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  • Jeff
    Mr. Ewing, the case you listed does not contain the cite you listed below. * ** Counsel must investigate potential defenses and follow through on leads given
    Message 1 of 6 , Jun 24, 2005
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      Mr. Ewing, the case you listed does not contain the cite you listed below.
      *
      **"Counsel must investigate potential defenses and follow through on
      leads given to counsel by the defendant and/or his family*."

      804 F.2d 1196, *; 1986 U.S. App. LEXIS 33947, **

      Robert McCOY, Petitioner-Appellant v. Louie L. WAINWRIGHT,
      Respondent-Appellee

      No. 85-6086

      UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

      804 F.2d 1196; 1986 U.S. App. LEXIS 33947


      November 3, 1986

      PRIOR HISTORY: [**1]

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

      DISPOSITION: Vacated and Remanded.

      CASE SUMMARY

      PROCEDURAL POSTURE: Appellant challenged the United States District
      Court for the Southern District of Florida order denying his pro se
      petition for writ of habeas corpus, 28 U.S.C.S. § 2254, seeking to
      review his conviction for theft, assault, and related drug offenses. He
      alleged that his counsel's failure to investigate a possible insanity
      defense constituted ineffective assistance of counsel.

      OVERVIEW: Appellant pleaded guilty to theft, assault, and related drug
      offenses. The state trial court denied, without evidentiary hearing, his
      motion to vacate judgment and sentence and the order was affirmed on
      appeal. He sought review, filing a petition for writ of habeas corpus in
      the federal trial court, alleging that due to insobriety, he was unable
      to assist in his defense and that he was denied effective assistance of
      counsel because his attorney failed to investigate a possible insanity
      defense. The federal trial court accepted a magistrate's
      recommendations, and without an evidentiary hearing, denied the
      petition. Appellant sought review and the court vacated the order,
      ruling that the trial court erred in failing to grant an evidentiary
      hearing. Appellant was entitled to an evidentiary hearing because he
      alleged sufficient facts, which if proved, could merit relief as to his
      two alleged instances of ineffective assistance of counsel and no facts
      were developed in the collateral state proceeding. An evidentiary
      hearing would have resolved the factual issues of ineffectiveness. Thus,
      the court remanded for an evidentiary hearing.

      OUTCOME: The court vacated the order denying appellant's petition for
      writ of habeas corpus and remanded for an evidentiary hearing. Appellant
      was entitled to a hearing because he alleged sufficient facts of
      ineffective assistance of counsel to justify relief, if proven to be
      true, and he had not been given an evidentiary hearing in a collateral
      state court proceeding.

      CORE TERMS: evidentiary hearing, guilty plea, sentence, ineffective
      assistance of counsel, insanity defense, plead guilty, guilty pleas,
      psychiatrist, denied effective assistance, failure to investigate,
      federal habeas corpus, trier of fact, pro se, materiality, investigate,
      prejudiced, threshold, procedural history, affirmative defense, criminal
      proceeding, court-appointed, recommendation, substantiated,
      incompetency, medication, probation, alcohol, heroin

      LexisNexis(R) Headnotes Hide Headnotes

      Criminal Law & Procedure > Counsel > Effective Assistance > Pleas
      Retrieve All Headnotes and Additional Cases on this Topic
      Criminal Law & Procedure > Guilty Pleas > Knowing & Intelligent
      Requirement Retrieve All Headnotes and Additional Cases on this Topic
      Criminal Law & Procedure > Counsel > Right to Counsel > Pleas Retrieve
      All Headnotes and Additional Cases on this Topic
      HN1Go to this Headnote in the case. Once a plea of guilty has been
      entered, non-jurisdictional challenges to the conviction's
      constitutionality are waived, and only a challenge to the voluntary and
      knowing nature of the plea can be raised. The guilty plea is not
      knowingly and voluntarily waived, however, if the defendant does not
      receive reasonably effective assistance of counsel in connection with
      the decision to plead guilty. The guilty plea does not relieve counsel
      of the responsibility to investigate potential defenses so that the
      defendant can make an informed decision. More Like This Headnote

      Criminal Law & Procedure > Trials > Defendant's Rights > Right to
      Counsel > Effective Assistance Retrieve All Headnotes and Additional
      Cases on this Topic
      Criminal Law & Procedure > Counsel > Effective Assistance > Pleas
      Retrieve All Headnotes and Additional Cases on this Topic
      Criminal Law & Procedure > Guilty Pleas > Knowing & Intelligent
      Requirement Retrieve All Headnotes and Additional Cases on this Topic
      HN2Go to this Headnote in the case. There is a two-prong test for
      determining whether a litigant has been denied effective assistance of
      counsel. First, the defendant must show that counsel's performance fell
      below a threshold level of competence. Second, the defendant must show
      that counsel's errors due to deficient performance prejudiced his
      defense such that the reliability of the result is undermined. This
      standard for evaluating claims of ineffective assistance of counsel also
      applies to guilty pleas where the defendant must show that there is a
      reasonable probability that, but for counsel's errors, he would not have
      pleaded guilty and would have insisted on going to trial. More Like
      This Headnote

      Criminal Law & Procedure > Postconviction Proceedings > Habeas Corpus
      (sec. 2241) Retrieve All Headnotes and Additional Cases on this Topic
      Criminal Law & Procedure > Habeas Corpus > Evidentiary Hearings Retrieve
      All Headnotes and Additional Cases on this Topic
      HN3Go to this Headnote in the case. Where the facts are in dispute,
      the federal court in habeas corpus must hold an evidentiary hearing if
      the habeas applicant did not receive a full and fair evidentiary hearing
      in a state court, either at the time of the trial or in a collateral
      proceeding. In other words, a federal evidentiary hearing is required
      unless the state-court trier of fact has after a full hearing reliably
      found the relevant facts. More Like This Headnote

      Criminal Law & Procedure > Postconviction Proceedings > Habeas Corpus
      (sec. 2241) Retrieve All Headnotes and Additional Cases on this Topic
      Criminal Law & Procedure > Habeas Corpus > Evidentiary Hearings Retrieve
      All Headnotes and Additional Cases on this Topic
      HN4Go to this Headnote in the case. A federal court must grant an
      evidentiary hearing to a habeas applicant if: (1) the merits of the
      factual dispute are not resolved in the state hearing; (2) the state
      factual determination is not fairly supported by the record as a whole;
      (3) the fact-finding procedure employed by the state court is not
      adequate to afford a full and fair hearing; (4) there is a substantial
      allegation of newly discovered evidence; (5) the material facts are not
      adequately developed at the state court hearing; or (6) for any reason
      it appears that the state trier of fact does not afford the habeas
      applicant a full and fair fact hearing. More Like This Headnote

      Criminal Law & Procedure > Defenses > Insanity > Insanity Defense
      Retrieve All Headnotes and Additional Cases on this Topic
      Criminal Law & Procedure > Defenses > Diminished Capacity Retrieve All
      Headnotes and Additional Cases on this Topic
      HN5Go to this Headnote in the case. In order to receive an
      evidentiary hearing to determine his competency to assist in his
      defense, an appellant has to present clear and convincing evidence to
      create a real, substantial, and legitimate doubt as to his mental
      capacity to meaningfully participate and cooperate with counsel. With
      regard to presentation of an insanity defense, under Florida law counsel
      must be able to present substantial evidence to show that an appellant
      did not know right from wrong at the time of the offenses. More Like
      This Headnote

      Criminal Law & Procedure > Postconviction Proceedings > Habeas Corpus
      (sec. 2241) Retrieve All Headnotes and Additional Cases on this Topic
      Criminal Law & Procedure > Habeas Corpus > Evidentiary Hearings Retrieve
      All Headnotes and Additional Cases on this Topic
      HN6Go to this Headnote in the case. An evidentiary hearing is
      required if the petitioner shows: (1) that a fact pertaining to his
      federal constitutional claim was not adequately developed at a state
      court hearing and that fact was crucial to a fair, rounded development
      of the material facts, and (2) that failure to develop that material
      fact at the state proceeding was not attributable to petitioner's
      inexcusable neglect or deliberate bypass. More Like This Headnote

      Criminal Law & Procedure > Trials > Defendant's Rights > Right to
      Counsel > Effective Assistance Retrieve All Headnotes and Additional
      Cases on this Topic
      Criminal Law & Procedure > Counsel > Effective Assistance > Pleas
      Retrieve All Headnotes and Additional Cases on this Topic
      Criminal Law & Procedure > Counsel > Right to Counsel > Pleas Retrieve
      All Headnotes and Additional Cases on this Topic
      HN7Go to this Headnote in the case. In order to satisfy the prejudice
      prong of Strickland, appellant must allege that he would have chosen not
      to plead guilty had counsel not been ineffective. More Like This Headnote


      COUNSEL: Robert McCoy, Pro Se.

      Jim Smith, Attorney General for the State of Florida/Tallahassee,
      Michael J. Neimand, AAG, and Susan Odzer Hugentugler, Asst. Atty. Gen.,
      for Appellee.

      JUDGES: Tjoflat, Hatchett and Clark, Circuit Judges.

      OPINIONBY: PER CURIAM

      OPINION: [*1197] Appellant, Robert McCoy, appeals the denial of his
      pro se petition for writ of habeas corpus (28 U.S.C. § 2254) attacking
      his conviction on various counts entered upon his guilty plea. n1 McCoy
      alleges that he was denied effective assistance of counsel because
      counsel failed to investigate a possible insanity defense. He further
      alleges that counsel's failure to investigate caused counsel not to
      request a competency hearing.

      - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


      n1 Although it appears McCoy may have fully served his sentence under
      attack here, we conclude that we are not divested of jurisdiction as to
      this claim. The state represents that McCoy is still incarcerated on a
      separate charge and that his sentence on that charge is consecutive to
      the sentence rendered in this case and the state thus does not dispute
      jurisdiction. There being a positive and demonstrable relationship
      between the prior convictions and McCoy's present incarceration, this
      court has jurisdiction. Sinclair v. Blackburn, 599 F.2d 673 (5th
      Cir.1979), cert. denied, 444 U.S. 1023, 100 S. Ct. 684, 62 L. Ed. 2d 656
      (1980); Diehl v. Wainwright, 423 F.2d 1108 (5th Cir.1970).


      - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**2]

      We remand for an evidentiary hearing.

      Procedural History

      In March, 1982, McCoy entered a guilty plea, pursuant to advice of
      counsel, on two counts of second-degree grand theft, and one count each
      of aggravated assault, possession of cocaine, and possession of narcotic
      implements. In April, 1985, McCoy filed a motion to vacate judgment and
      sentence pursuant to Fla.R.Crim.P. 3.850. The state trial court denied
      McCoy's petition without an evidentiary hearing. The denial was affirmed
      on appeal. McCoy v. State, 471 So. 2d 130 (Fla. 3d D.C.A.1985).

      In July, 1985, McCoy petitioned the federal district court for relief.
      McCoy first contended that he was unable to assist counsel in preparing
      a defense because on the day of his arrest he had consumed an excessive
      amount of alcohol and heroin and [*1198] thus was unable to recollect
      the facts surrounding his actions. Second, he alleged that he had been
      examined and treated a number of times by court-appointed psychiatrists
      and psychologists for heroin and alcohol abuse. Third, McCoy alleged he
      indicated to counsel that prior to the alleged offenses, he was examined
      by three court-appointed psychiatrists who [**3] testified in a
      separate criminal proceeding that in the event he were to be released
      that he "shall" continue treatment and medication. He was then allegedly
      placed on probation "under special conditions" in the custody of a
      doctor and two therapists while attending the "Mental Health Center" on
      an out-patient basis, a condition which he claims he subsequently
      breached. Finally, McCoy alleges counsel did not investigate his claim
      of a prior "history" of incompetency, thereby leaving undisclosed vital
      medical records that would have substantiated an insanity defense.

      The district court denied relief. The district court accepted the
      magistrate's recommendation which offered three justifications for
      rejecting McCoy's claim. The magistrate found that the evidence that
      McCoy had previously been placed on probation in a separate criminal
      proceeding with the special condition that he continue to receive
      treatment and medication was supportive of the fact that McCoy had been
      found competent; this fact was counter to McCoy's contention that he was
      insane. The magistrate also found significant the fact that the court,
      upon inquiry of McCoy before receiving his guilty plea, received
      satisfactory [**4] answers establishing (1) that McCoy was not under
      the influence of drugs or alcohol on the day of the sentencing, (2) that
      he was satisfied with his counsel, and (3) that he was neither under the
      care of a psychiatrist nor had any mental problems. As to McCoy's claim
      of the existence of evidence of a "history of incompetency"
      substantiated by medical records, the magistrate concluded that McCoy
      had presented no more than bare allegations.

      We must decide whether McCoy is entitled to an evidentiary hearing to
      determine whether his counsel was effective.

      Discussion

      HN1Go to the description of this Headnote.Once a plea of guilty has been
      entered, non-jurisdictional challenges to the conviction's
      constitutionality are waived, and only a challenge to the voluntary and
      knowing nature of the plea can be raised. McMann v. Richardson, 397 U.S.
      759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970). The guilty plea is not
      knowingly and voluntarily waived, however, if the defendant does not
      receive reasonably effective assistance of counsel in connection with
      the decision to plead guilty. Scott v. Wainwright, 698 F.2d 427, 429
      (11th Cir.1983). The guilty plea does not relieve counsel of the
      responsibility [**5] to investigate potential defenses so that the
      defendant can make an informed decision. Scott at 429.

      The Supreme Court has articulated HN2Go to the description of this
      Headnote.a two-prong test for determining whether a litigant has been
      denied effective assistance of counsel. Strickland v. Washington, 466
      U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "First, the
      defendant must show that counsel's performance fell below a threshold
      level of competence. Second, the defendant must show that counsel's
      errors due to deficient performance prejudiced his defense such that the
      reliability of the result is undermined." Tafero v. Wainwright, 796 F.2d
      1314, 1319 (11th Cir.1986). The Supreme Court recently held that the
      Strickland v. Washington standard for evaluating claims of ineffective
      assistance of counsel also applies to guilty pleas. Hill v. Lockhart,
      474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). The Hill Court, in
      elaborating upon application of Strickland to guilty pleas, stated that
      "the defendant must show that there is a reasonable probability that,
      but for counsel's errors, he would not have pleaded guilty and would
      have insisted on going to [**6] trial." U.S. at , 106 S. Ct. at
      370, 88 L. Ed. 2d at 210. The Hill Court gave further guidance on
      addressing the Strickland analysis to guilty pleas:



      In many guilty plea cases, the 'prejudice' inquiry will closely
      resemble the inquiry [*1199] engaged in by courts reviewing
      ineffective assistance challenges to convictions obtained through a
      trial. For example, where the alleged error of counsel is a failure to
      investigate or discover potentially exculpatory evidence, the
      determination whether the error 'prejudiced' the defendant by causing
      him to plead guilty rather than go to trial will depend on the
      likelihood that discovery of the evidence would have led counsel to
      change his recommendation as to the plea. This assessment, in turn, will
      depend in large part on a prediction whether the evidence likely would
      have changed the outcome of a trial. Similarly, where the alleged error
      of counsel is the failure to advise the defendant of a potential
      affirmative defense to the crime charged, the resolution of the
      'prejudice' inquiry will depend largely on whether the affirmative
      defense likely would have succeeded at trial.




      U.S. at [**7] , 106 S. Ct. at 370, 88 L. Ed. 2d at 210.

      McCoy contends that it was error for the district court to fail to grant
      an evidentiary hearing on his ineffective assistance of counsel claim.
      The Supreme Court has enunciated a series of situations in which an
      evidentiary hearing is mandatory to determine the merits of a state
      prisoner's habeas corpus petition. Townsend v. Sain, 372 U.S. 293, 83 S.
      Ct. 745, 9 L. Ed. 2d 770 (1963). The Townsend Court stated "HN3Go to the
      description of this Headnote.where the facts are in dispute, the federal
      court in habeas corpus must hold an evidentiary hearing if the habeas
      applicant did not receive a full and fair evidentiary hearing in a state
      court, either at the time of the trial or in a collateral proceeding. In
      other words, a federal evidentiary hearing is required unless the
      state-court trier of fact has after a full hearing "reliably found the
      relevant facts." Townsend, 372 U.S. at 311, 83 S. Ct. at 756, 9 L. Ed.
      2d at 785. The Townsend Court held that:


      HN4Go to the description of this Headnote.
      [A] federal court must grant an evidentiary hearing to a habeas
      applicant under the following circumstances: If (1) the merits of the
      factual dispute were not resolved in [**8] the state hearing; (2) the
      state factual determination is not fairly supported by the record as a
      whole; (3) the fact-finding procedure employed by the state court was
      not adequate to afford a full and fair hearing; (4) there is a
      substantial allegation of newly discovered evidence; (5) the material
      facts were not adequately developed at the state court hearing; or (6)
      for any reason it appears that the state trier of fact did not afford
      the habeas applicant a full and fair fact hearing.





      Townsend, 372 U.S. at 313, 83 S. Ct. at 757, 9 L. Ed. 2d at 786. No
      evidentiary hearing was held in McCoy's state collateral proceedings.

      HN5Go to the description of this Headnote.In order to have received an
      evidentiary hearing to determine his competency to assist in his
      defense, McCoy would have had to present clear and convincing evidence
      to create a "real, substantial, and legitimate doubt as to [his] mental
      capacity . . . to meaningfully participate and cooperate with counsel .
      . ." Adams v. Wainwright, 764 F.2d 1356, 1360 (11th Cir.1985), cert.
      denied, 474 U.S. 1073, 106 S. Ct. 834, 88 L. Ed. 2d 805 (1986). With
      regard to presentation of an insanity defense, under [**9] Florida law
      counsel must be able to present substantial evidence to show that McCoy
      did not know right from wrong at the time of the offenses. Williams v.
      Wainwright, 712 F.2d 1375 (11th Cir.1983). McCoy alleges sufficient
      facts which if proved, could merit relief as to his two alleged
      instances of ineffective assistance of counsel. Thus, he satisfies the
      threshold inquiry of Townsend. Smith v. Wainwright, 777 F.2d 609, 615
      (11th Cir.1985), cert. denied, 477 U.S. 905, 106 S. Ct. 3275, 91 L. Ed.
      2d 565 (1986).

      Construing McCoy's pro se appeal liberally, it is clear he contends that
      the facts underlying his claim were never adequately developed in the
      state court. n2 This court [*1200] addressed the requirements a
      federal habeas corpus petitioner must satisfy in order to obtain an
      evidentiary hearing based upon the fifth circumstance of Townsend - a
      claim that the material facts were not adequately developed at a state
      court hearing in Thomas v. Zant, 697 F.2d 977 (11th Cir.1983). In
      Thomas, we held that HN6Go to the description of this Headnote.an
      evidentiary hearing is required if the petitioner shows (1) that a fact
      pertaining to his [**10] federal constitutional claim was not
      adequately developed at a state court hearing and that fact was "crucial
      to a fair, rounded development of the material facts" (quoting Townsend)
      and (2) that failure to develop that material fact at the state
      proceeding was not attributable to petitioner's inexcusable neglect or
      deliberate bypass. 697 F.2d at 986.

      - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


      n2 We also impute to McCoy the Hill requirement that an appellant, HN7Go
      to the description of this Headnote.in order to satisfy the prejudice
      prong of Strickland, must allege that he would have chosen not to plead
      guilty had counsel not been ineffective. See Thompson v. Wainwright, 784
      F.2d 1103, 1107 (11th Cir. 1986).


      - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

      McCoy clearly negotiates this hurdle. The procedural history of his case
      in the state system is dispositive as to both requirements. Since no
      evidentiary hearing was conducted in the state system nor in the federal
      system, no facts were developed. An evidentiary hearing would have
      resolved these factual issues. We therefore remand for an evidentiary
      [**11] hearing. Cf. Wiley v. Wainwright, 709 F.2d 1412 (11th Cir.1983). n3

      - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


      n3 This court denied appellant's claim that the district court erred in
      failing to grant him an evidentiary hearing on his constitutional claims
      in Carter v. Montgomery, 769 F.2d 1537. Appellant had been denied state
      habeas corpus relief after a hearing, and on federal habeas corpus
      claimed that material facts were not adequately developed at the state
      hearing. This court in finding it proper for the district court to deny
      appellant an evidentiary hearing noted that appellant "does not explain
      which facts were not developed at the state hearing, nor does he make
      any attempt to demonstrate their materiality." 769 F.2d at 1543. This
      case is distinguishable, however, in that McCoy alleges with sufficient
      particularity the materiality of facts not developed at the state level.


      - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

      VACATED AND REMANDED


      Luis Ewing wrote:
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