Sullivan v. Sec’y, Florida Department of Corrections (11th Cir. 9/20/16). Martinez Win in Non-Capital Habeas!
Excellent opinion for those of us keeping track of Martinez wins in federal district court! A quick review of the case. Sullivan was charged with sundry rather harmless offenses in Florida. Drugs and a failure to stop for police officers. He had a one-day trial and was represented by a lawyer named Bollinger. During the jury charge conference, the prosecutor asked that the jury be charged that voluntary intoxication is not a defense. Defense counsel denied that he was attempting to offer a voluntary intoxication defense but asked for a jury instruction on insanity. The idea here was that Sullivan was so out of his mind at the time he was fleeing the police officers, that he did not have a culpable state of mind. The judge did not allow that charge since defense counsel failed to comply with the requirement that he provide the State with his intention to raise an insanity defense. The judge told defense counsel that if he wanted to raise that defense, he would have to move for a mistrial. Defense counsel conferred with Sullivan, and they agreed not to move for a mistrial and to waive the insanity defense. In his closing argument, defense counsel argued that Sullivan’s actions in fleeing the police were not willful, intentional or knowing because the evidence showed that he was mentally deranged during and after his flight. He was convicted, and sentenced to 30 years due to a habitual offender enhancement.
Sullivan retained the Harper firm to represent him on direct appeal and state post-conviction. The case was affirmed on direct appeal. Florida, like South Carolina, insists that ineffective assistance of counsel claims be raised in post-conviction. Sullivan wrote letters to Harper suggesting, in relevant part, that Harper raise an IAC claim alleging trial counsel rendered ineffective assistance by attempting to present a voluntary intoxication defense when that defense had been expressly abolished by Florida 4 years earlier. Sullivan wrote several letters to his lawyer to that effect. Harper wrote back to Sullivan and explained why he did not believe they should raise that claim. He argued (for reasons I can’t really understand) that doing so would impair their ability to prove prejudice as required by Strickland v. Washington, 466 U.S. 668 (1984). Instead, Harper made a general Cronic claim (United States v. Cronic, 466 U.S. 648 (1984)) alleging that defense counsel did not subject the State to any adversarial testing.
Harper filed the PCR claims, and then withdrew from the case. An amended motion for an evidentiary hearing was filed by new, habeas counsel. Habeas counsel raised the issue that Sullivan had been asking for—IAC for pursuing a defense strategy that had been abolished 4 years earlier. The state court denied the claim finding it was not properly raised because it was untimely.
Habeas counsel filed another motion, raising the same claim, but characterizing it as “newly discovered evidence.” He also stated that the State had offered Sullivan a plea deal for 10 years and that, had he known that voluntary intoxication was not a defense, he would have accepted that plea. That claim was denied too.
While the newly discovered evidence claim was pending, Sullivan filed his petition for writ of habeas corpus in federal district court. He raised, among others, the claim of IAC for pursuing a defense that was abolished. The State argued that claim was procedurally defaulted because Sullivan failed to timely raise it in state court. Sullivan agreed it was defaulted but argued the district court should excuse the procedural default under Martinez v. Ryan, 132 S. Ct. 1309 (2012) because PCR counsel rendered ineffective assistance of counsel. The case was referred to a magistrate judge to address the issue of PCR counsel’s ineffectiveness. During this hearing, PCR counsel admitted he never spoke to trial counsel because he “didn’t want to hear the BS.” Additional evidence was adduced confirming the existence of the plea offer.
The magistrate judge issued its Report & Recommendation suggesting that Sullivan be granted relief! The district court judge agreed! The State, naturally, appealed. The State challenged one issue: Whether PCR counsel’s investigation into the existence of a pretrial offer was objectively unreasonable under 2254.
The Eleventh Circuit addressed that question using a very nice and simple Strickland analysis. As the Supreme Court has explained:
Strategic decisions made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.
Strickland, 466 U.S. at 690-91.
The court found that PCR counsel’s failure to take any steps to investigate the IAC claim was objectively unreasonable in light of the information Sullivan gave him, and in light of the record. It is abundantly clear that “[a]n attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland. Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014).
But additionally, PCR counsel was ineffective for failing to talk to defense counsel. As the court states, “It is counsel’s duty, not the defendant’s, to develop the relevant facts and to draw the defendant’s focus to the information that might be potentially relevant, as defendants who are not versed in the law will often not know what facts are relevant to any given legal claim.” Counsel should have spoken to trial counsel to see why they went to trial and whether there was a plea offer in the case.
So, in conclusion—two really great takeaways—(1) the magistrate judge convened an evidentiary hearing to assess the ineffectiveness of PCR counsel, and (2) the court found that PCR counsel had an affirmative duty to speak to trial counsel about the strategic decisions made in the case. Great opinion, all around.
Also, tree frog.