (11th Cir.), cert. denied, 464 U.S. 922, 104 S.Ct. 290, 78 L.Ed.2d 266 At the time Hargrave filed his appellate brief in state court, Coope......
  • Request a trial to view additional results

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