Strickland prejudice standard in Florida

2017See, e.g., Wright v. State, 213 So.3d 881, 911 , 2017 WL 1064515 , at *22 (Fla. Mar. 16, 2017) (“Despite the distinctions between the fundamental error standard and the Strickland prejudice standard, this Court has held that a previous finding upon appeal that statements by a prosecutor failed to rise to fundamental error precludes a determination of prejudice in the Strickland context.”); Hayward v. State, 183 So.3d 286, 327 (Fla. 2015) (“If the issue is not preserved by trial counsel, appellate counsel is only deficient in failing to assert it on appeal if it is fundamental error .... ”); Lo

2017Weekly S343 , S353, 2017 WL 1064515 , at *22 (Fla. Mar. 16, 2017) (“Despite the distinctions between the fundamental error standard and the Strickland prejudice standard, this Court has held that a previous finding upon appeal that statements by a prosecutor failed to rise to fundamental error precludes a determination of prejudice in the Strickland context.”); Hayward v. State, 183 So. 3d 286, 327 (Fla. 2015) (“If the issue is not preserved by trial counsel, appellate counsel is only deficient in failing to assert it on appeal if it is fundamental error . . . .”); Lowe v. State, 2 So. 3d 21,

2022Compare Taylor v. State, 260 So. 3d 151, 160 (Fla. 2018) (“The second prong of the Jones test requires that the newly discovered evidence be of such a nature that it would probably produce an acquittal on retrial.”), with Davis v. State, 136 So. 3d 1169, 1190 (Fla. 2014) (“Strickland does not ‘require a defendant to show “that counsel’s deficient conduct more likely than not altered the outcome” of his penalty proceeding, but rather that he establish “a probability sufficient to undermine confidence in [that] outcome.” ’ ” (quoting Porter v. McCollum, 558 U.S. 30, 44 (2009))). - 36 - Therefore

2014See id. at 24, 29-30. - 60 - evidence—both that adduced at trial, and the evidence adduced in the habeas proceeding—and reweig[h] it against the evidence in aggravation.” 558 U.S., at 41 (internal quotation marks omitted; third alteration in original).

2014Thus, the cumulative error analysis cannot be substituted for a Strickland prejudice analysis, without conflating a cumulative error analysis with a Strickland prejudice analysis. 16 For those reasons, I view this case as very similar to the United States Supreme Court’s reversal in Sears v. Upton, 561 U.S. 945 , 130 S.Ct. 3259 , 177 L.Ed.2d 1025 (2010), where the Supreme Court held that the state supreme court applied the wrong prejudice analysis when it denied the defendant relief on the basis of counsel’s constitutionally inadequate initial mitigation investigation.

2014Thus, the cumulative error analysis cannot be substituted for a Strickland prejudice analysis, without conflating a cumulative error analysis with a Strickland prejudice analysis.16 For those reasons, I view this case as very similar to the United States Supreme Court’s reversal in Sears v. Upton, 130 S. Ct. 3259 (2010), where the Supreme Court held that the state supreme court applied the wrong prejudice analysis when it denied the defendant relief on the basis of counsel’s constitutionally inadequate initial mitigation investigation.

2004See Thomas v. Lockhart, 738 F.2d at 307 ; United States v. Gavilan, 761 F.2d at 228 .

2002See Thomas v. Lockhart, 738 F.2d at 307 ; United States v. Gavilan, 761 F.2d at 228 .

2025But the distinction between the Strickland prejudice standard and the preponderance of the evidence standard is “slight and matters ‘only in the rarest case.’” Harrington v. Richter, 562 U.S. 86, 112 (2011) (quoting Strickland, 466 U.S. at 693 ).

2017After all, Strickland prejudice requires the showing of “a reasonable probability that . . . the result of the proceeding would have been different,” Sanders, 946 So. 2d at 956 (emphasis added) (quoting Strickland, 466 U.S. at 694 ), whereas fundamental error requires a showing that the “verdict . . . could not have been obtained without [that] error,’ ” Floyd, 850 So. 2d at 403 (alterations in original) (emphasis added) (quoting Archer, 673 So. 2d at 20 ).

2025But the distinction between the Strickland prejudice standard and the preponderance of the evidence standard is “slight and matters ‘only in the rarest case.’” Harrington v. Richter, 562 U.S. 86, 112 (2011) (quoting Strickland, 466 U.S. at 693 ).

2012The Supreme Court of the United States recently clarified the Strickland prejudice standard in Harrington v. Richter, — U.S. -, 131 S.Ct. 770 , 178 L.Ed.2d 624 (2011).

2022Compare Taylor v. State, 260 So. 3d 151, 160 (Fla. 2018) (“The second prong of the Jones test requires that the newly discovered evidence be of such a nature that it would probably produce an acquittal on retrial.”), with Davis v. State, 136 So. 3d 1169, 1190 (Fla. 2014) (“Strickland does not ‘require a defendant to show “that counsel’s deficient conduct more likely than not altered the outcome” of his penalty proceeding, but rather that he establish “a probability sufficient to undermine confidence in [that] outcome.” ’ ” (quoting Porter v. McCollum, 558 U.S. 30, 44 (2009))). - 36 - Therefore

2022Compare Taylor v. State, 260 So. 3d 151, 160 (Fla. 2018) (“The second prong of the Jones test requires that the newly discovered evidence be of such a nature that it would probably produce an acquittal on retrial.”), with Davis v. State, 136 So. 3d 1169, 1190 (Fla. 2014) (“Strickland does not ‘require a defendant to show “that counsel’s deficient conduct more likely than not altered the outcome” of his penalty proceeding, but rather that he establish “a probability sufficient to undermine confidence in [that] outcome.” ’ ” (quoting Porter v. McCollum, 558 U.S. 30, 44 (2009))). - 36 - Therefore

2019“Importantly, ‘the prejudice component of a Hill claim involves a legal standard and is not a purely factual determination.’” Koroly v. State, 257 So. 3d 1096, 1102 (Fla. 1st DCA 2018) (quoting Capalbo v. State, 73 So. 3d 838, 841 (Fla. 4th DCA 2011)).

2019As to the second prong, the Hill court modified the Strickland prejudice requirement and held that the defendant must demonstrate “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59 ; see also Grosvenor v. State, 874 So. 2d 1176, 1180 (Fla. 2004).

2019“Importantly, ‘the prejudice component of a Hill claim involves a legal standard and is not a purely factual determination.’” Koroly v. State, 257 So. 3d 1096, 1102 (Fla. 1st DCA 2018) (quoting Capalbo v. State, 73 So. 3d 838, 841 (Fla. 4th DCA 2011)).

2018In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59 ; see also Brazeail v. State, 821 So. 2d 364, 368 (Fla. 1st DCA 2002).

2017See, e.g., Wright v. State, 213 So.3d 881, 911 , 2017 WL 1064515 , at *22 (Fla. Mar. 16, 2017) (“Despite the distinctions between the fundamental error standard and the Strickland prejudice standard, this Court has held that a previous finding upon appeal that statements by a prosecutor failed to rise to fundamental error precludes a determination of prejudice in the Strickland context.”); Hayward v. State, 183 So.3d 286, 327 (Fla. 2015) (“If the issue is not preserved by trial counsel, appellate counsel is only deficient in failing to assert it on appeal if it is fundamental error .... ”); Lo

2017Weekly S343 , S353, 2017 WL 1064515 , at *22 (Fla. Mar. 16, 2017) (“Despite the distinctions between the fundamental error standard and the Strickland prejudice standard, this Court has held that a previous finding upon appeal that statements by a prosecutor failed to rise to fundamental error precludes a determination of prejudice in the Strickland context.”); Hayward v. State, 183 So. 3d 286, 327 (Fla. 2015) (“If the issue is not preserved by trial counsel, appellate counsel is only deficient in failing to assert it on appeal if it is fundamental error . . . .”); Lowe v. State, 2 So. 3d 21,

2017After all, Strickland prejudice requires the showing of “a reasonable probability that . . . the result of the proceeding would have been different,” Sanders, 946 So. 2d at 956 (emphasis added) (quoting Strickland, 466 U.S. at 694 ), whereas fundamental error requires a showing that the “verdict . . . could not have been obtained without [that] error,’ ” Floyd, 850 So. 2d at 403 (alterations in original) (emphasis added) (quoting Archer, 673 So. 2d at 20 ).

2017After all, Strickland prejudice requires the showing of “a reasonable probability that . . . the result of the proceeding would have been different,” Sanders, 946 So. 2d at 956 (emphasis added) (quoting Strickland, 466 U.S. at 694 ), whereas fundamental error requires a showing that the “verdict . . . could not have been obtained without [that] error,’ ” Floyd, 850 So. 2d at 403 (alterations in original) (emphasis added) (quoting Archer, 673 So. 2d at 20 ).

2017See, e.g., Wright v. State, 213 So.3d 881, 911 , 2017 WL 1064515 , at *22 (Fla. Mar. 16, 2017) (“Despite the distinctions between the fundamental error standard and the Strickland prejudice standard, this Court has held that a previous finding upon appeal that statements by a prosecutor failed to rise to fundamental error precludes a determination of prejudice in the Strickland context.”); Hayward v. State, 183 So.3d 286, 327 (Fla. 2015) (“If the issue is not preserved by trial counsel, appellate counsel is only deficient in failing to assert it on appeal if it is fundamental error .... ”); Lo

2017See, e.g., Wright v. State, 213 So.3d 881, 911 , 2017 WL 1064515 , at *22 (Fla. Mar. 16, 2017) (“Despite the distinctions between the fundamental error standard and the Strickland prejudice standard, this Court has held that a previous finding upon appeal that statements by a prosecutor failed to rise to fundamental error precludes a determination of prejudice in the Strickland context.”); Hayward v. State, 183 So.3d 286, 327 (Fla. 2015) (“If the issue is not preserved by trial counsel, appellate counsel is only deficient in failing to assert it on appeal if it is fundamental error .... ”); Lo

2017See, e.g., Wright v. State, 213 So.3d 881, 911 , 2017 WL 1064515 , at *22 (Fla. Mar. 16, 2017) (“Despite the distinctions between the fundamental error standard and the Strickland prejudice standard, this Court has held that a previous finding upon appeal that statements by a prosecutor failed to rise to fundamental error precludes a determination of prejudice in the Strickland context.”); Hayward v. State, 183 So.3d 286, 327 (Fla. 2015) (“If the issue is not preserved by trial counsel, appellate counsel is only deficient in failing to assert it on appeal if it is fundamental error .... ”); Lo

2017Weekly S343 , S353, 2017 WL 1064515 , at *22 (Fla. Mar. 16, 2017) (“Despite the distinctions between the fundamental error standard and the Strickland prejudice standard, this Court has held that a previous finding upon appeal that statements by a prosecutor failed to rise to fundamental error precludes a determination of prejudice in the Strickland context.”); Hayward v. State, 183 So. 3d 286, 327 (Fla. 2015) (“If the issue is not preserved by trial counsel, appellate counsel is only deficient in failing to assert it on appeal if it is fundamental error . . . .”); Lowe v. State, 2 So. 3d 21,

2010See Maxwell, 490 So.2d at 932 ; see also Hitchcock v. State, 755 So.2d 638, 643 (Fla.2000) (“Any error in prosecutorial comments is harmless if there is no reasonable probability that those comments *664 affected the verdict.”) (citing King v. State, 628 So.2d 486, 487 (Fla.1993)).

2010See Maxwell, 490 So.2d at 932 ; see also Hitchcock v. State, 755 So.2d 638, 643 (Fla.2000) (“Any error in prosecutorial comments is harmless if there is no reasonable probability that those comments *664 affected the verdict.”) (citing King v. State, 628 So.2d 486, 487 (Fla.1993)).

2010See Maxwell, 490 So.2d at 932 ; see also Hitchcock v. State, 755 So.2d 638, 643 (Fla.2000) (“Any error in prosecutorial comments is harmless if there is no reasonable probability that those comments *664 affected the verdict.”) (citing King v. State, 628 So.2d 486, 487 (Fla.1993)).

2003See Strickler v. Greene, 527 U.S. 263, 296 , 119 S.Ct. 1936 , 144 L.Ed.2d 286 (1999), Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). .

2003See Strickler v. Greene, 527 U.S. 263, 296 , 119 S.Ct. 1936 , 144 L.Ed.2d 286 (1999), Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). .