Washington v. Strickland, 81-5379

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation693 F.2d 1243
Docket NumberNo. 81-5379,81-5379
Parties12 Fed. R. Evid. Serv. 340 David Leroy WASHINGTON, Petitioner-Appellant, v. Charles E. STRICKLAND, Superintendent, Florida State Prison, Jim Smith, Attorney General of the State of Florida, and Louie L. Wainwright, Secretary of Department of Corrections, Respondents-Appellees. . * Unit B
Decision Date23 December 1982

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

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

Nicholas G. Dumich, Asst. Atty. Gen., Atlanta, Ga., for amicus curiae State of Ga.

Ed Carnes, Asst. Alabama Atty. Gen., Montgomery, Ala., for amicus curiae State of Ala.

Rene I. Salomon, Asst. Atty. Gen., Baton Rouge, La., for amicus curiae State of La.

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

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., HENDERSON, ANDERSON and THOMAS A. CLARK, Circuit Judges. **

PER CURIAM:

There follows the opinion of Judge Vance concurred in by Chief Judge Godbold and Judges Kravitch and Henderson. Judge Tjoflat specially concurs by separate opinion in which Judge Clark concurs in part. By separate opinion Judge Johnson joined by Judge Anderson concurs in the substantive portions (Parts I, II-A, III-A, III-B and III-C) of Judge Vance's opinion, but dissents from Parts II-B and III-D, which relate to the disposition of this specific case on remand. As reflected in their respective opinions and concurrences a majority of the court, consisting of Chief Judge Godbold and Judges Tjoflat, Vance, Kravitch, Johnson, Henderson, Anderson and Clark, agree and it is therefore the judgment of the court that the district court's judgment be reversed and the case remanded.

On remand the further proceedings in the district court shall be controlled by Parts I, II-A, III-A, III-B and III-C of Judge Vance's opinion, all of which constitute the opinion of the court.

Judge Roney dissents in a separate opinion concurred in by Judges Hill and Fay. Judge Hill also filed a separate dissenting opinion.

REVERSED and REMANDED.

VANCE, Circuit Judge:

In this opinion the en banc court addresses the proper standards for evaluating a claim of ineffective assistance of counsel based upon allegations of inadequate trial preparation. Petitioner-appellant David Leroy Washington appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. Washington has two primary contentions: (1) that his trial counsel did not render effective assistance because he failed to investigate, procure, and present character evidence relevant to the sentencing stage of his trial, and (2) that this failure prejudiced Washington in the conduct of his defense. We remand this case to the district court to determine whether trial counsel was ineffective under constitutional standards, and if so, whether Washington suffered actual and substantial prejudice.

I. Factual and Procedural Background
A. State Criminal Proceedings

During a ten-day period in September 1976 Washington committed a series of crimes which included three brutal murders. On September 20, 1976 Washington and an accomplice stabbed to death a minister, David Pridgen. Three days later Washington broke into the house of Mrs. Katrina Birk. After binding Mrs. Birk and her three elderly sisters-in-law, he shot and stabbed each of them, killing Mrs. Birk and inflicting severe injuries upon the others. 1 Finally, on September 29 Washington kidnapped Frank Meli, a twenty-year-old college student, and tied him to a bed with the help of two accomplices. After an attempt to extort ransom money from Meli's family failed, Washington stabbed him to death. Each of these criminal episodes involved a substantial degree of preparation and each included acts of theft.

On October 1, 1976 Washington surrendered to Dade County police after his two accomplices were arrested for the murder of Frank Meli. He voluntarily confessed to the crime in a lengthy statement to the police. On October 7 the state indicted Washington for the Meli murder and appointed William Tunkey, an experienced criminal lawyer, 2 to act as his attorney.

On November 5 Washington, acting against Tunkey's advice, confessed to the Pridgen and Birk murders. Additional indictments were returned, and Washington's trial was set for December 1 before Judge Richard Fuller. 3 Washington waived his right to a jury trial and, again acting against the advice of Tunkey, pleaded guilty to all charges when he went before Judge Fuller. During the plea colloquy Washington stated that he did not have a significant prior criminal record and explained to Judge Fuller that his actions were the result of extreme stress and anxiety due to his unemployment and his corresponding inability to provide for his family. Washington stated, however, that he accepted responsibility for his crimes. Judge Fuller responded that he had "a great deal of respect for people who are willing to step forward and admit their responsibility."

Washington also waived his right to have a sentencing jury. At the sentencing hearing on December 6 Tunkey adopted the testimony that Washington had given during the plea colloquy and argued that Washington's evident remorse and his willingness to face the consequences of his actions should persuade the court to impose life imprisonment rather than death. Tunkey also successfully moved to exclude Washington's "rap sheet" from evidence.

The judge specifically found, however, that even if Washington had no significant prior criminal record, the aggravating circumstances of the case would still "clearly far outweigh" the factors in mitigation. He therefore sentenced Washington to death on each of the three counts of first degree murder. He also sentenced Washington to consecutive terms of imprisonment for the other crimes. The death sentences were upheld on direct appeal. 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).

B. Motion for Post-Conviction Relief in State Court

In March 1980 Washington, now represented by different counsel, moved for post-conviction relief in state circuit court. See Fla.R.Crim.P. 3.850. The primary focus of the motion was upon Tunkey's failure to investigate fully and develop character evidence that might have been presented to Judge Fuller as a matter in mitigation. In support of the motion, Washington attached fourteen affidavits from various friends, relatives, and acquaintances who stated that they would have testified on Washington's behalf if his attorney had requested them to do so. He also attached reports from two psychiatrists who stated that "while [Washington] was not under the influence of extreme mental or emotional disturbance, he was chronically frustrated and depressed because of his economic dilemma wherein he was unable to find employment and provide for his wife and children."

The Florida circuit court denied the motion without holding an evidentiary hearing. 4 It found that Washington had failed to satisfy the test for ineffective assistance of counsel established in Knight v. State, 394 So.2d 997 (Fla.1981), which requires a defendant to prove that his attorney's failure was a "substantial and serious deficiency measurably below that of competent counsel," and that the failure caused "prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings." Id. at 1001 (citation omitted). 5 On appeal the Florida Supreme Court affirmed, finding that "the appellant has failed under the Knight criteria to make a prima facie showing of substantial deficiency or possible prejudice and has failed to such a degree that we believe, to the point of moral certainty, that he is entitled to no relief under rule 3.850." 6 Washington v. State, 397 So.2d 285, 287 (Fla.1981).

C. Federal Habeas Proceedings in District Court

Having exhausted his state remedies, Washington sought habeas corpus relief from the district court below. 7 Again the petition attacked Tunkey's preparation for the sentencing phase of Washington's trial.

Petitioner called Tunkey as a witness at the evidentiary hearing. Tunkey testified that after Washington confessed to the Pridgen and Birk murders, he experienced a feeling of "hopelessness" regarding the case, and that he believed there was little chance of Washington avoiding the death penalty. His strategy at that point was to introduce evidence of Washington's emotional distress only during Washington's plea colloquy with Judge Fuller, and thereafter to rely primarily upon an "attempt to convince the judge of Washington's sincerity and frankness in pleading guilty." 8 Tunkey believed that this strategy might succeed in avoiding the death penalty because Judge Fuller had in other cases acknowledged his respect for people who unqualifiedly admitted their responsibility.

Tunkey also testified that he made little attempt to develop evidence of Washington's emotional distress apart from conversations with Washington in connection with his plea colloquy. Specifically, Tunkey did not follow up on initial telephone conversations with Washington's wife and mother after they had failed to keep appointments with him. Additionally, he did not request a presentence report or a psychiatric investigation because he anticipated that they might reveal information more harmful than helpful to his client.

The state called Judge Fuller as a witness. Over the strenuous objection of Washington's counsel, the judge testified that evidence of the type contained in petitioner's fourteen affidavits and two psychiatric reports would not have altered his determination that Washington deserved the death penalty.

The district court stated that the "central issue raised by the allegations is the...

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