Petition for Writ of Certiorari — Edwin Arvelo, Petitioner v. Julie L. Jones, Secretary, Florida Department of Corrections, et al.

No.

In The

Supreme Court of the United States

_______________

EDWIN ARVELO,

Petitioner,

v.

SECRETARY, FLORIDA DEPARTMENT OF

CORRECTIONS, ATTORNEY GENERAL, STATE

OF FLORIDA

Respondent.

_______________

On Petition For A Writ Of Certiorari To The

Florida Fifth District Court of Appeal

_______________

PETITION FOR WRIT OF CERTIORARI

_______________

Patrick Michael Megaro, Esq.*

Jaime T. Halscott, Esq.

Robert Byther, Esq.

Robert Hughes, Esq.

Halscott Megaro, P.A.

Attorneys for Petitioner

33 East Robinson St., Suite 210

Orlando, Florida 32801

(o) 407-255-2164

(f) 855-224-1671

pmegaro@halscottmegaro.com

*Counsel of Record

December 27, 2017

_________________________________________________

_________________________________________________

i

QUESTIONS PRESENTED

1. Whether counsel’s failure to move to suppress the

Petitioner’s testimony given to police, under coercive

conditions, is sufficient evidence to find counsel

ineffective and find that Petitioner’s Sixth

Amendment right to effective assistance of counsel

was violated.

ii

PARTIES TO THE PROCEEDING

The original parties to this case were Edwin Arvelo

(previously

Petitioner-Appellant)

against

the

Secretary of the Florida Department of Corrections,

(previously Respondent-Appellee). Rule 14.1(b) of the

Supreme Court Rules.

iii

TABLE OF CONTENTS

Page(s)

QUESTION PRESENTED………………………………I

PARTIES TO THE PROCEEDING…………………...II

TABLE OF CONTENTS……………………………….III

APPENDIX…………………………………………….....V

TABLE OF AUTHORITIES…………………………..VII

DECISIONS BELOW………………………………….…1

STATEMENT OF JURISDICTION …………………...1

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES,

RULES

AND

REGULATIONS

INVOLVED ……………………………………………….2

STATEMENT OF THE CASE…………………………..2

REASONS FOR GRANTING THE WRIT……………16

I.

TO

DETERMINE

WHETHER

COUNSEL’S FAILURE TO MOVE TO

SUPPRESS

THE

PETITIONER’S

TESTIMONY GIVEN TO POLICE,

UNDER COERCIVE CONDITIONS, IS

SUFFICIENT EVIDENCE TO FIND

COUNSEL INEFFECTIVE AND FIND

THAT PETITIONER’S RIGHT UNDER

THE SIXTH AMENDMENT WAS

VIOLATED.

II. Petitioner received ineffective assistance of counsel

where counsel failed to move to suppress statements

made to law enforcement in violation of his Fifth

Amendment rights, and those statements were

iv

damaging and the pivotal basis for the aggravating

charges against petitioner which resulted in a de facto

life sentence ……………………………………………..24

CONCLUSION…………………………………………..32

v

APPENDIX

Decision and Order from the Eleventh Circuit,

Filed May 10, 2017………………………………………..1

Order Denying Rehearing En Banc

filed August 29, 2017……………………………………13

Decision and Order from the Eleventh Circuit,

filed June 10, 2015………………………………………15

Transcript of Evidentiary Hearing

held October 5, 2015…………………………………….26

Transcript of Maitland Police

Department Interrogation August 16, 2006………..223

U.S. Const. Amend. VI………………………………...298

Florida Statutes § 794.001……………………………298

Florida Statutes § 784.045……………………………302

vi

TABLE OF AUTHORITIES

CASES

Page(s)

Adams v. Balkcom, 688 F.2d 734 (11th Cir. 1982)…18

Arizona v. Fulminante, 499 U.S. 279 (1991) ............ 20

Brady v. United States, 397 U.S. 742 (1970)............ 25

Bram v. United States, 168 U.S. 532 (1897) ............ 25

Bynum v. Lemmon, 560 F.3d 678 (7th Cir. 2009 ...... 25

Coleman v. Singletary,

30 F.3d 1420 (11th Cir. 1994) ................................... 26

Cossel v. Miller, 229 F.3d 649 (7th Cir. 2000) .......... 21

Fare v. Michael C., 442 U.S. 707 (1979) ................... 26

Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005) ......... 21

Hicks v. Hepp, 871 F.3d 513 (7th Cir. 2017) ............. 25

Hill v. Lockhart, 474 U.S. 52 (1985) ......................... 18

Kirkpatrick v. Butler, 870 F.2d 276 (5th Cir. 1989) 21

Lufkins v. Leapley, 965 F.2d 1477 (8th Cir. 1992) ... 21

Mansfield v. Sec’y, Dept. of Corr.,

679 F.3d 1301 (11th Cir. 2012) ................................. 20

Martin v. Maxey, 98 F.3d 844 (5th Cir. 1996) .......... 21

McCray v. Metrish, 232 F.3d 469 (6th Cir. 2007) .... 20

Morrison v. Kimmelman,

752 F.2d 918 (3d Cir. 1985) ....................................... 21

vii

Parker v. Allen, 565 F.3d 1258 (11th Cir. 2009) ...... 26

Pavel v. Hollins, 261 F.3d 210 (2d Cir. 2001) ........... 18

Phoenix v. Matesanz, 233 F.3d 77 (1st Cir. 2000)…18

Reddish v. State, 167 So.2d 858 (Fla.1964) .............. 22

Rodriguez v. Young, 906 F.2d 1153 (7th Cir. 1990) . 21

State v. Charon, 482 So.2d 392 (3d DCA 1985)........ 22

State v. Mallory, 670 So.2d 103 (1st DCA 1996) ...... 22

State v. Sawyer, 561 So.2d 278 (2d DCA 1990)........ 21

Strickland v. Washington,

466 U.S. 668 (1984) ..................... 17, 18, 23, 24, 25, 28

Telfort v. State, 978 So.2d 225 (4th DCA 2008) ....... 22

Thomas v. Varner, 428 F.3d 491 (3d Cir. 2005) ....... 21

Thompson v. State, 548 So.2d 198 (Fla. 1989) ......... 22

United States v. Avants,

278 F.3d 510 (5th Cir. 2002) ..................................... 20

United States v. Brownlee

454 F.3d 131 (3d. Cir. 2006) ...................................... 20

United States v. Carrasco,

540 F.3d 43 (1st Cir. 2008) ........................................ 20

United States v. Cronic, 466 U.S. 648 (1984). .... 17, 20

United States v. Felming,

594 F.2d 598 (7th Cir. 1979) ..................................... 20

viii

United States v. Gillion,

704 F.3d 284 (4th Cir. 2012) ..................................... 20

United States v. Lall,

607 F.3d 1277 (11th Cir. 2010) ................................. 25

United States v. Mejia,

545 F.3d 179 (2d. Cir. 2008) ...................................... 31

United States v. Perdue,

8 F.3d 1455 (10th Cir. 1993). .................................... 21

United States v. Reifler,

446 F.3d 65 (2d Cir. 2006). ........................................ 32

United States v. Rutledge,

900 F.2d 1127 (7th Cir.1990) .............................. 18, 19

United States v. Thompson,

422 F.3d 1285 (11th Cir. 2005) ................................. 26

Williams v. State, 441 So.2d 653 (3d DCA 1983) ..... 22

Zappulla v. New York, 391 F.3d 462 (2d. Cir. 2004 . 20

CONSTITUTIONAL PROVISIONS AND

STATUTES

U.S. Const. Amend VI…………………………..2, 16, 18

Fla. Stat. § 794.011……………………………………….2

Fla. Stat. § 784.045……………………………………….2

1

PETITION FOR WRIT OF CERTIORARI

Petitioner, Edwin Arvelo, respectfully prays

that a writ of certiorari be issued to review the

judgment of United States Court of Appeals for the

Eleventh Circuit entered in the above-entitled case on

August 29, 2017.

DECISIONS BELOW

The August 29, 2017 opinion of the United

States Court of Appeals for the Eleventh Circuit,

whose judgment is herein sought to be reviewed, is

reprinted in the separate Appendix to this Petition,

page App. 13.

STATEMENT OF JURISDICTION

The decision of the United States Court of

Appeals for the Eleventh Circuit to be reviewed was

entered August 29, 2017. The instant Petition is filed

within 90 days of the date of decision and within 30days of an extension granted by this Court. Petitioner

invokes this Court’s jurisdiction under 28 U.S.C. §

1254(1).

2

CONSTITUTIONAL PROVISIONS,

TREATIES, STATUTES, RULES

AND REGULATIONS INVOLVED1

U.S. Const. Amend VI

Fla. Stat. § 794.011

Fla. Stat. § 784.045

STATEMENT OF THE CASE

Edwin Arvelo (hereinafter, “Arvelo” or

“Petitioner”) turned twenty-one years old his On

August 15, 2006. He stayed up the entire night

without sleeping, consumed an entire bottle of

whiskey and drugs. The following morning Arvelo

drove to work and stopped in a parking garage at

approximately 7:05 a.m., where he saw a woman

getting into her car. Arvelo went over to her, asked to

borrow a cigarette lighter, grabbed her and pulled her

into his car, choking her to keep her quiet and to keep

her from fighting back. He put her in the back seat of

his car, and told her to be quiet or else he would kill

her.

Once in the car, Arvelo attempted to start the

car, but the ignition would not work. He got out of the

car and opened the hood to inspect the engine, and the

victim took the opportunity to lock the doors, blow the

horn, and call for help from passersby. Arvelo fled the

scene, but was apprehended by police a few blocks

1 Aforementioned provisions are reproduced in the appendix.

3

away, and identified by the victim as her attacker. The

victim gave a sworn statement, in which she told

police that she had been abducted and threatened, but

did not state that Arvelo had touched her in a sexual

manner, made any sexual advances, announced any

intention to rape her, or gave any other details that

suggested that the motivation for the attack was

sexual in nature.

After he was apprehended by police, Arvelo was

interrogated by Detective Nick Collins at the Maitland

police Department headquarters. At the beginning of

the

interrogation,

Miranda

warnings

were

administered.2 From the onset of the interrogation

Detective Collins downplayed Arvelo’s offense and

constantly reassured Arvelo that he wanted to help

him fix his “mistake.” Arvelo cried throughout the

three and one-half hour interview and indicated that

he wanted help for his addiction to drugs and alcohol.

During the interview Detective Collins asked

whether Arvelo had been drinking, to which Arvelo

informed him he had been drinking since the day

before to celebrate his birthday. At this time Arvelo

did not disclose to the detective that he had also been

using marijuana and cocaine. (App. 63). However, he

did tell the detective that he had consumed an entire

bottle of whiskey by himself. It was at this time in the

interview that the following transpired:

2 Miranda v. State of Arizona, 384 U.S. 436 (1966).

4

Detective Collins: So tell me what the

urges are and trust me, man; you know

...

Edwin Arvelo: I'm gonna open up, you

know, cause I believe you can help me,

and I want you to help me, you know. I

just don't want to open myself up and just

be going this and just end up, you know,

locked up doing time. Because everything

that I have now is so, you know so

important to me, so, and everything that

I love and that I have in my life, to just

see it slip away, 'cause it's going to slip

away and is never gonna come back. But

I wanna open up because I want the help,

you know.

(App. 241).

Arvelo disclosed to Detective Collins that he

grew up in a home where there was physical, mental

and sexual abuse, and substantial domestic violence.

He confided that he had been sexually abused by his

sister when he was eight years old. At one point,

Detective Collins asked Arvelo if he had ever been

“Baker Acted” before (involuntarily committed for a

psychiatric evaluation), and whether Arvelo had ever

taken psychotropic medication, which he replied that

he had. Detective Collins repeatedly offered what can

only be fairly characterized as psychological insight

and advice to Arvelo when Arvelo disclosed that he

had deviant sexual thoughts:

5

Detective Collins: Now, the cause of that,

you know, now we're looking at the cause

and the effect you know. Because you

were sexually battered, now there is an

effect on something, okay? So I'm trying

to get to what effect it had, you know,

with you being that, what did it lead to.

Cause what I'm looking to do,

remember, is I'm looking to break

that cycle, man.

(App. 253).

Detective Collins then continued to minimize

Arvelo’s actions and indicated that Arvelo had only

minor infractions on his record, and minimized the

impact of that record, stating:

Edwin Arvelo: Has anyone spoken to you

about my record? Has anyone looked at

my record?

Detective Collins: I’ve looked at your

record, your record is . . . dude, your

record is two pages, man. Come one what

is that you know, indecent exposure.

That’s anything from peeing in the

bushes to, you know, mooning my buddy

driving by in a car. Okay, you know what

I’m saying.

(App. 258).

6

Detective Collins began to question Arvelo

about the details of the incident and his actions toward

the victim. Particular attention was paid to Arvelo’s

intention in abducting the victim, with Detective

Collins repeatedly asking Arvelo what he planned to

do with her. In response, Arvelo told Detective Collins

that he had thought of sexually assaulting the victim.

Detective Collins then built upon this theme,

suggesting to Arvelo that because he was the victim of

sexual abuse when he was a child, that experience

caused him to experience uncontrollable lustful urges

that manifested themselves as the attack on the

victim, which Arvelo accepted as an explanation.

Detective Collins asked Arvelo whether he had

touched the victim on her vagina, breasts, removed

any of her clothing, or otherwise had any sexual

contact with her, which Arvelo pointedly denied.

Detective Collins also deliberately minimized

the sentencing consequences Arvelo was facing,

repeatedly reassuring him that he was not in serious

trouble:

Detective Collins: You ain’t in here for

something, for something that’s going to

take your life away, okay, alright?

You’re not in here for that, okay.

You’re in here for a mistake, right?

Okay. There’s a big difference.

…

7

And sometimes, what seems like a bad

thing is not necessarily a bad thing as it

can save you.

…

Detective Collins: Okay, exactly. Alright

and I’m looking at a young person, and

young people make mistakes all the time,

okay. I'm not sitting in here with some

hardened criminal that’s got a 20 year

history with a rap sheet longer than my

arm, and I sit in here with them all the

time. We're not talking about that right?

You’re not that kind of guy, I'm not

sitting here with that kind of guy. I know

that. You know that and I know that,

okay. I'm sitting in here with a young

person that's made a mistake, okay. But

I'm looking at a young person that, he's

only 21, you know what I'm saying. You,

you, you can get by mistakes as a

young person and have a whole life

ahead of you.

(App. 234-237).

At the end of the interrogation, Arvelo asked

Detective Collins whether he would be going to jail,

and whether he would be able to bond out. Detective

Collins, continuing to intentionally deceive Arvelo and

minimize the seriousness of the situation, told him,

“Yeah, you should get a bond. You kidding, me, man, I

have guys in there for murder that get bond $20,000.”

8

Contrary to what he had told Arvelo about the

seriousness of the situation, Detective Collins

completed a Charging Affidavit, charging Arvelo with

the crimes of attempted murder in violation of Florida

Statutes § 782.051(1), and kidnapping with intent to

commit a felony in violation of Florida Statutes §

787.01(1)(A)(2). Each of the charges carried a potential

sentence of life imprisonment without parole, and a

mandatory minimum sentence of twenty-five years

imprisonment pursuant to Florida Statutes §

775.082(4a)(ii).

Arvelo was subsequently charged in the Ninth

Judicial Circuit Court in and for Orange County,

Florida in an Information with Count # 1, kidnapping

with intent to commit a sexual battery in violation of

Florida Statutes § 787.01(a)(2), Count # 2, attempted

sexual battery with a deadly weapon or physical force

in violation of Florida Statutes §§ 794.011(3), 774.04,

Count # 3, aggravated battery causing great bodily

harm in violation of Florida Statutes § 784.045(a)(1),

and Count # 4, attempted first-degree murder in

violation of Florida Statutes § 782.04(1)(a)(1). Counts

#1, #2 and #4 were each punishable by life

imprisonment without the possibility of parole.

Declared indigent, he was assigned a public defender

to represent him.

During the eight months that counsel

represented Arvelo, she met with him approximately

four times. Their discussions during these meetings

focused on the charges, possible sentences, and

9

changes to court dates. There was no discussion of any

defense to the charges, or suppression of the

statement; in fact, counsel told Arvelo that she could

not think of any defense to his case, and invited Arvelo

to come up with his own defense, as she believed the

prosecution’s case was indefensible. Counsel advised

Arvelo to simply enter a plea of no contest to all

charges, and throw himself on the mercy of the court.

It is undisputed that counsel never moved to suppress

the statements Arvelo made to Detective Collins, or

make any other substantive motions.

Upon the advice of his public defender, Arvelo

entered a no-contest plea to all counts against him. On

April 13, 2007, the state court sentence Arvelo to sixty

(60) years of incarceration with the Florida

Department of Corrections, followed by 15 years of

probation. Arvelo timely appealed the Judgment and

Sentence to the Florida’s Fifth District Court of

Appeal, which entered a per curiam affirmance of the

Judgment and Sentence on June 3, 2008. The

Appellate Court issued its mandate on June 20, 2008.

On April 15, 2009, Arvelo, pro se, filed a Motion

for Post-Conviction Relief pursuant to Florida Rule of

Criminal Procedure 3.850, which he later amended. In

his Amended Motion for Post-Conviction Relief, Arvelo

argued that because his counsel failed to advise him of

meritorious defenses to the charged crimes prior to his

entry of an open plea of nolo contendere his sentence

violated his Sixth Amendment right to effective

assistance of counsel.

10

The State Court denied Arvelo’s motion without

an evidentiary hearing on February 20, 2012. Arvelo

appealed the state court’s decision, which was

affirmed by the appellate court, per curiam, on June

12, 2012.

A petition for habeas corpus relief pursuant to

28 U.S.C. § 2254 was filed in the United States

District Court for the Middle District of Florida, which

was denied on March 4, 2014. Arvelo filed a timely

notice of appeal on April 1, 2014, and moved for a

certificate of appealability. On August 28, 2014, the

United States Court of Appeals for the Eleventh

Circuit granted a certificate of appealability with

respect to one claim of ineffective assistance of

counsel, thereby permitting Arvelo to appeal. (App.

15).

Ultimately, the Eleventh Circuit reversed the

summary denial of the § 2254 petition in a published

decision, and remanded to the United States District

Court for the Middle District of Florida for an

evidentiary hearing. Arvelo v. Secretary, Florida

Department of Corrections, 788 F.3d 1345 (11th Cir.

2015).

During the evidentiary hearing held before the

District Court, Arvelo’s public defender, Catherine

Conlon, was questioned about her representation. She

testified that her decision forego a suppression motion

was made prior to her review of either the audio

recording or the video of the interrogation, and likely

11

before any review of the transcript of the

interrogation. During the questioning of Conlon the

following transpired:

Q: All right. Do you remember discussing

with the defendant any basis for a

possible motion to suppress his

statement?

A: I have this vague recollection where

prior to visiting him at the jail, that I had

done some research about whether or not

he was so intoxicated, that there would

be a good basis for a motion to suppress.

Q: So you did some legal research into the

grounds to move to suppress based on

intoxication that may make a statement

involuntary?

A: I have a vague recollection of that. I

can't think of any other case where that

was the issue. So I have a vague

recollection of that and discussing that I

didn't think that the criteria could be

met.

Q: Why would that be? Because he -- let

me ask you this. Had you reviewed the

video of the interview at that point?

A: I don't recall what I had.

Whatever the State had provided to

me in discovery is what I would have

reviewed.

Q: So you discussed -- you don't have -let me see if I get this correct. You don't

12

have a clear recollection of actually

discussing it with the defendant, but you

do remember researching the issue?

A: I have a vague recollection of it. I don't

-- I think it was in this case; but in all

fairness, I don't remember.

Q: Now, in this particular case, you had

an audio-recorded statement and a videorecorded statement of the interview with

Edwin Arvelo, correct?

A: Yes.

Q: Did you listen to the entire video?

A: I don't remember. Whatever I was

given by the State is what I looked at

and reviewed.

…

Q: Did you ever read the transcript of the

audio recording?

A: If the State provided it, I reviewed it.

Q: But as you sit here today, you have no

independent recollection of whether you

did that or not?

A: No.

Q: Did you ever send out any audio

recording or video recording for

transcription by your own court reporter

service?

A: No.

Q: Did you ever submit the audio or video

recording for any expert analysis to see if

maybe it had been tampered with or

edited in any way?

13

A: No.

Q: Did you ever submit the audio or the

video to any forensic psychologist for

review?

A: The only person I would have given it

to would have been Dr. Mings, and I don't

remember if I did that or not.

Q: You have no recollection of whether

you gave Dr. Mings the audio?

A: I have no -- I don't remember

(App. 147-169).

The record conclusively established that

neither the audio recording of the interrogation, the

video recording, or the transcript of the interrogation

was turned over to defense counsel until February

2007 – months after Conlon conducted a 10-minute

deposition of Detective Collins which was held on

November 27, 2006.

Linda Drane Burdick, the Assistant State

Attorney who prosecuted Arvelo, testified that prior to

the depositions of November 27, 2006, trial counsel

had already been provided the transcript of Arvelo’s

post-arrest interrogation. However, her testimony was

contradicted by a notice of supplemental discovery

that she signed on February 20, 2007, which clearly

indicated that the transcript and video had been

provided after defense counsel had already made the

decision to enter a guilty plea. In spite of written

documentary evidence to the contrary and her own

14

signature, Burdick again insisted that it had been

previously provided prior to the November 27, 2006

deposition. Burdick was then confronted with the last

page of the Maitland Police Department transcript,

which conclusively established that the transcript was

not completed until February 4, 2007 – approximately

two and one half months after the November 27, 2006

deposition had been completed. Assistant State

Attorney Burdick was unable to explain the

discrepancy.

Similarly, during the evidentiary hearing

Conlon was questioned about the sentence that Arvelo

received and admitted that had she known Arvelo was

going to receive a sixty-year sentence she would have

filed the motion to suppress. Further, during

questioning she stated:

A: I think 60 is almost a life sentence;

and, obviously, had I known it was

going to be 60, he would have said go

to trial.

Q: Say that last part again. I'm sorry. If I

had known?

A: If I had known that the judge was

going to give 60, I'm sure Mr. Arvelo

would have wanted to go to trial.

(App. 191).

15

Notably, during the evidentiary hearing the

District Court inquired as to why counsel did not seek

a motion to suppress Arvelo’s testimony:

THE COURT: What was the significance

of the confession -THE WITNESS: Okay.

THE COURT: -- to the State's ability to

prove its case; and, two, what was the

down side of not filing a motion to

suppress? I mean, why wouldn't you just

do that, unless there's a down side to it?

…

THE COURT: I mean, if you were

counsel for him at trial and you had to try

this case, wouldn't you be a lot better off

not having that confession in front of the

jury?

THE WITNESS: Yes.

THE COURT: So why didn't you try?

THE WITNESS: Why didn't I try it?

THE COURT: Yes. What was the down

side -THE WITNESS: He -THE COURT: -- other than your time?

THE WITNESS: Well, he didn't -- my

recollection was that he didn't want to

risk going to trial and facing that

possible life sentence after trial, because

I think after the testimony of the

witnesses, the judge could have -- and if

there was a conviction, then the judge

16

could have given him life; and the judge

could have heard more evidence through

what he had at either the plea and

sentencing.

THE COURT: Well, I think what you're

telling me is that by the time the

suppression issue was ripe between you

and your client, he had already decided

he would rather plea than take a chance

at trial, even if the confession were

suppressed? That's what you're trying to

tell me, I think.

THE WITNESS: I think I had a

discussion with him about the motion to

suppress. I guess I didn't think that it

was likely to be granted.

…

THE COURT: But if a confession is

significant to your client's case,

which I think in this case it was at

least significant, I don't understand

the down side of not filing it and I

don't think you've told me one.

(A pause.)

THE WITNESS: I don't think I have

an answer as to why I did not do it.

THE COURT: Okay.

(App. 161-163).

After the evidentiary hearing, the District

Court again denied relief. Arvelo timely applied for a

17

Certificate of Appealability, again, to the Eleventh

Circuit, which issued an En Banc decision filed on May

10, 2017. (App. 13). The Eleventh Circuit ruled that

“Arvelo’s confession was voluntary, the state court

would have denied a motion to suppress the

confession. Thus, Arvelo was not prejudiced by his

trial counsel’s failure to file a motion to suppress –

such a motion would not have influenced Arvelo’s

decision to enter a plea because it would have failed.”

(App. 13).

This timely Petition follows.

REASONS FOR GRANTING THE WRIT

I. TO DETERMINE WHETHER

COUNSEL’S FAILURE TO MOVE TO

SUPPRESS THE PETITIONER’S

TESTIMONY GIVEN TO POLICE,

UNDER COERCIVE CONDITIONS,

IS SUFFICIENT EVIDENCE TO

FIND COUNSEL INEFFECTIVE

AND FIND THAT PETITIONER’S

RIGHT

UNDER

THE

SIXTH

AMENDMENT WAS VIOLATED.

The United States Constitution guarantees

each defendant in a criminal prosecution the right to

the effective assistance of counsel. U.S. Const. Amend.

VI. The fundamental right to the effective assistance

of counsel is recognized not for its own sake, but

because of the effect it has on the ability of the accused

18

to receive Due Process of Law in an adversarial system

of justice. United States v. Cronic, 466 U.S. 648, 658

(1984).

This Court has held that “[t]he benchmark of

judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial

[court] cannot be relied on having produced a just

result.” Strickland v. Washington, 466 U.S. 668, 686

(1984). Under the Strickland standard, ineffective

assistance of counsel is made out when the defendant

shows that (1) trial counsel’s performance was

deficient, i.e., that he or she made errors so egregious

that they failed to function as the “counsel guaranteed

the defendant by the Sixth Amendment,” and (2) the

deficient performance prejudiced the defendant

enough to deprive him of due process of law. Id. at 687.

A court deciding a claim of ineffective

assistance of counsel must judge the reasonableness of

counsel's challenged conduct on the facts of the

particular case, viewed as of the time of counsel's

conduct. “The court must then determine whether, in

light of all the circumstances, the identified acts or

omissions were outside the wide range of

professionally competent assistance. In making that

determination, the court should keep in mind that

counsel's function, as elaborated in prevailing

professional norms, is to make the adversarial testing

process work in the particular case.” Strickland, 466

U.S. at 690. Strickland cautions courts to refrain from

19

second-guessing counsel’s strategic decisions from the

superior vantage point of hindsight. Id. at 689.

“Strategic choices made after a thorough investigation

of law and facts relevant to plausible options are

virtually unchallengeable.” Id. at 690-691 (emphasis

added). At the same time, “virtually unchallengeable”

does not mean wholly unchallengeable. See Pavel v.

Hollins, 261 F.3d 210, 218 (2d Cir. 2001); see also

Phoenix v. Matesanz, 233 F.3d 77, 82 (1st Cir. 2000).

Further, courts have held that “[c]ertain defense

strategies, however, may be so ‘ill-chosen’ as to render

counsel’s overall representation constitutionally

defective.” Adams v. Balkcom, 688 F.2d 734, 738 (11th

Cir. 1982).

This Court held in Hill v. Lockhart, 474 U.S. 52

(1985) in order for the prejudice requirement standard

for evaluating claims of ineffective assistance of

counsel under Strickland, a defendant “must show

that there was reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial. (citing U.S.

Const. Amend. 6.).

This Court and many other federal courts have

recognized the great weight afforded to confessions by

defendants in a criminal case. Additionally, the courts

have offered opinions warning of the dangers a false

or coerced confession may have on the outcome of a

criminal matter. In United States v. Rutledge, 900

F.2d 1127 (7th Cir.1990), Judge Posner observed that

through promises of non-prosecution, “the government

20

has made it impossible for the defendant to make a

rational choice as to whether to confess—has made it

in other words impossible for him to weigh the pros

and cons of confessing and go with the balance as it

appears at the time.” Id. at 1129. Thus, “if the

government feeds the defendant false information

that seriously distorts his choice ... then the confession

must go out.” Id.

Here, as in Rutledge, Detective Collins’ willful

deception and false promises made it impossible for

Edwin Arvelo to make a rational choice. All of the false

information that Detective Collins fed to Petitioner

clearly distorted his perception of the true peril that

the confession would put him in. By falsely promising

help, minimizing the consequences, and implying that

there would be no prosecution, Detective Collins

exerted the exact kind of psychological coercion that

resulted in Petitioner’s free will being overborne.

Effective assistance of counsel requires that an

attorney do more than simply stand next to a client in

court as a potted plant. The Supreme Court described

the duty to provide effective assistance as follows:

The right to the effective assistance

of counsel is thus the right of the

accused to require the prosecution's

case to survive the crucible of

meaningful

adversarial

testing.

21

When a true adversarial criminal trial

has been conducted - even if defense

counsel may have made demonstrable

errors - the kind of testing envisioned by

the Sixth Amendment has occurred. But

if the process loses its character as a

confrontation between adversaries, the

constitutional guarantee is violated. As

Judge Wyzanski has written: “While a

criminal trial is not a game in which the

participants are expected to enter the

ring with a near match in skills, neither

is it a sacrifice of unarmed prisoners to

gladiators.” United States ex rel.

Williams v. Twomey, 510 F.2d 634, 640

(CA7), cert. denied sub nom. Sielaff v.

Williams, 423 U.S. 876, 96 S.Ct. 148, 46

L.Ed.2d 109 (1975).

United States v. Cronic, 446 U.S. 648, 656-657 (1984)

(emphasis added).

Many courts have recognized that “[a]

confession is like no other evidence. Indeed, ‘the

defendant's own confession is probably the most

probative and damaging evidence that can be

admitted against him.’” See, e.g. Mansfield v. Sec’y,

Dept. of Corr., 679 F.3d 1301 (11th Cir. 2012) (quoting

Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct.

1246, 113 L.Ed.2d 302 (1991)); United States v.

Carrasco, 540 F.3d 43 (1st Cir. 2008); Zappulla v. New

22

York, 391 F.3d 462 (2d. Cir. 2004); United States v.

Brownlee, 454 F.3d 131 (3d. Cir. 2006); United States

v. Gillion, 704 F.3d 284 (4th Cir. 2012); United States

v. Avants, 278 F.3d 510, 522 (5th Cir. 2002); McCray

v. Metrish, 232 F.3d 469 (6th Cir. 2007); United States

v. Felming, 594 F.2d 598 (7th Cir. 1979); Lufkins v.

Leapley, 965 F.2d 1477 (8th Cir. 1992); Hayes v.

Brown, 399 F.3d 972 (9th Cir. 2005); United States v.

Perdue, 8 F.3d 1455 (10th Cir. 1993).

As a result, courts have held that a failure on

the part of an attorney to move to suppress

incriminating statements taken in violation of a

defendant’s

Constitutional

rights

constitutes

ineffective assistance of counsel. See Martin v. Maxey,

98 F.3d 844, 848 (5th Cir. 1996); Kirkpatrick v. Butler,

870 F.2d 276, 283 (5th Cir. 1989), cert. denied, 493

U.S. 1051 (1990); see also Thomas v. Varner, 428 F.3d

491, 495 (3d Cir. 2005) (ineffective assistance of

counsel for failing to suppress unduly suggestive

identification); Morrison v. Kimmelman, 752 F.2d 918,

922 (3d Cir. 1985) affirmed on other grounds 477 U.S.

365 ("proper norms of advocacy" required a "timely

[motion] to suppress" where there was a valid basis for

suppression); Rodriguez v. Young, 906 F.2d 1153, 1161

(7th Cir. 1990) (failure to move to suppress

identification “objectively unreasonable”); Cossel v.

Miller, 229 F.3d 649, 654-655 (7th Cir. 2000) (holding

ineffective assistance of counsel for failure to move to

suppress the “pivotal evidence in the case”).

23

Florida courts have also identified a number of

factors to consider whether police coercion renders a

defendant’s confession involuntary. See State v.

Sawyer, 561 So.2d 278, 281-82 (2d DCA 1990)

(whether the confession was given in a coercive

environment…whether psychological coercion was

applied…whether the police made threats, promises of

leniency, or made statements to delude the suspect as

to his or her true position…whether the police exerted

undue influence or made direct or implied promises of

benefits, accused’s emotional condition); State v.

Charon, 482 So.2d 392, 393 (3d DCA 1985) (“youth, his

inexperience with the law, his lack of counsel”);

Thompson v. State, 548 So.2d 198, 204 (Fla. 1989)

(“mental weakness of the accused is a factor”); Reddish

v. State, 167 So.2d 858, 860 (Fla.1964) (“physical

condition of the appellant at the time the confessions

were obtained.”); Telfort v. State, 978 So.2d 225, 228

(4th DCA 2008) (“an implied promise of leniency was

sufficient to render a confession involuntary.”); State

v. Mallory, 670 So.2d 103 (1st DCA 1996) (“It is fear of

material or physical harm, or hope of material award,

which renders a confession inadmissible.”); Williams

v. State, 441 So.2d 653 (3d DCA 1983) (“defendant’s

confession was wrongfully extracted by law

enforcement officers, who deceived defendant and

promised to tell of her cooperation.”).

An application of these factors to the instant

case reveals that not only was there a good-faith basis

for counsel to file a suppression motion; it is probable

that Petitioner’s statements would have been

24

suppressed in accordance with the law. This Court has

not ruled on whether failure to move to suppress a

coercive confession is sufficient to show a violation of

the Sixth Amendment right to effective assistance of

counsel. This case lays the framework for future cases

where unlawful interrogations may result in far

greater criminal sentences.

The facts of the case now before this Court are

shocking and depict a picture of clear and objectively

unreasonable assistance of counsel. It is clear from the

testimony elicited from trial counsel that her failure to

suppress cannot be considered a “sound trial

strategy;” which, under Strickland, would be a valid

argument. Instead, the evidence and trial counsel’s

own testimony clearly show the failure to file a motion

to suppress was not a strategy, but rather ineffective

representation in violation of the Sixth Amendment.

This Court held in Strickland that we must

avoid “the distorting effects of hindsight” and evaluate

the reasonableness of counsel’s performance from the

perspective of counsel at the time the acts or omissions

were made. Strickland, 466 U.S. at 689. Regardless of

trial counsel’s hindsight in this matter, her failure to

move to suppress the key evidence in the case against

her client, obtained by false promises and while he

was under the influence of drugs and alcohol, is wholly

unreasonable.

The Petitioner in this case is now at the point

where he was coerced by false promises and gave

25

police testimony that was untrue because he wanted

help. After he did not receive the help promised to him

by police, the Petitioner was then offered no guidance

from his court appointed attorney and was convinced

that his only option was to beg the court for leniency.

The Petitioner has now been convicted and sentence

to a de facto life sentence; has petitioned his case

before many courts for a decade; and he now must rely

on another court to try and undo all of that damage.

Having been misguided by police and offered

objectively unreasonable assistance of counsel, this

Petitioner respectfully request that this Court

consider his petition on the merits.

II.

PETITIONER

RECEIVED

INEFFECTIVE ASSISTANCE OF

COUNSEL

WHERE

COUNSEL

FAILED TO MOVE TO SUPPRESS

STATEMENTS MADE TO LAW

ENFORCEMENT IN VIOLATION OF

HIS FIFTH AMENDMENT RIGHTS,

AND THOSE STATEMENTS WERE

DAMAGING AND THE PIVOTAL

BASIS FOR THE AGGRAVATING

CHARGES AGAINST PETITIONER

WHICH RESULTED IN A DE FACTO

LIFE SENTENCE

This Court set the precedent in Strickland v.

Washington, holding that “[t]he benchmark of judging

any claim of ineffectiveness must be whether counsel’s

26

conduct so undermined the proper functioning of the

adversarial process that the trial [court] cannot be

relied on having produced a just result.” Strickland,

466 U.S. at 686. Under the Strickland standard,

ineffective assistance of counsel is made out when the

defendant shows that (1) trial counsel’s performance

was deficient, i.e., that he or she made errors so

egregious that they failed to function as the “counsel

guaranteed the defendant by the Sixth Amendment,”

and (2) the deficient performance prejudiced the

defendant enough to deprive him of due process of law.

Id. at 687.

The Seventh Circuit Court of Appeals ruled in

Hicks v. Hepp, 871 F.3d 513 (7th Cir. 2017), that in

order for a claim of ineffective assistance of counsel,

based upon a failure to file a motion to suppress, to

succeed the petitioner must demonstrate “[t]hat there

was both a reasonable probability that he would have

prevailed on the motion to suppress and a reasonable

probability that, if his confessions were suppressed, he

would have been acquitted.” (citing Bynum v.

Lemmon, 560 F.3d 678, 685 (7th Cir. 2009); see also

Strickland, 466 U.S. at 694.

This Court held in Bram v. United States, 168

U.S. 532 (1897), “a confession, in order to be

admissible, must be free and voluntary; that is, must

not be extracted by any sort of threats or violence, nor

obtained by a direct or implied promises, however

27

slight.” Id. at 542 (internal quotations omitted). In

Brady v. United States, 397 U.S. 742 (1970), this

Court reasoned that “even a mild promise of leniency,”

though not “an illegal act as such,” undermines the

voluntariness of a confession “because defendants at

such times are too sensitive to inducement and the

possible impact on them too great to ignore and too

difficult to assess.” Id. at 754. the issue of

voluntariness is determined by examining the totality

of the circumstances. United States v. Lall, 607 F.3d

1277 (11th Cir. 2010).

Numerous courts have identified factors to be

considered in the totality-of-circumstances rubric. See

Lall, supra ("a significant aspect of that inquiry here

involves the effect of deception in obtaining a

confession”); United States v. Thompson, 422 F.3d

1285, 1295-1296 (11th Cir. 2005) (“Sufficiently

coercive conduct normally involves subjecting the

accused to an exhaustingly long interrogation, the

application of physical force or the threat to do so, or

the making of a promise that induces a confession”);

Coleman v. Singletary, 30 F.3d 1420, 1426 (11th Cir.

1994) ("Mental illness is one factor to be considered in

determining whether a waiver was made knowingly");

Fare v. Michael C., 442 U.S. 707, 725 (1979)

(defendant’s age, experience, education, background

and intelligence are factors to consider in a

voluntariness determination); Parker v. Allen, 565

F.3d 1258, 1280 (11th Cir. 2009) ("A confession that

28

was not the product of free will and rationale intellect

or that was made when the individual's will was

‘overborne’ by physical, psychological, or drug-induced

means, is inadmissible").

Here, the record establishes that Petitioner

turned twenty-one years old the night before his

arrest. To celebrate his birthday, he drank an entire

bottle of whiskey, consumed drugs, ate nothing, and

stayed up the entire night before the incident, which

occurred at approximately 7:00 a.m. Soon after his

arrest, he was clearly in an extremely mentally

vulnerable state. Finding himself in the kind of legal

trouble he had never before experienced due to his lack

of criminal record other than a misdemeanor, he

disclosed that he had significant psychological

problems, was emotional and crying throughout the

interview, and begged his interrogator for help,

expressing his belief that God had sent Detective

Collins to help him.

Taking advantage of an already mentally frail

individual who was clearly in the throes of a

psychological episode, as well as noticeably

intoxicated, Detective Collins repeatedly promised

Petitioner that he would help him; that this incident

appeared to be a single mistake; and that he just

needed to “clear up” this mistake and find out why this

incident had occurred. He grossly minimized the

seriousness of the charges, telling Petitioner that it

29

was unlikely he would go to prison for this single

mistake in his life, and even promised that he would

be bonded out of jail quickly. While feeding Petitioner

this

false

information,

Detective

Collins

simultaneously charged him with felonies that were

punishable by a mandatory minimum of twenty-five

years imprisonment, and a maximum of life without

the possibility of parole, a fact of which Petitioner was

clearly unable to comprehend and entirely unaware of

at the time he made the statement.

Given this false information and the repeated

assurances, the record is clear that Petitioner opened

up and incriminated himself only because he believed

that in doing so, Detective Collins would fulfill the

false promises of leniency and help that Petitioner

sought.

With respect to the charges brought against the

Petitioner under count numbers one and two, i.e.,

kidnapping with intent to commit a sexual battery in

violation of Florida Statutes § 787.01(a)(2) (count #1);

attempted sexual battery with a deadly weapon or

physical force in violation of Florida Statutes §§

794.011(3), 774.04 (count #2), the crux of the case

against him was the coercive testimony he offered to

investigators. The suppression motion therefore was a

critical defense, because without that confession, the

prosecution had absolutely no evidence to support any

charge that was sexual in nature. The only evidence

30

corroborating the incident that occurred in the

parking garage was that of the victim, whom explicitly

told officers that the Petitioner did not touch her

sexually, did not make any sexual remarks to her, and

she did not believe she was going to be sexually

assaulted.

Given the fact that the only evidence in support

of counts one and two was the testimony given by the

Petitioner, this court can readily assume that he

would have been acquitted had the confession been

suppressed. The standard set for in Strickland does

not require the Petitioner to show that he would have

been acquitted on all charges. Instead, the Petitioner

merely needs to show that counsel’s failure to

suppress his coercive testimony resulted in a prejudice

against him. It is without question that a thirty (30)

year extension to one’s sentence due to counsel’s

failure to move to suppress the prosecution’s sole

evidence against the petitioner: is prejudicial.

Even if counsel reasonably thought that a

motion to suppress would have been ultimately

unsuccessful, she still should have moved to suppress

as even an unsuccessful motion would have had value

to the defense of Edwin Arvelo. Every trial attorney

knows full well that a suppression hearing is a golden

opportunity to test the credibility of a key witness on

the witness stand and to start building a defense.

Counsel should have used the opportunity to probe for

31

and uncover weaknesses in the State’s case; she

should have locked Detective Collins into sworn

testimony that he would have been unable to change

at trial without committing perjury or at least

subjecting himself to a vigorous impeachment; counsel

should have used the opportunity to set up a trial

defense to discredit Detective Collins as a liar who

used suggestive, coercive, underhanded, and outright

dishonest tactics on a clearly-vulnerable Edwin Arvelo

to induce him to incriminate himself; counsel should

have used the hearing as an opportunity to build up a

“false confession” defense to use at trial, develop

evidence for an expert to review in preparation of such

a defense, and at the very least develop the record to

later cast significant doubt on the reliability of the

statements themselves to a jury.

In the best-case scenario, the trial court would

have suppressed the statements, and Edwin Arvelo

would have been in a significantly better position to

either litigate his case at trial, or to use suppression

as a bargaining chip to negotiate a better outcome. In

the worst-case scenario, an unsuccessful motion would

have given Arvelo a chance to develop a trial defense,

and make an informed decision as to whether to go to

trial or negotiate a plea bargain. He would still have

had the chance to appeal the issue to a higher court

and live to fight another day, and possibly use the

possibility to his advantage in plea bargaining. It is

clear he would have been in no worse position had

32

counsel litigated suppression. There was simply no

logical, reasonable explanation for counsel to waive

the only possible defense he had under any theory.

The only action of counsel was to sacrifice

Arvelo and throw him upon the mercy of the court and

beg for leniency without bothering to subject the

State’s case to any sort of meaningful adversarial

testing. If suppression was unsuccessful, then counsel

could have still used the same factors as a basis for

mitigation in sentencing later – except with the added

benefit of a record of testimony from the State’s

witness in support, rather than only a defense

mitigation expert. The difference is that a suppression

motion would have bore fruit for Arvelo, as opposed to

a strategy to do nothing but enter a “blind plea” that

resulted in sixty years imprisonment, and a de facto

life sentence, which was the same sentence Arvelo

would have faced had he gone to trial and been

convicted.

By failing to move to suppress, counsel waived

the only possible defense Edwin Arvelo had. This

failure permeated his case, as the statements were the

sine qua non of the case against him. Without those

statements in the case, the result would almost

certainly have been different in Arvelo’s favor. As a

consequence, trial counsel, in failing to act as an

adversary to the prosecution, rendered ineffective

33

assistance of counsel that resulted in extreme

prejudice.

This error was not harmless. In United States

v. Mejia, 545 F.3d 179, 199 (2d. Cir. 2008), the Second

Circuit set forth the Federal standard of determining

whether error is harmless:

Several factors are relevant when

evaluating the error's likely impact: (1)

the strength of the Government's case;

(2) the degree to which the testimony was

material to a critical issue; (3) the extent

to which the statement was cumulative;

and (4) the degree to which the

Government

emphasized

the

inadmissible evidence in its presentation

of its case. Though all of these factors are

relevant, we have stated that the

strength of the Government's case is

"probably the single most critical factor."

Id., citing United States v. Reifler, 446 F.3d 65, 87 (2d

Cir. 2006).

Here, the strength of the State’s case rested

almost exclusively upon Appellant’s own statements

to law enforcement, which would have and should

have been suppressed. As argued above, this was the

critical evidence in the case, and not merely

34

cumulative. Without at least some of Arvelo’s

statements, there was no attempted sexual battery

and no kidnapping with intent to commit a sexual

battery. Without those charges, instead of facing the

thirty years imprisonment that he actually received

for the kidnapping charge, he would have faced only a

maximum of five years imprisonment for false

imprisonment – a difference of twenty-five years.

Likewise, the attempted sexual battery charge would

have not survived, resulting in fifteen years of

probation being cut from his sentence.

CONLCUSION

The great weight of the evidence and the case

law governing this matter is in favor of the Petitioner.

Through clear and convincing evidence, the Petitioner

has shown that his confession was obtained under

impermissible conditions and under the false pretense

that he would be receiving help if just admitted to

things he did not do or plan to do. Without this

confession, there can be no doubt that the Petitioner

would not have been convicted of the crimes of

attempted

sexual

battery.

Accordingly,

the

Petitioner’s sentence would not have received an

additional thirty-year sentence and would have been

afforded a greater opportunity to prevail at trial.

Thus, trial counsel’s failure to move to suppress

Petitioner’s confession was unreasonable, prejudicial,

and a violation of his Sixth Amendment rights to

effective assistance of counsel.

35

Respectfully submitted on this 27th day of

December 2017.

Patrick Michael Megaro, Esq.*

Jaime T. Halscott, Esq.

Robert Hughes, Esq.

Halscott Megaro, P.A.

Attorneys for Petitioner

33 East Robinson St., Suite 210

Orlando, Florida 32801

(o) 407-255-2164

(f) 855-224-1671

pmegaro@halscottmegaro.com

*Counsel of Record