Petition for Writ of Certiorari — Diego Rodrigo Perea, Petitioner v. Mark S. Inch, Secretary, Florida Department of Corrections, et al.

Supreme Court briefJan 9, 2019

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18H9015

No.

RIGI16T

- 77

IN THE

SUPREME COURT OF THE UNITED STATES

DIEGO RODRIGO PEREA

(Your Name)

PETITIONER

vs.

JULIE JONES. et. al._

RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

ELEVENTH. CIRCUIT COURT OF APPEAL

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Diego Perea DC# X62786

(Your Name)

1599 SW 187th Avenue

Miami, Florida, 33194

2801

305-228--2000

(Phone Number)

RECEIVED

JAN 152019

OFFICE OF THE CLERK

SUPREME COURT, U.S.

QUESTION(S) PRESENTED

Was the State Court's rejection of the Petitioner's claim that he was

constructively denied the assistance of counsel, when the State Court failed

to provide the Petitioner an instantaneous means of communicating with

• -

Trial Counsel, while Trial Counsel was conducting cthss-examination of a

child witness in a separate room, contrary to or an unreasonable application

of clearly established federal law as determined by this Court? (Issue One)

Did the Eleventh Circuit err in denying the Petitioner a Certificate of

Appealability on the issue of whether the Petitioner was constructively

denied the assistance of counsel? (Issue One)

Was the Petitioner's Right to Due Process violated when, without his

knowledge or approval, his attorney waived his presence at a pretrial hearing

that he had a right to attend? (Issue Two)

LIST OF PARTIES

[Xl

[

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

All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

111

TABLE OF CONTENTS

Indexto Appendices .......................................................................................................v

Table of Authorities Cited .....................................: ......................................................vi

OpinionsBelow .............................................................................................................. Vi

Jurisdiction............................................................ ..................................................... vii

Constitutional and Statutory Provisions Involved ...................................................viii

Statement of the Case ..................................................................................................ix

Reasons for Granting the Petition ................................................... . ......................... xiii

Argument in Support of Granting the Petition.........................................................xiv

IssueOne ........................................................................................................xiv

Conclusion as to Issue One .............................................................................xxv

IssueTwo ........................................................................................................xxiii

Conclusion as to Issue Two ...........................................................................xl.

Certificate of Compliance............................... ........ . ... . ............................................. xli

Certificate of Service ................................................................................................xlii

INDEX TO APPENDICES

Appendix "A"

Petition for Writ of Habeas

Corpus pursuant to 28 U.S.C. 2254

Appendix "B"

District Court's Order Denying

Petition

Appendix "C"

Notice of Appeal

Appendix "D"

Order of the Eleventh Circuit

Court of Appeals Denying COA

Appendix "E"

Order of the Eleventh Circuit

Court of Appeals Denying Motion

For Reconsideration

Appendix "F"

Transcripts from the Petitioner's

Trial pages 74 to 76

Appendix "G"

Transcript of October 30, 2007.

Evidentiary Hearing on the State's

Motion for Taking Testimony via

Closed Circuit Television

....

TABLE OF AUTHORITIES CITED

CASES...............................................................................................PAGE NUMBER

Brown v. State, 101 So. 3d 381 (Fla. 1st DCA 2012) .....................................................xxxvi

Bromw v State. 855 So. 2d 1267, 1269- (Fla. 4th DCA 2003) ....................................... xxxvii

Buck v. Davis. 580 U.S.

137 S. Ct. 759, 197 L. Ed. 2d 1 (2017)..........................xxiii

Coney v. State, 653 So. 2d 1009, 1012 (Fla. 1995) ..........................................................xxix

D.A.D. v. State, 566 So. 2d 257 (Fla. 5th DCA 1990).........................................................xx

Diaz v. United States, 223 U.S. 442, 455, 32 S. Ct. 250, 56 L. Ed. 500 (1912)........xxvi

Fla. Op. Att. Gen. 92-95 Dec. 23, 1992 (1992 WL 527506)........................................xxxvii

Francis v. State, 413 So. 2d 1175, 1177 (Fla. 1982) ........................................................ xxx

Geders v. United States, 425 U.S. 80, 47 L. Ed. 2d 592, 96 S. Ct. 1330 (1976).......xviii

Grayton v. Ercole, 691 F.3d 165 (2nd Cir. 2011) ........................... . .................................. xxyii

Hall v. Lee Arren dale State Prison 686 Fed. Appx. 671. (11th Cir 2017).....................xxi

Hampton v. State, 219 So. 3d 760 (Fla. 2017)..................................................................xxxi

Illinois v. Allen. 397 U.S. 337,0 S. Ct. 1057, 25 L. Ed.- 2d 353 (1970) ...................;... xxx

Kentucky V. Stincei; 482 U.S. 730, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987) ........... xxvi

Lewis v. United States, 146 U.S. 370, 372, 13 S. Ct. 136, .36 L. Ed. 1011 (1892)

...

xxvi

Maryland v. Graig, 497 U.S. 836, 847-48, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990)

...............................................................................................................................xvii

Miguel v. United States, 111 F. 3d 666 (9th cir 1997)......................................................xxi

Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S Ct. 1029, 154 L. Ed. 2d 931 (2003)

.....................................................................................................................xxiii

vi.

Mullane v. Central Hano Ver Bank, 339 U.S. 306, 314, 70 S. Ct. 652,94L. Ed. 865

(1950).................................................................................................................................... xxxii

Myles v. State, 602 so. 2d 1278 (Fla. 1992) ........................................................................xx

Perea v. State, 150 So. 3d 1174 (Fla. 5th DCA 2014) .........................................................xii

Perry V. Leake, 488 U.S. 272, 102 L. Ed. 2d 624, 109 S. Ct. 594 (1989) .......... Xviii., XXIV

Pomeranz v. State, 703 So. 2d 465 (1997) ........................................................................ xxix

Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 78 L. Ed. 674 (1934)

xxvii

State v. Melendez, 244 So. 2d 137, 139 (Fla. 197 1) ............................................... xxx, xxxi

US. v. Barfield. 969 f.2d 1554 (4thCir. 1992) .................................................................xxvi

U.S. v. Partin,990F. Supp. 2d 1219 (M.D. Ala. 2013) ..... ..................... ......................... xxvii

US. v. Ruiz-Castro, 92 F.3d 1519 (10th Cir. 1996).....................................................xxxviii

United States v. Ganady, 126 F.3d 352, 360 (2d Cir. 1997) ......................................... xxvi

United States v. Cronic 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984)......xx

United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985)

...............................................................................................................xxvi

Statutes and Ru1es

18 U.S.C. 3509 .................................................................................. ........................ xvi. xxi, xxvii

xxiii

28 U.S.C. 2253(c)(2) ...............................................................................................................

28 U.S.C. 2253(c)(2) .......................................... ........................................................................ xxi

28 U.S.C. 2254.......................................................................................................................

xii

Fed. R. Civ. P. 59(e) ................................................................................................................. xiii

vii

. xxviii

Fed-.--,R. Crim. P. 43

Fla. R. Admin. P. 2.530(d)(3) ................................................. . ............................................... xxxvi

Fla. R. Crim. P. 3.180(a)(3) ................................................................. . ........... . .................. xxviii

Fa. R. Jud. Admin. 2.530(d)(2) .........................................................................................xxxv

Fla. R. Jud. Admin. 2.530(d)(3) ....................... . ................................................................. xxxv

Fla. Stat. 117.O3(4) ......................................................................................................... .. xxxvii

Fla. Stat. 92.54(4) .................................................................................................................... xvii

FloridaStatutes 92.54 ............................................................................................................ xvi

Rule 10 of the Rules of the Supreme Court of the United States..................................xv

viii

IN THE SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the

judgment below.

-•

OPINIONS BELOW

]

For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix D to the

petition and i

; or,

[ I reported at

has

been

designated

for

publication

but

not

yet

reported;

or,

[ I

[XI is unpublished.

The opinion of the United States district court appears at Appendix _B to

the petition and is

; or' '

[XI has been designated for publication but is not yet reported; or,

is unpublished.

[ I reported at

[ I

For cases from state courts

The opinion of the highest state court to review the merits appears at

to the petition and is

Appendix

) or,

[ ] reported at

[ I has been designated for publication but is not yet reported; or,

I is unpublished.

The opinion of the trial Court appears at Appendix

and is

to the petition

or,

[ I reported at

has

been

designated

for

publication

but

not

yet

reported;

or,

[ ] is unpublished.

JURISDICTION

II I

For cases from federal courts:

The date on which the. United States Court of Appeals decided my case

was September 5. 2018

[ I No petition for rehearing was timely filed in my case.

[ I A timely petition rehearing was denied by the United States Court of

Appeals on the following date: October 31, 2018, and a copy of the order

denying rehearing appears at Appendix E

[ 4 An extension of time to file the petition for a writ of certiorari was

(date) in

granted to and including

(date) on

Application No.

The jurisdiction of this Court is invoked under 28 U.S.C. §1254M.

[ I

For cases from state courts:

The date on which the highest state court decided my case was. A copy of

that decision appears at Appendix

[ ] A timely petition rehearing was thereafter denied on the follow

and a copy of the order denying rehearing -appears at Appendix

date.:, •

[1 An extension of time to file the petition for a writ of certiorari was granted to

(date) in Application No.

and including

(date) on

The jurisdiction of this Court is invoked under 28 U.S.C. §1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

In all criminal 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. (emphasis added)

Sixth Amendment of the United States Constitution

• If the court orders that the defendant be excluded from the deposition room,

the court shall order that 2-way closed circuit television equipment relay the

defendant's image into the room in which the child is testifying, and the

child's testimony into the room in which the defendant is viewing the

proceeding, and that the defendant be provided with a means ofprivate,

contemporaneous communication with the defendant attorney during the.

deposition. (emphasis added)

18 U.S.C. 3509(b)(2)(B)(iv)

•. During the victims or witness's testimony by closed-circuit television, the

court may require the defendant to view the testimony from the courtroom.

In such a case, the court shall permit the defendant to observe and hear the

testimony of the victim or witness, but must ensure that the victim .pr

witness cannOt hear or see the defendant. The defendant's right to assistance

of counsel, which includes the right to immediate and direct communication

with counsel conducting cross-examination, must be protected and, upon the

defendants request, such communication must be provided by any

appropriate electronic method. (emphasis added) Florida Statute 92.54(4)

• A certificate of appealability may issue under paragraph (1) only if the

applicant has made a substantial showing of the denial of a constitutional

right. 28 U.S.C. 2253(c)(2)

• All persons born or naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any person of life, liberty, or properly,

without due process of law; nor deny to any, person within its jurisdiction the equal

protection of the laws. (emphasis added)Fourteenth Amendment of the United States

Constitution

STATEMENT OF THE CASE

On March 12, 2008, the Petitioner was convicted, by a jury, of one count of

Capital Sexual Battery (Count One), one count lewd or lascivious exhibition (Count

Two), lewd or lascivious molestation (Count Three), showing Obscene material to a

minor (Count Four), and lewd or lascivious conduct (Count Five). The Petitioner

was sentenced to life in prison on Count One, fifteen years on Count Two, twentyfive years one Count Three, five years on Count Four, and fifteen years on Count

Five

The Petitioner timely appealed his judgment and sentence. On appeal the

Fifth District Court of Appeal for Florida vacated the Petitioner's sentence on Count

three and directed the Trial Court to resentence the Petitioner. The minimum

mandatory provision of the sentence was struck.

The Petitioner then filed a timely Motion for Postconviction Relief under

Florida Rule of Criminal Procedure 3.850. In his Motion the Petitioner raised five

grounds for relief. In Order those grounds were Trial Counsel was ineffective for

waiving the Petitioner's appearance at the hearing on the State's motion to allow

the victim to testify via closed circuit television (Ground One); the Petitioner's right

to confront witnesses at trial was violated when the trial court allowed the victim to

testify via closed circuit television without making case specific findings (Ground

Two); Trial Counsel was ineffective for failing to object to procedures utilized in

conducting direct and cross-examination of the witness where the Trial Court did

not provide a means of allowing the Petitioner direct and instantaneous

communication with trial counsel during the victim's testimony (Ground Three);

xii

Trial Counsel was ineffective for failing to move the Trial Court to appoint an

expert witness to review the victim's interview with the Child Protective Team, and

deposition (Ground Four); Trial Counsel rendered ineffective assistance for failing

to properly inform the Petitioner of the pros and cons of accepting the State's plea

offer (Ground Five).

The State Postconviction Court summarily denied all claims in the

Petitioners Motion for Postconviction Relief.

The Petitioner timely appealed the denial of his Motion for Postconviction

Relief.

The Fifth District Court of Appeal per curium affirmed the Postconviction

Court's Order. See Perea v. State, 150 So. 3d 1174 (Fla. 5th DCA 2014)

On May 18, 2015, the Petitioner, filed a timely Petition for Writ of Habeas

Corpus under 28 U.S.C. 2254. In the Petitioner's Petition for Writ of Habeas Corpus

the Petitioner raised the following claims: Petitioner's right to confront witnesses

against him was violated when the State Court allowed a psychiatrist to testify, by

telephone, concerning the impact that testifying in front of the Petitioner would

have on the victim in this case (Ground One); Trial Counsel's failure to object to Dr

Jacobs-Alvarez's testimony resulted in the Petitioner being denied due process of

law (Ground Two); the Petitioner was denied the assistance of counsel when the

Trial Court failed to provide the Petitioner with a means of instantly

communicating with Trial Counsel during' direct and cross-examination of the child

victim (Ground Three); Trial Counsel was ineffective for failing to object to the Trial

xlii

Court's failure to provide the Petitioner with a means of electronically

communicating with Trial Counsel while the victim was undergoing direct and

cross-examination (Ground Four); Trial Counsel was ineffective for failing to advise

the Petitioner of the penalties he faced if convicted at trial and the strength of the

State's case (Ground Five); Trial Counsel was ineffective for failing to move for a

mistrial when the State commented on the Petitioner's failure to take the stand in

his defense (Ground Six); Trial Counsel was ineffective for failing to advise the

Petitioner of the evidentiary hearing on the State's Motion seeking to allow the

victim to testify via closed circuit television (Ground Seven).

On February 17, 2017, the District Court entered an Order denying the all of

the Petitioner's claim. The District Court also refused to grant the Petitioner a

Certificate of Appealability (COA).

On March 16, 2017, the Petitioner filed a Motion to Alter or Amend findings

under Fed. .R. Civ. P. 59(e). The District Court denied the Motion.

On December 13, 2017 the Petitioner filed a timely notice of appeal seeking to

have the Eleventh Circuit issue a COA.

On September 5, 2018, the Eleventh Circuit declined to issue the Petitioner a

COA on any of the claims. Pertinent to the issue before this Court, Honorable

United States Circuit Judge Adalberto Jordan, stated, "[r]easonable jurists would

not debate the denial of Claims 3 and 4, as Perea failed to show that the inability to

instantaneously communicate with counsel while counsel was questioning the childvictim violated his constitutional rights." (Order pg. 2)

xiv

On September 25, 2018 the Petitioner filed a timely Motion toReconsidër,

Vacate or Modify an Order.

•

On October 31, 2018the Eleventh Circuit denied the Motion to Reconsider,

Vacate or modify an Order.

The Petitioner then brought this timely Petition for Writ of Certiorari

instantly before this Court.

REASONS FOR GRANTING THE PETITION

In accordance with Rule 10 of the Rules of the Supreme Court of the United

States the Petitioner submits that this Court should grant the instant Petition and

review the decision of the Eleventh Circuit Court of Appeals because an important

federal question has been determined in the Petitioner's case in way that seriously

conflicts with prior decisions of this Court as well as other courts within the

jurisdiction of the United States.

xvi

ARGUMENT IN SUPPORT OF GRANTING THE PETITION

ISSUE ONE

This Court should hear the instant Petition for Certiorari because the issue

presented concerns an issue in direct contravention of the law as developed by this

Court. It has been well beyond dispute for many years that a criminal defendant

has a right to the assistance of counsel at every critical stage of a criminal

proceeding. The right to counsel contemplates that a defendant will have immediate

and ready access to their advocate. Anything less, than immediate access, especially'

during a critical stage in the proceedings amounts to a constructive denial of the

assistance of counsel.

In the instant case, the Petitioner was charged with multiple counts of sexual

abuse. Prior to trial the State moved the Trial Court for an order allowing the

victim to testify via a closed circuit television. The Trial Court granted the Motion.

At the Petitioner's trial it was revealed that neither the Trial Court, the State, nor

Trial Counsel, had ever been involved in the taking of testimony via a closed circuit

television. Trial Counsel requested to be provided with some way of communicating

with the Petitioner when she finished questioning the victim to find out whether the

Petitioner had any questions he wanted her to ask. The Trial Court agreed to give

Counsel an opportunity to consult with the Petitioner after she was finished

questioning the witness. See Appendix F

Florida Statutes 92.54, the state analogue to 18 U.S.C. 3509(b), controls the

taking of testimony by closed circuit television in Florida. The statute lays out

xvii

certain qualifications that must be met in order for a witness to testify in this

manner. The statute mandates that a defendant's constitutional right be observed.

To this end, the statute states, in pertinent part, "[t]he defendant's right to

assistance of counsel, which includes the right to immediate and direct

communication with counsel conducting cross-examination, must be protected and,

upon the defendant's request, such communication must be provided by any

appropriate electronic method." Fla. Stat. 92.54(4)

The above statute was designed to ensure that Florida Courts and the

procedures they employed when allowing testimony via closed circuit television

were in line with this Court's decision of Maryland v. Craig, 497 U.S. 836, 847-48,

110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990). In Craigthis Court approved of the use of

a closed circuit television to present a child victim witness' testimony. In upholding

the procedure, this Court relied heavily upon the fact that the procedure utilized

provided sufficient measures to ensure that the key elements of confrontation such

as "physical presence, oath, cross-examination, and observation of demeanor by the

trier of fact" were protected. 497 U.S. at 846 Moreover, this Court also noted that.

-the

utilized by the Maryland court provided the defendant with electronic

communication. Craig 497 U.S. at 842 Had any of these elements not been present

it beyond all doubt that this Court would have found the defendant's right to

confront his accuser was violated.

In the Petitioner's case it is clear from the record that the Petitioner was not''

afforded any means of communicating with Trial Counsel at any point during the

xviii

child witness' testimony. Trial Counsel did request to be able to communicate with

the Petitioner

via phone or something," however the Trial court settled on allowing

Trial counsel to speak-with the Petitioner "is [she] needed to" by -returning to the

courtroom that the Petitioner was in. Appendix F. The Petitioner submits that this

arrangement, which failed to provide the- Petitioner, with any means of

communicating with counsel throughout the entirety of the victim's testimony,

resulted in the constructive denial of counsel.

In Geders v. United States, 425 U.S. 80, 47 L. Ed. 2d 592, 96 S. Ct. 1330

(1976) this Court held that a. trial court's order barring a defendant from

communicating with counsel during an overnight recess when the defendant had

just testified in his defense but had not been cross-examined violated the Sixth

Amendment guarantee to the assistance of counsel: In support of the ruling the

Court pointed out that "a defendant in a criminal trial must often consult with his

attorney during the trial;" that a defendant has a right to be present "for all

testimony and has the opportunity to discuss his testimony with his attorney up to

the time he takes the witness stand," and that an attorney nay need to gather

information "form his client made relevant by the day's testimony, or he may need

to pursue inquiry along lines not fully explored earlier." Geders 425 U.S. 88

Thirteen years later this Court issued the -decision of Peny v. Leake, 488 U.S.

272, 102 L. Ed. 2d 624, 109 S. Ct. 594 (1989). Perry modified the holding of Geders

1 Here it should be noted that the Petitioner was in Courtroom 10A on the tenth

floor of the building, while the victim testified in Courtroom 19B on the nineteenth

floor. Thus, nine floors separated the Petitioner and his attorney during the time

that the victim was testifying.

xix

in that Perry held an order barring a defendant from speaking to his attorney

during a fifteen minute recess in between the defendant's direct and cross

examination did not violate the Sixth Amendment. The Perry court distinguished

between the orders finding that "[tihe interruption in Geders was of a different

character because the normal consultation between attorney and client that occurs

during an overnight recess would encompass matters that... the defendant does

have a constitutional right to discuss with his lawyer. such as the availability of

other witnesses, trial tactics, or even the possibility of negotiating a plea bargain."

Peny 488 at 284 (emphasis added). The Petitioner would submit that during the

cross-examination of a witness a criminal defendant has a constitutionally protected

right to immediate access to counsel, and this right falls well within the ambit of

the above discussed rights.

A final consideration for the impact that the Perry decision had on this area

of law is that the Court rejected the Fourth Circuit Court of Appeals holding that

even when a defendant is constructively denied counsel they are still required to

make a showing of prejudice. Instead the Perry Court stated, "[tihere is merit in

[the] petitioner's argument that a showing of prejudice is not an essential

component of a violation of the rule announced in Geders." Perry 488 at 278-79. The

Court- went on to say, "actual or constructive denial of the assistance of counsel

altogether is not subject to the kind of prejudice analysis that is appropriate in

determining whether the quality of a lawyer's performance itself has been

ineffective." Perry 488 at 280 See also United States v. Cronic, 466

U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) (Holding that some violations of

the Sixth Amendment are so severe that prejudice will be presumed.)

The Petitioner submits that as an additional reason for this Court to grant

the instant Petition for Certiorari because the issue presented has not been well

addressed by the lower courts. After exhaustively researching 2 this issue the

Petitioner has only found four cases that deal specifically with the issue presented

here, two of which were reversed for a new trial.

The first is D.A.D. v. State, 566 So. 2d 257 (Fla. 5th DCA 1990). In D.A.D. the

State requested that the victim be allowed to testify outside the presence of the

defendant. Without holding a hearing and following the procedure outlined in Fla.

Stat. 92.54 or entertaining arguments from defense counsel the trial court ruled

that the victim would be allowed to testify in chambers outside the presence of the

jury. In its brief opinion overturning the defendant's conviction the Fifth District

.Court of Appeal for Florida noted that the trial "judge failed to insure.. .the

defendant could communicate by any appropriate electronic method as required by

Section 92.54(4), Florida Statutes, (1987)." D.A.D. at 258

Next we have Myles v. State, 602 so. 2d 1278 (Fla. 1992). In Myles the only

communication between the defendant and his attorney allowed by a trial court was

oral messages relayed through the court bailiff. The Florida Supreme Court

reversed for a new trial holding that a delay in communication between a defendant

2 As the Petitioner is currently an inmate in the Florida Department of Corrections

this statement may not carry the greatest of weight, as the databases available on

the Lexis Nexis research platform are limited to Florida, and federal cases. No case

law from other states are available.

xxi

and his attorney chills the defendant's constitutional right to aid his attorney in his

defense. Myles 602'at 1280

The, third case decided on this issue is Hall v. Lee Arrenc/ale State Prison 686

Fed. Ap;x. 671 (11th Cir 2017). In Hall the Eleventh Circuit granted federal habeas

relief based upon a claim of ineffective assistance of appellate counsel. Relying on

several cases from this Court the Eleventh Circuit held that "with limited

exceptions... a defendant has a right to unrestricted access to his lawyer for advice

on a variety of trial-related matters." Hall 686 at 681. The Eleventh Circuit went on

to say that because Hall "ould not: communicate with [her] attorney when he

examined the State's most important witness... extremely serious Sixth Amendment

problems [arose]." Id Interestingly, in Hall the trial court's failure to provide the

defendant with a means of instantaneously communicating with counsel was not

objected to in the trial court.

The final case is Miguel v United States, 111 F. 3d 666 (9t1 cir 1997): In

Miguel the trial court approved of allowing a child-victim to testify outside the

defendant's presence. Miguel's attorney requested that Miguel be provided some

form of electronic communication as was his right. The trial court denied the

request believing that telephonic communication during the deposition 3 would

intimidate the witness. On appeal the Ninth Circuit found that 18 U.S.C. 3509 had

been violated, but any violation was harmless. In support of their ruling they re-lied

The deposition taken in Miguel is the equivalent of a witness testifying at trial.

See 18 U.S.C. 3509(b) (2) (Allowing the government to introduce a videotaped

deposition of child witness in lieu of actually having the child witness testify at

trial.)

xxii

exclusively on the fact that Miguel had been represented by two attorneys, one of

which was with him during the time the child witness was testifying. The Ninth

Circuit cautioned, however, that "[h]ad a second attorney not been available to

Miguel, Miguel's inability to communicate contemporaneously with his counsel or

initiate a break in the deposition for purposes of conferring with counsel would have

raised extremely serious Sixth Amendment problems." Miguel, 111 F.3d at 672. In

other words had Miguel's trial proceeded like the Petitioner's it is almost certain

that the Ninth Circuit would have reversed his conviction and remanded for a new

trial.

In sum, the Petitioner contends that the State Court's failure to provide him

with a means of instantaneous communication with Trial Counsel constructively

deprived him of the assistance of counsel during perhaps the most critical stage of

his trial. To this end, by having no way to communicate with Trial Counsel during

the testimony of the victim the Petitioner was unable to assist counsel with direct or

crass-examination. Furthermore, the Petitioner was deprived of the ability to have

counsel request a recess so that he could point out inconsistencies in the victim's

statements or advise counsel that the victim was being untruthful. Finally, had the

Petitioner felt that the victim's testimony was powerful enough that there was no

chance a reasonable jury would have no choice but to convict him, he had no means

of requesting counsel to attempt last minute plea negotiations. Accordingly, the

Petitioner submits that the State Court's denial of this claim is contrary to or an

xxiii

unreasonable application of Geders. The Petitioner contends that he is entitled to

federal habeas relief on this claim.

In the alternative, if this Court finds that the record is insufficiently

developed to properly resolve the instant claim, the Petitioner requests this Court to

issue a Certificate of Appealability on this issue, and remand the instant claim to

the Eleventh Circuit for further consideration.

In order for a COA to issue a movant must make a substantial showing that

they were denied a constitutional right. 28 U.S.C. 2253(c)(2) In

Miller-El v.

Cockrell, 537 U.S. 322,. 336, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003) this Court

held that this requires a petitioner to show "that reasonable jurists could debate

whether the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further." 536

U.S. at 336

This Court reiterated this standard in Buck v. Davis, 580 U.S.

137 S. Ct.

759, 197 L. Ed. 2d 1 (2017) to mean that a full merits determination is, not

appropriate when deciding this threshold issue. Indeed, quoting Miller-Elthe Court

pointed out that "[Al claim can be debatable even though every jurist of reason

might agree, after the COA has been granted and the case has received full.

consideration, that petitioner will not prevail." While a COA is not a necessity in

every federal habeas case denied by a -district court, the threshold standard is

relatively low and allows a COA to issue as long as the movant shows that the issue

presented is debatable among jurists of reason.

xxiv

The Petitioner submits that the question of whether he. was constructively

denied the assistance of counsel during a critical stage of his trial is debatable

among jurists of reason. At the very least it "deserve[s] encouragement to proceed

further." Thiee of the four cases dealing with this issue were reversed for new trials.

The fourth was only affirmed because the defendant in that case was represented.by

two attorneys. Thus, it appears that courts across this nation hold the Unanimous

view, based on decisions issued by this Court, that any bar on immediate and

instantaneous communication4 with counsel deprives a criminal defendant of the

assistance of counsel guaranteed by the Sixth Amendment of the United State's

Constitution. Notwithstanding this view the Petitioner has been denied relief in

every court he has sought review in. The upholding of the Petitioner's conviction

and sentence in light of all the contrary authority creates a grand disharmony in

the uniform application of this nation's laws. Such disharmony, the Petitioner

submits, makes the district court's denial of this claim questionable, and therefore

debatable among jurist.s of reason. The Petitioner contends that, at a minimum, he

is entitled to a COA on this instant claim.

CONCLUSION AS TO ISSUE ONE

The Petitioner submits that he has clearly demonstrated that he was.

constructively denied the assistance of counsel during a critical, stage of his trial.

This constructive denial of counsel violated the Petitioner's Sixth Amendment right

to the assistance of counsel throughout all critical stages of the trial process.

Accordingly, the Petitioner's conviction and sentence in the instant case was

Subject of course to the circumstances presented in Perry v. Leake, 488 U.S. 272,

102 L. Ed. 2d 624, 109 S. Ct. 594 (1989)

xxv

obtained in violation of the laws of this county and cannot stand. Therefore, this :

Court ought to Grant the Petitioner Federal Habeas Relief, Vacate the Petitioner's

Conviction and Sentence and Remand this Case to the State Court for Retrial.

Alternatively, this Court should grant the Petitioner a Certificate of Appealability

and Remand this case to the Eleventh Circuit for a full merits determination. For

the above reasons Certiorari review should be granted in this case.

ISSUE TWO

On October 30, 2007, an evidentiary hearing was conducted to determine

whether or not the victim in the Petitioner's case would be allowed to testify via

closed circuit television. This hearing was conducted pursuant to Fla. Stat. 92.54.

The Petitioner contends that Trial Counsel rendered ineffective assistance of

counsel when she failed to notify the Petitioner of a pretrial evidentiary hearing

where it was determined that the victim would be allowed to testify by closed circuit

television in violation of the Petitioner's rights as secured by the Fifth, Sixth, and

Fourteenth Amendments. See Appendix G (Transcript of the October 305 2007

Evidentiary Hearing) The Petitioner will demonstrate how Trial Counsel's

performance was deficient and how that deficient performance prejudiced him.

A. Presence

The Supreme Court has recognized that the right to personal presence at allcritical stages of the trial is a fundamental right of every criminal defendant. This

right derives from the Confrontation Clause of the Sixth Amendment and Due

Process Clauses of the Fifth and Fourteenth Amendments.

Fla. Stat. 92.54 is the state analogue to 18 U.S.C. §3509.

xxvi

The State Attorney, since the beginning of the Petitioner's case, has

emphasized that the hearing at issue was one for purely legal issues. The Eleventh

Circuit Court of Appeals agreed with this view in denying the Petitioner a

Certificate of Appealability on this issue. See Appendix D Order of the Eleventh

Circuit Court of Appeal ("Even assuming that the evidentiary hearing was a critical

stage in the proceeding, counsel's failure to compel Perea's presence did not affect

the outcome, as the parties discussed only legal issues at the hearing.") For the

following reasons the Petitioner contends that the Eleventh Circuit's rationale for

denying this claim is wholly erroneous and cannot stand.

In Kentucky v. Stincei; 482 U.S. 730, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987)

this Court held that a criminal defendant has a due process right to be "right to be

present at any stage of the criminal proceeding that is critical to its outcome if his

presence would contribute to the fairness of the procedure." 482 U.S. at .785 'A

leading principle that pervades the entire law of criminal procedure is that, after

indictment found, nothing shall be done in the absence of the prisoner. United

States v. Canady, 126 F.3d 352, 360 (2d Cit. 1997) (quoting Lewis v. United States,

146 U.S. 370, 372, 13 S. Ct. 136, 36 L. Ed. 1011 (1892)). The right to presence is

scarcely less important to the accused than the right of trial itself. Diaz v. United

States, 223 U.S. 442, 455, 32 S. Ct. 250, 56 L. Ed. 500 (1912). It is rooted to a large

extent in the Confrontation Clause of the Sixth Amendment, United States v:

Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985) (per curiam),

but due process also protects the right of a defendant to "be present in his own

xxvii

person whenever his presence has a relation, reasonably substantial, to the fullness

of his opportunity to defend against the charge, Snyder v Massachusetts, 291 U.S.

97, 105-06, 54 S. Ct. 330, 78 L. Ed. 674 (1934)." Grayton v. Ercole. 691 F.3d 165 (Did

Cir. 2011)

the Fourth Circuit held that

In US v. Barfield, 969 f, 2d 1554 (4th Cir. 1992)

a defendant 'has a right to be present, and to be represented by counsel, at a

competency hearing, which is a "critical stage" of a criminal proceeding. The

Petitioner submits that the .hearing complained of here was of at least equal import

as the competency hearing described in Barfield.

Indeed this position is supported by an analogous case from the Middle

District of Alabama where the Court, in determining whether or not to hold a

hearing under 18 U.S.C. §3509, found that the defendant did in fact have a right to

be present at the hearing. See US v. Partth,-

F. Supp. 2d 1219 (M.D. Ala.-2013)

To this end the court stated "the nature of the defendant's confrontation clause trial

right was an underlying factor that illuminated what statutory law required of a

hearing under §3509(b)(1)(B), that is, the hearing to determine how the defendant's

confrontation clause rights will be enforced at the trial itself. In light of those

general considerations, the court will determine what procedures are appropriate

for a §3509 hearing." (alterations omitted) Thus, the Petitioner submits that it is

well established that he had an absolute right to be present at the hearing at issue

in this case.

xxviii

B. Waiver of Presence

The Petitioner submits that it is impossible to knowingly, intelligently, and

voluntarily waive his right to be present at a hearing he was not aware of.

During the hearing at issue the Petitioner's Trial Counsel asked the Court to

waive the Petitioner's presence by stating, "I am asking the Court to allow me to

waive his presence." While doing this Trial Counsel admitted that she did not

advise the Petitioner of the hearing. When the Trial Court expressed concern at the

Petitioner's .absence Trial Counsel blew the issue off by claiming that it would be too

difficult to obtain an interpreter, for the hearing.

Without the Petitioner's consent Trial Counsel persuaded the Trial Court

that the Petitioner did not want to be at the hearing. To this end, Trial Counsel

alluded that they had many discussions and the Petitioner was fully aware of the

purpose the evidentiary hearing as well as the potential consequences that could

result. there from. Moreover, Trial Counsel advised the Trial Court that the

Petitioner was alright with allowing them to proceed without him being present.

The Petitioner now contends that Trial Counsel's statements were not true

and only served to mislead the Trial Court. The Petitioner never agreed to waive his

presence at any hearing and would have completely refusedto waive,. had he been

aware of the hearing, his presence. This is especially true because of the magnitude

of hearing, and the potential consequences an adverse decision entailed. This

contention is self-evident because no where within the Petitioner's record is a

xxix

written waiver as is required by Fla. R. Crim. P. 3.180(a)(3). The Petitioner submits

that this is because no such waiver exists.

Moreover; had Trial Counsel conveyed the nature of the hearing to the

Petitioner and fully advised him of the ramifications of an adverse outcome then the

Petitioner could have made an intelligent, knowing, and voluntary waiver. As this

did not occur the Petitioner could not have made a proper waiver of his right to be

present. Fla. R. Crim. P. 3.180 (analogue to Fed. R. Crim. P. 43) Also see Allen,

Florida Criminal Practice and Procedure §12,2; cf. Coney v. State, 653 So. 2d 1009

(Fla. 1995), Reglstei v. State, 946 So. 2d 50 (Fla. 11t DCA 2006) (Holding that "...a

court must certify through proper inquiry that the waiver is knowing, intelligent

and voluntary.")

A criminal defendant's right to be present is a personal right that cannot be

waived by their attorneys. See Porneranz v. State, 703 So. 2d 465 (1997) (Holding

that a defendant's absence from a pretrial conference without written waiver is

reversible error if fundamental fairness has been thwarted.) See also United States

Constitution Amendment 14 and Fla. R. Crim. P. 3.180. ("Pomeranz lastly asserts

that the trial court erred in conducting pretrial conferences on September 22, 1992,

and June 4, 1993, while he was not present. Pomeranz claims that his attendance at

these conferences was essential and that his absence constituted harmful error.

Florida Rule of Criminal Procedure 3.180(a) states that "the defendant shall be

present.

at any pretrial conference, unless waived by the defendant in writing."

Pomeranz did not waive attendance of either of these conferences in writing,

xxx

although defense counsel specifically waived Pomeranz's presence at the June 4,

1993, conference. Because no express written waiver was made by Pomeranz, we

find that error occurred. See also Coney v. State, 653 So. 2d 1009, 1012 (Fla. 1995),

cert. denied, 516 U.S. 921, 116 S. Ct. 315, 133 L. Ed. 2d 218 (1995) (conducting pretrial conference in defendant's absence without defendant's express waiver was

error although defense counsel purported to waive defendant's presence.")

The law is clear that the record must demonstrate that the defendant made a

knowing, intelligent, and voluntary waiver of his right to be present at an essential

stage of a trial notwithstanding the fact that counsel waives the defendant's

presence. Where defense counsel advises a court that they did not advise their client

of his right to be present and the record does not demonstrate that the court advised

the defendant of the right there can be no voluntary, knowing, intelligent waiver of

the right to be present. Moreover, when a defendant's attorney waives.., their

presence a trial court has an obligation to inquire with the defendant and obtain the

defendant's ratification of trial counsel's waiver. See State v. Melendez, 244 So. 2d

137, 139 (Fla, 1971) (stating, "no error occurs when the defendant is represented by

counsel who waives the presence of the defendant and the defendant later ratifies

the action of counsel.")

Because the Sixth and Fourteenth Amendments of the United States

Constitution guarantee a criminal defendant the right to be present during crucial

stages of his trial, Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353

(1970), or "at the stages of trial where fundamental fairness might be thwarted by

xxxi

his absence," Francis v. State, 413 So. 2d 1175, 1177 (Fla. 1982) the Petitioner's Due

Process Right to be Present has been violated. While constructive presence satisfies

the constitutional requirement it is only valid in a very narrow set of circumstances.

Illustrative of this point is the following: 'when a defendant is absent but is

represented by counsel to whom he has not objected, who waives objection to the

defendant's absence, actual or constructive knowledge of the proceedings may be

imputed to the defendant. Recognizing the possibilities of abuse of this doctrine, its

application has been, and should be, limited to those cases in which the defendant,

upon his reappearance at his trial, acquiesces in or ratifies the actions taken by his

counsel during his absence." State v. Melenc/ez, 244 So. 2d 137, 139 (Fla. 1971) The

key here is thata defendant must ratify counsel's decision to waive his presence at

the hearing the defendant was not present at. This was not done in the Petitioners

case and the result is a clear violation of his right to be present.

Petitioner contends that his absence from the critical pretrial evidentiary

hearing does not conform with the mandates of the State and Federal Constitutions.

Throughout all the Petitioner's proceedings the State of Florida has never been able

to produce any type of documentation that even begins to demonstrate that the

Petitioner voluntarily waived his right to be present during, the hearing at issue...

This is because there is not one. The record in this cases demonstrates beyond all

doubt that the Petitioner's absence from the pretrial evidentiary hearing, a critical

stage of the proceedings, was involuntary.

xxxii

• C. Notice

The Petitioner submits that Trial Counsel's failure to notify him of the

October 30, 2007, evidentiary hearing was ineffective assistance of counsel of such a

magnitude that the Petitioner is entitled to federal habeas relief. Here, Trial

Counsel's failure to advise him of the evidentiary hearing denied the Petitioner Due

Process of Law. See Mullane v. Crentral Hanover Bank, 339 U.S. 306, 314, 70S. Ct.

652, 94 L. Ed. 865 (1950). The Petitioner was prejudiced by his absence from the

hearing because had the Petitioner been present he would have had an opportunity

to he heard. To this end, the Petitioner could have voiced his objection to Trial

Counsel having failed to contact and call an independent expert at the hearing that

would have testified contrary to the State's expert. Also the Petitioner would have

objectedto the State's expert testifying telephonically which would have resulted in

the State not being able to demonstrate that the victim should be allowed to. testify

via closed circuit television. See Brown v. State, 855 So. 2d 1267, 1269 (Fla. 4th DCA

2003)(finding that unsworn statements cannot establish facts.) The Petitioner's

Fifth and Fourteenth Amendment Due Process Rights were violated.

This Court in Mullane stated that is "an elementary and fundamental

requirement of Due-Process in any proceeding which is to be accorded finality is

notice reasonably calculated, under all circumstances, to apprise interested parties

of the pendency of the action and afford them an opportunity to present their

objections." 399, at 314, 70 S. Ct. 652, 657.

xxxiii.

-...

The amount of notice for a hearing, like other components of procedural DueProcess, depends on the nature of the proceedings. For example, the amount of

notice that is necessary to provide meaningful opportunity to be heard is not the

same for an evidentiary hearing as it for a status conference, since the opportunity

to be heard at an evidentiary hearing, requires time to secure the attendance of

witnesses and to prepare for the presentation of evidence and arguments.

To qualify under procedural Due-Process standards, opportunity to he heard

must be meaningful, full and fair, and not merely colorable or illusive. Florida

Constitution Article 1 § 9 and United States Constitution Amendments Five and

Fourteen.

Based on the facts and records of the instant case it is clear that there was no

notice provided to the Petitioner. There is no indication that Trial Counsel did

anything to notify the Petitioner about the evidentiary .hearing. Thus, there simply

was no way for the Petitioner to intelligently, knowingly, ..and voluntarily waive his

right to be present' at a hearing that he was not aware of.

The core problem here was the lack of notice and no actual notice of the

hearing. The Petitioner believes that the defining the words "actual" "notice" and'

"hearing" is appropriate here.

First, the word "actual" is defined: "as existing in fact and reality."

The word "notice" means: "a notification or communication of'fact, claim or

proceeding. Actual awareness or direct notification of a specific fact, demand, claim

or proceeding; Had actual notice of the hearing."

xxxiv

174

Finally, Hearing is defined: "a proceeding of relative formality at which

evidence and arguments may be presented on a matter at the issue to be decided by

a person or body having decision-making authority." The purpose of a hearing is to

provide the opportunity for each side of a dispute, and especially a person who may

be deprived of his right, to present their position.

A hearing along with the notice requirement is a fundamental part of

procedural due process. The lack of actual notice by Trial Counsel, the Trial Court

or the State, in the Petitioner's case without the Trial Court later ratifying Trial

Counsel's waiver of the Petitioner's presence was unfair, inadequate and most of all

unconstitutional.

The Petitioner contends that because this is a case where the prosecution

depended solely on the credibility of the victim's allegations, opposed to direct

physical evidence such as DNA, or third party eyewitness testimony it was critical

for the State to have the victim testify through closed circuit television and avoid

face-to-face confrontation. By the Petitioner not being advised nor attending the

hearing the Petitioner missed out on an excellent opportunity to observe the

awesome advantage that the State had secured over him.

There is no way that this issue can be considered harmless. If the Petitioner

had been given the opportunity to object to the telephonic hearing, to the

psychologist's unsworn testimony or to Trial Counsel's failure to call an

independent psychologist the Petitioner would have made his objections known.

Moreover, if any of these three things had been done it is reasonably probable that

MWVA

the Trial Court would have denied the State's motion and the victim in this case

would have been compelled to testify against the Petitioner vis-à-vis. Had the victim

been forced to testify against the Petitioner in the same courtroom as the Petitioner

the jury would have been in a better position to judge her credibility which in turn

would have resulted in reduced credibility because the victim was not of such a

nature to be believed face to face.

d) Telephonic Testimony

At the October 30, 2007, evidentiary hearing the Court allowed the

prosecutor present the testimony of a child psychologist (State's Expert Witness)

telephonically. An oath was administered to the State's Expert Witness by the Clerk

of the Court over the telephone. (See Appendix "G" pg. 5)

Based upon the State's Expert's testimony the Trial Court granted the State's

motion. The Petitioner submits that the Trial Court erred in allowing the State's

Expert Witness to testify telephonically where there was no notary public was

physically present with the State's Expert to verify that the Witness was who the

witness claimed to be. This failure to ensure the identity of the State's Expert

witness violated Fla. R. Jud. Admin. 2.530(d)(3)6 . The Petitioner submits that both

the taking of the State's Expert's testimony telephonically and failure to ensure the.

identity of the State's Expert witness denied him a fair trial. To this end, the

Petitioner was not afforded his right to confront the witnesses against him through

the use of an unsworn and unidentified expert witness.

The Florida analogue to Fed. R. Civ. P. 43.

xxxvi

Trial Counsel failed to object to the hearing being held telephonically. Trial

Counsel had a perfectly legitimate reason to object to the testimony being taken in

this manner as Fla. R. Jud. Admin. 2.530(d)(2) requires that the "[tihe party

seeking to present the testimony shall move for permission to present testimony

through communication equipment, which motion shall set forth good cause as to

why the testimony should be allowed in this form." Thus, prior to the hearing in

which a party wants to present telephonic testimony the party seeking the

admission of telephonic testimony must motion the court and give good cause as to

why they should be allowed to introduce telephonic testimony. Trial Counsel's

failure to object to the State failing to give advance notice of their Expert's

testifying telephonically constitutes deficient performance.

Petitioner contends that Trial Counsel was ineffective for failing to object to

the Expert's testimony being obtained in violation of the Petitioner right to due.

process and equal protection resulting in the Petitioner being deprived of a fair

trial.

The telephonic hearing violated the Petitioner's rights in that it failed to

satisfy the observation requirement where a judge is supposed to evaluate a

witness's credibility by them sitting before him. Making matters.worse is that there

is absolutely no proof that the Expert raised her right hand when the Clerk of Court

administered the oath over the telephone.

Moreover, Fla. R. Admin. P. 2.530(d)(3) provides that "Testimony may be

taken through communication equipment only if a notary public or other person

xxxvii

authorized to administer oaths in the witness's jurisdiction is present with the

witness and administers the oath consistent with the laws of the jurisdiction." See

also Brown v State, 101 So. 3d 381 (Fla. iDCA 2012) (holding that it was trial

court error to allow a witness to testir telephonically where there was no notary

public or other person authorize to administer oath present with the witness.) See

also Fla. Op. Att. Gen. 92-95 Dec. 23, 1992 (1992 WL 527506) and Fla. Stat.

§117.03(4) prohibiting the clerk from administering the oath over the telephone to a

person who is not in the presence of a notary. In the Petitioner's case it is evident,

from the face of the record, that a notary was not present with the State's Expert.

For one, during the testimony only the State's expert said anything upon receiving

the phone call and perhaps more importantly no jurat or certification as prescribed

by the rules, can be found anywhere within the record of this case.

The Trial Court improperly relied upon the telephonic, unsworn statements

given by the State's Expert Witness at the Fla. Stat. 92.54 evidentiary -hearing. See

Brown v. State, 855 So. 2d 1267, 1269 (Fla. 4th DCA 2003)(finding that unsworn

statements cannot establish facts.) At the hearing in the Petitioner's case not a

single one of the procedural safeguards that have been emplaced to ensure the

reliability of telephonic testimony were followed by the State, by Trial Counsel, or

- -

by the Trial Court.

Further- casting on doubt the reliability of the proceedings is the State's

admission that they were inexperienced when it came to the type of proceedings

that took place in the Petitioner's case. (See Appendix G pg. 34-35)

xxxviii

Ms. RiveraCastro (The Prosecutor)- Right I'll contact court administration

this week and find out how long the process takes or what

we need to do to set that up.

The Court: All right.

Ms..Rivera -Castro- Because I've never done that either. So...

The Court: If you could—whatever you learn, if you could share that with Ms.

Manuel (defense counsel) and I. I don't know if Ms.

Manuel is familiar, but I'm not.

Both Florida and. Federal Courts have held it to be error for a trial court to

allow a witness to testify over the telephone where there is no notary public present

with the witness to administer oaths. In US. v. Ruiz-Gastro, 92 F.3d 1519 (10th Cir.

1996) the Tenth Circuit stated "the opportunity to depose his parents over the

telephone because the court would not be able to confirm that the person speaking

on the phone would testify truthfully because the witness could not be sworn under

oath." The Court went on to - say that the defendant neither referenced any treaties

nor did he state that his father would testify before a person authorized to

administer oaths. In the Petitioner's case the Court should have done the same.

Accordingly, the Petitioner submits that the law concerning the taking of

telephonic testimony is clear. Moreover, in totality, Trial Counsel's conduct in the

Petitioner's case in allowing the State to take telephonic testimony was nothing less

than inexcusable, ineffective, and egregious. There can be no doubt that Trial

Counsel's performance fell below that of professional norms and prejudiced the

outcome of the Petitioner's case. This is especially true concerningthe taking of the

telephonic testimony where the telephonic testimony was the only evidence

introduced at the hearing to support the ruling the Trial Court made in connection

with the hearing. See Brown v. State, 101 So. 3d 381, 382 (Fla. 1st DCA 2012) ("We

xxxix

cannot say that the error wa harmless. Aside from Dr.. Jensen's testimony, there

was no other evidence to support the trial court's finding that the.State proved by

clear and convincing evidence that the appellant's mental condition remained such

that it was not safe for him to be at large and that, if released, he was likely to

engage in acts of sexual violence.")

CONCLUSION AS TO ISSUE TWO

The Petitioner submits that he has presented a clear case of deficient

performance on the part of Trial Counsel and immediate and direct prejudice

flowing from Trial Counsel's deficiencies. Furthermore, the Petitioner submits that

the Eleventh Circuit's rationale for denying this claim is unfounded as it is beyond

debate that but for Trial Counsel's deficient performance the result of the

proceeding would have been different. The Petitioner Sixth Amendment right to the

effective assistance of counsel has clearly been abridged in the instant case.

Accordingly, this Court should reverse the Petitioner's conviction sentence and

remand this case to the State Court for a New Trial. Any other result would be

unjust.

WHEREFORE the Petitioner respectfully requests this Court to Grant

Certiorari Review of the instant case and provide the Petitioner with the

appropriate relief.

Re7fll

uys'u itted,

it4o Kle I-q-lq

Date: 0t-ôq-ioi

Dig ' erea

D# X62786

Everglades Correctional Institution

1599S * W. 187th Ave.

Miami,Fl. 38194-2801

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.