Washington v. Strickland, No. 81-5379

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore RONEY, VANCE and RANDALL; RANDALL; Finally at the habeas hearing; RONEY; Q. In your sentencing order; Q. In your sentencing order
Citation673 F.2d 879
Decision Date23 April 1982
Docket NumberNo. 81-5379
Parties10 Fed. R. Evid. Serv. 338 David Leroy WASHINGTON, Petitioner-Appellant, v. Charles E. STRICKLAND, Superintendent, Florida State Prison, and Jim Smith, Attorney General of the State of Florida, Respondents-Appellees. . Unit B *

Page 879

673 F.2d 879
10 Fed. R. Evid. Serv. 338
David Leroy WASHINGTON, Petitioner-Appellant,
v.
Charles E. STRICKLAND, Superintendent, Florida State Prison,
and Jim Smith, Attorney General of the State of
Florida, Respondents-Appellees.
No. 81-5379.
United States Court of Appeals,
Fifth Circuit.
Unit B *
April 23, 1982.

Page 882

Richard E. Shapiro, New Orleans, La., for petitioner-appellant.

Calvin Fox, Asst. Atty. Gen., Miami, Fla., for respondents-appellees.

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

Before RONEY, VANCE and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

In this appeal from the denial of a writ of habeas corpus, we are required to apply to a habeas petition claiming ineffective assistance of counsel at the sentencing phase of a prosecution for a capital crime the method of analysis and standards which have been developed in this circuit for habeas petitions based upon claims of ineffective assistance of counsel at the guilt phase of prosecutions for various crimes. Petitioner-Appellant, David Washington, voluntarily confessed and pleaded guilty to three brutal murders and to a lengthy series of associated crimes of violence; he makes no challenge to the validity of his confessions or pleas. Washington's death sentences have been affirmed by the Supreme Court of Florida on direct appeal. His claim of ineffective assistance of counsel at the sentencing phase of his prosecution has been rejected by a Florida circuit court, the Supreme Court of Florida and the federal district court below. In each case, the claim has been rejected in large part because the court concluded, under

Page 883

the standards set out by the Supreme Court of Florida in Knight v. State, 394 So.2d 997 (Fla.1981), and by the Court of Appeals for the District of Columbia Circuit in United States v. DeCoster, 624 F.2d 196 (D.C.Cir.) (plurality opinion), cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 311 (1979), that Washington had failed to show that if his counsel had done all of the things that Washington claimed he had failed to do, the outcome of the sentencing phase would have been different, and that Washington had therefore failed to establish that he was denied the effective assistance of counsel.

We conclude that the district court employed a method of analysis of Washington's ineffective assistance of counsel claim that is different in material respects from that employed in this circuit. We therefore vacate this aspect of the judgment of the district court and remand for reconsideration in the light of this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND TO THIS APPEAL

A. Proceedings in the State Courts

In a ten-day crime spree in September 1976, David Washington committed three murders, as well as a number of associated crimes of lesser gravity. He surrendered to police investigating one of these murders on October 1, 1976. On October 7, Washington was indicted in the Circuit Court for the Eleventh Judicial District, Dade County, Florida, for several offenses-including first degree murder-arising from the death of Frank Meli. On that same day, William Tunkey, an experienced criminal lawyer, was appointed to represent Washington on these charges, and immediately began preparations for trial. Against the advice of Tunkey, Washington confessed on November 5, 1976, to having murdered Daniel Pridgen and Katrina Burk in two separate incidents; additional indictments were filed for these and associated crimes on November 17. On December 1, 1976, Washington pleaded guilty-against the advice of counsel-to each of these three charges of first degree murder and associated crimes, and waived his right to a jury at the sentencing hearing.

Tunkey represented Washington at the sentencing hearing on December 6, 1976, before Judge Richard F. Fuller. At the sentencing hearing, the State called numerous witnesses who testified about the details of the three murders and the associated crimes. Their testimony was based in some cases on first hand observation of the crime or crime scene and in some cases on detailed oral and written statements that Washington had voluntarily given to them. The defense elected to offer no testimony, but instead adopted the testimony that Washington had given at the proceeding at which he pleaded guilty. That testimony, in turn, contained numerous statements by Washington acknowledging his guilt. He also testified during the guilty pleas colloquy about the emotional pressure that he was under at the time of the crimes as a result of his prolonged unemployment and the acute financial needs of his wife and young children, about the fact that he had committed, in recent months, a series of robberies to obtain money for his family and about his lack of prior arrests until a few months before the murders. In Tunkey's closing argument, he stressed in mitigation the fact that Washington had admitted his guilt. At the conclusion of the sentencing phase, Judge Fuller sentenced Washington to death on each count of first degree murder and to consecutive terms of imprisonment on the other charges.

On September 7, 1978, the Florida Supreme Court, on direct appeal, affirmed Washington's convictions and death sentences. Washington v. State, 362 So.2d 658 (Fla.1978), cert. denied, 441 U.S. 937, 99 S.Ct. 2063, 60 L.Ed.2d 666 (1979). After discussing at some length the circumstances surrounding Washington's crimes, id. at 660-64, the court found no merit in Washington's argument that the death penalty was unconstitutional per se. Id. at 665. It also rejected Washington's argument that the sentencing court had impermissibly found and considered certain aggravating factors and that the court had erred in failing to find and consider certain mitigating circumstances. Id. at 665-67.

In early September 1980, Washington filed written motions for post-conviction relief

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in the state circuit court pursuant to Fla.R.Crim.P. 3.850. These motions were denied without prejudice on October 2, 1980, nunc pro tunc to September 23, 1980, because Washington had failed to verify them properly. On September 12, 1980, Washington appeared through counsel at clemency proceedings before the Governor of Florida; on March 13, 1981, however, the Governor of Florida signed Washington's death warrant. Accordingly, on March 19, Washington filed properly verified motions for post-conviction relief in the state circuit court. That court denied relief on March 25 without holding an evidentiary hearing on Washington's factual allegations.

The Florida Supreme Court affirmed the circuit court's action in a written opinion issued on April 6, 1981. Washington v. State, 397 So.2d 285 (Fla.1981). With respect to the "most critical" of Washington's attacks on his sentences-an ineffective assistance of trial counsel claim-the court concluded that under the standards set out in Knight v. State, 394 So.2d 997 (Fla.1981), 1 Washington's allegations of ineffective assistance of counsel were "shown conclusively to be without merit so as to obviate the need for an evidentiary hearing." Washington v. State, supra, 397 So.2d at 286. This was so, according to the court, because Washington had "failed under the Knight criteria to make a prima facie showing of substantial prejudice and ha(d) failed to such degree that (the court) believe(d), to the point of a moral certainty, that he is entitled to no relief under (Fla.R.Crim.P.) 3.850." Id. at 287. The court reached the same conclusion with respect to Washington's claim that he received ineffective assistance of appellate counsel. Finally, with respect to "fourteen asserted trial court errors or constitutional defects ranging from the court's failure to request a pre-sentence investigation to a multitude of oft-repeated constitutional challenges to Florida's death penalty statute," the court found that "(m)any of the issues have been conclusively decided adversely to (Washington's) position." Id. The balance of these arguments, according to the court, were "either without merit or have been waived." Id.

B. Proceedings in Federal District Court

Having exhausted his state-court remedies, Washington immediately sought a writ

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of habeas corpus under 28 U.S.C. § 2254 (1976) in the court below. In what he described as the "centerpiece" of his attack on the constitutionality of his death sentences, Washington contended that his counsel in the sentencing proceedings, 2 William Tunkey, was constitutionally ineffective in the following respects:

(i) he failed to obtain or request from the trial court a psychiatric or psychological evaluation of Washington to determine whether there were any statutory or nonstatutory mitigating factors in his mental state at the time of the crimes;

(ii) he failed to investigate properly or present at the sentencing hearing readily available witnesses who would have given favorable testimony relating to Washington's character and background;

(iii) he failed to request from the trial court a presentence investigation even though there was nothing in the record about Washington's background when he was sentenced;

(iv) he failed to present a meaningful and factually supported closing argument and sentencing memorandum to the trial judge; and

(v) he failed to secure an independent evaluation of the reports of the medical examiners.

Washington contends that as a result of Tunkey's failure to investigate Washington's character, background and psychological condition at the time of the crimes, the sentencing judge was deprived of independent evidence which might have established the existence of two statutory mitigating circumstances-(1) that "(t)he capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance" (Fla.Stat. § 921.141(6) (b) (Supp.1981)) and (2) that "(t)he capacity of the defendant to appreciate the criminality of his conduct or to conform...

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29 practice notes
  • Hillery v. Pulley, No. CIV S-78-594 LKK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 31, 1983
    ...underlying a particular decision. See Fayerweather v. Ritch, 195 U.S. 276, 25 S.Ct. 58, 49 L.Ed. 193 (1904); Washington v. Strickland, 673 F.2d 879 (5th Cir.1982). If so, his concern was misplaced. The applicable law permits a judge to testify under the circumstances posed by the motion. Th......
  • Washington v. Strickland, No. 81-5379
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 23, 1982
    ...a certain line of investigation, it should not be necessary for effective counsel to pursue that investigation. Washington v. Strickland, 673 F.2d 879, 908 (5th Cir.1982) (Roney, J., The conflicting language in cases such as Beavers and Plant reflects the different factual situations in tho......
  • Goodwin v. Balkcom, No. 81-7132
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 3, 1982
    ...of prejudice which must be demonstrated in an ineffective assistance of counsel case is involved in the case of Washington v. Strickland, 673 F.2d 879 (5th Cir. 1982) (Unit B) which was orally argued before the en banc court on June 15, 1982. We need not await the decision of the en banc co......
  • Strickland v. Washington, No. 82-1554
    • United States
    • United States Supreme Court
    • May 14, 1984
    ...with instructions to apply to the particular facts the framework for analyzing ineffectiveness claims that it developed in its opinion. 673 F.2d 879 (5th Cir.1982). The panel decision was itself vacated when Unit B of the former Fifth Circuit, now the Eleventh Circuit, decided to rehear the......
  • Request a trial to view additional results
29 cases
  • Hillery v. Pulley, No. CIV S-78-594 LKK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 31, 1983
    ...underlying a particular decision. See Fayerweather v. Ritch, 195 U.S. 276, 25 S.Ct. 58, 49 L.Ed. 193 (1904); Washington v. Strickland, 673 F.2d 879 (5th Cir.1982). If so, his concern was misplaced. The applicable law permits a judge to testify under the circumstances posed by the motion. Th......
  • Washington v. Strickland, No. 81-5379
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 23, 1982
    ...a certain line of investigation, it should not be necessary for effective counsel to pursue that investigation. Washington v. Strickland, 673 F.2d 879, 908 (5th Cir.1982) (Roney, J., The conflicting language in cases such as Beavers and Plant reflects the different factual situations in tho......
  • Goodwin v. Balkcom, No. 81-7132
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 3, 1982
    ...of prejudice which must be demonstrated in an ineffective assistance of counsel case is involved in the case of Washington v. Strickland, 673 F.2d 879 (5th Cir. 1982) (Unit B) which was orally argued before the en banc court on June 15, 1982. We need not await the decision of the en banc co......
  • Strickland v. Washington, No. 82-1554
    • United States
    • United States Supreme Court
    • May 14, 1984
    ...with instructions to apply to the particular facts the framework for analyzing ineffectiveness claims that it developed in its opinion. 673 F.2d 879 (5th Cir.1982). The panel decision was itself vacated when Unit B of the former Fifth Circuit, now the Eleventh Circuit, decided to rehear the......
  • Request a trial to view additional results

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