United States Court of Appeals,
Eleventh Circuit.
No. 95-4217.
Emilio J. CHATELOIN, Petitioner-Appellant,
v.
Harry K. SINGLETARY, Secretary, Department of Corrections, State
of Florida, Respondent-Appellee.
July 26, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 92-2189 CIV-DTKH), Daniel T.K. Hurley,
Judge.
Before HATCHETT and ANDERSON, Circuit Judges, and WOOD*, Senior
Circuit Judge.
HATCHETT, Circuit Judge:
In this appeal, the court affirms the district court's ruling
that trial and appellate counsel did not render ineffective
assistance to the appellant.
FACTS AND PROCEDURAL HISTORY
On February 7, 1986, Emilio J. Chateloin and Angel Rodriguez
agreed to kidnap Geraldo Del Pino and Esteban Lemus and hold them
for ransom believing that they had cheated them in a drug
transaction. Later that day, Chateloin and Rodriguez accompanied
Lemus and Del Pino to an unknown destination. While riding in the
back seat of Lemus's Cadillac, Chateloin shot Lemus and Del Pino in
the back of the head. After the shooting, Rodriguez got into the
driver's seat, and he and Chateloin began driving around the city
in search of a place to drop off the bodies. After removing all
*
Honorable Harlington Wood, Jr., Senior U.S. Circuit Judge
for the Seventh Circuit, sitting by designation.
the jewelry from the victims, Chateloin and Rodriguez threw their
bodies off the Julia Tuttle Causeway into the water. Later that
evening, Lino Marante attempted to dispose of Lemus's car. Marante
drove the car to a residential neighborhood, ignited a sock and
placed it into the gas tank of the car. Residents in that
neighborhood notified the police of the burning car. After
extinguishing the fire, the police discovered large quantities of
blood and brain matter in the vehicle. The police also found wet
sand on the floor of the vehicle underneath the steering wheel. On
February 8, 1986, the police found Del Pino and Lemus's bodies on
the shore along side of the Julia Tuttle Causeway. Sometime later,
the police arrested Marante, Rodriguez, and Chateloin.
On May 29, 1986, Marante pleaded guilty to arson, accessory
after the fact, and conspiracy. On June 1, 1986, a state grand
jury returned an indictment charging Chateloin and Rodriguez with
first-degree murder in violation of Florida Statutes § 782.04,
armed robbery in violation of Florida Statutes § 812.13, conspiracy
to commit armed robbery and kidnapping in violation of Florida
Statutes §§ 812.13, 787.01, 775.087, and 777.04, and possession of
a firearm while engaged in a criminal offense in violation of
Florida Statutes § 790.07. On October 22, 1986, the state court
held a pretrial hearing. At the pretrial hearing, the state
represented that it would not seek the death penalty against either
Chateloin or Rodriguez, at which time Rodriguez's counsel stated:
"We waive a twelve-person jury." Chateloin's trial counsel, Vance
Carr, did not speak at the hearing. The next day, on October 22,
1986, Rodriguez entered into a negotiated plea with the state
agreeing to plead guilty in exchange for a ten-year sentence.
On November 12, 1995, the state tried Chateloin before a
six-member jury. Rodriguez and Marante testified and identified
Chateloin as the instigator of the kidnapping plot. Rodriguez also
identified Chateloin as the shooter. On November 14, 1986, the
case went to the jury. Shortly after jury deliberations commenced,
the jury submitted the following note to the trial court: "Please
explain if the defendant is guilty of [possession of a firearm
while engaged in a criminal offense as charged in] the indictment
if the state does not prove who held the gun." The trial judge
responded: "The law is as clear as I can make it. You must apply
the law to the facts and reach a decision." Two hours later, the
jury found Chateloin guilty on all counts. On January 22, 1987,
the trial court sentenced Chateloin to consecutive life sentences
with fifty years minimum mandatory. Chateloin also received
fifteen years concurrent on the robbery charges and five years
concurrent on the conspiracy and possession of firearm charges.
On February 20, 1987, Chateloin filed a timely notice of
appeal to the Third District Court of Appeal of Florida (Third
District). Sometime later, the state appointed Chateloin appellate
counsel. On August 27, 1987, Chateloin's appellate counsel filed
a brief stating that he could discern no appealable issues. The
Third District upheld Chateloin's conviction in a per curiam
memorandum opinion. In November of 1989, Chateloin filed a motion
for post-conviction relief pursuant to Florida Rule of Criminal
Procedure 3.850, claiming ineffective assistance of trial and
appellate counsel and denial of equal protection in the trial
court. The trial judge denied Chateloin's motion. On February 4,
1991, Chateloin appealed the trial court's denial of 3.850 relief
to the Third District. The Third District affirmed the trial court
without an opinion.
On September 21, 1992, Chateloin filed a petition for habeas
corpus relief in the Southern District of Florida pursuant to 28
U.S.C. § 2254 asserting that he received ineffective assistance of
**
trial and appellate counsel. On March 23, 1994, a magistrate
judge held an evidentiary hearing on Chateloin's petition for writ
of habeas corpus. On December 28, 1994, the magistrate judge
issued a report recommending to the district court that it deny
Chateloin habeas corpus relief. Chateloin timely filed objections
to the magistrate judge's report and recommendation. On January
24, 1995, the district court, adopting the magistrate judge's
report and recommendation, denied Chateloin habeas corpus relief.
CONTENTIONS
Chateloin contends that he received ineffective assistance of
trial counsel because counsel waived his right to a twelve-person
jury after the state had independently decided not to seek the
death penalty. Chateloin argues that trial counsel's waiver of the
right to a twelve-person jury was objectively unreasonable because
he gave up a fundamental right of great importance while receiving
nothing in exchange for the waiver. Chateloin also contends that
**
Chateloin also asserted that the state denied him due
process and equal protection because it tried him before a
six-person jury. The magistrate judge found that this assertion
did not constitute a cognizable claim because the United States
Constitution does not grant criminal defendants a right to a
trial before a twelve-person jury.
he received ineffective assistance of appellate counsel because
appellate counsel, on direct appeal, failed to argue that the
record did not show his personal waiver and failed to argue that
the record did not show any expressed waiver from his trial
counsel.
The state contends that Chateloin's trial counsel made a
strategic decision to waive the right to a twelve-person jury. The
state also contends that appellate counsel's failure to raise the
lack of personal waiver and the lack of trial counsel's express
waiver of the twelve-person jury fell within the wide range of
professionally competent assistance.
DISCUSSION
We review the district court's denial of habeas corpus relief
de novo. Agan v. Singletary, 12 F.3d 1012, 1017 (11th Cir.1994).
The Sixth Amendment guarantees criminal defendants the right to
effective assistance of counsel. Strickland v. Washington, 466
U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984). In
order to prevail on a claim of ineffective assistance of counsel,
a defendant must show: (1) that his counsel's assistance fell
below an objective standard of reasonableness; and (2) that the
deficient performance prejudiced the defense such that it deprived
the defendant of a fair trial. Strickland, 466 U.S. at 687, 104
S.Ct. at 2064; Matire v. Wainwright, 811 F.2d 1430, 1435 (11th
Cir.1987) ("The standard for ineffective assistance is the same for
trial and appellate counsel."). A strong presumption exists that
the challenged action constitutes sound trial strategy. Courts
therefore must review the reasonableness of counsel's assistance in
light of the facts of the particular case at the time of counsel's
conduct.
A convicted defendant making a claim of ineffective assistance
must identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable professional
judgment. The court must then determine whether, in light of
all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent assistance.
Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. In this case,
Chateloin contends that he received ineffective assistance of
counsel at both the trial and appellate level. We first address
Chateloin's ineffective assistance claim against his trial counsel.
A. Ineffective Assistance of Trial Counsel
Chateloin contends that he received ineffective assistance of
trial counsel because his trial counsel waived the right to a
twelve-person jury without receiving anything in return for the
waiver. Florida law guarantees criminal defendants a twelve-person
jury in all capital cases. Fla.Stat.Ann. § 913.10 (West 1985).
Where the state waives its right to seek the death penalty in a
capital case, the defendant may agree, with the consent of the
state and the approval of the court, to a jury of six persons.
State v. Griffith, 561 So.2d 528 (Fla.1990).
In this case, the district court assumed for the purpose of
Chateloin's claim that, as a matter of law, a trial counsel's
performance is objectively unreasonable under Strickland where
counsel waives his client's right to a twelve-person jury and
receives nothing in return. The district court found, however,
that Chateloin's trial counsel waived the right to a twelve-person
jury in exchange for the state's waiver of the death penalty.
Chateloin argues that the district court's finding that Carr waived
the twelve-person jury in exchange for the waiver of the death
penalty is clearly erroneous because Carr did not testify that he
had to waive the twelve-person jury to secure a death penalty
waiver. In fact, Chateloin notes that Carr testified that he had
no specific recollection of bargaining for the death penalty
waiver.
In further support of his argument that Carr waived his right
to a twelve-person jury after the state had already told Carr that
it intended to waive the death penalty, Chateloin asserts that Carr
did not discuss the death penalty with him at anytime prior to
trial or inform him of his right to a twelve-person jury. The
district court discredited Chateloin's testimony. Based on Carr's
testimony regarding his habits and patterns in death penalty cases,
the district court found that Carr would not have allowed Chateloin
to proceed before a jury of only six persons had the state not
waived the death penalty in return. Consequently, the district
court held that Chateloin suffered no Sixth Amendment violation of
his right to effective representation at trial.
We review the district court's factual findings for clear
error giving due regard to the district court's opportunity to
judge the credibility of witnesses. Amadeo v. Zant, 486 U.S. 214,
223, 108 S.Ct. 1771, 1777, 100 L.Ed.2d 249 (1988); Smith v.
Singletary, 61 F.3d 815, 817 (11th Cir.1995). Because the
determination of whether Carr waived Chateloin's right to a
twelve-person jury in return for the state's waiver of the death
penalty is a factual one, we must affirm the district court unless
we are left with "the definite and firm conviction that a mistake
has been committed." United States v. United States Gypsum Co.,
333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Like
the district court, we assume for purposes of this discussion that
trial counsel's waiver of the right to a twelve-person jury for
"nothing" in return is objectively unreasonable.
In this case, both Carr and the state prosecutor lacked
specific recollection of their conversations concerning the death
penalty in this case. At the time of the waiver, the state,
however, regularly entered into agreements with defense counsel to
waive the death penalty in exchange for the defendant's waiver of
his right to a twelve-person jury. The state prosecutor testified
that the state may have entered into such an agreement in this
case. No documentary evidence exists with respect to the existence
or nonexistence of such an agreement. Carr testified, at the
evidentiary hearing, that in defending any capital case, his single
most important objective is to prevent the client from receiving a
sentence of death. Carr also testified that it was his pattern in
capital cases to "give and take a little bit" where necessary to
get the state to drop the death penalty. Carr further testified
that he believed it was reasonable to give up the right to a
twelve-person jury in exchange for the state not seeking the death
penalty against his client and that he considered such action a
strategic move. In addition, Carr testified that he always
explained and discussed with his client the possibility that the
state would seek the death penalty for the capital offense.
The district court in crediting Carr's testimony noted that
prior to representing Chateloin, Carr had handled numerous homicide
cases as an assistant state attorney and in private practice. The
district court also noted that in 1987, Carr actively represented
two people who received the death penalty. Based on the facts of
this case and the evidence in the record, we cannot conclude that
the district court's finding that counsel waived the right to a
twelve-person jury in exchange for the waiver of the death penalty
constitutes clear error. Therefore, we affirm the denial of habeas
corpus on Chateloin's ineffective assistance of trial counsel
claim.
B. Ineffective Assistance of Appellate Counsel
We now address Chateloin's ineffective assistance of appellate
counsel claims. Chateloin contends that his appellate counsel
rendered ineffective assistance for failing to raise on appeal the
fact that the record did not show his personal waiver of the
twelve-person jury. Chateloin also contends that his appellate
counsel rendered ineffective assistance of counsel because he
failed to raise on appeal that the record did not show any express
waiver—either by him or his counsel. The district court found that
in 1986 and 1987, the time of Chateloin's direct appeal, Florida
law did not clearly require either personal waiver of a
twelve-person jury on the record or a written waiver of the right
to a twelve-person jury. Since the time of Chateloin's direct
appeal, the Florida Supreme Court in State v. Griffith has held
that an effective waiver of the right to a twelve-person jury does
not require an on-the-record showing of the defendant's personal
knowledge and intelligent waiver. Griffith, 561 So.2d at 530.
Griffith, however, is not relevant to this inquiry because, as
previously discussed, we review the reasonableness of counsel's
assistance in light of the facts and law that existed at the time
of the challenged conduct.
Chateloin argues that had the appellate counsel raised the
lack of personal waiver and express waiver on appeal state law
would have entitled him to an automatic reversal on direct review.
In support of his argument that Florida law at the time of his
direct appeal required a written waiver of the right to a
twelve-person jury, he cites Jones v. State, 452 So.2d 643 (Fla.
4th D.C.A.1984). In Jones, the defendant exercised his right to a
twelve-person jury, and the court empaneled a jury of twelve
persons. Prior to the trial, however, the state and defense
counsel decided not to choose an alternate juror and agreed in the
event a juror became unable to serve, the trial would continue with
the eleven remaining jurors. During the trial, one of the twelve
jurors injured herself and requested the court to excuse her from
jury duty. The defendant's counsel agreed to the dismissal of this
juror. The court continued the trial with the remaining eleven
jurors as previously stipulated. The Jones court reversed and
remanded for a new trial, finding that the joint stipulation prior
to the commencement of the trial did not constitute an effective
waiver of the defendant's right to a twelve-person jury.
Specifically, the court held that where a trial is held before an
eleven-person jury, the defendant must sign a written waiver of his
right to a twelve-person jury.
Chateloin argues, notwithstanding the factual differences of
Jones and this case, that the holding in Jones entitles him to a
new trial because this record lacks a written waiver of his right
to a twelve-person jury. Chateloin also argues that appellate
counsel rendered ineffective assistance through failing to raise
the lack of personal waiver in the record. He cites Nova v. State
for the proposition that a defendant must voluntarily and
intelligently waive his right to a twelve-person jury in order to
constitute a valid waiver. Nova v. State, 439 So.2d 255, 262
(Fla.3d D.C.A.1983). We reject Chateloin's contention that the law
at the time of his direct appeal clearly established that waivers
of the right to a twelve-person jury in a capital case required
that the defendant personally waive his right to a twelve-person
jury in writing or on the record in open court. We note that
during the same period of time of the Jones and Nova decisions, the
state court decided Groomes v. State, 401 So.2d 1139 (Fla.3d
D.C.A.1981). In Groomes, the court declined to address the
defendant's assertion that the waiver of his right to a
twelve-person jury was not knowingly and intelligently made,
finding that the defendant did not properly preserve this issue for
review because he failed to object to the stipulation during the
trial. Groomes, 401 So.2d at 1140. Like Groomes, Chateloin did
not object to the waiver of his right to a twelve-person jury.
Accordingly, it was reasonable for Chateloin's appellate counsel to
believe that the court would not entertain the "knowing and
intelligent waiver" claim.
Although the Third District decided Groomes prior to Jones and
Nova, Groomes remained good law at the time of Chateloin's direct
appeal to the state court. Moreover, Nova does not support
Chateloin's contention that state law requires the defendant to
personally waive his right to a twelve-person jury because the
court in Nova did not require that the defendant personally waive
his right to a twelve-person jury in open court. In fact, the
holding in Nova was much more limited. The Nova court specifically
held that where the defendant did not receive the agreed upon
sentence in exchange for his waiver of the twelve-person jury, the
waiver is involuntary and therefore must be set aside. Nova, 439
So.2d at 263. Because the case law at the time of Chateloin's
direct appeal did not clearly require a defendant to either
personally waive his right to a twelve-person jury in open court or
sign a written waiver of such right, we conclude that Chateloin's
appellate counsel's failure to raise the lack of personal waiver
claim did not fall below an objective standard of reasonableness.
Similarly, we reject Chateloin's argument that Rodriguez's
counsel did not effectively waive Chateloin's right to a
twelve-person jury when he stated, speaking on behalf of himself
and Carr, Chateloin's trial counsel, at the pretrial hearing, that
"We waive a twelve-person jury." In rejecting this argument, we
note that Carr was present during Rodriguez's counsel statement and
did not object to counsel's representation to the court.
Accordingly, we conclude that appellate counsel's performance did
not prejudice the defense such that it deprived the defendant of a
fair trial.
CONCLUSION
For the foregoing reasons, we conclude that the district court
properly denied Chateloin's petition for habeas corpus relief.
AFFIRMED.