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 Nixon1114 Avenue of the Americas, 44th FloorNew York, NY 10036-7794212-626-4204Fax: 212-626-4120Florida Bar No.: Admitted Pro Hac Vice

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

APPELLATE COUNSEL FAILED TO RAISE ON DIRECT APPEAL ANYISSUE REGARDING JOE NIXON’S COMPETENCY TO STAND TRIAL. . 5

CLAIM II

APPELLATE COUNSEL FAILED PROPERLY TO PRESERVE NIXON’SCLAIMS UNDER AKE V. OKLAHOMA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CLAIM III

APPELLATE COUNSEL WAS DEFICIENT INSOFAR AS HE FAILEDPROPERLY TO PRESERVE NIXON’S CLAIMS UNDER JAMES V. STATEAND JACKSON V. STATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

1

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 3.850 of the Florida Rules of Criminal Procedure

(“Rule 3.850”) 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 3.850. 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

2

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 3.850 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 3.850 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 3.850 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. 9.030(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. 9.100 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, 919-20 (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. 1100 (1985).

1 In accord with Fla.R.App.P. 9.220, Petitioner has submitted an Appendix with this Petitionand with the Brief of Appellant. Citations to the Appendix are referenced as “A-___.”

3

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

3.850. On October 22, 1997, the circuit court denied the Rule 3.850 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. 84-2324, Order Denying Motion for Post

Conviction relief dated October 22, 1997 (the “October 22 Order”) at 1-3; A-318-20.1

2 References to the record in this Petition conform to those in the Brief of Appellant. SeeBrief of Appellant at page “i.”

4

Petitioner appealed the circuit court’s denial of Rule 3.850 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 3.850 appeal.

The Initial Brief of Appellant on the direct appeal (the “Direct Appeal Brief”) (see

3.850R. 2781-2858),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.

3 The circuit court’s finding of a procedural bar ignores a settled line of opinions from thisCourt that have allowed incompetency claims in post-conviction proceedings. Oats v. Dugger,638 So.2d 20 (Fla. 1994), cert. denied, 515 U.S. 1087 (1995); Koon v. Dugger, 619 So.2d246 (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 standtrial was first raised in Rule 3.850 proceedings, is strikingly similar to the instant case anddirectly 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 wasincompetent to stand trial and from various doctors opining that he suffers fromorganic brain damage and was and is incompetent to stand trial. The state urgesthat these affidavits are refuted by the trial record which shows that Jones wascompetent to stand trial and that the trial court did not err in denying the motionwithout an evidentiary hearing. Whatever the ultimate merits of the respectivepositions, we do not agree that the motion, files, and records conclusivelyshow that Jones is not entitled to any relief. We reverse and remand withinstructions that Jones be granted an evidentiary hearing.

478 So.2d at 347 (emphasis added).

5

V. GROUNDS FOR HABEAS CORPUS RELIEF

CLAIM I

APPELLATE COUNSEL FAILED TO RAISE ON DIRECT APPEAL ANYISSUE 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

6

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 1435. 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. 1002 (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.

7

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. 3.211 (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. 3.210 (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

3.850 claims. See Brief of Appellant Point II. Under Strickland, appellate counsel’s

performance was therefore below the standard of reasonable assistance.

8

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 mefor 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 lookslike.

MR. NIXON: That's all, Judge.

THE COURT: Did you take your clothes off voluntarily or didsomeone 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.

9

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 Iwant to do is go back to the jail house.

THE COURT: Well, you've got a pretty important trial going onand you are the Defendant in it. Your attorney Mr. Corin andother folks have told me that you don't want to go into thecourtroom.

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 yougot 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 tothe second day. And yesterday, we got several of the jurors, if notselected, at least eligible to be selected. And you were there atthat 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 trialif you want, but leave me out of it. You can sentence me, hangme, do what you want, but leave me out of it. If you don't give meno other lawyer. I ain't got no rap, none of me. Take me back tothe jail and have Court without me. I don't care.

THE COURT: Well, you know, you are the one that's on trial andit'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

10

extent that I can. I have the authority to require that you bebrought in to the courtroom. I don't want to do that. I'd muchrather 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, whatdifference does it make if I come in there. I ain't got my rights inthere. I still run my mouth and speak when I get ready unless youtape it up.

THE COURT: Well, I have the authority to do that, but I wouldn'twant to do it. What I need to know is are you going to come inand 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 goingto 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. Istill need to know whether you will come in there. You want togo 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 upyour right to be present when your case is taking place?

MR. NIXON: I don't care nothing about that case. Never did carenothing about it.

THE COURT: It's your life that's involved. You don't care aboutthat?

11

MR. NIXON: I care enough about my life just as much as youcare 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'twant to hear that. I care just as much as you rednecks care aboutmyself. You don't give a damn just like I don't. That's the bottomline.

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 bein a lot of places, but you are there.

THE COURT: I'm trying to persuade you to come in to thecourtroom and not to give up your rights to be present. I don'twant to compel you to be there. I'll be very candid. I think thatwouldn't help you a bit for me to have them bring you into thecourtroom. People see that.

I think they would get a bad picture of your case. I think it wouldhurt your defense. I don't want to do that, but I need to knowwhether you voluntarily are giving up this right to be present orwhat?

MR. NIXON: You made me give it up.

THE COURT: No, I haven't made you give it up. I'm right hereinviting you almost with an engraved invitation asking you if youwill be in the courtroom. You will be present. You will help yourattorney 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.

12

THE COURT: You don't want to?

MR. NIXON: (No response.) I want to go to the moon. That'swhat I want to do. Just send me off (whistling).

THE COURT: You understand that you do have the right to bethere, don't you?

MR. NIXON: I don't understand that.

THE COURT: That you have the right to be in the courtroomwhile your trial is going on.

MR. NIXON: I went in there when I hit them officers up in thejail 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 inthere. You didn't come back in there and asks me to come inthere then.

THE COURT: Well, I'm here now.

MR. NIXON: (Laughter.)

THE COURT: You are on trial for your life. I need to know willyou come into the courtroom and help protect yourself, helpdefend yourself?

MR. NIXON: Yes, I'll come back from the jail house thisafternoon.

THE COURT: Sir?

MR. NIXON: I'll come in there this afternoon after I come backfrom the jail house.

THE COURT: Well, we're not going to wait until you go outthere and come back.

MR. NIXON: I'll go out there and stay then.

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 theSecond Judicial Circuit, In and For Leon County, Florida, at 10, 3.850R. 2798; “Appellant’smother testified that he was emotionally and mentally abnormal . . .” Id.; “ . . . A psychologiststated that appellant’s intelligence scale was 74 in the borderline range, and that below 70 isconsidered 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. 2833.

13

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 questionsthey want to ask Mr. Nixon? Mr. Corin?

MR. CORIN: No, sir.

THE COURT: You represent him. You want to ask him anyquestions?

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 10:45A.M.)

R. 334-341; A-333-41. 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

14

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

1438. 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:

15

[O]ur judicially neutral review of so many death cases, many with recordsrunning to the thousands of pages, is no substitute for the careful, partisanscrutiny of a zealous advocate. It is the unique role of that advocate to discoverand highlight possible error and to present it to the court, both in writing andorally, in such a manner designed to persuade the court of the gravity of thealleged deviations from due process. Advocacy is an art, not a science.

Wilson, 474 So. 2d at 1165.

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 693-94; 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.

16

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 3.850 motion. See October 22 Order at 1-2; A-318-19. In Orazio

v Dugger, the Eleventh Circuit found prejudice for failure to raise an issue which resulted in

procedural default. 876 F.2d at 1514.

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.

17

CLAIM II

APPELLATE COUNSEL FAILED PROPERLY TO PRESERVE NIXON’SCLAIMS 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 FAILEDPROPERLY TO PRESERVE NIXON’S CLAIMS UNDER JAMES V.STATE AND JACKSON V. STATE

In his Rule 3.850 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. 1079

(1992). See Brief of Appellant at Point VII. The court below found those claims procedurally

barred. See October 22 Order at 2-3; A-319-20.

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

5 Trial counsel preserved the issue by objection. See R. 887-89.

18

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 428-29; 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, 227-29 (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

(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 Nixon1114 Avenue of the Americas, 44th FloorNew York, NY 10036-7794212-626-4204; Fax: 212-626-4120Florida Bar No: Admitted pro hac vice

To:

Richard Martell, Assistant Attorney GeneralOffice of Attorney GeneralThe CapitolTallahassee, Fl 32399-1050

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Petition for a Writ ofHabeas Corpus has been mailed by first class mail to the Office of Attorney General, TheCapitol, Tallahassee, FL 32399-1050, Attention: Richard Martell, Assistant Attorney General,on June 5, 1998.

_______________________________Jonathan Lang, Attorney for Petitioner

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