IN THE SUPREME COURT OF FLORIDA CASE NO. 93,192 JOE ELTON NIXON, Petitioner. HARRY K. SINGLETARY, Secretary, Florida Department of Corrections,

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. 93,192 JOE ELTON NIXON, Petitioner v. HARRY K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent. PETITION FOR WRIT OF HABEAS CORPUS JONATHAN LANG Attorney for Defendant Joe Elton Nixon 1114 Avenue of the Americas, 44th Floor New York, NY Fax: Florida Bar No.: Admitted Pro Hac Vice

2 TABLE OF CONTENTS I. INTRODUCTION... 1 II. THE FORM, SUBSTANCE AND TIMING OF THIS PETITION... 1 III. JURISDICTION... 2 IV. PROCEDURAL HISTORY... 3 V. GROUNDS FOR HABEAS CORPUS RELIEF... 5 CLAIM I CLAIM II CLAIM III APPELLATE COUNSEL FAILED TO RAISE ON DIRECT APPEAL ANY ISSUE REGARDING JOE NIXON S COMPETENCY TO STAND TRIAL.. 5 APPELLATE COUNSEL FAILED PROPERLY TO PRESERVE NIXON S CLAIMS UNDER AKE V. OKLAHOMA APPELLATE COUNSEL WAS DEFICIENT INSOFAR AS HE FAILED PROPERLY TO PRESERVE NIXON S CLAIMS UNDER JAMES V. STATE AND JACKSON V. STATE VI. CONCLUSION... 19

3 I. INTRODUCTION This Petition for habeas corpus relief asserts claims under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and under Article I, Sections 9, 12, 13, 16(a) and 17 of the Florida Constitution. Petitioner Joe Elton Nixon was denied effective assistance of counsel on direct appeal; his conviction and death sentence therefore violate the United States and Florida Constitutions and must be overturned. In related proceedings under Rule of the Florida Rules of Criminal Procedure ( Rule ) to vacate Nixon s conviction and sentence, the circuit court below, inter alia, denied some of Nixon s claims based on a finding of procedural bar because certain issues discussed in this Petition had not been raised on direct appeal. By submitting this Petition, we do not concede that a procedural bar applies to these claims or that they were not properly preserved; however, if such a bar is sustained with respect to a particular claim by this Court, the bar would only exist as a result of appellate counsel s failure to raise the issue on direct appeal, and Nixon would in turn be entitled to relief from the bar under Wilson v. Wainwright, 474 So.2d 1162 (Fla. 1985), and Fitzpatrick v. Wainwright, 490 So.2d 938 (Fla. 1986). II. THE FORM, SUBSTANCE AND TIMING OF THIS PETITION Joe Nixon files this Petition concurrently with his brief on appeal (the Brief of Appellant ) from the denial by the Circuit Court in and for Leon County of his motion for post-conviction relief under Rule To conserve space and not burden this Court with a reiteration of the procedural history and facts of the case, we refer the Court to the Brief of Appellant for a detailed statement of the case. Petitioner sets forth in this Petition only those 1

4 facts relevant to the claims asserted herein, and expressly incorporates by reference all other procedural and factual recitations appearing in the Brief of Appellant. Additionally, this Petition is filed in accord with Rule 9.140(b)(6)(e) of the Florida Rules of Appellate Procedure, which provides that in death penalty cases petitions for writs of habeas corpus be filed simultaneously with the initial brief in the Rule appeal. At the same time, Petitioner understands that this Court has recently decided that efficiency may best be served by delaying the filing of petitions for habeas corpus in capital cases until after the filing of the Rule appellate brief. See White v. Florida, So.2d (Fla. No. 88,686, January 13, 1998). The issues raised in this Petition bear upon issues of procedural bar that may arise in the Rule appeal. Accordingly, notwithstanding White v. Florida, supra, Petitioner has filed this Petition along with his Initial Brief on Appeal. III. JURISDICTION Under Fla. Const., Art. V, 3(b)(9) and Fla.R.App.P (a)(3), this Court has original jurisdiction to grant the writ of habeas corpus guaranteed by Fla. Const. Art. I, 13. An original habeas petition is governed by Fla.R.App.P and longstanding principles that make it the responsibility of the court to brush aside formal technicalities and issue such appropriate orders as will do justice. Anglin v. Mayo, 88 So.2d 918, (Fla. 1956). See also, Haag v. State, 591 So.2d 614, 616 (Fla. 1992); Allison v. Baker, 11 So.2d 578, 579 (Fla. 1943); Jamason v. State, 447 So.2d 892, 894 (Fla. 4th DCA 1983), approved, 455 So.2d 380 (Fla. 1984), cert. denied, 469 U.S (1985). 2

5 IV. PROCEDURAL HISTORY The detailed procedural history of this case appears in the Brief of Appellant. For present purposes, it suffices to say that in 1985 Joe Nixon was convicted of first degree murder and sentenced to death for the killing of Jeanne Bickner. That conviction and death sentence occurred after a trial from which Nixon was for the most part absent and in which Nixon s court-appointed lawyer, Michael Corin, repeatedly conceded his guilt. Nixon appealed his conviction and sentence represented by a different court-appointed lawyer, T. Whitney Strickland. After further proceedings relating mainly to whether Nixon had consented to his trial lawyer s decision to concede guilt (an issue that has never been resolved), this Court affirmed the conviction and sentence. Nixon v. State, 572 So.2d 1336, 1342 (Fla. 1990), cert. denied, 502 U.S. 854 (1991). In 1993, Nixon filed a motion for post-conviction relief under Rule On October 22, 1997, the circuit court denied the Rule motion without an evidentiary hearing. Among other things, the circuit court found the following claims procedurally barred: (1) competency to stand trial, (2) Nixon s claim based on Ake v. Oklahoma, 470 U.S. 68 (1985), and (3) Nixon s claims of improperly vague jury instructions under James v. State, 615 So.2d 668 (Fla. 1993), and Jackson v. State, 648 So.2d 85 (Fla. 1994). See Nixon v. State, Cir. Ct. Leon Cy., No , Order Denying Motion for Post Conviction relief dated October 22, 1997 (the October 22 Order ) at 1-3; A In accord with Fla.R.App.P , Petitioner has submitted an Appendix with this Petition and with the Brief of Appellant. Citations to the Appendix are referenced as A-. 3

6 Petitioner appealed the circuit court s denial of Rule relief to this Court and has filed his Initial Brief of Appellant and Appendix on that appeal, along with this Petition for habeas corpus relief relating to issues raised on the Rule appeal. The Initial Brief of Appellant on the direct appeal (the Direct Appeal Brief ) (see 3.850R ), 2 filed December 5, 1986, presented 15 issues. It did not address Nixon s competency to stand trial or his claim under Ake v. Oklahoma, 470 U.S. 68 (1985). The Direct Appeal Brief did challenge the constitutionality of Florida s death penalty, although it did not specifically address the claim in the terms eventually used by this Court in James v. State or Jackson v. State. 2 References to the record in this Petition conform to those in the Brief of Appellant. See Brief of Appellant at page i. 4

7 V. GROUNDS FOR HABEAS CORPUS RELIEF CLAIM I APPELLATE COUNSEL FAILED TO RAISE ON DIRECT APPEAL ANY ISSUE REGARDING JOE NIXON S COMPETENCY TO STAND TRIAL. If this Court agrees with the circuit court below that the competency claims are barred, 3 ineffective assistance of appellate counsel excuses the bar. See Wilson v. Wainwright and Fitzpatrick v. Wainwright, supra. The Fourteenth Amendment guarantees criminal defendants effective assistance of counsel on direct appeal of their convictions. Evitts v. Lucey 469 U.S. 387 (1985); Douglas v. California 372 U.S. 353 (1963). In the Eleventh Circuit, the standard for determining whether Nixon received ineffective assistance of counsel on appeal is the same test used to 3 The circuit court s finding of a procedural bar ignores a settled line of opinions from this Court that have allowed incompetency claims in post-conviction proceedings. Oats v. Dugger, 638 So.2d 20 (Fla. 1994), cert. denied, 515 U.S (1995); Koon v. Dugger, 619 So.2d 246 (Fla. 1993); Jones v. State, 478 So.2d 346 (Fla. 1985); Hill v. State, 473 So.2d 1253 (Fla. 1985); Lane v. State, 388 So.2d 1022, 1025 (Fla. 1980); State ex rel. Deeb v. Fabisinski, 152 So. 207, 211 (1933). Jones, in which the defendant s competency to stand trial was first raised in Rule proceedings, is strikingly similar to the instant case and directly on point: The gist of Jones's [Rule 3.850] claim is that he was incompetent to stand trial. In support, Jones has filed affidavits from his lawyers opining that he was incompetent to stand trial and from various doctors opining that he suffers from organic brain damage and was and is incompetent to stand trial. The state urges that these affidavits are refuted by the trial record which shows that Jones was competent to stand trial and that the trial court did not err in denying the motion without an evidentiary hearing. Whatever the ultimate merits of the respective positions, we do not agree that the motion, files, and records conclusively show that Jones is not entitled to any relief. We reverse and remand with instructions that Jones be granted an evidentiary hearing. 478 So.2d at 347 (emphasis added). 5

8 assess ineffective assistance of trial counsel -- the dual test under Strickland v. Washington, 466 U.S. 668 (1984). See Wilson v. Wainwright, 474 So.2d at 1163; Matire v Wainwright, 811 F.2d 1430, 1435 (11th Cir. 1987). Under the Strickland test, appellate counsel s actions must be unreasonable under objective standards for counsel in criminal actions, and the deficient performance must prejudice the appellant s case. Strickland, 466 U.S. at 687; Matire v. Wainwright, 811 F.2d at Appellate counsel s failure to raise the competency claim on direct appeal was unreasonable in light of the record. If it had been raised, the outcome of the direct appeal would have been different. Accordingly, Nixon did not receive the effective assistance of counsel on appeal to which he is entitled under the Fourteenth Amendment. The first prong of the Strickland test requires Nixon to demonstrate that counsel s representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687. The competency claim has overwhelming merit. See Brief of Appellant, Point II. Any lawyer providing effective appellate assistance should have seen and raised it. Inexplicably, appellate counsel did not raise this fundamental constitutional error on direct appeal. Applicable Florida and federal law was widely known at the time of the direct appeal. See Drope v. Missouri, 420 U.S. 162 (1975); Illinois v. Allen, 397 U.S. 337 (1970); Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir. 1982), modified 706 F.2d 311 (1983), cert. denied, 464 U.S (1983); Francis v. State, 413 So.2d 1175 (Fla. 1982); Amazon v. State, 487 So.2d 8 (Fla. 1986). That a competency hearing must comport with due process was also widely known at the time of the direct appeal. Pate v. Robinson, 383 U.S. 375 (1966); Drope v. Missouri; Lane v. State, 388 So.2d 1022 (Fla. 1980); Hill v. State, 473 So.2d 1253 (Fla. 6

9 1985); Mason v. State, 489 So.2d 734, 736 (Fla. 1986); State v. Sireci, 502 So.2d 1221, 1224 (Fla. 1987). That competency determinations were required to address specific criteria was well known at the time of Mr. Nixon's direct appeal. Fla.R.Crim.P (1986). That a court must suspend the proceedings when it orders a competency evaluation in order to resolve disputed issues of competency was likewise widely known at the time of Mr. Nixon's direct appeal. Drope, 420 U.S. at 181; Fla.R.Crim.P (a) and (b); Jones v. State, 362 So.2d 1334, 1336 (Fla. 1978) (noting with approval and adopting holding of Drope that a defendant's due process right to a fair trial was violated when the trial court failed to suspend a trial pending the determination of defendant's competence to stand trial ). See also Pridgen v. State, 531 So.2d 951, 955 (Fla. 1988) ( we hold that the judge erred in declining to stay the sentencing portion of the trial for the purpose of having Pridgen reexamined by experts and holding a new hearing on his competency to continue to stand trial ). There was simply no reason for not raising this clearly meritorious issue on appeal. Had the issue been raised, this Court would have reversed the conviction and sentence. [W]hen appellate counsel omits (without legitimate strategic purposes) a significant and obvious issue, we will deem his performance deficient. Mason v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996), citing Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986) (internal quotation marks omitted). There could have been no possible strategic reason for omitting the competency issues on direct appeal. Indeed, those are among the strongest of Nixon s Rule claims. See Brief of Appellant Point II. Under Strickland, appellate counsel s performance was therefore below the standard of reasonable assistance. 7

10 Appellate counsel should have noted Nixon s bizarre mental state, which is obvious on the record. Consider, for example, Nixon s behavior at the holding cell hearing held by the trial judge to determine whether he had voluntarily waived his right to attend trial: (IN THE HOLDING CELL AREA. THE TIME IS 10:35 A.M.) THE COURT: Mr. Nixon, would you step over and talk with me for a few minutes. MR. NIXON: I can hear you real good right here. THE COURT: Can you here me good there? MR. NIXON: I can hear you real good. THE COURT: You know you are in the holding cell now? MR. NIXON: I know I'm in the holding cell. THE COURT: And about all you got on is your shorts, it looks like. MR. NIXON: That's all, Judge. THE COURT: Did you take your clothes off voluntarily or did someone remove them from you? MR. NIXON: They took them off at the jail house. THE COURT: They took them off of you at the jail house? MR. NIXON: Yes. THE COURT: What was taken off of you at the jail house? MR. NIXON: My clothes. THE COURT: And you were brought here without clothes? MR. NIXON: No, they made me put on these blue ones. 8

11 THE COURT: What happened to your other clothes? MR. NIXON: They got them at the jail house. THE COURT: Well, you want your other clothes back? MR. NIXON: I'm tired of being Mr. Nice Guy. The only thing I want to do is go back to the jail house. THE COURT: Well, you've got a pretty important trial going on and you are the Defendant in it. Your attorney Mr. Corin and other folks have told me that you don't want to go into the courtroom. MR. NIXON: Correct. THE COURT: Could you tell me why. MR. NIXON: I want another attorney. THE COURT: Well, I don't think I'm going to do that. Have you got any reasons you don't want to go in? MR. NIXON: Well, I ain't got no business in there. THE COURT: Well, you're the one that's on trial, and we're in to the second day. And yesterday, we got several of the jurors, if not selected, at least eligible to be selected. And you were there at that time. You seemed to be doing well. What happened? MR. NIXON: That's personal. THE COURT: Sir? MR. NIXON: That's personal. Y'all go ahead and have your trial if you want, but leave me out of it. You can sentence me, hang me, do what you want, but leave me out of it. If you don't give me no other lawyer. I ain't got no rap, none of me. Take me back to the jail and have Court without me. I don't care. THE COURT: Well, you know, you are the one that's on trial and it's your rights that have got to be protected. Part of my job, Mr. Nixon, is to make sure that those rights are protected to the 9

12 extent that I can. I have the authority to require that you be brought in to the courtroom. I don't want to do that. I'd much rather you be there under your own steam. MR. NIXON: You can make them bring me in there. THE COURT: Sir? MR. NIXON: You can make them bring me in there. So, what difference does it make if I come in there. I ain't got my rights in there. I still run my mouth and speak when I get ready unless you tape it up. THE COURT: Well, I have the authority to do that, but I wouldn't want to do it. What I need to know is are you going to come in and behave or not? MR. NIXON: I want to go to the jail house. THE COURT: You want to go to the jail house? MR. NIXON: Yes. THE COURT: You realize that if you do that, you are not going to be there while your trial is taking place? MR. NIXON: I ain't got no lawyer. THE COURT: Well, you have one of the best I've run across. I still need to know whether you will come in there. You want to go to the jail house or you want to go in the courtroom? MR. NIXON: I want to go to the jail house right now. THE COURT: You realize that if you do that, you are giving up your right to be present when your case is taking place? MR. NIXON: I don't care nothing about that case. Never did care nothing about it. THE COURT: It's your life that's involved. You don't care about that? 10

13 MR. NIXON: I care enough about my life just as much as you care about it. THE COURT: Don't you want to protect it? MR. NIXON: Do you want to protect it? THE COURT: Yes, sir, that's part of my job. MR. NIXON: You don't want to protect it. So, you see, I don't want to hear that. I care just as much as you rednecks care about myself. You don't give a damn just like I don't. That's the bottom line. THE COURT: Well, if I didn't care, I wouldn't be here. MR. NIXON: Yes, I know it. If you didn't care, you wouldn't be in a lot of places, but you are there. THE COURT: I'm trying to persuade you to come in to the courtroom and not to give up your rights to be present. I don't want to compel you to be there. I'll be very candid. I think that wouldn't help you a bit for me to have them bring you into the courtroom. People see that. I think they would get a bad picture of your case. I think it would hurt your defense. I don't want to do that, but I need to know whether you voluntarily are giving up this right to be present or what? MR. NIXON: You made me give it up. THE COURT: No, I haven't made you give it up. I'm right here inviting you almost with an engraved invitation asking you if you will be in the courtroom. You will be present. You will help your attorney do the best you can to protect yourself. MR. NIXON: I refuse to answer any more questions. THE COURT: Including whether you come to the courtroom? MR. NIXON: I done answered that about two or three times. 11

14 THE COURT: You don't want to? MR. NIXON: (No response.) I want to go to the moon. That's what I want to do. Just send me off (whistling). THE COURT: You understand that you do have the right to be there, don't you? MR. NIXON: I don't understand that. THE COURT: That you have the right to be in the courtroom while your trial is going on. MR. NIXON: I went in there when I hit them officers up in the jail house. You didn't come back in and ask me to come in. THE COURT: When was that? MR. NIXON: (Laughter.) Ask the ones I hit when I come in there. You didn't come back in there and asks me to come in there then. THE COURT: Well, I'm here now. MR. NIXON: (Laughter.) THE COURT: You are on trial for your life. I need to know will you come into the courtroom and help protect yourself, help defend yourself? MR. NIXON: Yes, I'll come back from the jail house this afternoon. THE COURT: Sir? MR. NIXON: I'll come in there this afternoon after I come back from the jail house. THE COURT: Well, we're not going to wait until you go out there and come back. MR. NIXON: I'll go out there and stay then. 12

15 THE COURT: Will you come back this afternoon? MR. NIXON: Yes, I'll be back this afternoon. THE COURT: Are his clothes out there? THE BAILIFF: Judge, I don't really know. MR. CORIN: I brought a shirt for him this morning. THE COURT: Okay. I think that's it. Anybody got any questions they want to ask Mr. Nixon? Mr. Corin? MR. CORIN: No, sir. THE COURT: You represent him. You want to ask him any questions? MR. CORIN: No, sir. THE COURT: Okay. Thank you, Mr. Nixon. MR. NIXON: I'm ready to go back to the jail. THE COURT: Yes, sir, I understand that. (HOLDING CELL PROCEEDINGS CONCLUDED AT 10:45 A.M.) R ; A See also Brief of Appellant, Point II. Mr. Strickland apparently knew something of Nixon s mental state; he refers to it at several points in the brief on direct appeal. 4 If he had fully reviewed the trial record, he would 4 Defense counsel... stated that Nixon was not normal organically, intellectually, emotionally... Initial Brief of Joe Elton Nixon, On Appeal from the Circuit Court of the Second Judicial Circuit, In and For Leon County, Florida, at 10, 3.850R. 2798; Appellant s mother testified that he was emotionally and mentally abnormal... Id.;... A psychologist stated that appellant s intelligence scale was 74 in the borderline range, and that below 70 is considered mentally retarded. Id. at 11, 3.850R. 2799;... a group of tests showed he was in the brain damage range Id. at 45, 3.850R

16 have discovered: (1) Nixon s manifestly bizarre behavior, (2) the testimony of the mental health experts, and (3) the prosecutor s suggestion that a competency hearing was necessary. See Brief of Appellant at Point 2. If appellate counsel did not fully review the record, that would, of course, be ineffective assistance, per se. See Matire v. Wainwright, 811 F.2d at And, knowing that there was some issue regarding Nixon s mental state, it would violate the most rudimentary standards for appellate counsel to have: (1) failed to investigate whether it rose to the level of incompetency at the time of trial, or (2) failed to investigate whether lack of a competency hearing was grounds for appeal, or (3) be ignorant of the well-known holdings in Pate, Drope and their progeny. The lack of appellate advocacy on Nixon's behalf mirrors that in other cases in which this Court has granted habeas corpus relief. See, e.g., Wilson v. Wainwright, supra. Appellate counsel's failure to present the meritorious issues discussed in this petition involved serious and substantial deficiencies, Fitzpatrick v. Wainwright, 490 So.2d at 940, not the waiver of some inconsequential legal niceties. The magnitude and obviousness of the issues appellate counsel neglected demonstrate that counsel's performance was deficient and that the deficiencies prejudiced Joe Nixon. Where extant legal principles... provided a clear basis for...compelling appellate arguments[s], appellate counsel must make those arguments. Fitzpatrick, 490 So.2d at 940. Individually and cumulatively, Barclay v. Wainwright, 444 So.2d 956, 959 (Fla. 1984), the claims omitted by appellate counsel establish that confidence in the correctness and fairness of the result has been undermined. Wilson, 474 So.2d at 1165 (emphasis in original). In Wilson, this Court said: 14

17 [O]ur judicially neutral review of so many death cases, many with records running to the thousands of pages, is no substitute for the careful, partisan scrutiny of a zealous advocate. It is the unique role of that advocate to discover and highlight possible error and to present it to the court, both in writing and orally, in such a manner designed to persuade the court of the gravity of the alleged deviations from due process. Advocacy is an art, not a science. Wilson, 474 So. 2d at In Nixon's case, the record was indeed long, and it would require analysis, distillation and presentation by appellate counsel to apprise this Court of the serious issues involving Nixon s incompetency, issues that go the constitutional heart of a capital defendant s right to a fair trial when his life is at stake. By not presenting on direct appeal the critical issues addressed in this Petition, appellate counsel was deficient. Appellate counsel s deficiency prejudiced Nixon. As established in the Brief of Appellant, the failure to provide Joe Nixon a competency hearing was reversible error. For present purposes, however, Nixon need demonstrate only that there is a reasonable probability that this Court would have found the competency claim meritorious on direct appeal. See Strickland, 466 U.S. at ; Orazio v. Dugger, 876 F.2d 1508, 1514 (11th Cir. 1989); Cross v. United States, 893 F.2d 1287 (11th Cir. 1990). See also, Heath v. Jones, 941 F.2d 1126, 1132 (11th Cir. 1991); quoting Cross v. United States ( If the court finds that the neglected claim would have a reasonable probability of success on appeal, then according to Cross it is necessary to find appellate counsel s performance prejudicial because it affected the outcome of the appeal. ). Given the magnitude of the Pate/Drope constitutional error, that standard is amply met here. 15

18 Nixon s case has been prejudiced because appellate counsel s failure to raise the claim prevented him from raising the claim on collateral appeal, at least under the circuit court s ruling dismissing the Rule motion. See October 22 Order at 1-2; A In Orazio v Dugger, the Eleventh Circuit found prejudice for failure to raise an issue which resulted in procedural default. 876 F.2d at Accordingly, if this Court finds that Nixon should have raised his claims under Pate, Drope, et. al. on direct appeal, Nixon is entitled to have this Court address these competency issues now on the merits under the cause and prejudice exception to the procedural bar. 16

19 CLAIM II APPELLATE COUNSEL FAILED PROPERLY TO PRESERVE NIXON S CLAIMS UNDER AKE V. OKLAHOMA. Ake v. Oklahoma, 470 U.S. 68 (1985), was decided while Nixon s direct appeal was pending. (The Direct Appeal Brief was filed December 8, 1986.) For the same reasons that appellate counsel should have noticed and raised the competency issue, he should have noticed and raised the Ake claim that Nixon was denied a competent mental health examination. CLAIM III APPELLATE COUNSEL WAS DEFICIENT INSOFAR AS HE FAILED PROPERLY TO PRESERVE NIXON S CLAIMS UNDER JAMES V. STATE AND JACKSON V. STATE In his Rule Motion, Petitioner has asserted that the trial court s jury instructions violated James v. State, supra, which invalidated Florida's especially wicked, evil, atrocious or cruel instruction as unconstitutionally vague. The instructions also violated Jackson v. State, supra, which held the standard instruction on the cold, calculated, and premeditated aggravating factor unconstitutionally vague as well. Cf. Espinosa v. Florida, 505 U.S (1992). See Brief of Appellant at Point VII. The court below found those claims procedurally barred. See October 22 Order at 2-3; A To the extent that this Court might find these claims procedurally barred because of a failure by appellate counsel to preserve them properly, this Court should excuse any bar because it resulted from a violation of Nixon's constitutional right to the effective assistance of counsel. The issue was foreseeable. It derives from the United States Supreme Court's 17

20 decision in Godfrey v. Georgia, 446 U.S. 420 (1980), which involved a Georgia aggravator not significantly different than the one defined by Florida s pattern wicked, evil, atrocious or cruel instruction, and held that it violated the State s constitutional obligation to channel the sentencer's discretion by clear and objective standards that provide specific and detailed guidance, and that make rationally reviewable the process for imposing a sentence of death. Id. at 428 (footnotes omitted). Godfrey manifestly required that sentencing juries receive appropriate limiting instructions concerning otherwise vague aggravating circumstances. Id. at ; Maynard v. Cartwright, 486 U.S. 356, 363 (1988) (noting that Godfrey controls this case. ); Espinosa, 505 U.S. at 1081 (citing Godfrey). And Godfrey manifestly required that a state sentencing court's discretion to impose death on the basis of a vague aggravating circumstance be limited. Arave v. Creech, 507 U.S. 463, 471 (1993) (quoting Godfrey). Thus, in Stringer v. Black, 503 U.S. 222, (1992), the Supreme Court found that its decision in Maynard was presaged and dictated by Godfrey. Godfrey should have made clear to appellate counsel the necessity for challenging Florida s conspicuously vague instructions on aggravating circumstances. 5 Any failure by appellate counsel to raise the issue properly on direct appeal would therefore constitute deficient performance. Prejudice is also apparent. Had an argument been made on appeal, it is reasonably probable that resentencing would have been required, either on appeal or in post-conviction proceedings. See James, supra. That resentencing would have eliminated two of the five aggravating factors. That, combined with the significant mitigation evidence that was available 5 Trial counsel preserved the issue by objection. See R

21 (see Brief of Appellant at Point III(B)), would make it reasonable to assume that the outcome of the penalty phase would have been different (see id. at Point VII). VI. CONCLUSION For all of the foregoing reasons, Petitioner Joe Elton Nixon respectfully urges the Court to grant habeas corpus relief. Dated: June 5, 1998 JONATHAN LANG Attorney for Petitioner Joe Elton Nixon 1114 Avenue of the Americas, 44th Floor New York, NY ; Fax: Florida Bar No: Admitted pro hac vice To: Richard Martell, Assistant Attorney General Office of Attorney General The Capitol Tallahassee, Fl CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Petition for a Writ of Habeas Corpus has been mailed by first class mail to the Office of Attorney General, The Capitol, Tallahassee, FL , Attention: Richard Martell, Assistant Attorney General, on June 5, Jonathan Lang, Attorney for Petitioner 19