STATE OF FLORIDA,

___________________________/

MOTION FOR SUPPLEMENTAL BRIEFING

APPELLANT, MICHAEL T. RIVERA, through undersigned counsel, hereby moves this Court for an order setting supplemental briefing in light of the United States Supreme Court’s recent decision in Wiggins v. Smith, ___ U.S. ___, 2003 U.S. LEXIS 5014 (June 26, 2003). In support thereof, Mr. Rivera asserts:

1. On June 26, 2003, the United States Supreme Court rendered its decision in Wiggins v. Smith. The decision in Smith relates to Mr. Rivera’s argument that he received ineffective assistance of counsel in the penalty phase of his capital trial. The decision in Wiggins reveals that the circuit court erred, the State’s answer brief in in error, and this Court’s recent decisions on penalty phase ineffective assistance of counsel are in error.

2. In Wiggins, the United States Supreme Court held that "Counsel’s conduct similarly fell short of the standards for capital defense work articulated by the American Bar Association (ABA)--standards to which we long have referred as ‘guides to determining what is reasonable.’ [Citations]. The ABA Guidielines provide that investigations into mitigating evidence ‘should comprise efforts to discover all reasonable available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.’" Slip Op at 11 (italics in original). The United States Supreme Court concluded that "counsel abandoned investigation of petitioner’s background after having acquired only rudimentary knowledge of his history from a narrow set of sources." Id. at 12.

3. In addressing counsel’s purported "strategic decisions" the United States Supreme Court stated, "Even assuming [counsel] limited the scope of their investigation for strategic reasons, Strickland does not establish that a cursory investigation automatically justifies a tactical decision with respect to sentencing strategy. Rather, a reviewing court must consider the reasonableness of the investigation said to support that strategy." Wiggins, Slip Op at 14-15. The United States Supreme Court concluded that the Maryland state courts had "merely assumed that the investigation was adequate. In light of what the PSI and the DSS records actually revealed, however, counsel chose to abandon their investigation at an unreasonable juncture, making a fully informed decision with respect to sentencing strategy impossible." Id. at 15.

4. The United States Supreme Court further explained, "We therefore must determine, de novo, whether counsel reached beyond the PSI and the DDS records in their investigation of petitioner’s background." Id. at 19. "A decision not to investigate thus ‘must be directly assessed for reasonableness in all the circumstances.’" Id. at 21.

5. As to the prejudice prong of an ineffective assistance claim, the United States Supreme Court made clear that the analysis entails consideration of the unpresented mitigating evidence, not just whether the jury had some evidence of the mitigating circumstance before it at the time of its verdict. The United States Supreme Court explained, "we evaluate the totality of the evidence–‘both that adduced at trial, and the evidence in the habeas proceedings[s].’ [Citation]."

6. The United States Supreme Court’s conclusion in Wiggins that the Maryland state courts had unreasonably applied its jurisprudence applies with equal force to this Court’s recent rulings. See e.g. Pace v. State, – So.2d – , 2003 WL 21191876 (Fla. May 22, 2003); Hodges v. State, – So.2d – , 2003 WL 21402484 (Fla. June 19, 2003). The decision in Wiggins reveals that this Court has similarly misunderstood and misapplied the United States Supreme Court jurisprudence regarding penalty phase ineffective assistance of counsel claims.

7. The decision in Wiggins also conflicts with the positions outlined by the State in its Answer Brief in the above-entitled case and the ruling by the circuit court denying relief.

8. Given the United States Supreme Court’s major pronouncement in Wiggins determining that the Maryland state courts and the federal courts involved in the case had all failed to properly apply its jurisprudence, this Court should permit supplemental briefing in Mr. Rivera’s case to permit the parties to brief the impact of Wiggins upon this Court’s case law and Mr. Rivera’s ineffectiveness claim.

WHEREFORE, based on the foregoing, Mr. Rivera, through counsel, requests an opportunity to present supplemental briefing regarding Wiggins and to reargue this issue before the Court.

I HEREBY CERTIFY that a true copy of the foregoing has been furnished U.S. Mail to Celia Terenzio, Assistant Attorney General, 1515 Flagler Dr., Suite 900, West Palm Beach, FL 33401, on July 9, 2003.

MARTIN J. MCCLAIN

Special Assistant CCRC-South

Florida Bar No. 0754773

497 Stonehouse Rd.

Tallahassee, FL 32301

(305) 984-8344

OFFICE OF THE CAPITAL COLLATERAL

REGIONAL COUNSEL FOR THE

SOUTHERN REGION

101 NE 3rd Ave., Suite 400

Fort Lauderdale, FL 33301

(954) 713-1284

Counsel for Mr. Rivera