RAUL GIBSON, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Raul Gibson petitioned for habeas corpus relief alleging manifest injustice where his earlier ineffective assistance of appellate counsel petition was denied without citation. The Fourth District Court of Appeal granted the petition because a prior denial lacking citation to controlling authority prevented Gibson from seeking Florida Supreme Court review, constituting manifest injustice.
The court granted the habeas corpus petition and remanded for a new trial. The lack of citation in the denial of Gibson's first petition constituted manifest injustice because with proper citation to controlling authority, Gibson could have obtained relief from the Florida Supreme Court.
[1] A manifest injustice may warrant granting a successive petition for a writ of habeas corpus alleging ineffective assistance of appellate counsel, even if a prior petition…
[2] A jury instruction for attempted voluntary manslaughter requiring an intent to kill, when the offense is only one step removed from the erroneous instruction, constitutes…
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Join FLexlaw to unlock all legal intelligence“Had this court provided a citation to Williams in our denial of Gibson's first petition, Gibson could have obtained relief from the Florida Supreme Court.”
Establishes the court's reasoning that the failure to cite controlling authority prevented Gibson from accessing Florida Supreme Court review
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGibson was charged with attempted first degree murder, shooting at an occupied vehicle, and witness retaliation. He was convicted of attempted second …
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Raul Gibson petitions this court for a writ of habeas corpus alleging a manifest injustice in the denial, without citation, of his petition alleging ineffective assistance of appellate counsel. The earlier of the two petitions argued that counsel was deficient in not challenging a Montgomery1 jury instruction on direct appeal of his attempted second degree murder conviction. Although our decision in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), required denial of the petition, if this court had provided a citation, Gibson could have obtained relief from the Florida Supreme Court. We therefore grant the petition. See Coleman v. State, 128 So.3d 193, 194 (Fla. 5th DCA 2013) (granting a successive ineffective appellate counsel petition where a prior petition arguing a Montgomery claim was denied without explanation).
Gibson was charged with attempted first degree murder, shooting at or into an occupied vehicle, and retaliating against a witness, victim, or informant. The jury instructions on the lesser offense of attempted voluntary manslaughter required an intent to kill, the same defect identified in Montgomery. He was found guilty of attempted second degree murder which was only one step removed from the erroneous attempted manslaughter instruction.
Gibson’s earlier petition claimed that appellate counsel was ineffective in failing to *697file a supplemental brief in the direct appeal raising the First District’s decision in Montgomery. At the time, this court had held that the fundamental error identified in Montgomery did not extend to the attempted voluntary manslaughter instruction. Williams, 40 So.3d at 72. The Florida Supreme Court ultimately quashed our decision. Williams v. State, 123 So.3d 23, 25 (Fla.2013).
Had this court provided a citation to Williams in our denial of Gibson’s first petition, Gibson could have obtained relief from the Florida Supreme Court. See, e.g., Wimberly v. State, — So.3d —, 2014 WL 4328067, 39 Fla. L. Weekly D1884 (Fla. 4th DCA Sept. 3, 2014) (granting relief on remand from the Florida Supreme Court where this court denied the ineffective assistance of appellate counsel petition with citation to our decision in Williams); Walden v. State, — So.3d —, 2014 WL 4840751, 39 Fla. L. Weekly D2069 (Fla. 4th DCA Oct. 1, 2014) (same).2
Because it would result in a manifest injustice to deny Gibson the same relief, we grant the petition and remand for a new trial.
Petition granted.
GROSS, TAYLOR and CIKLIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Vince E. Wardlow v. State, 212 So. 3d 1091 (Fla. 2d DCA 2017)…that although the court twice denied Paul’s petitions for writ of habeas corpus that challenged the jury instruction held to be fundamental error in Montgomery, manifest injustice would result if Paul was not afforded a new trial); Gibson v. State, 152 So. 3d 696, 696 (Fla. 4th DCA 2014) (“Had this court provided a citation to Williams in our denial of Gibson’s first petition, Gibson could have obtained relief from the Florida Supreme Court. Because it would result in a manifest injustice to deny Gibson the…
Authorities Cited (14 total)
- State v. Montgomery, 39 So. 3d 252 (Fla. 2010)
- Amos Augustus Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010)
- Amos Augustus Williams v. State, 123 So. 3d 23 (Fla. 2013)
- Montgomery v. State, 70 So. 3d 603 (Fla. 1st DCA 2009)
- Jarvis D. Coleman v. State, 128 So. 3d 193 (Fla. 5th DCA 2013)
- Morgan v. State, 132 So. 3d 930 (Fla. 4th DCA 2014)
- COX v. State, 132 So. 3d 956 (Fla. 4th DCA 2014)
- Coriolan v. State, 137 So. 3d 1080 (Fla. 4th DCA 2014)
- Lorenza Sessions v. State, 137 So. 3d 1167 (Fla. 4th DCA 2014)
- Lopez v. State, 138 So. 3d 488 (Fla. 4th DCA 2014)