IN THE SUPREME COURT OF FLORIDA

Case No. SC02-58

LINROY BOTTOSON,

Petitioner,

v.

Respondent.

WILLIAM JENNINGS MARK E. OLIVE

Capital Collateral Regional Counsel Fla. Bar No. 0578533

Middle Region TIMOTHY D. SCHARDL

Fla. Bar No. 0073016

PETER CANNON Law Offices of Mark E. Olive, P.A.

Assistant CCRC 320 West Jefferson Street

Fla. Bar No. 109710 Tallahassee, Florida 32301

ERIC PINKARD 850-224-0004

Assistant CCRC

Fla. Bar No. 651443

Office of the Capital Collateral

Regional Counsel

3801 Corporex Park Drive, Suite 201

Tampa, Florida 33619

813-740-3544

(Facsimile) 813-740-3554

Counsel for Petitioner

i

This petition was prepared using Times New Roman 14 point font.

[I]n recognition of the "qualitative difference of death from all other

punishments," our jurisprudence also embraces the concept that "death

is different" and affords a correspondingly greater degree of scrutiny to

(Marshall, J., plurality opinion). Such heightened scrutiny ensures, as

much as is humanly possible, that only those who are legally subject to

1996) (Harding, J., concurring).

Petitioner LINROY BOTTOSON is a 62-year-old man with a lifelong

diagnosis of schizophrenia. He faces imminent execution after being denied relief

because Sixth and Eighth Amendment errors in his trial were not reviewed "according

to those rules and principles which have been established in our systems of

this Court’s jurisdiction so that it may "perform its function of death penalty review

258-259 (1976).

When this Court affirmed the denial of post-conviction relief by the narrowest

possible margin, it (1) did not have the benefit of a case recently decided by the

United States Supreme Court compared to which Mr. Bottoson is entitled to relief.

(2) The majority opinion did not apply a standard of review that is necessary under

this Court’s precedent in order to have meaningful review of an ineffective assistance

of counsel claim that was denied by a trial court. (3) Consequently, this Court allowed

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several factual and legal errors to go uncorrected.

Mr. Bottoson and the people of Florida were denied a reliable determination

of the appropriate sentence for the murder in 1979 of Catherine Alexander. The

novice lawyer appointed to represent Mr. Bottoson, and forced to proceed without cocounsel

or necessary resources, has testified he did not begin preparing for the penalty

phase "[u]ntil after the conviction came in, and then it was probably minimal." SPCR

311. As a result the jury did not know, among other things, that Mr. Bottoson had

been diagnosed with the debilitating brain disease schizophrenia three times before

trial: once after he was involuntarily committed following a suicide attempt, a second

actual violence in Mr. Bottoson’s life (one of which was solely directed against

himself). Although the jury was told that Mr. Bottoson’s usual character was kind

and non-violent, the instructions they were given did not permit them to consider this

unrebutted evidence, and the sentencing judge did not consider it. When this Court

reviewed that constitutional violation, it did not mention the proof of Mr. Bottoson’s

non-violent character either, and instead focused on "evidence" that does not appear

It may fairly be said that the death sentence in this case remains in effect

because of a series of historical events that have nothing to do with the seriousness

of the crime or Mr. Bottoson’s culpability. Consider the following:

because they were promulgated, "[b]ased on our concerns as to the quality of the

as to the competency of counsel appointed to represent defendants in capital

22 Fla. L. Weekly S407, S408 (Fla. July 3, 1997).

3

by this Court and deemed "essential prerequisites if we are to ensure a

fundamentally fair adversarial process in this most serious class of criminal

to assist in the penalty phase, and was twice denied. Today, this Court’s

standards direct trial courts to favor appointment of co-counsel for a capital

lawyers should ordinarily be appointed, [but] we leave the ultimate decision to

the discretion of the trial court").

practitioner, and complained to the trial court that the statutory cap on his fee

"prevented me from effectively representing Mr. Bottoson on the penalty phase

of this trial and it all boils down to economics." TR 2107-08. Three years

after this Court decided Mr. Bottoson’s direct appeal, it held that strict

enforcement of the statutory fee cap "interferes with the sixth amendment right

(Fla. 1989).

independent review of the petitioner’s claim. That cannot be said in this case,

where this Court explicitly relied upon the competent, substantial evidence test.

4

ineffective-assistance claim, it would not overrule errors in the postconviction

judge’s order because "there was competent, substantial evidence to support

(Fla. 1996).

counsel claim is a mixed question of law and fact subject to plenary review."

itself, and that it was wrong to apply a competent, substantial evidence test as

is what it would have seen:

federal court from considering the merits of Mr. Bottoson’s case in comparison to

5

More than one attorney appointed for trial and

Novice sole practitioner’s requests for

appointment of co-counsel repeatedly denied by

trial court. TR 30-31; 36; 2101.

Trial counsel’s "representation during the

sentencing phase fell short of professional

standards" in part because "counsel did not begin

to prepare for that phase of the proceeding until a

Trial counsel did nothing to prepare for penalty

phase "[u]ntil after the conviction came in, and

then it was probably minimal." SPCR 311. Trial

counsel did not contact Mr. Bottoson’s mother

until the day the penalty phase was scheduled to

begin. TR 2137.

Trial counsel presented "testimony of Williams’

mother, two neighbors, and a taped excerpt from

U.S. at 369.

Trial counsel presented the testimony of a

minister, his wife, and Mr. Bottoson’s mother.

TR 2127-40.

"The three witnesses briefly described Williams

as a ‘nice boy’ and not a violent person."

During the one-hour penalty phase, three

witnesses briefly described Mr. Bottoson as kind,

honest, respectable, caring, and unselfishly

devoted to his church, but the jury was not

permitted to consider this evidence, the judge

refused to consider it, and the Florida Supreme

Court did not mention it in their postconviction

decision. TR 2122-40.

Trial counsel presented evidence from a

psychiatrist that Williams "had removed the

bullets from a gun so as not to injure anyone"

Trial counsel knew Mr. Bottoson had been

evaluated by a psychiatrist following his only

other conviction (TR 2117-17), but neither sought

nor presented the report of the psychiatrist stating

that Mr. Bottoson had not even displayed a

weapon during a robbery. Dse PC Exh. 5.

Trial counsel failed to investigate and present

evidence that state’s future-dangerousness expert

previously said Williams was among those least

likely to pose a future danger if kept in a

Trial counsel failed to seek or present evidence

from prison psychiatrist’s report stating that Mr.

Bottoson was "in need of psychiatric treatment,"

"made a good adjustment" to prison life where he

was "getting along well with everyone," and

6

371; 396. "[w]hen his mental condition improved, one

could expect to see a rather conforming

individual, mild mannered, and essentially a good

citizen of the community." Dse PC Exh. 5.

Trial counsel failed to discover and present

evidence that Williams was "borderline mentally

retarded, though he was found competent to stand

Trial counsel failed to discover and present

evidence that Mr. Bottoson suffers from

schizophrenia and hallucinations although these

things were noted in the report of a psychiatrist

who found him competent to stand trial. TR

3250.

Trial counsel "failed to introduce evidence that

Williams was ‘borderline mentally retarded’ and

did not advance beyond the sixth grade in

Trial counsel failed to present testimony from Mr.

Bottoson’s mother that she had him involuntarily

committed following a suicide attempt, and that

he did not graduate from highschool. TR 3352;

PCR 78-79; SPCR 149-50.

Trial counsel failed to seek Williams’ "juvenile

and social services records" because they

529 U.S. at 373.

Trial counsel failed to investigate Mr. Bottoson’s

Social Security records showing he held more

than 56 jobs over 20 years. Counsel had no

tactical or strategic reason for this (SPCR 149,

153, 13, 177, 185-86), but complained bitterly at

trial that the statutory fee cap impeded his ability

So.2d at 626 (Kogan, J., dissenting).

"[C]ounsel’s failure to contact a potentially

persuasive character witness [a "respected CPA"]

was . . . not a conscious strategic choice, but

simply a failure to return that witness’ phone call

396.

Trial counsel’s failure to contact a respected

attorney and community leader, a close personal

friend of Mr. Bottoson’s family, who could have

testified to Mr. Bottoson’s longstanding mental

problems and his need for special education as a

child, was the product of his failure even to learn

where Mr. Bottoson was from. PCR 119-34.

[Williams’ lawyers committed no similar error.] Trial counsel failed to obtain the services of a

psychiatrist who had been appointed by the

court–at counsel’s request–to assist in developing

mitigating mental health evidence. Counsel made

no conscious choice, it was simply neglect.

SPCR 177.

"The consequence of counsel’s failure to conduct

the requisite, diligent investigation into his

client’s troubling background and unique

personal circumstances manifested itself during

his generic, unapologetic closing argument,

which provided the jury with no reasons to spare

(O’Connor, J., concurring).

Having conducted no investigation into Mr.

SPCR 138-42; 149; 153; 163; 177; 181; 241; 341-

42), in his penalty phase closing argument trial

counsel said "[t]here is not a lot I can argue in

this case. There wasn’t a whole lot, a heck of a

lot of people to come and speak about a man who

is a convicted killer." TR 2155.

7

Jury did not know that Williams behaved well in

prison and was considered by officials to be

among those least likely to pose a future danger

Jury did not know that a prison psychiatrist and

caseworker had previously told the court that Mr.

Bottoson was "in need of psychiatric treatment,"

"made a good adjustment" to prison life where he

was "getting along well with everyone," and

"[w]hen his mental condition improved, one

could expect to see a rather conforming

individual, mild mannered, and essentially a good

citizen of the community." Dse PC Exh. 5.

Jury learned of Williams’ many prior violent

felonies going back to age 11, including

"particularly damaging" evidence that he

"brutally assaulted an elderly woman . . . [who]

was in a ‘vegetative state’ and not expected to

Apart from the instant case involving an elderly

woman, Mr. Bottoson had only one prior

conviction which was introduced in aggravation.

Trial counsel failed to present evidence that

following this conviction, a federal prison

psychiatrist diagnosed him with "paranoid

schizophrenia, latent type," and reported that he

had "heard a voice talking to him, telling him to

rob the bank . . ."; that he had not even

brandished a weapon; and that he was

immediately apprehended without harming

anyone. Dse PC Exh. 5.

Jury did not learn that Williams had been found

U.S. at 396.

Jury did not learn that Mr. Bottoson had two prior

diagnoses of schizophrenia, one in 1962 (Dse PC

Exh. 8), and a second in 1971 (Dse PC Exh. 5), or

that a court-appointed psychiatrist would have

said he was schizophrenic at the time of trial.

SPCR 437.

suffered from a psychosis known as

schizoaffective disorder or schizotypal disorder

for most of his adult life. . . that he had a daughter

who has suffered from schizophrenia, and a

history of treatment with antipsychotic

medication. Dr. Phillips expressed the opinion

that Bottoson suffered from active psychosis at

the time of the killing–which in itself would

establish both of the statutory mental mitigators.

There was also testimony available [from Dr.

Kirkland] that Bottoson suffered visual and

627 (Kogan, J., dissenting).

[Mr. Bottoson] attempted suicide inside his

church, was taken to a psychiatric hospital, and

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diagnosed with an acute schizophrenic episode."

dissenting).

for military service but was discharged due to a

disabling childhood injury to his wrist. Dse PC

Exh. 11, item 16.

court, in addition to the erroneous standard of review applied by this Court, the

constitutional errors that occurred at trial were further insulated from

correction by the Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA"). AEDPA prohibits federal habeas courts from conducting de novo

review, and correcting erroneous state-court denials of relief for constitutional

2001). Consequently, the merits of Mr. Bottoson’s claim have never been

between the testimony of Dr. Robert Kirkland and Dr. Robert Phillips that Mr.

Bottoson’s schizophrenia did not play a major role in the crime. Dr. Kirkland

now explains that these inferences were wrong: "One could not infer from my

report or testimony anything about Mr. Bottoson’s psychiatric condition at the

time of the offense. It would be wrong to infer from my testimony that I

believed that a psychiatrist could not conclude to a reasonable degree of

psychiatric certainty that Mr. Bottoson’s schizophrenia was in an acute phase

in 1979 when the crime occurred." Exhibit A (Affidavit of Robert G. Kirkland,

M.D.).

Executing Linroy Bottoson following this chain of juridical misfires would be

"cruel and unusual in the same way that being struck by lightning is cruel and

This Court subjected Mr. Bottoson to arbitrary and disparate treatment in

violation of the Due Process and Equal Protection Clauses when it reviewed his Sixth

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Amendment claims under a standard that was not applied to other identically situated

persons, and which made relief impossible.

In what follows Mr. Bottoson presents a survey of this Court’s decisions

reviewing grants and denials of relief for claims of ineffective assistance of counsel.

This survey shows that in each case where this Court reversed a trial court’s denial

the claim independently and reached its own conclusions regarding deficient

performance and prejudice. While there are cases in which this Court affirmed the

denial of ineffective-assistance claims after conducting de novo review, there are no

cases in which this Court reversed the denial of an ineffectiveness claim applying a

claims. Thus, when the previous opinion’s majority failed to conduct de novo review

of Mr. Bottoson’s ineffective-assistance claim, it did not merely make a legal error,

and legal errors, and necessary to obtain the same relief that has been granted to many

other similarly situated persons.

"This Court has the power to reconsider and correct erroneous rulings in

exceptional circumstances and where reliance on the previous decision would result

in manifest injustice, notwithstanding that such rulings have become the law of the

So.2d 939, 942 (Fla. 1984). This Court, "out of a sense of fairness," has retroactively

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applied a new Supreme Court decision to a claim which this Court previously rejected

where the new decision "reneder[ed] this Court’s resolution of the matter erroneous."

This Court’s jurisdiction is invoked pursuant to Rule 9.030(a)(3), Florida Rules

of Appellate Procedure, and article V of the Florida Constitution, sections b(1), b(7),

and b(9). This petition is properly filed under Rule 9.100(a).

Mr. Bottoson seeks a stay of execution and writ of habeas corpus addressed to

Respondent. In the alternative, Mr. Bottoson respectfully requests that this Court

reopen his initial postconviction appeal and provide the relief deemed appropriate by

case" at Respondent’s request because an ambiguous statement in this Court’s prior

decision could not serve as a bar to the federal courts’ consideration of the

petitioner’s meritorious claim that his death sentence was infected with Eighth

Amendment error. This Court granted Respondent's request and revised its prior

decision so that the federal court "would [not] have then vacated [Mr. Johnston’s

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This Court has held that in habeas corpus proceedings,

it is the responsibility of the court to brush aside formal technicalities

and issue such appropriate orders as will do justice. In habeas corpus

the niceties of the procedure are not anywhere as important as the

determination of the ultimate question as to the legality of the restraint.

A. STATUS OF EVIDENCE ADDUCED AT TRIAL

On direct appeal, this Court described the State’s case in the following way:

Linroy Bottoson was convicted for the first-degree murder of Catherine

Alexander, the postmistress at Eatonville, in Orange County. The victim

was last seen alive leaving the post office at around noon on October 26,

1979, with a tall black man. As she was leaving, she whispered to two

bystanders to call the police and tell them that the man was stealing.

United States postal inspectors were called, and they discovered that

some postal money orders were missing. They began to suspect

appellant and his wife when they learned that appellant's wife had tried

to cash one of the missing postal money orders at her bank that very

afternoon. Appellant's residence was placed under surveillance Monday

evening, October 29, as the postal inspectors applied to a United States

magistrate for an arrest warrant. * * * The next day the postal inspectors

searched appellant's home pursuant to a search warrant and found the

missing money orders and the victim's shoes. In all the confusion the

arrest warrant was never drafted and formally issued. The victim's body

was found on the side of a dirt road the same night appellant was

arrested.

At the trial three persons who were present at the abduction

testified. Though none of them could identify appellant as the man with

whom the victim was seen leaving the post office, they all identified

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from a photograph the car in which she was taken away. It was later

shown that the car was rented to appellant at the time of the abduction.

A postal official identified the money orders found in appellant's home

and could trace them to the machine at the Eatonville post office. There

was also evidence of appellant's having deposited some of the stolen

money orders in his bank account.

The medical examiner testified that the victim had been stabbed

fourteen times in the back and once in the abdomen. He said that she

died from crushing injuries to the chest and abdomen which were

consistent with being run over by an automobile. There was expert

testimony that hair samples and clothing impressions found on the

undercarriage of appellant's car, a brown 1973 Chevelle, were consistent

with having come from the victim's body and clothing. There was also

expert evidence that clothing fibers similar to those in the victim's

clothes and a tip of the victim's fingernail were found inside the car.

Furthermore a dog handler testified that one of his dogs who was

familiarized with the victim's scent found the victim's scent inside the

car rented by appellant and underneath the length of the brown Chevelle

owned by appellant. He also testified that another dog familiarized to

appellant's scent indicated appellant's scent was present at the location

where the victim's body was found.

Appellant's former wife, who was married to him at the time of

the murder, testified that on October 26, appellant was away from home

in the rented car at around noon. When he returned he gave her a postal

money order which she deposited at the bank that afternoon. She

testified that on the following Monday, October 29, she did not see

appellant from 1:30 p.m. to 10:00 p.m. and that during that time he had

the brown Chevelle.

A minister who visited appellant in jail testified that appellant

admitted killing the victim. Also, during the trial the prosecuting

attorney announced that the state had just learned from appellant's

cellmate of some incriminating statements made by appellant. The

cellmate was called as a witness and he testified that appellant admitted

to killing Mrs. Alexander and that appellant had said "the best witness

1983).

13

The jailhouse snitch referred to in the last sentence quoted above was called

Pertrell Kuniara (he used at least four other names). TR1454. According to

Corrections Officer Wade Childers, after Kuniara’s testimony, he boasted to a

minister visiting the jail that "the Lord had blessed him, that he had talked to the

Prosecutor yesterday and that he was going to be released from jail soon." TR2134.

Earlier he told the jury that the prosecutor had not been offered a deal in exchange for

his testimony. TR1631-1632.

Kuniara had several prior convictions for crimes of dishonesty. TR1467-1472.

He is a diagnosed schizophrenic and former mental patient. TR1478. That is, when

authorities could keep him confined. Kuniara admitted to walking away from one

mental institution to which he had been confined. TR1608. At one point, the trial

court noted that Kuniara had his answers already prepared. TR1554.

Kuniara's testimony was the only evidence relied upon to support the avoidarrest

When called as a witness at the post-conviction evidentiary hearing, Kuniara

swore that when he told investigators from the State Attorney’s Office that Mr.

Bottoson admitted to the murder of Ms. Alexander, "That statement was false." PCR

1297; 1390 ("It was false."). Asked if his "testimony at Mr. Bottoson’s trial was true

or false," Kuniara said, "It was false, sir." PCR 1329. Kuniara testified that each of

the damning things he said about Mr. Bottoson at trial was "False, sir." PCR1330-32.

14

Kuniara explained that when he and Mr. Bottoson were on the rooftop recreation area

where he testified at trial Mr. Bottoson made his confession, "we talked about church,

but not about this case." PCR 1306. "He never did confess," Kuniara admitted. PCR

1307.

Appellant testified in his own defense. He claimed that on October 26,

he loaned his rented car to a man named Ernest who gave him the postal

money orders upon returning the car. He said that over the weekend he

became suspicious of a connection between the money orders and the

reported disappearance of the postmistress and went to see Ernest about

it on Monday night. Appellant testified that Ernest admitted the money

orders came from the Eatonville post office and then asked to borrow his

car to give an elderly lady a ride home. Appellant said that he gave

Ernest the keys to his brown Chevelle and that when Ernest returned

Ernest admitted to having just killed Mrs. Alexander. Appellant said

that he insisted on seeing for himself, so Ernest drove him out to the site

of the murder where appellant got out of the car to look at the body.

Before trial, Mr. Bottoson’s trial counsel, William Sheaffer, filed a motion to

allow him "to associate additional counsel for the penalty phase." TR 3169. Mr.

Sheaffer was concerned that "if trial counsel has failed, by jury verdict at the trial

phase, his counsel has damaged his credibility with the jury for the purpose of the

penalty phase." TR 3169. Mr. Sheaffer advised the court that "if trial counsel is

15

forced to proceed both at trial and the penalty phase of trial, the Defendant will be

denied due process of law and effective assistance of counsel." TR 3170.

The motion was heard just before jury selection began. When Sheaffer

informed the trial judge that the public defender was available to speak in favor of the

motion, the judge interposed that he was not interested in hearing what the public

defender had to say, he "was more interested in giving them an opportunity to be

heard." TR 30. Joseph Durocher advised the trial court that Mr. Sheaffer was correct

in seeking the appointment of co-counsel for the penalty phase, and that the

prevailing practice among capital defense lawyers called for separate counsel at the

liability and penalty phases. TR 32. The trial judge opined that the norms to which

Mr. Durocher referred were established by "folks who are somewhat less in favor of

capital punishment than those who are in favor of it. They are either quakers [sic] or

milord farmers [sic]." TR 33. Saying that "regardless of the Public Defender, I’m not

sure I like the idea of double counsel," the judge denied the motion. TR34-35.

"Anyway," the judge told Sheaffer, "one of the reasons that we hired you was because

we thought – appointed you was because we thought you were capable of handling

this." TR34.

Next, Mr. Sheaffer sought a continuance because his investigator was having

difficulty retrieving from an Ohio hospital records of Mr. Bottoson’s psychiatric

treatment. TR 37. When the court asked if the records were to be used in the "guilt

investigator] was not toward the penalty phase at all." SPCR 310.

16

phase or the penalty phase, if any," Mr. Sheaffer said he sought to use them "in the

The prosecutor opposed the continuance:

With regard to the psychological and psychiatric reports, again, I don’t

think those records have been properly subpoenaed. I don’t think the

Defense has done everything they could have done or should have done

with regard to getting them down. TR 38.

After chastising Mr. Sheaffer, the trial judge denied the continuance. TR 40.

Mr. Bottoson was found competent to stand trial by two court-appointed

psychiatrists. TR 3241; 3250-51. The order appointing Drs. Lloyd Wilder and

Robert Kirkland specified that their opinions were sought on Mr. Bottoson’s "mental

condition at the time of the offense, as well as his present mental condition as it

relates to the criteria set out in Counsel’s/[Oral] Motion (Para. 1-11) as attached and

incorporated herein by reference." TR 3238. The eleven criteria were those listed in

Florida Rule of Criminal Procedure 3.211(a)(1). TR 3240.

The day after Dr. Wilder was appointed, he submitted a written report stating

that he found Mr. Bottoson competent "hav[ing] considered all the issues mentioned

in the Florida Rules of Criminal Procedure, 3.211, effective July 1, 1980, (a) (1) (I)

through (xi)." TR 3240. Dr. Wilder also opined that Mr. Bottoson "did not suffer a

"‘Do you think that MR. Bottoson is schizophrenic,’ I likely would have replied,

‘Yes.’" SPCR 437.

17

defect of mind or reason which would have rendered him incapable of knowing that

Wilder did not state what he considered in reaching his conclusions.

Dr. Kirkland’s report, which was provided to Mr. Sheaffer, said more:

Mr. Bottoson has had two previous periods of psychiatric treatment. In

1964 he was hospitalized in Cleveland for several days. He stated that

this was a result of some personal and marital difficulties. He further

stated that he believes that the diagnosis was "schizophrenia."

In 1971, while in the federal penitentiary in California, he received some

psychiatric counseling.

Mr. Bottoson has an extensive religious background with fundamentalist

beliefs. He has traveled the county playing the piano for a gospel group

and also feels that he has done much work as a minister. The

conversation was liberally sprinkled with scriptural quotations in

addition, he feels that he has certain God granted gifts. He states that

God moves him and that he also has special visions and occasionally

hears the voice of God. Sometimes the voice of God appears in his mind

as a thought of his own, rather than a voice coming from "outside".

Appearance and behavior were within normal limits and his affect or

emotional tone was appropriate. His thought processes were logical and

coherent, and there was no loosening of associations as seen in

experiences, there is no evidence of other hallucinatory experiences or

delusions. TR 3250.

Dr. Kirkland specified that his conclusions were based on "the factors usually

399 (1986).

18

Based on those factors, Dr. Kirkland said it was his "opinion that the defendant

TR 3251 (emphasis added).

Thus, the only opinion rendered at trial regarding whether Mr. Bottoson’s

mental state at the time of the offense was Dr. Wilder’s statement that he was sane.

Prior to trial Mr. Sheaffer moved for the appointment of a psychologist "in

order to establish mitigating circumstances." TR3167. He advised the trial court that

a "psychologist will be of great probative value in establishing the emotional and

mental pressures that were attendant at the time the Defendant was allegedly [sic] to

have committed the crime charged." TR3167. The motion was granted. TR2186-88.

Mr. Sheaffer never retained or consulted with the psychologist. At the postconviction

hearing, Mr. Sheaffer testified that he could not explain his failure to hire

only that he had no strategic reason for the omission. SPCR 177. Mr. Sheaffer also

testified, "I never discussed with Dr. Kirkland or Wilder mitigating factors that could

be presented at the penalty phase." SPCR 349.

19

The guilt phase of trial ended at 8:00 p.m. on April 6, 1981, with Mr. Bottoson

being fingerprinted. According to Mr. Sheaffer, the conviction "was like a punch in

the solar plexus to [Mr. Bottoson] * * * He was disheartened and was not of a mind

to really fight hard anymore." SPCR316-17. Before the guilty verdict, "if there were

discussions," between Mr. Sheaffer and Mr. Bottoson about a penalty phase they

were, according to Mr. Sheaffer, "probably minimal and negligible." SPCR311. Mr.

Sheaffer himself was "extremely upset, extremely upset," by the verdict. SPCR316-

17.

Immediately after the fingerprinting, the court said "the penalty phase of the

trial . . . is hereby set for 9:30 on April 9, 1981. [¶] Does that give you enough time,

In chambers at 9:50 a.m., April 9, 1981, Mr. Sheaffer was not ready. He

believed that "in front of this jury, that my credibility has been slowly and completely

destroyed . . . . they won’t even look at me at this point." TR2100. So he renewed

"had the opportunity for a year and a half" to secure the attendance of mitigation

witnesses. TR 2104. "[T]his is not something that has just come up in the last couple

of days," he said, "it could have been, and it should have been out [sic] to have been

Mr. Sheaffer had contacted one witness, who was not presently available. Had

20

the witness been there, Mr. Sheaffer told the court, "We don’t even know what he

would say." TR 2106. Asked "what witnesses do you have" without that witness,

Mr. Sheaffer replied, "Zip. Zero. None." TR2107. When the court confirmed Mr.

Sheaffer’s surmise that it was "not inclined to grant my motion to have [Mr.

Bottoson’s] mother brought down here," Mr. Sheaffer strenuously objected that if Mr.

Bottoson were not poor, he would be obtaining a meaningful defense, but

it all boils down to the fact that the county, the State, the legislature has

placed restrictions on my ability to conduct a meaningful Defense on

behalf of Mr. Bottoson. . . . and it all boils down to economics. TR2107-

08.

Twenty minutes after the chambers conference began, the parties were before the jury.

It was 10:10 a.m. on April 9, 1981. TR2113. The State’s only witness was

former FBI Agent John Loughney. He testified that Mr. Bottoson had been convicted

of bank robbery in California. TR2116-16. On cross-examination Mr. Sheaffer

brought out that the court in that case had recommended that Mr. Bottoson undergo

a psychiatric evaluation, and that the evaluation had been conducted. TR2117. Mr.

Loughney did not know the "diagnosis and prognosis of that," though, and Mr.

court recessed at 10:20 a.m.

The penalty phase resumed at 11:00 a.m. of the following day. Mr. Sheaffer

called four witnesses: a minister with whom Mr. Bottoson worked, the minister’s

wife, a corrections officer, and Mr. Bottoson’s mother. The proceedings were slowed

21

and eventually, at 11:20 a.m., stopped for a ten-minute recess because Mr. Bottoson’s

mother was crying too hard. TR2135, 2136. Court resumed at 11:30 a.m. Following

Mrs. Bottoson’s testimony, a bench conference, the arguments of counsel, and

instructions from the court, the jury retired to deliberate at 12:10 p.m.

Reverend Floyd Johnson described Mr. Bottoson’s character. He knew Mr.

Bottoson because Mr. Bottoson had "unselfishly devoted his time" to Rev. Johnson’s

church: "He was there very regularly working with the church one hundred percent."

TR2127. Asked whether Mr. Bottoson "ever exhibited any violence or any violent

tendencies," Rev. Johnson replied, "No, no, he’s always kind at all times." TR2127.

"I think he’s a respectable man." TR2128.

Leala Mae Johnson’s testimony described Mr. Bottoson’s kindness: "I had

trouble with my eyes and he prayed for me and I do see better." TR2131. Mrs.

Johnson never doubted Mr. Bottoson’s faith or his sincerity. TR2132. In the two

years she had known him, Mr. Bottoson never exhibited any temper or violent nature.

Even after she was confronted with the fact of Mr. Bottoson’s conviction Mrs.

Johnson’s opinion of his nonviolent nature remained the same. TR2132.

Martha Bottoson testified that she was contacted by Mr. Sheaffer the previous

morning, and flew down from Cleveland the same day she testified. TR2137. She said

was about thirteen or fourteen years old. He was about fourteen or fifteen when he

22

was ordained as a minister." TR2138. Mrs. Bottoson had never known her son to hurt

help her, but "I had to help him." TR2139. Then the distraught woman made a fateful

Bottoson knew her son had mental problems. It was she who had him involuntarily

committed after his suicide attempt. She later wrote to the judge to try and tell him

Despite a jury instruction that precluded consideration of any of the mitigating

evidence presented, including that Mr. Bottoson has a nonviolent character, two

jurors voted against the death penalty. TR 2168.

As aggravating circumstances, the trial judge found that [Mr. Bottoson]

had previously been convicted of a crime involving the threat of

violence; that the crime was committed during the commission of a

felony; that it was committed for the purpose of avoiding arrest; and that

VIOLENCE

Only the fact of Mr. Bottoson’s prior conviction was presented to the jury. Had

Mr. Sheaffer obtained the "diagnosis and prognosis" of Dr. Donald W. Verin, M.D.,

that followed from the psychiatric evaluation that was conducted following Mr.

Bottoson's only other prior conviction, the jury would have known the mitigating

facts:

23

Apparently the only planning that went into this offense was the writing

of the note inside the bank. * * * [¶] He was feeling depressed; he had

many bills and there was a possibility that he might lose his car and his

rent was past due. While sitting in a mall near the bank, thinking about

his situation, be became discouraged and decided to go home. He

claims that he got into his car and drove off. He adds that he heard a

voice talking to him, telling him to rob the bank. "Go ahead, you can do

it." He turned around and went back to the bank. *** [¶] He had a

loaded .22 revolver which he alleges he was going to pawn. He took the

gun and went to the bank. He wrote a note stating that he has a gun and

a bomb and demanding $20,000 in large bills. The manager *** delayed

for a time and came back to tell Bottoson that he had no large bills.

Bottoson then told him that he would take small bills instead and he left

with $250. *** Apparently he never displayed the gun during the

robbery.

Mr. Bottoson was under a great deal of stress the day of the robbery.

However, it seems that months before his judgment was beginning to

deteriorate. * * * Evidently, while some degree of planning must have

been involved in this robbery, it certainly showed little in the way of

foresight or good judgment in the way it was carried out. Mr. Bottoson

claims that he was hearing voices which told him to go ahead and do it

and that he felt as if he was being pushed into the robbery situation. In

my impression, his ego was only functioning on a part-time basis during

the day of the robbery. Had it been functioning normally, I doubt that

the robbery would have taken place. Dse PC Exh. 5.

Dr. Verin's report, which was readily available to Mr. Sheaffer, would have

allowed the jury to conclude that Mr. Bottoson did not have a "significant" past

criminal history. At trial the prosecutor told the jury that because of the bank robbery

conviction, "you can remove [that mitigating circumstance] from your consideration."

TR 2142.

"That [the murder] was committed for the purpose of avoiding arrest was

24

proven by appellant's own statement to Kuniara that 'dead witnesses are the best

testimony, specifically the portion in which he said that Mr. Bottoson confessed. "He

never did confess." PCR1307.

B. EVIDENCE ADDUCED POST-CONVICTION

According to the three Justices of this Court who conducted an independent,

plenary review of the record,

[t]he facts developed in the 3.850 proceeding below revealed that

Bottoson grew up under the control of a dominant mother who was

obsessed with religion and forced Bottoson to constantly read the Bible,

pray, and preach from street corners from the time he was seven to nine

years of age. Neighbors thought him strange, not merely because of his

preaching but also because he sometimes babbled incoherently and

claimed to have visions and conversation both with God and the devil.

Bottoson suffered seizures so severe his mother sometimes had to hold

him down. He once lost his temper and put his hand through a plate

glass door, injuring himself badly. He was unable to function in school,

was mocked by other children, and lived largely in a supernatural

fantasy world.

At age 19, Bottoson married and proceeded to have a large family,

which he was unable to support because of his failure to keep a steady

job. Nevertheless, he loved his children, and they loved him in return.

In time, Bottoson's emotional condition deteriorated further. In the

summer of 1962 he attempted suicide inside his church, was taken to a

psychiatric hospital, and was diagnosed with an acute schizophrenic

episode. Bottoson's marriage failed shortly after his breakdown. Two

other marriages came in quick succession, but during the third Bottoson

began hearing voices ordering him to rob a bank. He made the effort,

was quickly apprehended, and was diagnosed as paranoid schizophrenic,

latent type. Despite this finding, the judge sentenced Bottoson to five

years' imprisonment on the bank robbery, even though a mental health

expert recommended supervised probation.

25

The third marriage failed around this time, and Bottoson married his

fourth wife. Together, they moved to the Orlando area, where the

present murder occurred. Bottoson continued to be dogged by the same

problems of marital discord, financial problems, and the reemergence of

psychotic symptoms.

In the proceeding below, Dr. Robert Phillips testified that Bottoson most

likely has suffered from a psychosis known as schizoaffective or

schizotypal disorder for most of his adult life. This opinion was based

on an examination of Bottoson, a study of his medical records and

psychiatric history, the fact that he has a daughter who has suffered from

schizophrenia, and a history of treatment with antipsychotic medication.

Dr. Phillips expressed the opinion that Bottoson suffered from active

psychosis at the time of the killing--which in itself would establish both

of the statutory mental mitigators. There also was expert testimony

available that Bottoson suffered visual and auditory hallucinations. * *

*

In the hearings below, Sheaffer admitted paying little attention to the

penalty phase of trial. He made little effort to learn about Bottoson's

psychiatric problems or other mitigating evidence relevant to the penalty

phase. Two psychiatrists were appointed to assess Bottoson's

competency to stand trial, but Sheaffer failed to ask either to investigate

the existence of mental mitigators. In sum, he made no meaningful

preparation whatsoever for the penalty phase, but focused almost

dissenting joined by Shaw and Anstead, JJ.).

A. MR. BOTTOSON DID NOT RECEIVE MEANINGFUL

POSTCONVICTION REVIEW OF HIS SIXTH AND EIGHTH

AMENDMENT CLAIMS IN VIOLATION OF THE EQUAL

PROTECTION CLAUSE

As the Supreme Court observed a quarter century ago, this Court strives to

achieve a maximum of rationality and consistency in death penalty cases. Due

process requires nothing less. Hard experience has taught that if the death penalty is

26

not to be "cruel and unusual in the same way that being struck by lightning is cruel

this Court must be as vigilant in its post-conviction questioning of the reliability of

review is especially important in a case such as Mr. Bottoson’s where

Eighth Amendment error occurred and there is little or no question that trial counsel’s

qualifications and performance fell far short of professional standards. Such a case

calls into doubt "the fundamental fairness of the proceeding whose result is

Under Florida law, Mr. Bottoson had a fundamental constitutional right to

614, 616 (Fla. 1992).

When this Court affirmed the trial court’s denial of Mr. Bottoson’s ineffective

assistance claim, it said the "evidence presented below was conflicting. However,

there was competent, substantial evidence to support the judge’s findings and

27

when it applied the competent, substantial evidence test in Mr. Bottoson’s case.

The guarantees of due process and equal protection apply to state

Court has found that applying one standard to persons sentenced to death and another

to non-capitally sentenced persons denies death-sentenced persons the equal

standard applies only to capital prisoners in violation of the principles of equal

protection"). The United States Supreme "Court has never required that the States are

required to establish avenues of appellate review, but it is now fundamental that, once

established, these avenues must be kept free of unreasoned distinctions that can only

311 (1966). "The Fourteenth Amendment * * * does require that the state appellate

has afforded an indigent defendant access to the first phase of its appellate procedure

"[Postconviction] review has now become an integral part of the [Florida

So.2d 297 (Fla. 1983).

28

whether a capital conviction or sentence were obtained in violation of the

proceedings "ensure that the death penalty is fairly administered in accordance with

the rule of law and both the United States and Florida Constitutions"). "[S]uch

proceedings are the primary avenue through which convicted defendants are able to

"Statistics show that a substantial portion of [death sentences] are reversed by

published cases in which this Court granted relief based on an ineffective-assistance

claim after the claim had been denied by a trial court–i.e., all cases in which relief

29

previous majority’s arbitrary action, it was impossible for Mr. Bottoson to prevail in

In 8 of the 14 cases in which this Court reviewed an ineffective-assistance

claim de novo and reversed a trial court’s denial of that claim, the petitioner was not

the ineffectiveness claims raised by the petitioner, and affirmed the denial of others

because, this Court said, there was competent, substantial (or just substantial)

that "competent, substantial evidence" is not a standard of review. It is an affirmance

petitioner’s guilt-phase ineffective assistance claim saying "we find competent,

608 So.2d at 782. But this Court reversed the trial court’s denial of penalty phase

relief after independently reviewing the mitigation presented post-conviction, saying,

So.2d 929 (Fla. 1988) (same).

30

Even in cases where a trial court granted of relief because of a Sixth

Amendment violation, and the State appealed, in three out of seven published cases

trial attorney’s description of his penalty phase preparation is materially

indistinguishable from what Mr. Sheaffer testified to at the evidentiary hearing in this

or the next day, couple of days. It was very little time," during which he sought no

records), with SPCR152-53; 311. If Mr. Bottoson had been granted de novo review,

at a minimum, it is likely that at least one member of the 4-Justice majority would

to fail to prepare for the penalty phase until after the verdict of guilt was announced.

Of course, this Court has granted habeas corpus relief after conducting de novo

same way as the petitioners in those cases, because he was compelled by this Court’s

to death. Tim Hudson was re-sentenced to death, but this Court vacated the death

31

rules and precedent first to present his Sixth Amendment attack on the reliability of

1009, 1025 (Fla. 1999).

In total, this Court has granted relief in 24 cases in which the death-sentenced

petitioner presented a meritorious ineffective-assistance claim. This Court applied

competent-substantial-evidence review in only 4 of those cases, and in each of the 4,

this Court was affirming a trial court’s prior grant of relief. Review of all the 24

cases decided at the time Mr. Bottoson’s case was decided, outcomes determine the

standard of review, rather than being determined by a standard of review.

In 14 of the 24 cases where relief was granted, the petitioner was not resentenced

Life and death decisions were being made. While independent review does not

guarantee this Court will reverse a denial of habeas relief, the failure to conduct

independent review guarantees that a denial will be affirmed. Therefore, by failing

to conduct independent, plenary review of Mr. Bottoson’s ineffective-assistance

32

claim, this Court placed him into an arbitrarily and capriciously selected class of

death-sentenced persons whose access to habeas corpus relief for a Sixth Amendment

violation was effectively foreclosed. Executions allowed to happen through such a

scheme truly strike like lightening.

Where procedures create "a substantial risk that [death] will be inflicted in an

This Court’s arbitrary selection of Mr. Bottoson’s case as one that would not

receive plenary review of a Sixth Amendment claim violated his right to equal

the Supreme Court held that "[o]ur cases have recognized successful equal protection

claims brought by a ‘class of one,’ where the plaintiff alleges that she has been

intentionally treated differently from others similarly situated and that there is no

may also have an equal protection claim when a decision from this Court permits

arbitrary and disparate treatment.

33

protection applies as well to the manner of its exercise. Having once

granted the right to [obtain habeas relief for a Sixth Amendment

violation] on equal terms, the State may not, by later arbitrary and

disparate treatment, value one person's [right to counsel] over that of

Mr. Bottoson "has never had the same review of the judgment against him as

he would have had as of right in 19[96] but for" the arbitrary denial of independent

demonstrated herein, under this Court's precedent de novo review was as necessary

for Mr. Bottoson to be able to correct the Sixth and Eighth Amendment errors in his

"[T]he difference between a rule of deference and the duty to exercise

this Court decided Mr. Bottoson's case, it held that de novo review is compelled by

granted relief after independently finding a Sixth Amendment violation which a

34

(Fla. 1994).

Mr. Bottoson was denied meaningful review of his Sixth and Eighth

Amendment claims:

"Without adequate study there cannot be adequate reflection; without

adequate reflection there cannot be adequate discussion; without

adequate discussion there cannot be that fruitful interchange of minds

which is indispensable to thoughtful, unhurried decision and its

458-459 (1959) (Frankfurter, J., dissenting).

"Under the peculiar circumstances of this case, nothing short of an actual

appellate determination of the merits of the [claims raised by Mr. Bottoson] –

according to the procedure in ordinary cases – would cure the original denial of equal

This case presents unique circumstances. Three members of this Court

conducted the independent, plenary review of the record and determined that

violations of Mr. Bottoson's Sixth and Eighth Amendment rights required that the

death sentence be vacated. The review conducted by the dissent was afforded other

similarly situated death-sentenced persons. Four members of this Court denied relief

on the Eighth Amendment violation based on a description of evidence that is found

nowhere in the record. The majority affirmed the denial of Mr. Bottoson's Sixth

Amendment claims applying an erroneous standard of review, and a standard that

35

effectively foreclosed correction of constitutional error.

The erroneous and arbitrary failure of the previous majority to conduct de novo

review produced numerous factual errors. These errors infected both the majority’s

review of the Eighth Amendment error that occurred at trial and its disposition of the

ineffective-assistance claim.

their decision in part on the weakness of the mitigation evidence Mr. Sheaffer

presented. In particular, the majority said that during the penalty phase "[a]

corrections officer testified that he had heard Bottoson counselling [sic] another

The corrections officer testified to what he heard prosecution witness Pertrell

Kuniara say, not Mr. Bottoson. Corrections Officer Wade Childers, testified that after

Kuniara’s testimony (in which he denied being motivated by the prospect of benefits

from the State), he boasted to a minister visiting the jail that "the Lord had blessed

him, that he had talked to the Prosecutor yesterday and that he was going to be

36

released from jail soon." TR 2134.

In order for Mr. Bottoson’s death sentence to be constitutional, the majority

majority recognized nonexistent evidence, and ignored the unrebutted evidence that

Mr. Bottoson has a nonviolent nature (TR2127; 2132), is "kind at all times" (TR

about others and prayed for them (TR2131), and who was "unselfishly devoted" to

his church and his faith. TR2127. That review fell far short of the "precision that

Had this Court considered what the penalty phase witnesses actually said, it would

have found, as the dissent did, that the State had not proved beyond a reasonable

PRECEDENT

When this Court now considers that Officer Childers was called to testify

regarding what Kuniara said, not Mr. Bottoson, it may consider that his evidence was

intended to support a residual doubt mitigation theory. In Mr. Sheaffer’s penalty

phase closing argument he told the jury about Pitts and Lee (TR2151), and argued

that the jury should return a life verdict because of "the possibility that there is error

in this trial." TR2152. Mr. Sheaffer told the jury "that corrections officer testified

37

that Pertrell was getting out, . . . [although] the Prosecution in this whole case and

Had this Court independently reviewed Mr. Bottoson’s ineffective-assistance

repeatedly held [that ‘residual or lingering doubt’] is not an appropriate matter to be

Other examples of factual error in the previous majority’s opinion illustrate

that the majority’s review of the record was superficial.

Two psychiatrists testified at the 3.850 evidentiary hearing, Dr. Robert T. M.

Phillips, a psychiatrist whose testimony was presented by post-conviction counsel

James Russ, and Dr. Robert G. Kirkland, the psychiatrist who evaluated Mr. Bottoson

before trial. As the dissenting Members of this Court said, Dr. Phillips testified that

Mr. Bottoson suffers from schizoaffective disorder and that this major mental illness

38

played such a substantial role in the offense that the two statutory mental health

mitigators applied. Dr. Kirkland testified regarding his observations of Mr. Bottoson

in 1981. He explained that Mr. Bottoson suffers from schizophrenia, that he

evaluated Mr. Bottoson’s then present condition in March 1981, and that he was not

asked to and did not consider whether Mr. Bottoson’s mental state at the time of the

offense. The majority said Dr. Kirkland "conclude[d] that Bottoson was a latent

schizophrenic. He explained that this was a term used to describe a schizophrenic

"Dr. Kirkland did not indicate that he would have testified that any statutory

On March 19, 1981, I was appointed by Circuit Court Judge Frank N.

Kaney to perform an evaluation of Linroy Bottoson. I evaluated Mr.

Bottoson on March 20, 1981.

evaluation and written conclusions were tailored to the criteria for

determining competence under the Florida legal standards as I

39

As I testified in 1991, when I saw Mr. Bottoson in 1981, I

diagnosed him with schizophrenia, and concluded that it was in

remission. As I stated in my 1981 report, my opinion was about Mr.

Bottoson's mental health status "at present," i.e., on March 20, 1981.

I did not attempt to determine whether Mr. Bottoson was having

an acute schizophrenic episode at the time of the homicide. In my

testimony in 1991 I did not imply that I reached any clinical conclusion

as to whether Mr. Bottoson’s psychosis played a minor role in his

behavior at the time of the crime. That matter was not part of my

evaluation.

Had this Court conducted an independent, plenary review of the record, as the

dissent did, it would have concluded that Mr. Bottoson had established prejudice

40

from his counsel’s failure to investigate Mr. Bottoson’s psychiatric history and his

failure to retain the expert the trial court authorized him to retain. Three months after

phase ineffectiveness claim and recognized that

[p]sychiatrc mitigating evidence has the potential to totally change the

evidentiary picture. We have held petitioners to be prejudiced in other

cases where defense counsel was deficient in failing to investigate and

(internal quotation and citations omitted).

it found "prejudice established by ‘strong mental mitigation’ which was ‘essentially

Independent, plenary review of the record from the 1991 hearing in this case,

confirmed by Dr. Kirkland’s recent affidavit, shows that Dr. Phillips’s "testimony was

The majority three times referred to the Capital Collateral Representative’s

at 624-25. Yet, the first page of every volume of the post-conviction record shows

that Mr. Bottoson had always been represented by a private attorney, James Russ,

who was sometimes assisted by the Florida Volunteer Lawyers’ Resource Center

("VLRC"), but never by CCR.

41

This error may seem insignificant, and perhaps it should be, but it infected the

consideration of factual questions deemed important by the majority of this Court

who voted to deny relief. First, the majority seemed to question whether records

containing Mr. Bottoson’s first two diagnoses of schizophrenia were readily available

to trial counsel because of the way "the Capital Collateral Representative was able

674 So.2d at 625. The post-conviction investigator who gathered those records

testified that he worked for the VLRC, and that he had been there for less than two

months when he obtained the records. SPCR 84.

This was not, or should not have been, a case of CCR’s investigative

effectiveness versus trial counsel’s. Yet, the majority said "it is difficult to fault [Mr.

Sheaffer] for not obtaining [the Ohio records] when his investigator could not find

them." Had the majority conducted a plenary review of the record, it would have seen

that Mr. Sheaffer sought a continuance so that his investigator could locate the

records. TR 37. The State objected on grounds that they were not properly or timely

subpoenaed (TR38), and the trial court denied the continuance. TR40. Who was at

fault is irrelevant because, as a constitutional matter, an ineffectiveness challenge

ultimately is an attack on the reliability of the State’s judgment not the professional

constitutional mandate is addressed to the action of the State"). "The Sixth

Amendment mandates that the State bear the risk of constitutionally deficient

42

with the trial lawyer or the trial court.

The majority’s inexplicable emphasis on CCR obscured actual record evidence

that trial counsel did not have to make a "decision not to pursue the California

counsel from a number of sources in Orlando at the time of trial. First, the trial record

establishes that trial counsel was aware of the court-ordered psychiatric evaluation

that produced the report because bringing that evaluation to the attention of the

sentencing jury was the sole point of his cross-examination of the State’s only penalty

phase witness. TR2117. That witness, and therefore the jury, did know what

in the file of the public defender from whom Mr. Sheaffer took over Mr. Bottoson’s

case (SPCR93), the files of the prosecutor, and the Orange County Sheriff’s

Department. SPCR381, 383.

That the majority thought CCR’s (nonexistent) involvement in the case was

significant is further evidence by the majority’s third mention of the agency when it

referred to Dr. Phillips, the psychiatrist presented by Mr. Russ at the post-conviction

So.2d at 625. As this Court considers whether it should conduct further review of Mr.

Bottoson’s case before he is to be executed on February 5, it should take into account

that until December 2001, CCR had no involvement in Mr. Bottoson’s case.

43

However small these errors may seem today, the bare majority that voted to deny

relief considered these non-facts significant.

The Eleventh Circuit’s rejection of Mr. Bottoson’s ineffective-assistance claim

rested primarily on an inference which the federal court drew from its interpretation

of an ambiguous statement in the majority opinion on Mr. Bottoson’s post-conviction

appeal. If any of these stacked inferences was made in error, then Mr. Bottoson was

denied meaningful federal habeas review of his Sixth Amendment claims due to the

wording of this Court’s post-conviction decision could not support a procedural bar

this Court to "open a case" to correct the problem, and this Court complied. In this

case, an ambiguous statement by this Court was relied upon by the federal court to

The majority opinion from this Court said that the 3.850 judge had been

Reviewing the majority opinion, the Eleventh Circuit said this Court "reasonably

prejudice analysis if the judge concluded that the failure to present that evidence

courts reviewing ineffective-assistance claims to deny them if either the deficiency

or prejudice prong has not been satisfied).

44

when this Court said the post-conviction judge had been "entitled to discount" Dr.

discounted Dr. Phillips’s opinion notwithstanding the fact that the 3.850 judge did not

do so explicitly," and that "discounting constitutes a credibility determination, a

inference regarding the post-conviction judge’s assessment of Dr. Phillips’s

credibility from the judge’s failure to mention mental health mitigation in the final

F.3d at 534-35. Under AEDPA, even such "implied" findings of fact are presumed

correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1)

(1994 Supp. III).

It is at least equally reasonable to infer that the postconviction judge was most

independently reach a conclusion regarding defidience performance and state it

45

clearly. It did not.

That neither the post-conviction judge nor the majority in this Court

disbelieved Dr. Phillips is corroborated by the fact that the three dissenting justices

of this Court concluded that Dr. Phillips’s testimony "in itself would establish both

dissenting).

Whether the Eleventh Circuit correctly inferred that this Court "reasonably,

inferred that the 3.850 judge had discounted Dr. Phillip's opinion" is far from clear.

For although the post-conviction judge did not mention mental health mitigation in

the final paragraph of his order, in a previous paragraph he said the

674 So.2d at 624 (quoting trial court order) (emphasis added).

In the same paragraph in which the postconviction judge confessed to being

most troubled by trial counsel’s failure to present mental health mitigation, he found

that trial counsel had not unreasonably failed to present that evidence. That

conclusion was upheld on the basis of the erroneously applied competent substantial

evidence test, even though, as demonstrated below, its factual premises were

completely wrong.

Here is the rest of what the judge said:

The most troubling claim for this Court was Mr. Bottoson’s assertion

that counsel failed to present any mental disturbance evidence and

46

certain other mitigating evidence during the penalty phase. However,

Defendant’s trial counsel stated that he had [1] discussed Defendant’s

mental health with two or three psychiatrists who [2] had taken a

complete past medical history. Counsel averred that he [3] did not

receive any information which would have indicated past mental illness

or [4] present mental illness that could either serve as a defense or [5]

mitigating factor in the penalty phase.

Had this Court independently reviewed the record to determine whether there

was deficient performance, it would have seen that each of the judge’s five bases for

finding no deficient performance were directly refuted by the record. First, Mr.

Sheaffer testified that he had one conversation with one psychiatrist (he could not

remember which one), not two or three. SPCR 173, 311-12.

Second, that psychiatrist, Dr. Kirkland, testified that he conducted only a

"cursory" examination of Mr. Bottoson that "require[d] about an hour." SPCR406.

Dr. Kirkland testified that far from addressing "all aspects" of Mr. Bottoson’s mental

concerned with the list of competency factors contained in the order appointing him.

seen additional information about Mr. Bottoson’s history (SPCR 441), he received

no information about Mr. Bottoson’s medical or psychiatric history other than what

Mr. Bottoson told him. SPCR449.

Dr. Kirkland has affirmed that he

was not asked to and did not attempt to evaluate Mr. Bottoson for the

47

purpose of determining whether any statutory or non-statutory mental

health mitigating circumstances were present at the time of the

homicide. I did not conduct any testing or an evaluation of the facts

surrounding the homicide which would have allowed me to formulate

an opinion concerning the existence of mental health mitigating

circumstances in Mr. Bottoson's case. Exh. A.

Consequently,

One could not infer from my report or testimony anything about Mr.

Bottoson’s psychiatric condition at the time of the offense. It would be

wrong to infer from my testimony that I believed that a psychiatrist

could not conclude to a reasonable degree of psychiatric certainty that

Mr. Bottoson’s schizophrenia was in an acute phase in 1979 when the

crime occurred.

I did not attempt to determine whether Mr. Bottoson was having an

acute schizophrenic episode at the time of the homicide. In my

testimony in 1991 I did not imply that I reached any clinical conclusion

as to whether Mr. Bottoson’s psychosis played a minor role in his

behavior at the time of the crime. That matter was not part of my

evaluation. Exh. A.

precisely the inferences and to find precisely the implicit conclusions that Dr.

Third, Mr. Sheaffer received information from Dr. Kirkland indicating that Mr.

Bottoson suffered from the brain disease schizophrenia. Dr. Kirkland’s report, which

was provided to Mr. Sheaffer before trial, noted that Mr. Bottoson had been

diagnosed with schizophrenia. TR3250. As explained below, the reason Mr. Sheaffer

did not receive further information about Mr. Bottoson’s schizophrenia from Dr.

Kirkland was because he did not ask.

48

Fourth, Dr. Kirkland’s report indicated that at the time of trial Mr. Bottoson

was having religious "hallucinatory experiences." TR3250. At the post-conviction

hearing Dr. Kirkland explained that he would not automatically describe someone’s

experience of talking to or hearing from God as "hallucinations." SPCR414. But that

is how he described Mr. Bottoson’s experiences. SPCR411.

Finally, both Dr. Kirkland and Mr. Sheaffer testified unequivocally that they

did not discuss potential mitigation. SPCR349; 405. At the hearing, Mr. Sheaffer

could not say why he did not hire a psychologist, whose services had been ordered

by the trial court at Mr. Sheaffer’s request, only that he had no tactical reason for

failing to do so. SPCR 176-77.

Thus trial and post-conviction record show that trial counsel did not "conclude

that the presentation of mental health testimony would not be helpful to Bottoson."

to independently decide was whether trial counsel’s conclusion was reasonable.

"[C]ounsel has a duty to make reasonable investigations or to make a reasonable

691. Investigative "choices made after less than complete investigation are reasonable

precisely to the extent that reasonable professional judgments support the limitations

investigate mental health mitigation, he knew (1) that Mr. Bottoson had been

recommended for a psychiatric evaluation by the court that sentenced him for his only

49

other criminal offense (TR2117), and (2) that Dr. Kirkland reported that Mr. Bottoson

had been diagnosed with schizophrenia and was having hallucinatory experiences.

TR3250. Trial counsel said at the time of trial that "a psychologist will be of great

probative value in establishing the emotional and mental pressures that were attendant

at the time the Defendant was allegedly to have committed the crime charged."

TR3167. But he never retained the expert. Asked at the post-conviction hearing

whether he had a strategic reason for failing to retain the authorized expert, trial

counsel said he had none. SPCR177. Before trial counsel "concluded" that mental

health evidence would not be helpful, he failed to ask Dr. Kirkland whether he

believed Mr. Bottoson was schizophrenic. Dr. Kirkland testified that had he been

asked, "I likely would have replied, ‘Yes.’" SPCR437. Dr. Kirkland has made clear

that his opinions did not and would not contradict a mental health expert’s conclusion

that Mr. Bottoson was actively psychotic at the time of the offense. Exh. A.

Under the most parsimonious reading of the majority opinion, this Court

reasoned that the postconviction judge had been "entitled to discount" Dr. Phillips’s

opinion, because there was substantial evidence to support the judge’s conclusion that

trial counsel did not act unreasonably when he failed to obtain the expert mental

health testimony available to Mr. Bottoson. If that reading is correct, the Eleventh

Circuit’s denial of relief was based on an erroneous reading of the majority opinion,

and, under the AEDPA, only this Court can correct that error.

50

Had this Court independently reviewed the record, it would have seen this:

"counsel had contacted Mr.

Bottoson’s mother prior to

trial"

When Mrs. Bottoson was

called her, she said, "Yes . . .

[y]esterday morning." TR

2137

Mrs. Bottoson had her son

involuntarily committed

following a suicide attempt in

1962. That hospitalization

lead to his first diagnosis of

schizophrenia.

"Counsel attempted to obtain

Defendant’s past psychiatric

records but was unable to

obtain them prior to trial."

Trial counsel attempted to

obtain the Ohio record only.

He did not attempt to obtain

the California records which

were in Orlando. SPCR308-

311.

Dr. Verin’s report containing

the second schizophrenia

diagnosis, and a mitigating

explanation of Mr.

Bottoson’s prior conviction.

"trial counsel stated that he

had discussed Defendant’s

mental health with two or

three experts . . ."

Trial counsel testified that he

spoke to one expert only.

Trial counsel failed to retain a

court-authorized psychologist

to obtain an opinion about

mitigating evidence.

The "two or three

psychiatrists . . . had taken a

complete past medical

history"

Dr. Wilder’s report is one

paragraph long and does not

indicate he took a history.

TR 3241. Dr. Kirkland

testified his examination was

"cursory" and limited to the

competency questions

submitted by the court.

Trial counsel did not know

that Mr. Bottoson suffered a

disfiguring injury as a child ,

had twice been diagnosed

with schizophrenia, and had

been recommended for

psychiatric treatment he did

not receive.

"Counsel averred that he did

not receive any information

which would have indicated

past mental illness or present

mental illness . . ."

Dr. Kirkland’s report stated

that Mr. Bottoson had been

treated for schizophrenia and

was hallucinating at the time

of trial. TR 3250.

If trial counsel had asked Dr.

Kirkland if he thought Mr.

Bottoson suffered from

schizophrenia, he would have

said yes. SPCR347.

arguments to the Eleventh Circuit. That court’s review was limited to whether this

section 2254(d)(1), "a federal habeas court may not issue the writ simply because

51

"Counsel averred that he did

not receive any information .

. . that could either serve as a

defense or mitigating factor

in the penalty phase."

Trial counsel testified he

psychiatric information from

Dr. Kirkland, and Dr.

Kirkland confirmed this.

Dr. Verin’s report would

have informed the jury that

Mr. Bottoson’s only other

criminal act was committed

under the command of

voices.

"Dr. Kirkland said . . . that

Bottoson was . . . a

schizophrenic who had gotten

better."

Dr. Kirkland has repeatedly

said that his opinion was

limited to Mr. Bottoson’s

condition in March 1981, a

year and a half after the

crime. Exh. A

Dr. Phillips’s conclusion that

Mr. Bottoson was actively

psychotic and that the two

statutory mental mitigators

were present is essentially

uncontested.

Comparing the record evidence with the facts which this Court upheld through

the arbitrary and erroneous application of the competent, substantial evidence test,

shows that Mr. Bottoson was denied a fair hearing of his claims in this Court.

B. INDEPENDENTLY APPLYING THE CORRECT LAW TO THE

CORRECT FACTS SHOWS THE OUTCOME OF THE PENALTY

PHASE IS UNRELIABLE

(2000), shows that the majority’s arbitrary and erroneous application of the

competent, substantial evidence test left uncorrected several legal errors in the trial

that court concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly. Rather,

Circuit’s decision does not mean this Court correctly applied the cases discussed

52

has long been entitled to relief. In addition to the many changes in state law such as

appointment standards, and the lifting the statutory fee cap, the benefits of which

novo ineffective-assistance claims, shows that had this Court properly reviewed Mr.

Bottoson’s claim, it would have granted relief.

Perhaps the best evidence that Mr. Bottoson is entitled to relief lies in how the

dissenting members of this Court addressed his claims. Clearly, the dissent

independently reviewed the claims. They then concluded that Mr. Bottoson had

Court explained that requiring a petitioner raising an ineffective assistance claim to

"establish[] by a preponderance of the evidence that the result of his criminal

proceeding would have been different," would be "contrary to" its clearly established

53

‘reasonable probability that ... the result of the proceeding would have been

after holding Mr. Bottoson to a prejudice standard that is more demanding than the

one that should have been applied.

leads to the conclusion that he too applied the wrong prejudice standard. The lower

court held that Mr. Bottoson could not establish prejudice because the "‘mitigating

evidence now presented would not outweigh or overcome the aggravating

First, like the dissenting members of this Court, the lower court held Mr.

Bottoson to too high a standard. Mr. Bottoson was not required to show that the

mitigating evidence that could have and should have been presented "would...

outweigh the aggravating circumstance, only that there was a reasonable probability

that it would. In other cases where this Court independently reviewed a trial court’s

denial of an ineffective assistance claim, it applied the all important "reasonable"

originally at the penalty phase.’" 541 So.2d at 597 (emphasis added). This Court,

54

however, "conclude[d] that this additional mitigating evidence does raise a reasonable

probability that the jury recommendation would have been different," and granted

U.S. at 398, which was the aggravating factor relied upon by the State to establish

review of the trial court’s order denying Mr. Bottoson’s claim, this Court would be

obliged to conclude that the court erred in denying relief because some of the

available mitigating evidence "would not . . . overcome the aggravating circumstances

of this murder." The correct question is whether the totality of the mitigating

evidence "might well have influenced the jury’s appraisal of [Mr. Bottoson’s] moral

Third, it was wrong for the lower court to consider only the "mitigating

evidence now presented," i.e. presented in the post-conviction hearing, when deciding

the State Supreme Court’s prejudice determination was unreasonable

insofar as it failed to evaluate the totality of the mitigating

evidence–both that adduced at trial, and the evidence adduced in the

habeas proceeding–in reweighing it against the evidence in aggravation.

Mr. Bottoson suffered prejudice when the 3.850 judge did not consider the mitigating

55

evidence adduced at trial, and the mental health mitigation evidence which he

believed could not be considered because of his erroneous finding of no deficient

performance.

of the mitigation evidence was not an ineffective-assistance case, it was the harmlesserror

at 397-98. The majority in this Court’s previous opinion failed to consider the totality

harmless.

First, as explained above, the majority’s description of Correction Officer

Wade Childer’s testimony bears no resemblance to what he actually said. This error

alone shows that the majority had little or no grasp of the record.

part, the prosecutor told the jury, contrary to their instructions, that "‘under the law,

at 623 (quoting TR 2144). Although in the very next breath the prosecutor told the

"‘in the statement that he gave to the ministers, I’m sorry that this happened, demons

56

harmless did not consider that evidence. This statement had mitigating force either

as evidence of remorse, or that Mr. Bottoson was in fact acting under the influence

of a severe emotional or psychological disturbance, or both.

Third, the majority did not consider Mrs. Bottoson’s testimony that Mr.

Bottoson had tried to help her but could not, and "I had to help him." TR 2139.

Fourth, the majority did not consider the unrebutted testimony that the judge

who sentenced him in California believed he needed to undergo a psychiatric

evaluation. TR2116-17.

Finally, and most importantly, the majority did not consider the unrebutted

evidence of all three character witnesses who testified that Mr. Bottoson was

normally non-violent, "kind at all times" (TR2127), cared for others and prayed for

their well-being (TR2131), and never exhibited a temper or violent nature. TR2132.

TR2127. Nor did they consider that Mr. Bottoson’s normal character was that of "an

honest man" (TR2127; 2132), and "a respectable man." TR2128.

Had this Court independently reviewed Mr. Bottoson’s claims, it would have

675 So.2d at 573-74 (considering both the mitigation evidence presented postconviction

cumulative effect of counsel’s errors).

57

When the evidence of Mr. Bottoson’s nature, his usual non-violent character,

is considered together with the mitigation evidence described by the three Justices

who dissented from the 3.850 appeal decision, the two prior diagnoses of

schizophrenia corresponding with this 42-year-old man’s only other threats of

violence (one to himself alone), a profoundly mitigating picture appears. It is the

picture Dr. Donald Verin saw when he evaluated Mr. Bottoson in 1971:

When his mental condition improved, one could expect to see a rather

conforming individual, mild mannered, and essentially a good citizen of

the community.

Due Process Clause of the Fifth Amendment and the notice and jury guarantees of the

Sixth Amendment, any fact (other than prior conviction) that increases the maximum

penalty for a crime must be charged in an indictment, submitted to a jury, and proven

58

came into play only after he was found guilty and increased the statutory maximum

penalty, based upon the guilty verdict, from life imprisonment to death. Certainly,

the difference between life and death has more than nominal effect and is of

constitutional significance.

scheme are elements of a capital crime which must be decided by a unanimous jury.

Florida Rule of Criminal Procedure 3.440, requires unanimous jury verdicts on

criminal charges. However, in capital cases, this Court permits jury recommendations

of death based upon a simple majority vote, and does not require jury unanimity as

to the existence of specific aggravating factors. In light of the fact that Florida

already considers the jury a sentencer and that aggravators are elements of a death

penalty offense, the procedure followed in the sentencing phase should receive the

protections guaranteed by the Sixth Amendment and require a unanimous verdict.

Fla. Stat. § 921.141(1), (2) (1999). The trial court gives great weight to the jury’s

recommendation, so the trial court indirectly weighs any constitutional violations

1992). The unconstitutional practice is not cured.

Because the effect of finding an aggravator exposes the defendant to a greater

punishment than that authorized by the jury’s guilty verdict, the aggravator must be

charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt.

59

For the foregoing reasons, this Court should either issue a writ of habeas

corpus vacating the sentence of death imposed upon LINROY BOTTOSON or reopen

the appeal from the trial court's denial of post-conviction relief, independently review

the claims raised by Mr. Bottoson therein, and then vacate the death sentence imposed

upon him.

Respectfully submitted,

WILLIAM JENNINGS

Capital Collateral Regional Counsel

Middle Region

____________________________

PETER J. CANNON

Assistant CCRC

Fla. Bar No. 109710

ERIC PINKARD

Assistant CCRC

Fla. Bar No. 651443

Office of the Capital Collateral

Regional Counsel

3801 Corporex Park Drive, Suite 201

Tampa, Florida 33619

813-740-3544

MARK E. OLIVE

Fla. Bar No. 0578533

TIMOTHY D. SCHARDL

Fla. Bar No. 0073016

Law Offices of Mark E. Olive, P.A.

320 West Jefferson Street

Tallahassee, Florida 32301

850-224-0004

60

I hereby certify that a true and correct copy of the foregoing Petition for Writ

of Habeas Corpus is being furnished by facsimile transmission to counsel for

Respondent, Assistant Attorney General Kenneth Sloane Nunnelley, Office of the

Attorney General 444 Seabreeze Boulevard, Suite 500, Daytona Beach, Florida

_________________________

Mark E. Olive