No.______________ IN THE SUPREME COURT OF THE UNITED STATES _____________________________________________________________ JEFFREY LEE ATWATER, PETITIONER VS. STATE OF FLORIDA, RESPONDENT. ____________________________________________________________ ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA _____________________________________________________________ PETITION FOR WRIT OF CERTIORARI ________________________________________________________________ JULIE A. MORLEY Counsel of Record JAMES L. DRISCOLL TRACY M. HENRY LAW OFFICE OF THE CAPITAL COLLATERAL REGIONAL COUNSEL MIDDLE REGION 12973 N. TELECOM PARKWAY TEMPLE TERRACE, FLORIDA 33637 PHONE NO. (813) 558-1600 FAX NO. (813) 558-1601 Email: [email protected] CAPITAL CASE QUESTIONS PRESENTED When an individual enters a plea of not guilty, the burden of proving every element of the offense is solely on the State. The accused is presumed innocent. The Sixth Amendment to the United States Constitution demands that counsel for the accused hold the State to its burden of proof. The Petitioner, Jeffrey Lee Atwater, exercised these rights when he entered a plea of not guilty. By doing so, he demanded that the State meet its burden. Mr. Atwater’s trial counsel certainly knew of his not guilty plea and the substantial responsibility it placed on counsel. Mr. Atwater never wavered from his initial plea, never conceded guilt to counsel, and never released the State from its burden. Mr. Atwater proceeded to trial with the belief that the State would continue to have the burden of proof and that his plea of not guilty had the authority that the Constitution demanded. Mr. Atwater was mistaken. Without even consulting Mr. Atwater, trial counsel proceeded to override Mr. Atwater’s decision and jettison his right to hold the State to its burden. Even worse, counsel did so in a manner in which Mr. Atwater could not have anticipated counsel’s concession and could not lodge an appropriate objection or otherwise have communicated to the jury that he was not admitting guilt. To do so would have drawn the contempt of the trial court in full view of the jury. He was not required to make such a spectacle to maintain his rights. The Florida Supreme Court ruled that Mr. Atwater’s claim did not rise to the level of a McCoy v. Louisiana, 138 S. Ct. 1500 (2018) violation because of the court’s creation of additional requirements beyond this Court’s decision in McCoy. Accordingly, Mr. Atwater presents the following questions: 1. Did Mr. Atwater show a violation of the right to determine the objective of his defense and his right to hold the State to its burden of proof of each element beyond, and to the exclusion of every reasonable doubt, as articulated by this Court in McCoy v. Louisiana, when he had explicitly entered a plea of not guilty and maintained his innocence to counsel? 2. Whether the Florida Supreme Court may de facto overrule this Court and create a requirement of a preemptory objection to unknown trial strategy of conceding guilt and/or a contemporaneous objection by an accused individual to his own counsel when silenced by court rules and without foreknowledge that counsel would waive his rights? ii LIST OF PARTIES All Parties are listed in the caption. NOTICE OF RELATED CASES Per Supreme Court Rule 14.1(b)(iii), these are the related cases: Underlying Trial: Circuit Court of Pinellas County, Florida State of Florida v. Jeffrey L. Atwater, 1989-CF-13299 Judgment Entered: June 25, 1990 Direct Appeal: Florida Supreme Court Atwater v. State, 626 So. 2d 1325 (Fla. 1993) Judgment Entered: September 16, 1993 (rehearing denied November 29, 1993) Supreme Court of the United States Atwater v. Florida, 511 U.S. 1046 (1994) Judgment Entered: April 18, 1994 First Postconviction Proceedings: Circuit Court of Pinellas County, Florida State of Florida v. Jeffrey L. Atwater, 1989-CF-13299 Judgment Entered: January 5, 1999 Florida Supreme Court Atwater v. State, 788 So. 2d 223 (Fla. 2001) Judgment Entered: June 7, 2001 United States District Court for the Middle District of Florida, Tampa Division Case No. 8:02-cv-1103-T-26MSS Judgment Entered: October 21, 2003 United States Court of Appeals for the Eleventh Circuit Atwater v. Crosby, 451 F.3d 799 (11th Cir. 2006) Judgment Entered: June 12, 2006 iii Supreme Court of the United States Atwater v. McDonough, 549 U.S. 1124 (2007) Judgment Entered: January 8, 2007 Second Postconviction Proceedings: Circuit Court of Pinellas County, Florida State of Florida v. Jeffrey L. Atwater, 1989-CF-13299 Judgment Entered: April 20, 2004 Florida Supreme Court Atwater v. State, 892 So. 2d 1011 (Fla. 2004) Judgment Entered: December 20, 2004 Third Postconviction Proceedings: Circuit Court of Pinellas County, Florida State of Florida v. Jeffrey L. Atwater, 1989-CF-13299 Judgment Entered: February 5, 2008 Florida Supreme Court Atwater v. State, 6 So. 3d 51 (Fla. 2009) Judgment Entered: February 27, 2009 Supreme Court of the United States Atwater v. Florida, 558 U.S. 846 (2009) Judgment Entered: October 5, 2009 Fourth Postconviction Proceedings: Circuit Court of Pinellas County, Florida State of Florida v. Jeffrey L. Atwater, 1989-CF-13299 Judgment Entered: July 13, 2012 Florida Supreme Court Atwater v. State, 118 So. 3d 219 (Fla. 2013) Judgment Entered: June 24, 2013 Fifth Postconviction Proceedings: Circuit Court of Pinellas County, Florida State of Florida v. Jeffrey L. Atwater, 1989-CF-13299 Judgment Entered: April 17, 2017 iv Florida Supreme Court Atwater v. State, 234 So. 3d 550 (Fla. 2018) Judgment Entered: January 23, 2018 Supreme Court of the United States Atwater v. Florida, 139 S. Ct. 182 (2018) Judgment Entered: October 1, 2018 Sixth Postconviction Proceedings (present petition): Circuit Court of Pinellas County, Florida State of Florida v. Jeffrey L. Atwater, 1989-CF-13299 Judgment Entered: July 25, 2019 (rehearing denied September 4, 2019) Florida Supreme Court Atwater v. State, 300 So. 3d 589 (Fla. 2020) Judgment Entered: August 13, 2020 v TABLE OF CONTENTS QUESTIONS PRESENTED ........................................................................................ ii LIST OF PARTIES ....................................................................................................... iii NOTICE OF RELATED CASES .................................................................................. iii TABLE OF CONTENTS ............................................................................................... vi INDEX TO THE APPENDICES ................................................................................ viii TABLE OF AUTHORITIES ......................................................................................... ix DECISIONS BELOW .................................................................................................... 1 JURISDICTION ............................................................................................................. 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ........................ 1 STATEMENT OF THE CASE ..................................................................................... 2 1. Trial Proceedings and Evidence ......................................................................... 2 2. First Postconviction Proceedings ........................................................................ 5 3. Sixth Postconviction Proceedings ....................................................................... 5 REASONS FOR GRANTING THE PETITION .......................................................... 7 JEFFREY LEE ATWATER’S TRIAL ATTORNEYS VIOLATED HIS SIXTH AMENDMENT RIGHT TO MAINTAIN HIS INNOCENCE BY IMPERISSIBLY CONCEDING GUILT DURING HIS CAPITAL TRIAL IN DIRECT VIOLATION OF MCCOY V. LOUISIANA ................................................................................................ 7 I. McCoy v. Louisiana precludes defense counsel from conceding guilt for strategic reasons without the defendant’s explicit permission ................................................. 8 II. It is uncontested that Jeffrey Atwater’s trial attorneys conceded his guilt for the first time during guilt phase closing arguments ..................................................... 10 III. Jeffrey Atwater sought to maintain his innocence at trial and any concession of guilt made by his trial attorneys was done without his knowledge and permission ............................................................................................................... 12 vi A. Jeffrey Atwater never wavered from his plea of not guilty and articulated his dissatisfaction with trial counsel’s surprise guilt concession at the first appropriate court proceeding ............................................................................ 12 B. The records on appeal show that Jeffrey Atwater continually maintained his innocence to counsel and counsel had no recollection of discussing a trial strategy of conceding guilt with their client .................................................... 14 IV. Jeffrey Atwater’s attorneys violated his Sixth Amendment right to decide upon the objective of the defense when they conceded his guilt at trial, in direct contravention of his unambiguous expressions of his desire to maintain his innocence and in violation of his constitutionally protected rights as articulated by this Court in McCoy v. Louisiana ..................................................................... 20 V. The McCoy violation in Jeffrey Atwater’s case was a structural error that invalidates all