Petition for Writ of Certiorari — Rene Rivera, Petitioner v. Mark S. Inch, Secretary, Florida Department of Corrections, et al.

No.

c

D=

)

IN THE

Supreme Court of the United States

RENE RI\RA,

-

Petitionr,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Mark Inch, and

ATTORNEY GENERAL OF FLORIDA, Ashley Moody,

Respondent(s).

LED

MAR 0 2019

On Petition for Writ of Certiorari

To The United States Court of Appeals

For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

RENE RIVERA

Petitioner, pro se

DeSoto Correctional Institution Annex

DC# M06791

13617 Southeast Highway 70

Arcadia, Florida 34266-7800

Rivera_Petn4Cert

QUESTIONS PRESENTED

Did the United States Court of Appeals for the Eleventh Circuit and

the United States District Court for the Southern District of Florida apply an

incorrect standard of review as established by this Court in Miller-El v. Cockrell,

537 U.S. 322 (2003), and Slack v McDaniel, 529 U.S. 473 (2000), by denying

Petitioner's application for certificate of appealability based upon a finding that

Petitioner "has failed to make a substantial showing of the denial of a constitutional

right"?

As a matter of first impression, where a defendant in a state criminal

proceeding is handicapped by a language barrier as a foreign-born national, has

intellectual deficiencies, and whose competency to proceed to trial was questioned

on three separate occasions before and during trial, are the State of Florida's

provision of law libraries alone adequate to ensure that indigent prisoners are able

to file meaningful legal papers for post-conviction litigation; or do the Sixth and/or

Fourteenth Amendment protections to a fair trial and due process require the

provision of post-conviction counsel?

1

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

11

TABLE OF CONTENTS

OpinionsBelow ............................................................................................................... 1

Jurisdiction...................................................................................................................... 1

Constitutional and Statutory Provisions Involved .......................................................2

Statementof the Case ..................................................................................................... 3

Reasonsfor Granting the Writ.......................................................................................6

Conclusion....................................................................................................................20

INDEX TO APPENDICES

Appendi.xA

Petition for Writ of Habeas Corpus Under § 2254

Jan. 24, 2017

Appendix B

State's Response to Petition

March 6, 2017

Appendix C

Petitioner's Reply to State's Response

March 29, 2017

Appendix D

Magistrate's Report & Recommendation

May 17, 2018

AppendixE

Petitioner's Objections to Magistrate's Report

May 30, 2018

Appendix F

District Court Order denying habeas corpus

June 18, 2018

Appendix G

Application for Certificate of Appealability

July 29, 2018

Appendix H

Circuit Court Order denying COA

Sept. 13, 2018

Appendix I

Petitioner's Motion for Reconsideration

Oct. 3, 2018

Appendix J

Amended Application for COA

Oct. 3, 2018

Appendix K

Circuit Court Order denying reconsideration

Dec. 11, 2018

111

TABLE OF AUTHORITIES

Cases

Acosta v. State, 10 So-3d 1181 (Fla. 4th DCA 2009)......................................................4

Acosta v State, 7 So.3d 525 (Fla. 2009).........................................................................4

Acosta v State, 956 So.2d 1235 (Fla. 4th DCA 2007) ...................................................4

Alleyne v United States, 570 U.S. 99 (2013) ..............................................................16

Alm endarez-Torres v. United States, 523 U.S. 224 (1998) .........................................18

Apprendi v New Jersey, 530 U.S. 466 (2000) .....................................................passim

Blakely v. Washington, 542 U.S. 296 (2004)................................................................16

Bounds v Smith, 430 U.S. 817 (1977) .....................................................................8, 19

Coleman v. Johnson, 566 U.S. 650, 132 S.Ct. 2060 (2012) ............................13, 14,15

Crum v State, 398 So.2d 810 (Fla. 1981) ....................................................................11

Cunningham v California, 549 U.S. 270 (2007) .........................................................16

Earp v 0rnoski 431 F.3d 1158 (9th Cir. 2005) ...........................................................15

In re Winship, 397 U.S. 358 (1970)..............................................................................13

Jackson v Virginia, 443 U.S. 307 (1979) .........................................................13, 14, 15

Johnson v. Avery, 393 U.S. 483 (1969) ..........................................................................'.7

Jones v United States, 526 U.S. 227 (1999) ...........................................................16, 19

Martinez v. Ryan, 566 U.S. 1, 17 (2012) ................................................................13, 20

McAndless v Furland, 296 U.S. 140 (1935) ...................................................................6

Miller-El v Cockrell, 537 U.S. 322 (2003) .............................................................i, 6,9

Park v California, 202 F.3d 1146 (9th Cir. 2000)..................................................10, 12

Paul v State, 365 So.2d 1063 (Fla. 1st DCA 1979) .....................................................11

Paul

State, 385 So.2d 1371 (Fla. 1980)..............................................................10, 12

Pennsylvania v Finley, 481 U.S. 551 (1987) ...............................................................20

lv

Range] -Reyes v. United States, 547 U.S. 1200 (2006)

.16

Rivera v Jones, No. 17-cv-80101, 2018 U.S. Dist. LEXIS 84065

(S.D. Fla., May 16, 2018) .........................................................................................1

Shepard

United States, 544 U.S. 13 (2005) .............................................................16

Slack v McDaniel, 529 U.S. 473 (2000) .......................................

........................ passim

State v Vazquez, 419 So.2d 1088 (Fla. 1982) ..............................................................11

State v Williams, 453 So.2d 824 (Fla. 1984).........................................................11,

12

United States v. Booker, 543 U.S. 220 (2005); ............................................................16

United States v. Lane, 474 U.S. 438 (1986)...........................................................10, 12

United States v. Lewis, 787 F.2d 1318 (9th Cir. 1986)..........................................10,

United States v. McCain, 358 Fed.Appx. 51 (11th Cir. 2009)..............................

12

.......18

United States v Sherlock, 962 F.2d 1349 (9th Cir. 1989) .....................................10,

12

Upshaw v. United States, 365 U.S. 399 (1961) .............................................................6

Washington v Recuenco, 548 U.S. 212 (2006).............................................................16

Statutes

Section 775.082, Florida Statutes .......................................................................... 17, 18

Section 810.02, Florida Statutes..................................................................................13

Section 944.275, Florida Statutes................................................................................17

Title28 U.S.C. §1254 ....................................................... .......................................

.... 1, 5

Title28 U.S.C. §2253 .................................................................................................. 6, 9

Title28 U.S.C. §2254 .......................................................................................... 4, 14,

15

Other Authorities

Fourteenth Amendment, United States Constitution ........................................passim

Sixth Amendment, United States Constitution ............................................ 2, 8, 17, 20

V

IN THE SUPREME COURT OF THE UNITED STATES

RENE RIVERA, Petitioner,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Mark Inch, and

ATTORNEY GENERAL OF FLORIDA, Ashley Moody, Respondent(s).

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OFAPPEALS FOR THE ELEVENTH CIRCUIT

Petitioner respectfully prays that a writ of certiorari issue to review

the judgment below.

OPINIONS BELOW

The opinion of the United States Court of Appeals appears at Appendix H to

the petition and is unpublished.

The opinion of the United States District Court appears at Appendix F to the

petition and is reported at Rivera v Jones, No. 17-cv-80101, 2018 U.S. Dist.

LEXIS

84065 (S.D. Fla., May 16, 2018).

JURISDICTION

The date on which the United States Court of Appeals decided this case was

September 13, 2018. Appendix H.

A timely petition for reconsideration was denied by the United States Court

of Appeals on December 11, 2018, and a copy of the order denying rehearing appears

at Appendix K.

The jurisdiction of this Court is invoked under 28 U.S.C. §1254 (1).

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Amendment VI, United States Constitution, "In all crimi

nal

prosecutions, the accused shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and district wherein the crime

shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defence."

Amendment XJV Section 1, United States Constitution, "No State

shall make or enforce any law which [ ... ] shall deprive any person

of

life, liberty, or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws."

2

STATEMENT OF THE CASE

On September 20, 2002, Rivera was charged by Information in the Florida

Fifteenth Judicial Circuit Court case 502002CF0110201 with Burglary

of a

Dwelling and Grand Theft at the Bowers-Williams residence. On December

16,

2002, Rivera was charged by Information in cases 502002CF014603 with Burglar

y

of a Dwelling and Grand Theft at the Chitty residence; and 502002CF014604 with

Burglary while Armed and Grand Theft at the Ladd residence.

None of the property purportedly taken from the residences was ever

recovered. The method of entry was different in each residence. Crime Scene

Investigators were unable to locate a single foreign fingerprint in any residen

ce.

The only evidence tying Rivera to any of the burglaries was purported drops

of

human blood found at each of the residences (some inside, some outside) contain

ing

DNA that matched to Rivera.

On May 9, 2003, the State of Florida moved to consolidate the three cases for

trial. Over defense objection, the trial court granted the motion and consolidated

the

three cases. The consolidate cases proceeded to a single trial before a single jury,

who heard the State's aggregated evidence regarding all three cases.

On August 26, 2004, the jury found Rivera guilty as charged on all counts. On

October 14, 2004, the trial court adjudicated Rivera guilty on all three cases

and

sentenced him as a Prison Releasee Reoffender to life imprisonment for

the

Burglary while Armed count on case 502002CF14604, and to 15 years imprisonment

for each of the other two burglaries. The court imposed five-years sentences

3

in

prison for each of the three Grand Theft counts. All sentences were to run

concurrently to each other.

On May 23, 2007, the Florida Fourth District Court of Appeal affirmed

Rivera's convictions and sentences in direct appeal case number 4D044307. See

Acosta v State,' 956 So.2d 1235 (Fla. 4th DCA 2007). The mandate issued on June

8, 2007. On March 19, 2009, the Florida Supreme Court, in its case number SC07

1030, quashed this Court's decision with directions to remand to the trial court for

further proceedings. See, Acosta v. State, 7 So.3d 525 (Fla. 2009). On June 10, 2009,

the Fourth District Court withdrew its original opinion and again affirmed Rivera's

sentences in case 4D04-4307. See, Acosta v State, 10 So.3d 1181 (Fla. 4th DCA

2009). The mandate issued on August 7, 2009.

In the intervening years, Rivera subsequently filed various collateral

challenges to his convictions and/or sentences in state courts.

On January 24, 2017, having exhausted his conventional remedies for

collateral relief in the state courts, pursuant to 28 U.S.C.

§ 2254, Rivera petitioned

the United States District Court for the Southern District of Florida, for habeas

corpus relief. Appendix A. The District Court ordered the State of Florida to respond

to the petition and, on March 6, 2017, the State complied. Appendix B.

On March 29, 2017, Rivera filed a reply brief to the State's response.

Appendix C. On May 17, 2018, the Magistrate Judge issued his report and

recommendation. Appendix D. On May 30, 2018, Rivera filed his objections to the

I Rivera was

originally prosecuted under several aliases, including Erick R. Acosta, Ruiz E. Acosta,

and Jose Rodriguez.

Magistrate's report. Appendix E. On June 18, 2018, the District Court entered an

order adopting the Magistrate's report and summarily denying Rivera's petition.

Appendix F. In the same order, the District Court denied Rivera a certificate of

appealability ("COA").

On July 29, 2018, Rivera applied to the United States Court of Appeals for

the Eleventh Circuit for a COA. Appendix G. On September 13, 2018, the Eleventh

Circuit Court summarily denied the COA. Appendix H. On October 3, 2018, Rivera

timely moved the Circuit Court for reconsideration, Appendix I; and, in an effort to

clarify his points for review, submitted an amended application for COA. Appendix

J. On December 11, 2018, the Circuit Court summarily denied reconsideration.

Appendix K.

This petition follows within 90 days of the Eleventh Circuit Court's denial of

reconsideration if filed on or before March 11, 2019. 28 U.S.C. §1254 (1).

5

REASONS FOR GRANTING THE WRIT

Scope of Certiorari Review

The United States Supreme Court has authority to reverse a circuit court of

appeals decision to affirm the district court's order denying a petition for writ of

habeas corpus attacking a state conviction on federal grounds where it

misconstrued, misapplied, or misconceived an applicable United States Supreme

Court opinion. See McAndless v Furland, 296 U.S. 140 (1935); Upshaw v. United

States, 365 U.S. 399 (1961).

Federal law prescribes the authority of both the federal district courts and

circuit courts to issue a certificate of appealability ("COA") "only if the applicant has

made a substantial showing of the denial of a constitutional right." 28 U.S.C.

§ 2253

(c)(2). Under this standard, a petitioner must show that "reasonable jurists would

find the district court's assessment of the constitutional claims debatable or wrong."

Slack v McDaniel, 529 U.S. 473, 484 (2000). The petitioner, however, is not required

to show he will ultimately succeed on appeal, Miller-El v Cockrell, 537 U.S. 322,

337 (2003), because when a court considers an application for a COA, "[t]he question

is the debatability of the underlying constitutional claim, not the resolution of that

debate," Id. at 342. Accordingly, a court "should not decline the application for a

COA merely because it believes the applicant will not demonstrate an entitlement

to relief." Id. at 337.

Petitioner's Impediments to Presenting His Claims for Habeas Relief

Rivera is a Puerto Rican national whose native tongue is Spanish. He

comprehends very little English and, in fact, relied on a court-appointed interpreter

Al

to converse with his monolingual attorneys and to follow the trial proceedings

conducted entirely in English. Moreover, Rivera is of below-average intelligence. He

is neither highly educated nor especially literate; neither trained nor skilled in the

law, nor is he otherwise gifted in the art of litigation. Consequently, in his collateral

challenges to his convictions and sentences, he has been entirely dependent upon

the assistance of "jailhouse lawyers" to help him prepare and file his legal papers.

See Johnson v Avery, 393 U.S. 483, 488 (1969).2

On two occasions prior to trial, November 7, 2003, and January 6, 2004,

defense counsel was so troubled by Rivera's inability to assist him with the

preparation of his defense that he sought the appointment of a mental health expert

or psychologist to evaluate Rivera's competency to proceed to trial. The trial court

granted both motions. Independent evaluations were conducted; however, the two

experts ultimately concluded that Rivera was mentally competent.

Again, in the midst of trial, the judge sua sponte colloquied Rivera, inquiring

whether he was having any trouble communicating with his counsel through an

interpreter. But when Rivera explained that the Prozac he was prescribed made it

difficult for him to understand or think clearly because "What happens is that I'm

taking medicine and I don't understand a lot of things," "I don't feel well thinking,"

and "I feel like my mind is very slow," the judge abruptly ended the colloquy,

finding "no evidence" that Rivera was not competent to continue with trial.

2 ("In the case of all except those who are able to help themselves

usually a few old hands or

exceptionally gifted prisoners

the prisoner" who cannot obtain the assistance of a "jailhouse

lawyer" "is, in effect, denied access to the courts.").

-

7

-

In his original application for COA, Rivera briefly summarized three of the

five issues that had been litigated in the lower tribunal: (i) that the improper

consolidation of three separate and unrelated burglary cases tried together before a

single jury violated Rivera's right to a fair trial under the Sixth and Fourteenth

Amendments; (ii) that Rivera's conviction for burglary of the Ladd residence while

becoming armed and its attendant life sentence based upon insufficient evidence

violates his right to fundamental due process under the Fourteenth Amendment;

and (iii) that the post-verdict judicial fact-finding to impose an enhanced sentence

under Florida's Prison Releasee Reoffender Act ("PRRA") violated Apprendi v New

Jersey.3 Appendix G.

Between July 29, 2018, the date Rivera filed his application for COA,

Appendix G, and the Eleventh Circuit's denial thereof on September 13, 2018,

Appendix H, the jailhouse lawyer who had been helping Rivera was transferred to

another institution. Per prison rule, Rivera and the other prisoner are forbidden to

communicate, leaving Rivera to fend for himself. He ultimately enlisted the aid of a

certified prisoner law clerk to continue where the jailhouse lawyer left off. See

Bounds v. Smith, 430 U.S. 817, 828 (1977).4

When the Eleventh Circuit summarily denied COA, Appendix H, the prisoner

law clerk drafted a motion for reconsideration and an amended application for COA.

Appendix I and J, respectively. In his request for reconsideration, Rivera posited

530 U.S. 466 (2000).

"

("fundamental constitutional right of access to the courts requires prison authorities to assist

inmates in the preparation and filing of meaningful legal papers by providing prisoners with

adequate law libraries or adequate assistance from persons trained in the law.")

that "[f]rom the minimal assertions made in Rivera's original application for COA,

coupled with his somewhat inartfully-pled grounds for habeas relief presented

below, as well as his predicate state court pleadings," the Eleventh Circuit "ha[d]

not been presented with adequate notice of his claims of Constitutional violations."

Appendix I.

Here, in denying Rivera a COA "because he has failed to make a substantial

showing of the denial of a constitutional right," Appendix H, the Eleventh Circuit

has applied an unreasonably-stringent standard in place of the relatively liberal

standard for granting COA established in Slack and Miller-El requiring a habeas

petitioner to show only "the debatability of the underlying constitutional claim."

Miller-El at 342 (emphasis added). See also, Slack, 529 U.S. at 484 (under § 2253

standard, a petitioner must show that "reasonable jurists would find the district

court's assessment of the constitutional claims debatable or wrong") (emphasis

added).

Some of the Circuit Court's inability may owe to Rivera's personal language

and intellectual deficits and his reliance on fellow prisoners to help him draft and

file his legal papers at every collateral stage of litigation. Accordingly, Rivera

beseeches this Court to review the daunting challenges Rivera has faced at each

stage of collateral attack juxtaposed with the severe impediments he has faced in

presenting his claims in those judicial venues and, finally, the danger of manifest

injustice posed by the Eleventh Circuit Court's refusal to grant permission to even

present his case on appeal.

Substantial Showing of the Denial of Constitutional Rights

Issue 1: Improper Consolidation of Cases

-

Among many more specific

rights, the Sixth Amendment provides that one accused by the Government of a

criminal offense is guaranteed a fair trial. Inherent in this concept is that neither

the accused's guilt of a charged criminal act, nor his propensity to commit crimes

may be proven by evidence of unrelated crimes or accusations. See United States v.

Lane, 474 U.S. 438 (1986).

Improper joinder does not itself violate the federal Constitution. Lane, 474

U.S. at 446 n.8. To rise to the level of a constitutional violation, joinder must result

in prejudice so great as to deny a defendant his constitutional right to a fair trial.

Id. When a case is consolidated, the due process concern is whether the jury was

able properly to compartmentalize and consider separately the evidence relating to

each incident. United States v. Sherlock, 962 F.2d 1349, 1360 (9th Cir. 1989). There

is a "high risk of undue prejudice whenever

...

joinder of counts allows evidence of

other crimes to be introduced in a trial of charges with respect to which the evidence

would otherwise be inadmissible," implicating due process. United States v. Lewis,

787 F.2d 1318, 1322 (9th Cir. 1986). The failure of the jury to convict on all counts is

"the best evidence of the jury's ability to compartmentalize the evidence." Park v.

California, 202 F.3d 1146, 1150 (9th Cir. 2000).

Florida courts take a much more cautious view when consolidating cases. The

Florida Supreme Court held in Paul v. State, 385 So.2d 1371 (Fla. 1980) that

consolidation is improper when "based on similar but separate episodes, separated

in time, which are 'connected' only by similar circumstances and the accused's

10

alleged guilt in both or all instances." Id. at 1372, adopting Paul v. State, 365 So.2d

1063, 1065-66 (Fla. 1st DCA 1979) (Smith, J., dissenting). The purpose of requiring

separate trials under these circumstances is "to assure that evidence adduced on

one charge will not be misused to dispel doubts on the other...." 365 So.2d at 1066,

adopted, 385 So.2d at 1372. In State v Williams, 453 So.2d 824 (Fla. 1984) the

Florida Supreme Court said:

[E]ven if consolidation is the "most practical and efficient method of

processing" a case, practicality and efficiency should not outweigh a

defendant's right to a fair trial. "The objective of fairly determining a

defendant's innocence or guilt should have priority over the relevant

considerations such as expense, efficiency, and convenience." Crum v.

State, 398 So.2d 810, 811 (Fla. 1981).... We emphasize that prejudice to

the defendant will outweigh judicial economy. State v. Vazquez, 419

So.2d 1088, 1091 (Fla. 1982) (footnotes omitted).

Williams, 453 So.2d at 825.

Here, the State charged Rivera in three separate cases with as many

separate burglaries, then sought permission of the trial court to consolidate the

cases so that they could be tried together by a single jury. While the State argued

that the three burglaries were all committed in a single "spree" and alleged that

Rivera's blood was found at all three properties, the burglaries were each committed

with distinct methods of entry; and were in distinct parts of the city, each separated

by several miles. At least one of the burglaries may have occurred on a different

date. Despite Rivera's vehement opposition, the trial court granted the State's

motion.

As a result, the State was allowed to expose the jury to the evidence of all

three distinct and unrelated burglaries, and imply that if the jury found that Rivera

11

was guilty of one burglary, it could presume he was guilty of the other two, either

directly or because Rivera had a propensity to commit burglaries. Rivera argues

that this cross-contamination of evidence caused the jury to find him guilty of each

separate and distinct burglary on the cumulative evidence of the other two, rather

than the strength of the evidence of each separate burglary.

Had the cases not been consolidated, and Rivera been tried separately for

each burglary, the State would have been precluded from presenting in any one trial

the evidence of the other two unrelated charges. Thus, with the consolidation of the

three separate, distinct cases, the State gained an unfair windfall advantage that

sharply increased its likelihood of conviction in each case and, thus, violated

Rivera's Sixth Amendment right to a fair trial. Lane; Sherlock; Lewis; Park;

Williams; Paul.

The only reasoned opinion on the subject of consolidation is the trial court's

pre-trial order granting the State's motion. Although Rivera raised the issue in his

direct appeal and the state appellate court affirmed, it did so silently, which cannot

be considered a decision on the merits. The State argued below that the issue was a

matter of state law, without addressing the Sixth Amendment claim. This position

is contrary to the decision of this Court in Lane. To the extent the Court would find

that Rivera failed to advance the claim as a federal issue in the state courts, he

12

would counter that Martinez v Ryan5 establishes cause and prejudice to excuse

Rivera's oversight.

Issue 2: Conviction Upon Insufficient Evidence

-

The Fourteenth

Amendment expressly forbids a State's deprivation of its citizens' life, liberty, or

property without due process of law. Inherent in the concept of due process is that

no person can be found guilty of a criminal offense upon legally insufficient

evidence. See Coleman v. Johnson, 566 U.S. 650, 132 S.Ct. 2060 (2012); Jackson

Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970). "Under Jackson,

federal courts must look to state law for 'the substantive elements of the criminal

offense' 443 U.S. at 324 n.16, but the minimum amount of evidence that the Due

Process Clause requires to prove the offense is purely a matter of federal law."

Coleman, 566 U.S. 650, 132 S.Ct. at 2064 (quoting Jackson).

In the case of the Ladd burglary, Rivera has consistently argued that he is

innocent of the charged offense of armed burglary, an offense punishable in Florida

by life imprisonment. See §810.02(2)(b), Fla. Stat. (2002). The State does not

dispute that its case against Rivera is entirely circumstantial and that there is no

direct evidence linking him to any of the consolidated cases. While he concedes that

there is some circumstantial evidence that he entered the Ladd residence without

consent, Rivera has repeatedly argued that there is no evidence

circumstantial

not even

that he took a firearm from the residence and, thus, "became

-

armed" as required to support a conviction on the charge. Ibid.

566 U.S. 1, 17 (2012) (a procedural default will not bar a federal habeas court from hearing a

substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there

was no counsel or counsel in that proceeding was ineffective).

13

The only evidence the State presented that the firearms even existed was the

testimony of Lawrence Ladd, its only witness attesting to the matter. The State

never introduced independent evidence showing that Ladd actually owned or had

possession of the firearms in question, never identified a serial number for either

weapon, and neither pistol was ever recovered.

Ladd admitted that he had last seen his service pistol two days before the

alleged burglary and that he had last seen the rusty revolver several months before.

Ladd acknowledged that several other people, including his teenaged son and his

son's friends, had access to, and could have taken, the two firearms. Hence, even

circumstantially, Ladd could not be sure that either firearm was in his home during

the burglary, and could not eliminate the possibility that the firearms had been

taken before the burglary. Accordingly, no reasonable trier of fact could have

eliminated reasonable doubt that Rivera took either firearm, and that doubt would

demand a verdict of not guilty or guilty only of the lesser included offense of simple

burglary.

Simple burglary carries a maximum punishment of fifteen (15) years

imprisonment. Rivera has already served over 16 years in prison. But for this

violation of fundamental due process, Rivera already would have been at liberty.

Moreover, the lower tribunal cited to Coleman and Jackson, supra for the

proper controlling authority, but then inexplicably found that "2254 requires th[e]

court to presume that the state court's factual findings are correct" unless Rivera

can "rebu[t] that presumption by clear and convincing evidence" so as to prove that

14

the state court's findings were unreasonable. Appendix D at 30. This is the wrong

legal standard to apply to a sufficiency-of-the-evidence claim.

Whether the evidence is legally sufficient to support a conviction is a question

of pure law, Coleman; Jackson, and the state court resolution deserves no deference

but is reviewed de novo. In fact, a summary denial of post-conviction relief is

tantamount to a question of pure law, and any factual findings made without an

evidentiary hearing would be per se unreasonable. Earp v. 0rnoski 431 F.3d 1158,

1168-70 (9th Cir. 2005) (state court's rejection of petitioner's habeas claim was

unreasonable under 2254(d)(2) where the court made credibility determinations on

the basis of a paper record, without an evidentiary hearing).

Rivera shows above that, as a question solely of federal law, the State's

circumstantial evidence that he burglarized the Ladd residence could not support

the finding beyond a reasonable doubt that he took either firearm, a question the

lower tribunal completely failed to address. Accordingly, "reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner." Slack.

Issue 3: Appren cii Violation

In Apprendi v. New Jersey, the Supreme Court

-

held that any fact that would permit the enhancement of the penalty for a crime

beyond the prescribed statutory maximum becomes, in essence, an element of a

greater crime formed by the essential elements of the base crime plus the fact

permitting the enhanced penalty. Id., 530 U.S. at 483 n.10. Since that decision, the

Court has continued to explain, refine, and expand Apprendis reach. See, e.g.,

15

Blakely v. Washington, 542 U.S. 296 (2004); United States v. Booker, 543 U.S. 220

(2005); Washington v. Recuenco, 548 U.S. 212 (2006); Cunningham v. California,

549 U.S. 270 (2007); Alleyne v. United States, 570 U.S. 99 (2013).

The significance of Apprendi to the sentencing process is that the outer limits

of a judge's authority to impose sentence are constrained by the facts inhering in

the jury's verdict or admitted by the defendant. Id.; Blakely, 542 U.S. at 303_04.6

And, except for the singular fact that the defendant has a prior conviction, every

fact necessary to impose punishment must be charged in the indictment, submitted

to the jury, and proved beyond a reasonable doubt or admitted by the defendant. Id

at 490 (quoting Jones v United States, 526 U.S. 227, 243 n.6 (1999)).

The Court explained that the "historical foundation" of Apprendis principles

"extends down centuries into the common law" id. at 477, and are not mere

procedural formalities but --a fundamental reservation of power in our constitutional

structure. Blakely, 530 U.S. at 477. Accordingly, any sentence that exceeds the

limits provided by law for the crime informed by the jury's verdict or admitted by

the defendant based upon a judge's post-verdict fact-finding, except for the fact of a

prior conviction,7 or upon a fact not proven beyond a reasonable doubt, violates the

("the relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding

additional facts, but the maximum he may impose without any additional findings. When a judge

inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts

'which the law makes essential to the punishment,' and the judge exceeds his proper authority")

(quoting Apprendi).

6

But see, Rangel-Reyes v. United States, 547 U.S. 1200 (2006) ("Moreover, it has long been clear

that a majority of this Court now rejects that exception. See Shepard v. United States, 544 U.S. 13,

27-28 (2005) (Thomas, J., concurring in part and concurring in judgment); see also AlmendarezTorres v. United States, 523 U.S. 224, 248-249 (1998) (Scalia, J., joined by Stevens, Souter, and

Ginsburg, JJ., dissenting); Apprendi at 520-521 (Thomas, J., concurring).").

''

16

defendant's right to a jury trial under the Sixth and Fourteenth Amendments or his

Fourteenth Amendment right to due process. ApprendL

Florida's PRRA provides that defendants who are convicted of certain

enumerated crimes that were committed less than three years after the date of their

release from prison must be sentenced to the maximum punishment provided by

law and are not eligible for early release, even by award of gain-time. See

§775.082(9)(a,b), Fla. Stat. (2002). Florida law grants the award of basic gain-time

to prisoners as a matter of course, reducing the prisoners' actual time served to 85%

of the imposed term. See §944.275, Fla. Stat. (2002). Hence, a PRRA sentence

clearly is designed to increase the punishment beyond the statutory maximum,

which is the imposed sentence term less 15%.

Moreover, the PRRA grants sole discretion whether to impose an enhanced

sentence or not to the prosecutor, who has the exclusive and final control over

enhanced sentencing under the Act. §775.082(9)(a)3. Rivera maintains that the

authority granted to the State by the Act violates the Separation of Powers doctrine

by usurping the courts' inherent power to tailor the sentence to fit the crime and by

unconstitutionally conveying that power to the prosecution.

The lower tribunal found that the authority to impose an enhanced sentence

under the PRRA "does not increase the penalty beyond the statutory maximum"

and that "neither the Constitution nor any statute is violated when a prior offense

is used to increase a sentence

...

based upon judicial findings of prior convictions

that were never proved to a jury beyond a reasonable doubt." Appendix D at 28

17

(citing Almendarez-Torres v. United States, 523 U.S. 224 (1998) and United States

v. McCain, 358 Fed.Appx. 51 (11th Cir. 2009) (unpublished)).

This is a misstatement of both the PRRA and Apprendi. While the Supreme

Court, consistent with its prior decision in A]inendarez-Torres, excluded the bare

fact that a defendant has a prior conviction, sentence enhancement under the PRRA

requires more than just the fact of a prior conviction: The PRRA requires the

determination that (i) the defendant has a prior conviction; (ii) for an offense for

which the sentence is punishable by more than 1 year in Florida; (iii) that he was

imprisoned for that crime, (iv) that he is to be sentenced for an enumerated crime;

and (v) that the crime for which he is to be sentenced was committed within three

years of the date he was previously released from prison. §775.082(9)(a)1.

The Court's rationale for the Apprendi prior-conviction exclusion was that

this fact was already proven beyond a reasonable doubt, and established as a

matter of record in a previous trial or plea agreement. In contrast, the four

additional facts necessary for a PRRA sentence identified above, which may relate

to a prior conviction in another jurisdiction, are not established and, indeed, require

the State to call witnesses and introduce evidence proving the facts to the

satisfaction of the sentencing court. Apprendi.

Apprendi does not exclude every procedure "whe[re] a prior offense

...

is used

to increase a sentence" (Magistrate's Report & Recommendation), only those resting

solely and entirely on the mere fact of a prior conviction. The PRRA requires more

facts than this; and "judicial findings

...

fe]

never proved

...

beyond a reasonable

doubt," ibid., violate the Apprendi rule. Id. at 490 (quoting Jones, 526 U.S. at 252253. Accordingly, "reasonable jurists could debate whether (or, for that matter, agree

that) the petition should have been resolved in a different manner." Slack.

Provision ofPost-Conviction Counsel

Finally, Rivera asks the Court to consider, as a matter of first impression,

whether, under the totality of the circumstances, Rivera has been denied his rights

to a fair trial and due process, where his combined handicaps of language barrier,

intellectual deficiencies, and questionable competency to stand trial created a

"perfect storm" of circumstances that has made it practiacally impossible to mount a

meaningful collateral challenge to his convictions and sentences without the

assistance of a tamed profession legal adviser, especially in light of the State of

Florida's decision to comply with this Court's decision in Bounds v Smith, supra, by

providing law libraries in its prisons as opposed to "adequate assistance from

persons trained in the law." Id., 430 U.S. at 828.

Although Florida staffs its law libraries with prisoner "law clerks," the

training provided to law clerks only covers the basic ability to locate statutory and

constitutional law, case law in the various case reporters, and rules of court. The

training program explicitly avoids any effort to train law clerks in the recognition of

constitutional violations or the art of litigation, explaining that law clerks are

expected to develop such skills on their own.

19

And, although this Court has held that indigent prisoners are not

constitutionally entitled to the appointment of post-conviction or collateral counsel,8

the Court also has held that ineffective assistance of post-conviction counsel, or the

denial of post-conviction counsel altogether, may implicate due process concerns

identical to the denial of counsel for direct appeal. Martinez v Ryan, supra.

Consequently, in a case such as Rivera's, unable to understand English,

under prescribed medication that had made it impossible to follow the trial

proceedings, and without a professional legal assistant to help him navigate prison

law library materials published entirely in English, the criminal justice system has

failed to afford him a fair trial and due process, in the form of an initial-review

collateral proceeding and all subsequent proceedings that have flowed therefrom.

Unless this Court intervenes, Rivera will spend the rest of his life in prison

fighting a "justice" system that operates in a language he cannot understand and

possesses a complexity he cannot comprehend. Left uncorrected, Rivera will

continue to suffer a miscarriage of justice until the day he dies. A court's only raison

d'être is to dispense justice. Hence, when faced with a manifest injustice, a court is

compelled to take such necessary actions as will remedy such and do justice. Rivera

implore this. Court to see his injustice and grant him certiorari relief.

CONCLUSION

In view of the foregoing facts, arguments, and authorities, Petitioner

respectfully submits that a writ of certiorari should be granted.

8 See, e.g., Pennsylvan

ia v. Finley, 481 U.S. 551 (1987).

20

Respectfully submitted,

RENE

etitio

Date: March

,

21

2019