Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, February 19, 2008

Fotopoulos: Not Ineffective Not to Challenge Inconsistent Theories

In Fotopoulos v. Secretary, Dep’t of Corrections, No. 07-11105 (Feb. 17, 2008), the Court reversed the grant of habeas relief to a Florida inmate sentenced to death for two 1989 murders.
The Court rejected the fact-finding that Fotopoulos’s counsel was ineffective for allowing the state to put on inconsistent theories regarding Fotopoulos’ guilty, one which emphasized his domination of his accomplice, and one which did not. The Court found that defense counsel’s testimony indicated that he made a reasonable strategic decision on how to address the inconsistent arguments of the State – and the district court should have deferred to the fact-finding by the State of Florida on this point. Finally, no prejudice to Fotopoulos occurred, as he acknowledged his "prime responsibility" for the murders.
The Court also rejected the district court’s conclusion that the State’s reliance on inconsistent theories violated Due Process. The Court noted that the Supreme Court of the United States had not squarely held that putting on inconsistent theories violated Due Process at the time of the State court decision affirming the death sentence. Consequently, under AEDPA, the State court judgment was not "clearly contrary" to Supreme Court precedent, and deserved deferrence.