FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Petition Alleging Ineffectiveness of Appellate Counsel, A
Case of Original Jurisdiction.
Nash Moradi, Avon Park, pro se.
Moody, Attorney General, Tallahassee, and Carmen F. Corrente,
Assistant Attorney General, Daytona Beach, for Respondent.
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.
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).
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
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
pretrial evidentiary hearing,  and that the defendant would bear
the burden of proving entitlement to the immunity by a
preponderance of the evidence. According to the then-applicable
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
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 December 5, 2017.
4, 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 May 4, 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 and quantum of proof
should be applied retroactively to all pending cases,
including those in the appellate pipeline. 257 So.3d at 537.
There is a split among the districts on the retroactive
application, as three district courts issued opinions holding
that the amended Stand Your Ground statute applied
retrospectively, while the other two district courts opined
that it was to be applied prospectively only. The law on this
point remains unsettled, and the conflicting cases are
currently before the Florida Supreme Court awaiting decision.
Love v. State, 247 So.3d 609 (Fla. 3d DCA),
review granted, No. SC18-747, 2018 WL 3147946 (Fla.
June 26, 2018).
counsel is not required to anticipate changes in the
law." Lopez, 68 So.3d at 334. But appellate
counsel may be found "ineffective for failing to raise
favorable cases decided by other jurisdictions during the
pendency of an appeal, which could result in a
reversal." Id. (quoting Granberry v.
State, 919 So.2d 699, 701 (Fla. 5th DCA 2006)). Taking
it one step further, the failure of appellate counsel to
request permission to file supplemental briefs, while that
defendant's appeal was pending, in order to make an
argument based on a new, favorable decision from another
district court, can constitute ineffective assistance of
counsel. Ortiz v. State, 905 So.2d 1016, 1017 (Fla.
2d DCA 2005). The new, favorable decision need not be from
the district in which the appeal is pending, nor must the law
on the issue be completely settled before appellate counsel
is obligated to bring it to the appellate court's
attention. Whatley v. State, 679 So.2d 1269, 1270
(Fla. 2d DCA 1996).
"[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). Here, the theory that the amended
Stand Your Ground statute should apply retroactively had not
been mentioned even once by any Florida appellate court
during the pendency of Moradi's appeal, much less
"fully articulated" or "established in the
law." Thus, Moradi's ...