NIMA NASH MORADI
v.
STATE OF FLORIDA
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Appellate counsel is not ineffective for failing to raise a legal argument based on a novel theory that had not been fully articulated or established in Florida law at the time of the appeal. The retroactive application of the amended Stand Your Ground statute was not a recognized legal theory during Moradi's appeal, as no Florida appellate court had addressed it until after his conviction was affirmed.
[1] The effectiveness of appellate counsel is evaluated as of the time the appeal was pending, not with the benefit of hindsight or subsequent changes in the law.
[2] Appellate counsel is not ineffective for failing to raise a legal theory that was not fully articulated or established in the law at the time of the appeal.
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Join FLexlaw to unlock all legal intelligence“[T]he effectiveness of appellate counsel is judged as of the time of the appeal.”
Establishes that counsel's performance must be evaluated from the perspective and state of the law existing at the time the appeal was pending, not with hindsight.
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Join FLexlaw to unlock all legal intelligenceMoradi shot and killed someone in February 2012 and was charged with murder. He filed a pretrial motion for immunity under the Stand Your Ground statu…
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
NIMA NASH MORADI,
Petitioner,
v. Case No. 5D18-3713
STATE OF FLORIDA,
Respondent.
________________________________/
Opinion filed October4, 2019
Petition Alleging Ineffectiveness of Appellate Counsel, A Case of Original Jurisdiction.
Nima Nash Moradi, Avon Park, pro se.
Ashley Moody, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Respondent.
EDWARDS, J.
In his habeas corpus petition, Nima Nash Moradi claims that because his appellate attorneys did not argue for the retroactive application of the amended Stand Your Ground statute, shifting the burden of proof during the pretrial immunity hearing from the defendant to the State, he was prejudiced by ineffective assistance of appellate counsel. We disagree and deny Moradi’s petition for the reasons set forth below.
2
“The standard of review applicable to claims of ineffective assistance of appellate counsel raised in a habeas petition mirrors the Strickland v. Washington standard for claims of trial counsel ineffectiveness.” Valle v. Moore, 837 So. 2d 905, 907 (Fla. 2002) (citation omitted). “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland v. Washington, 466 U.S. 668, 689 (1984). Therefore, “[t]he effectiveness of appellate counsel is judged as of the time of the appeal.” Leon v. Moore, 734 So. 2d 513, 514 (Fla. 3d DCA 1999).
In order to analyze whether appellate counsel’s performance was deficient for failing to raise an argument on appeal, we must consider the state of the law as it existed at the time of the appeal. Lopez v. State, 68 So. 3d 332, 333–34 (Fla. 5th DCA 2011). In order to do that, we need to examine the chronology of Moradi’s appeal, vis-a-vis the changes in the Stand Your Ground statute, section 776.032, Florida Statutes, and the development of the related retrospective application argument. Moradi shot and killed someone on February 9, 2012, he was subsequently charged with murder, but pled that he acted in self-defense. Moradi filed a pretrial motion asserting immunity based on the then-current version of the Stand Your Ground statute. § 776.032, Fla. Stat. (2011). The Stand Your Ground statute in effect at the time of Moradi’s hearing contained no procedural guidelines on how such an immunity defense would be raised, when it would be adjudicated, or who would bear the burden of proof. Fuller v. State, 257 So. 3d 521, 534 (Fla. 5th DCA 2018). The Florida Supreme Court confirmed the procedure to be followed was that such motions would be determined at a
3 pretrial evidentiary hearing,1 and that the defendant would bear the burden of proving entitlement to the immunity by a preponderance of the evidence.2 According to the thenapplicable procedures, the trial court conducted a pretrial immunity hearing and denied the motion, finding that Moradi failed to carry his burden of proof. His defense at trial focused on self-defense. On December 18, 2015, Moradi was convicted of seconddegree murder. After his appeal had commenced, the Legislature passed a bill amending the Stand Your Ground statute by placing the burden on the State to disprove by clear and convincing evidence the defendant’s prima facia claim of self-defense. See § 776.032(4), Fla. Stat. (2017). The governor signed it into law on June 9, 2017. In his direct appeal, Moradi’s appellate counsel did not raise the argument that the changed burden and quantum of proof should apply retroactively so as to entitle Moradi to a new immunity hearing. Moradi’s conviction was affirmed by this Court on direct appeal on September 26, 2017, and the mandate issued on December5, 2017. On May4, 2018, the Second District released Martin v. State, in which it announced its decision that the amended Stand Your Ground statute applies retroactively, entitling Martin to a new immunity hearing where the burden of proof would rest with the State. 43 Fla L. Weekly D1016, D1018 (Fla. 2d DCA May4, 2018). Martin was the first appellate opinion in Florida to discuss the issue. After Martin, the other four district courts issued opinions on the same retroactivity issue. On September 28, 2018, this Court decided in Fuller v. State that the amended statute with its changed burden
However, “[t]he ineffectiveness of appellate counsel cannot be based upon the failure of counsel to assert a theory of law which was not at the time of the appeal fully articulated or established in the law.” Alvord v. State, 396 So. 2d 184, 191 (Fla. 1981).
PETITION DENIED.
EVANDER, C.J. and ORFINGER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited (12 total)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Dennis v. State, 51 So. 3d 456 (Fla. 2010)
- Valle v. Moore, 837 So. 2d 905 (Fla. 2002)
- Love v. State, 247 So. 3d 609 (Fla. 3d DCA 2018)
- Alvord v. State, 396 So. 2d 184 (Fla. 1981)
- Bretherick v. State, 170 So. 3d 766 (Fla. 2015)
- Ortiz v. State, 905 So. 2d 1016 (Fla. 2d DCA 2005)
- Evangelista Lopez v. State, 68 So. 3d 332 (Fla. 5th DCA 2011)
- Granberry v. State, 919 So. 2d 699 (Fla. 5th DCA 2006)
- Elliot Reno Whatley v. State, 679 So. 2d 1269 (Fla. 2d DCA 1996)