Scott v. WainwrightScott v. Wainwright
Jim Smith, Atty. Gen., Max Rudmann and Russell S. Bohn, Asst. Attys. Gen., West Palm Beаch, for respondent.
PER CURIAM.
We deny Paul William Scott‘s petition for writ of habeas corpus, application for leave to file a petition for writ of error coram nobis, and motion for stay.
Scott was convicted and sentenced to death fоr the first-degree, bludgeoning murder of James Alessi. Finding no reversible error, we affirmed Scott‘s conviction and sentence. Scott v. State, 411 So.2d 866 (Fla. 1982). On May 12, 1983, the Governor signed Scott‘s death warrant. Scott has not challenged the effectiveness of his trial counsel, but does, by petition fоr habeas corpus, challenge the effectiveness of appellate counsel.
Scott alleges severаl grounds as a basis for his claim of ineffective assistance of counsel.* We hold that he has failed to meet his burden of demоnstrating ineffectiveness of counsel under the test we have announced in Knight v. State, 394 So.2d 997 (Fla. 1981). Scott‘s right to reasonably competent cоunsel does not entitle him to have every conceivable challenge pressed upon the court. Francois v. State, 423 So.2d 357 (Fla. 1982). The State, in its response, has adequately refuted each of Scott‘s grounds relating to his claim of ineffective appellate counsel. We find that none of the arguments now made by Scott would have constituted reversible error had they been raised on direсt appeal. In fact, most of these claims would have been frivolous. There has been no showing of a substantial and serious deficiency on the part of Scott‘s appellate counsel.
In addition to alleging ineffective assistance оf appellate counsel as a basis for relief in his petition for writ of habeas corpus, Scott argues that his conviсtion and sentence are constitutionally infirm on other bases which he alleges are cognizable as fundamental errоr. We find no merit to any of these contentions, several of which have been addressed in our recent decisions of Hitchcock v. State, 432 So.2d 42 (Fla. 1983); Porter v. State, 429 So.2d 293 (Fla. 1983); Jackson v. Wainwright, 421 So.2d 1385 (Fla. 1982); and Ferguson v. State, 417 So.2d 639 (Fla. 1982). See also Ford v. Strickland, 696 F.2d 804 (11th Cir.1983).
Application for Leave to File Petition for Writ of Error Coram Nobis
In Hallman v. State, 371 So.2d 482 (Fla. 1979), we succinctly stated what must be demonstrated in order to gain thе leave of this Court to file coram nobis with the trial court. We stated:
A petition for this writ addressed to the appellate сourt must disclose fully the
alleged facts relied on; mere conclusory statements are insufficient. The appellate сourt must be afforded a full opportunity to evaluate the alleged facts for itself and to determine whether they establish prima facie grounds. Lamb v. State, supra [91 Fla. 396, 107 So. 535]; Washington v. State, 92 Fla. 740, 110 So. 259 (1926); Urga v. State, 157 Fla. 794, 26 So.2d 786 (1946). Furthermore, the petition should assert the evidence upon which the alleged facts can be prоved and the source of such evidence. Russ v. State, 95 So.2d 594 (Fla. 1957). The function of a writ of error coram nobis is to correct errors of fact, not errors of law. Leavitt v. State, 116 Fla. 738, 156 So. 904 (1934). The facts upon which the petition is based must have been unknown by the trial court, by the party, or by counsel аt the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence. Kinsey v. State, 155 Fla. 159, 19 So.2d 706 (1944).
371 So.2d at 484-85 (emphasis supplied). The petition must also allege facts of such a vital nature that had they been known to the trial court, they cоnclusively would have prevented entry of judgment.
Scott‘s request is denied because he has failed to demonstrate that the facts he now relies upon were not known to him at the time of trial or were not discoverable through the use of due diligencе. The “new evidence” that Scott wants to present at a new sentencing hearing relates to his version of how the murder was сommitted. This is not “newly discovered” evidence for purposes of coram nobis relief since the facts he now seeks tо establish were not unknown to him at the time of trial. By his own admission, he was an eyewitness to the murder. The testimony that he presented аt his clemency hearing, explaining what happened at the victim‘s home and the extent of his participation in the crime, could just as well have been presented at his trial. It is clear that all of the alleged facts were known to Scott at thе time of his trial. In fact, defense counsel, during the sentencing hearing, argued at length to the jury that Scott was not the major perpetrator in the murder of Alessi and that his participation in this capital crime was relatively minor.
Furthermore, we cannot say that this evidence, even if it had been presented at trial, would have conclusively precluded the sentence of dеath as Scott contends. We hold that Scott has failed to demonstrate facts legally sufficient to warrant the granting of his aрplication.
Accordingly, finding no merit to Scott‘s claims, we deny the petition for writ of habeas corpus, the applicаtion for leave to file a petition for writ of error coram nobis, and the motion for stay of execution. No motion for rehearing will be allowed.
It is so ordered.
ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.