Petition for Writ of Certiorari — Amadeo Valls, Petitioner v. Florida

Supreme Court briefJul 15, 2020

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—___ ------------initials

IN THE

SUPREME COURT OF THE UNITED STATES

Supreme Court, U.S.

FILED

<h •

JUL 1 5 2020

OFFICE OF THE CLERK

AMMvTo VM-LS

-Petitioner

(Your Name)

VS.

FLOfUPA

- Respondents)

PETITION FOR A WRIT OF CERTIORARI

FLORIPK THtRb PISTRVCT COURT OF kfPSAL

(Name of Court that last ruled on merits of your case) .

PETITION FOR A WRIT OF CERTIORARI

AM/vdeo

vau-s

(Your Name)

F.D.O.C.

BLACKWATER RIVER CORRECTIONAL FACILITY

5914 JEFF ATES ROAD

MILTON, FLORIDA 32583 * r ,

QUESTIONS PRESENTED

(lj)

WHETHER Due process prohibits Florida from

excluding

Hews rea .instruction from Burglary

CHARGES or WHETHER IT IS STRUCTURAL ERROR For

Trial courts to Refuse to submit aw element to jurors

IF SUCH ELEMENT IS ESSENTIAL, IM DISPUTE, AND I As THE

Topmost materialconsideration, Highly capable of

ACQUITTING ftCCUS&S>'

CuO WHETHER, TENAWCV CONTROVERTS THE

necessary Mews

REA ELEMENT FbRT-HE CRIME OF BURGLARY OR WHETHER

FAILURE TD SUFFICIENTLY REBUT A VULNERABLE TENANT'S

AUTOMATICALLY REASONABLE B6(J|6F NEGAT1N6 MB MS REA

IS CAPABLE, BY ITSELf- OF REMDERMslG BURGLARY

COMUICTIOM CONSTITUTIONALLY PROHIBITED ^

Cxn~«) Does CHARGING CONTRADICTORY SETS OP ALTERNATIVE

lNSTRuariONS, R6QUtRING CONFLICTING LEGAL FINDINGS FOR

the same Facts, eecome capable, BV itself, of rendering

trial

CoMsrrrunona-lly inadequate*

(TV-) WHETHER DUAL THEORY LANGUAGE IN FLORIDA'S

CAPITAL MURDER STATUTE AUTHORIZES UNLIMITED OVER

RULING OF A STRUCTURAL RIGHT To GRAND TURY

RE INDICTMENT

CV.) WHETHER CUMULATIVE PREJUDICIAL EFFECT OP

&RROR IB CAPABLE, BY ITSELF, OF RENDERING A-TRIAL

Comstitutiomally inadequate^

ii»

TJST OF PARTIES

Pd 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:

iii.

TABLE OF CONTENTS

Page:

Index to Appendices

Table of Authorities Cited

Opinions

xi.

Jurisdiction

Xu.

Constitutional and Statutory Provisions Involved

Statements of the Case

Reasons for Granting the Writ

Conclusions

3io

.» e

iv.

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IN TH-t

SUPREME COURT OF Ttf-E UNITEO STATES

PEjlTlOls/ FOR. LORlToF C€RTioRAR.l

Petitioner respe ctfu lltj prztijS thata u>h~t of certiorari to rcuie^J

the. Judgment b-efouJ*

OPUOlONZ BELOuU

For cases fhnn Sfete Coufts :

The opinion of'the, highest State Gxirt fo rtoie^j the.

merits appears qt Appendix.

Uhpglolc&kedl f

to the petition a.nt

The. op in ion of the Sqwg State Co u.rt (on^jVal/y

deciding) Same case, appears at Appendix. P to this

petition ant iSj reported at IS*? So, 3d <23 V Ortq* 3d

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Afrewd

Crlw\iwa\ actions frovisiows Concerning Due process oP

Av/J

d just Compensation cWiSeS.

No person sbait be. beVdto ansujer fbr A capital j or ©"tberonse iVifk^ous

Crimej Unless ana presentment" or A'^duPment’

A £>ra*vd 3urtjj ex.eepV in

Cases arising In+be land or havaI fdrceS) or {n"tiie HUItlAj ujben ib o_c\uaI

Service fn+ime dp War cr public. dAnger *} nor sbatl be Compelled in any

Criminal case to be a witness against blmsetP) nor be deprived ©p- life (

liberty) or property, unPboiAp due process oP (auj ' r>or sba.ll private

property betaken fbr public usei ouYtbout jtXst compensation.

Amendment

R\C[i\ts ot tbe Accused *

Xn all cn'vA iVaA prasecxAtowSj'VKe accused •sbal\ enjoy tbe rigVit "to a

Spee<d<y And p ub\ i_c trialby Ain impartial jury oTtW. State and district

uoUerevn pbe crime. sba.ll ba_ve been Committed ) ujbicJn distvict shall ave

been previously ascertained by \auo, and to be iv\f<ATIM.ed of- tbe nature

and cease cdp tbe areasatiov\ jto be conPr&rsted u/ita tbe u/itnessfi#

against b\rv\ ^ t© Wave Covvspulsory processtor- obtainivy outnesses. In

kistk\/or, and “to bavetbe. Assistance dt Counsel dor bis d-epence^

f\lv\ei\dmcnp

^ Se.cA» [CiPi^ens ettVig. United ^tatesT\ All

persons born or

naturalised indhe United Stapes, and Subject to tbe jurisdiction PWt.^

are citizens ettbeUnited Stapes and ottbe State a)herein Pbey reside.*

No State Sball maW. or entbree any Wuj ujbicb sball abridyetbe

privileges or immunities cip api-zenS ottbe United States} nor sball

any State deprive Any person oP lite, liberty j or property , untbout

d.ue process ot \ai/J ] nor deny tco awy person cvrthin its jansdrcpion

tbe ey^cd protection at tbe IaujS*

STATEMENT OF THE CASE

Petitioner, a gunshot victim himself, committed

justifiable homicide during a domestic firelight on

September 7th 2009. The grand jury returned a "no

bill" for first-degree (premeditated) murder, so

Florida then filed a second-degree murder

information on September 29th 2009, yet later

indicted him for first-degree (felony) murder, on

February 15th 2012, via a legally interlocking count

of predicate felony burglary to structure for entering

driveway "curtilage" of his allegedly abandoned

sublet in order to commit (misdemeanor prank)

criminal mischief. See Append ix A

Petitioner was convicted on both counts at the

original trial on October 2012, later reversed for

omitting burglary affirmative defense instruction.

Valls v. State, 159 So. 3d 234, 238 (Fla. 3d DCA

2015). See Appendix F

In 2016, Prosecutors ambushed the defense at new

trial with yet another predicate felony theory —

burglary to conveyance — via a constructive

amendment to indictment applied by (misconstrued)

license of the statutory dual theory language behind

first-degree murder statute. The trial court overruled

defense objections, granting the uncharged theory —

featuring new evidence, closing arguments, and jury

instructions.

Other exceptions took place during that retrial and

then at two more retrials. Prosecutors introduced

irrational presumptive instructions. Prosecutors also

conflated two contradictory sets of mutually exclusive

alternative burglary instructions that negated an

. affirmative defense argued in (IIP, infra. Trial court

denied judgment of acquittal argued in (II.), infra.

This unique case has three structural error vectors,

i.e., (a) aggravated usurpation of petit jury's authority

via purposeful omission of crucial acquitting

instruction argued in (I.), infra, (b) aggravated

usurpation of grand jury's authority via constructive

amendment argued in (IV.), infra, and (c) biased trial

judge, not argued on appeal.

Two retrials ended in hung-juries. The mistrials were

contested since juries submitted queries on

conveyance burglary — requesting clarification on

that uncharged burglary just prior to deadlocking.

Thus, based on two "promoted" hung-juries, a pretrial

interlocutory appeal on double jeopardy grounds was

still pending, during trial, at the state level. See

Vails v. State, 251 So. 3d 144 (Fla. 3d DCA 2018)

(collateral attack dismissed). See Appendix G

Petitioner was reconvicted at a fourth trial in

December 2017. Petitioner's direct appeal,

challenging fourth trial, was denied by per cunam

affirmed decision without opinion on April 1st 2020,

and rehearing motion denied on April 20th 2020. See

Appendices B, C, D, E j H j I4 O', K > L

REASONS FOR GRANTING THE PETITION

(I.) WHETHER DUE PROCESS PROHIBITS

FLORIDA FROM EXCLUDING MENS REA

INSTRUCTION FROM BURGLARY CHARGES

OR WHETHER IT IS STRUCTURAL ERROR

FOR TRIAL COURTS TO REFUSE TO SUBMIT

A ELEMENT TO JURORS IF SUCH ELEMENT

IS ESSENTIAL, IN DISPUTE, AND, AS THE

TOPMOST MATERIAL CONSIDERATION,

HIGHLY

CAPABLE

ACQUITTING

ACCUSED.

WWiv\

accused fetfVioYter

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Mens rea is an embedded element within statutory

crimes based on common law crimes. It is the one

essential element fundamentally in common in all

crimes. To deny its charge is to deny tradition. [(*)]

States must prove an accused’s guilty mind —

whereby one "knew or should have known" that the

intent by his actions was wrongful and criminal since

”[t]he existence of a mens rea is the rule of, rather

1 [(1) Mens rea is so "[ujniversal and persistent," U.S. v. U.S.

Gypsum Co., 438 US 422, 436 (1978), that it requires no

"statutory affirmation." Morrisette v. U.S., 342 US 246, 251-52

(1948). Judges cannot "[disregard this bedrock American

tradition." U.S. v. Bruguier, 735 F. 3d 754 (CA 8 2013) (enbanc)

(concurring) (citing Morrisette. supra)l

than the exception to, the principles of AngloAmerican criminal jurisprudence." Dennis v. U.S.,

341 US 494, 500 (1951). The separate states avoid,

however, the burden of proving mens rea by excluding

mens rea from standard jury instructions. But to not

instruct on mens rea, in order to convict, is

unconstitutional

sueW

Burglary is a compound crime. It contains two mens

rea components — burglars must knowingly trespass

while also harboring a criminal intent therein.

Pursuant to statutory expansion of common law

burglary, Florida standard burglary instructions

charge juries with burglary's criminal intent therein,

but do not charge juries with burglary's knowingly

trespass (i.e. — silent on the question of fact

concerning burglar's mens rea element of willful

trespass knowledge). Prosecutors, relying on Florida

courts default use of burglary's affirmative defense

instruction (statutorily designated for licensees and

invitees), have taken strategic liberties by

overcharging vulnerable lessees' petty crimes as

burglary in order to reap tactical benefits off this

critical lack of knowledge instruction, but, contrary to

Winship mandate. In Re Winship, 397 US 358, 36364 (1970). Thus, until Florida's standard burglary

instructions include the omitted knowledge element,

to deny then specially requested instruction on

knowledge in cases where mens rea is in dispute, and

also a key material consideration highly capable of

acquitting, further compounds this error by omission.

[(2 )] [(3 )]

Trial by jury is structural, serving as "[a]n

inestimable safeguard against the corrupt or

overzealous prosecutor and against the compliant,

biased, or eccentric judge," Duncan v. Louisiana,

391 US 145, 156 (1968), designed "[t]o prevent

oppression by the government," Williams v.

Florida. 399 US 78, 100 (1970), realized through

sound judgment by one's peers. Sound verdicts are

rendered by informed juries charged with sufficient

information to resolve all disputed elements. While

informative resolution of all legal disputes is how jury

verdicts are justifiably rendered, juries highest

purpose is protecting innocence by acquittal, but

2 [(2) One standard burglary instruction does instruct on

knowledge, using "knew or should have known" language — but

it is only applicable dining instances where contested premises

are deemed "open to the public." See Fla. Std. Jury Instr. (Crim)

13.1 (2009-201'?') — paragraph six — which states: "[Give if

applicable] If (defendant) entered premises that were open to the

public, but then entered an area of the premises that [he] [she]

knew or should have known was not open to the public,

(defendant) committed a burglary if [he] [she] entered that non

public area with the intent to commit [(the crime alleged)] [an

offense other than burglary or trespass] in that non-public

area."]

3 [(3) Although a default affirmative defense for licensees and

invitees was given as mandated, see Vails, id. at 238, still, such

partial defense (Petitioner was operating as a sublessee) was

neutralized, see (III.), infra at IT-tybv conflicting alternative

burglary instructions. Unlike mens rea, affirmative defenses are

not elements. Patterson v. N.Y., 432 US 197, 210 (1977).]

jurors cannot acquit if a disputed element is being

omitted in favor of the State. So that structural

"safeguard" is short-circuited by omitting elements

that acquit. That is a bright-line. The Constitution

and Bill of Rights both guarantee jurors will

knowledgeably resolve each and every disputed

material element necessary to render justified

verdicts based on their authority to informatively

answer all pertinent questions of fact about a case,

which includes a key structural warranty "[t]hat

under a proper instruction the jury would have

acquitted." Neder v. U.S, 527 US 1, 28-29 (1999)

(STEVENS, J., concurring in part and concurring in

judgment).

On a case by case basis, if an omitted element is

disputed and, as a topmost "material consideration,"

also capable of acquitting, then the Court's harmless

error designation in Neder is incomplete, if not

illogical, since the Court did not incorporate, but,

instead, overlooked the explicit precedent in

Stevenson v. U.S., 162 US 313 (1896), reiterated in

U.S., 485 US 58 (1988), which

Matthews v.______

essentially overrules the Neder premise that "[t]he

omission of an element from the judge's charge to the

jury can be harmless error," Neder, id. at 7 (majority

opinion). In that light Neder subverts the original

concept of "trial by jury" when its own premise places

itself above

the sacred right to acquit, the

Stevenson ruling, and against the Duncan

"safeguard" which carries an implicit guarantee that

omission of a disputed element "can [never] be

harmless error" because constitutional verdicts are

not rendered unless jurors first resolve omitted

elements that are disputed, material, and possibly

acquitting. Judges cannot resolve disputed omissions

as a matter of law by reaching that determination

themselves. It misses the whole point of jury trials,

justice through "informed" peers. Courts cannot later

"[hjypothesize a guilty verdict that [was] never in fact

rendered." Sullivan v. Louisiana, 508 US 275, 279

(1993).

If the instant facts demonstrate a structural defect

which cannot be deemed harmless, see Neder, id. at

32 (SCALIA, J., concurring in part and dissenting in

part) (opining that "[depriving a criminal defendant

of the right to have the jury determine his guilt of the

crime charged which necessarily means his

commission of every element of the crime charged can

never be harmless."), then the Court should revisit

"(protecting the right to have a jury resolve [omitted]

critical issues of [disputed] fact," id., at 28, which

protects the right to "resolve" issues which may

acquit, the key structural guarantee ensuring an

accused's liberty under due process of law. Petitioner

claims that, contrary to original documented rights

and rule of lenity, he has lost one too many of his

substantial rights (i.e. — 'Ttlhe only one to appear in

both the body of the Constitution and the Bill of

Rights" id., at 30), lost amid reactionary "tension"

struggling with but a mere legal premise overly

construed in the Neder denial of a core right through

what has become "harmful" hyperextension of the

harmless error doctrine. This case is at least ripe

enough to also answer the omission vector of the

Court's reserved question on whether structural error

automatically satisfies its third plain error rule. U.S.

v. Marcos, 560 US 258 (2010). [(4)]

Florida's Third District Court of Appeal improperly

determined Petitioner's guilt (by affirming trial

court's usurpation of jurors authority to render an

informed verdict under a crucial acquittal

determination), misapprehending the structural

omission of a pertinent mens rea charge on burglary's

element of knowledge. Two previous (hung) juries

were laboring without such mens rea instruction, so,

unable to informatively connect facts to missing

question of fact necessary to resolve that key element,

were also unable to determine what Florida courts

were too quick to assume. Petitioner was denied a fair

substantial right to acquittal, a structural right

behind trial by jury, guaranteed via informed jurors

empowered by thorough charges. The root structure

of all jury trials is access to pertinent information and

instruction, unhampered by prosecutors or judges

manipulations, clearly delineating what each element

of a crime is supposed to encompass — in order to find,

at the intersection of jury acquittal, every essential

element proven beyond a reasonable doubt. Anything

less is unconstitutional.

4 [(4) Part II of the unanimous Neder decision was not

unanimous and so it could be said to not have definitively

expressed "[a] clear and well accepted constitutional law. We

have long recognized, of course, that the doctrine of stare decisis

is less rigid in its application to constitutional precedents, and

we thinV that to be especially true of a constitutional precedent

that is both recent and in apparent tension with other decisions."

Harmelin v. Michigan, 501 US 957, 965 (1991) (citations

omitted)]

Burglary's common law knowledge element, like any

offense's element, "[i]s a question of fact that must be

determined by the jury." U.S. v♦ Gaudin, 28 F. 3d 943

(CA 9 1994) (en banc), affirmed by, 515 US 506 (1995).

"[TJt is a structural guarantee..." Carella v.

California, 491 US 263, 268 (1989) (concurring),

which commands that a ”[v]erdict cannot stand if the

instruction provided the jury do not require it to find

each element of the crime..." Cabana v. Bullock, 474

US 376, 384 (1986). So "[t]he touchstone for

determining whether a fact must be found by a jury

beyond a reasonable doubt is whether the fact

constitutes an 'element' or 'ingredient' of the charged

offense." Alleyne v. U.S., 133 S. Ct. 2151, 2158

(2013). Knowledge " [constitutes an [essential

common law] 'element'" of burglary, so "[i]t must be

found by a jury." Id. It was not.

The defense requested special instruction on

knowledge, as willful trespass knowledge — basing

the mens rea of burglary — was at issue, as Petitioner

appropriately believed that the curtilage was

essentially "open" for his private use as a current

sublessee (see footnote 2). The premise of Petitioner's

key prayer was to labor "[u]nder a proper [mens rea]

instruction [where] the jury would have acquitted."

Neder, id. at 28-29. The defense instruction correctly

stated that: "[T]he State of Florida must prove that

Amadeo Vails had knowledge that his entry was

without permission." See

H at

0.1-.

Petitioner reiterated, under rigors of a second crossexamination, that he believed he (did not trespass

but) entered lawfully. Whether his belief was

reasonable questioned the very heart of prosecution's

burden to prove the "[e]ssential elements... [of|

knowledge that such entry is without permission,”

T.S.J. v. State, 439 So. 2d 966, 967 (Fla. 1st DCA

1983), the mens rea behind what constitutes

burglary's "willful trespass." Lons v. State, 28 So.

775 (Fla. 1900). The instant existence of mens rea was

highly questionable. Current tenants automatically

lack mens rea. Since burglars enter knowing such

unlawful entries are willfully trespassed, if one

reasonably believes that he is not trespassing, then

mens rea is nonexistent. No trespass no burglary. For

one can only knowingly burglarize by willfully

trespassing (despite required criminal intent, for even

occupants can have criminal intents therein), so it

Knowledge

trespassing.

conscious

demands

instruction here would have challenged key

considerations material to Florida's uncommon

allegation that, not only did an allegedly ousted

renter's curtilage (driveway) burglary exist, but,

that its existence also precluded a prima facie case of

self-defense. Valls, id. at 238.

Such critical knowledge considerations required

factual determination by informed jurors, requiring

informed findings for either one of two possible

mindsets, i.e. — either guilty mind of willfully

trespassing alleged by prosecution, or else, innocent

mind of lawfully ingressing (or someone reasonably

believing he was lawfully entering, however allegedly

ousted) professed by Petitioner. For "[t]he mens rea

element... rests... on a factual determination. That is

the fact [Petitioner] sought to put in issue. Either

[Petitioner] knew he was [trespassing] or he did not."

Arizona v. Clark, 548 US 735 (2006) (KENNEDY,

J., dissenting). It was just that simple — did he or did

he not know. Jurors never knew such simplicity even

existed. Yet prosecutors overcharged a weak case,

realized by two hung-juries, so trial court knew how

such instructional simplicity acquitted Petitioner. It

was a purposeful structural lapse in favor of

conviction. It reached a bright line.

When trial court refused informative instruction on

that critical question of fact (condensed into

knowledge), such question was determined a matter

of law and against Petitioner (boxing him into willful

trespasser liabilities). See Stevenson, id. at 315-16

(finding reversible error for refusing instruction since

"[T]he presence or absence of malice would be the

material consideration in the case... [was] determined

by the trial court as one of law and against the

defendant."). Stevenson still applies, foreclosing

discretion to deny instruction on "material

considerations." See, Matthews, id. at 63 (reiterating

that "[a] defendant is entitled to an instruction as to

any recognized defense for which there exists

evidence sufficient for a reasonable jury to find in his

favor.") (citing Stevenson, supra). Jurors authority to

determine knowledge’s question of fact was usurped,

defining abuse of discretion — since unauthorized

ruling as a matter of law (against submitting

"knowledge" instruction) what must be submitted as

a question of fact is (at least) "plain error." Gaudin,

28 F. 3d at 951-52.

Petitioner's reasonable explanation of his renter's

state of mind — the logical (automatic) antithesis of

trespass knowledge — required informed jury

consideration to balance against potential

overcharging of renter's curtilage entry. A strong

acquittal nexus, the denied knowledge instruction

would have furnished valuable guidance into this

cause's central matter, explaining the need to find

factual determinants for either an ousted renter that

willfully trespassed curtilage, proving burglary, or

else, prove current renter's lesser included offense of

criminal mischief (admitted by Petitioner), while also

determining burglary's interlocking homicide. Vails,

id. at 238. It was that "all encompassing." Even if

"[e]vidence might appear to the court to be simply

overwhelming to show that the [curtilage was

knowingly trespassed by ousted former tenant] and

not [entered by sublessee reasonably believing it

lawful despite ejectment attempts], so long as there

was some evidence relevant to the issue of [lack of

mens rea], the credibility and force of such evidence

must be for the jury, and cannot be matter of law for

the decision of the court." Stevenson, id. at 315.

The undisputed relevant evidence — the rental

agreement, rent being current, search warrant for

Petitioner's sublet room, no forcible entry, and the

open nature of the curtilage’s front driveway — was

"sufficient" and made the net "credibility and force of

such evidence" forming Petitioner's belief that more

reasonable against knowledge of willful trespass.

Jurors should have been allowed to labor on such

understandable knowledge instruction as sufficient

evidence supported its use, the instruction was

neither misleading nor confusing but a short accurate

statement of core law, that instructed on a missing

foundational element in burglary for the felony

murder puzzle within Petitioner’s close case

exemplified by two prior hung-juries. It was the key

instruction that would have potentially acquitted

him. Yet determination of knowledge's existence was

not made. That is, laymen conceptualization of mens

rea is nonexistent, so there was no reasonable

likelihood of burglary deliberations on such

uninformed matters without mens rea language being

present, best worded in simple knowledge language.

Such language would have served jurors’ careful

determination on a core matter — burglary mens rea

— utterly foreign to them, and, as the topmost

question of fact, was highly capable of liberating

Petitioner.

Therefore, since mens rea was not instructed, and yet,___■ _

whether knowledge existed was the core material

consideration at trial, it required being specially

instructed to jurors. As such, trial court's abuse of

discretion in refusing to instruct on disputed

knowledge was a structural defect for this refusal

created impermissible risks that jurors did not make

(structural!*} acquittal) findings required by the

Constitution, which deprived Petitioner of his

constitutional rights under the Fifth, Sixth and

Fourteenth Amendments.

Stevenson v. U.S., 162 US 313. Matthews v. U.S., 485

US 58. U.S. v. Haywood, 363 F. 3d 200, Morrisette v.

U.S., 342 US 246. U.S. v. Bruguier, 735 F. 3d 754,

Rodriguez v. State, 147 So. 3d 1066, Weiler v. U.S.,

323 US 606, T.S.J. v. State, 439 So. 2d 966, D.R. v.

State, 734 So. 2d 455, Long v. State, 28 So. 775,

Mooneyham v. Bowles, 72 So. 931, Montana v.

Egelhoff, 518 US 37, U.S. v. Gaudin, 28 F. 3d 943, U.S.

V. Gaudin, 515 US 506, McFadden v. U.S., 135 S. Ct.

2298, Patterson v. N.Y., 432 US 197, Chicone v. State,

684 So. 2d 736, Staples v. U.S., 511 US 600, U.S. v.

U.S. Gypsum Co., 438 US 422, Dennis v. U.S., 341 US

494, U.S. v. Freed, 401 US 601, U.S. v. Balint, 258 US

250. Jones v. U.S., 527 US 373, Bruno v. U.S., 308 US

287, Cabana v. Bullock, 474 US 376, U.S. v. Calandar,

414 US 338, Henderson v, Morgan, 426 US 637, U.S.

v, FastHorse, 747 F. 3d 1040, U.S. v. Stanford, 823 F.

3d 814, U.S. v. Montoya-Gaxiola, 796 F. 3d 118, U.S.

v. Gomez, 580 F. 3d 1229, U.S. v. Makkar, 810 F. 3d

1139, U.S. v. Burgos, 703 F. 3d 1, U.S. v. Lowe, 795 F.

3d 519, Cole v. Young, 817 F. 2d 412, Dixon v. U.S.,

548 US 1, Alleyne v. U.S., 133 S. Ct. 2151, Apprendi

v, N. J., 530 US 466. InReWinship, 397 US 358, Clark

v. Arizona, 548 US 735

(II.) WHETHER TENANCY CONTROVERTS

THE NECESSARY MENS REA ELEMENT FOR

THE CRIME OF BURGLARY OR WHETHER

FAILURE TO SUFFICIENTLY REBUT A

VULNERABLE TENANT’S AUTOMATICALLY

REASONABLE BELIEF NEGATING MENS REA

IS CAPABLE BY ITSELF OF RENDERING

CONVICTION

BURGLARY

CONSTITUTIONALLY PROHIBITED.

Notwithstanding extraordinary statutory expansion

of common law burglary, courts must acknowledge

burglary's mens rea element, yet recent Florida case

law has subjected allegedly 'ousted' tenants to

burglary babibties pursuant to obscure superior

"possessory interests" analysis, see Pierre v. State,

77 So. 3d 699 (Fla. 3d DCA 2011), which ignores the

clear logic of tenants' automatic lack of mens rea, so

Florida trial courts deny vulnerable tenants their

right to discharge of overcharged petty crimes posing

as felony burglary when, logically, all tenants

automatically lack necessary knowledge mindset

behind burglary's willful trespass mens rea.

Statutory burglary has overreached itself. The Court

should rule that, it is beyond reasonable doubt, that

current tenants cannot develop mens rea necessary to

burglarize their own premises. Win ship, id. at 364.

See, In re M.E., 370 So. 2d 795 (Fla. 1979).

Prosecution's failure to rebut Petitioner's reasonable

belief and automatic renters state of mind that his

ingress was innocent of any willful trespasser's

mindset (despite the criminal mischief behind his

admitted prank) acquitted him. Petitioner

appropriately believed he ingressed his rental's

curtilage driveway as rightfully as any current renter

would have, especially upon laboring under recently

informed understanding that complainant's attempt

at wrongful eviction (tactically being proffered as

abandonment) cannot dispossess him. See Palm

Beach Florida Hotel v. Nantucket Enterprises,

211 So. 3d 42 (Fla. 4th DCA 2016) (finding that seifhelp eviction tactics cannot dispossess tenants).

Petitioner's automatic reasonable belief conclusively

negated burglary's essential element of "knowledge,"

necessary to prove burglary in Florida, see T.S.J., id.

at 967 (acquitting mere invitee), so that a directed

verdict of acquittal should have issued if not for trial

court's unreasonable denial of defense requested

motion for judgment of acquittal at termination of

trial(s) of Petitioner's case, which deprived him of his

constitutional rights under the Fifth, Sixth and

Fourteenth Amendments.

Morrisette v. U.S., 342 US 246, Jackson v. Virginia,

443 US 307, T.S.J. v. State, 439 So. 2d 966, D.R. v.

State, 734 So. 2d 455, Whetstone v. State, 778 So.2d

338, Pierre v. State, 77 So. 3d 699, In re M.E., 370 So.

2d 795, Palm Beach Florida Hotel v. Nantucket

Enterprises, 211 So. 3d 42, Dennis v. U.S., 341 US

494, U.S. v. Freed, 401 US 601, U.S. v. Balint, 258 US

250, Montana v. Egelhoff, 518 US 37, In Re Winship,

397 US 358, Clark v. Arizona, 548 US 735

(III.) DOES CHARGING CONTRADICTORY

SETS OF ALTERNATIVE INSTRUCTIONS,

LEGAL

CONFLICTING

REQUIRING

FINDINGS FOR THE SAME FACTS, BECOME

CAPABLE, BY ITSELF, OF RENDERING TRIAL

CONSTITUTIONALLY INADEQUATE.

Contradictory, mutually exclusive charges, when

truly contradictive, are ”[c]onflicting jury instructions

[which] negate each other in their effect, and

therefore, negate their possible application." Floyd v.

State, 151 So. 3d 452, 454 (Fla. 1st DCA 2014),

quashed by, State

186 So. 3d 1013, 1022

(Fla. 2016). The Constitution implicitly protects

against such unjust negation. Winship, id. at 364.

And so should the Court — i.e., announce an explicit

ruling on such question of law for the benefit of bench

and bar.

Upon the undisputed facts, plain (negation) error

becomes apparent upon analyzing the end result of

trial court's erroneous decision to grant instruction on

both sets of alternative burglary instructions which

define mutually exclusive burglary types. [(5)]

Essentially, this is "[a] case where the [alternative]

jury instructions shift[ed] the jury's attention from

the issue at hand to a [contradictive] non-issue."

St<-\Ye-V' ]Flt>utA»186 So. 3d at 1021. At "issue " was a

mandated "entering in" burglary’s affirmative

defense instruction, Vails, id. at 238, see also Fla.

Std. Jury Instr. (Crim) 13.1 (2017), and the

prejudicial "non-issue" was alternative instruction on

conflicting "remaining in" burglary, because no

evidence supported a "remaining in" theory. It is

absurd to suggest that burglars can simultaneously

commit two opposing burglary methods at the same

time, and illogical to instruct as such. But the tactical

advantages behind such conflicting absurdity was

what the prosecution sought. [(6)]

s [(5) See Fla. Std. Jury Instr. (Crim) 13.1 (2017) (providing two

disjunctive sets of alternative instructions which define

contradictive burglary methodologies behind two conflicting

burglar types, i.e., defining nonconsensual burglars via

"entering in" burglary set of paragraphs, and defining post

consent burglars via "remaining in" burglary set of paragraphs)]

6 [(6) Prosecutors, at the second trial, agreed that "remaining in"

alternative instructions were not appropriate, but then, after

suffering the first hung-jury mistrial setback, the lead

prosecutor about-face demanded alternative instructions at

third (and fourth) trial, while she ignored her own appellate

specialist arguing against such erroneous use.]

Although paragraph three of "entering in" burglary

instructions contemplates an affirmative defense,

paragraph one of "remaining in" burglary instructions

contradictorily contemplates using the same facts

that paragraph three's affirmative defense uses, but,

instead, used as its initial reverse incriminating

element. No reversely incriminated affirmative

defense can ever maintain its effectiveness under

such conflict. So entering's and remaining's "long

form" instructions conflict over the end result of

proving that very same question of legality. The two

opposing paragraphs' language essentially negate

each other, so that while jurors were instructed on

how to reach the mandated affirmative defense via

entering's paragraph three, the jury was also

(conflict) instructed, via the alternative remaining's

paragraph one, that they would find a guilty verdict

on burglary if Appellant relied on the very same facts

proving his affirmative defense.

This conflict asked jurors to find the same facts but

then apply those same facts twice over, onto

contradictive sets of faulty combined questions of fact

compelling jury determinations for opposing verdict

consequences off of a same legal entry, but based off

of dissimilar burglar entry mechanics — both

"unlawful entering" mechanics (questioning what

type of ingress occurred, i.e., either if nonconsensual

entry occurred versus if affirmatively defensible

consensual entry occurred) and "unlawful remaining"

mechanics (accepting initial legal ingress as passe,

i.e., now becoming a "nonaffirmatively indefensible"

consensual entry, yet, then, singularly questioning if,

post-entry, it later became nonconsenting) — which

could never be "presumed" as having being

diametrically "followed" too. Cf Richardson v.

Marsh, 481 US 200, 211 (1987).

Ultimately, illogical combination of contradictive

legal determinations for the same entry mechanics,

when instructed together, negated the affirmative

defense instruction as such alternative instructions

together had the explicit consequence of negating

Petitioner’s right to have informed jurors correctly

deliberate on his mandated affirmative defense at the

new trial(s). Both mutually exclusive alternative

instructions, either by not being followed, or by being

resolved in favor of the state, remained influential in

relation to what jurors did and did not consider, i.e.,

directly misleading the affirmative defense and

indirectly misleading the mens rea question, two

defenses thwarted by the unusual dynamics of

Petitioner's case, depriving him of his constitutional

rights under the Fifth, Sixth and Fourteenth

Amendments.

Mills v. Maryland, 486 US 367, Yates v. U.S., 354 US

298, Bollenbach v. U.S., 326 US 607, Hedgpeth_v.

Pulido, 555 US 57, Richardson v. Marsh, 481 US 200,

Yates v. Evatt, 500 US 391, State v. Belton, 461 A. 2d

973. Rav v~State, 522 So. 2d 963, Lopez v. State, 805

So. 2d 41, Roberson v. State, 841 So. 2d 490, Butler v.

State, 493 So. 2d 451. Tinker v. State, 784 So. 2d 1198,

186 So. 3d 1013, Floyd v. State, 151 So.

3d 452, Ross v. State, 157 So. 3d 406, Sullivan v,

Louisiana, 508 US 275, Connecticut v. Johnson, 460

US 73, Carella v. California, 491 US 263, Bovde v,

California, 494 US 370, McFadden v. U.S., 135 S. Ct.

2298. Johnson v. U.S., 520 US 461, Waddington v.

Sarausad, 555 US.179, California v. Rov, 519 US 2,

County Court of Ulster County v. Allen, 442 US 140

(IV.) WHETHER DUAL THEORY LANGUAGE

IN FLORIDA'S CAPITAL MURDER STATUTE

AUTHORIZES UNLIMITED OVERRULING OF

A STRUCTURAL RIGHT TO GRAND JURY

REINDICTMENT.

Florida's Third District Court of Appeal affirmed

Petitioner's convictions (affirming trial court's

usurpation of grand jury's reindictment authority)

upon refusing to reverse impermissible constructive

amendment to the indictment of an uncharged crime.

That is, upon the undisputed facts, the court affirmed

the granted [misjconstrual of the dual theory

language of the first-degree murder statute in order

to constructively amend the indictment with another

predicate (uncharged) burglary theory during three

felony murder retrials of Petitioner's case depriving

him of due process of law. Proof of constitutional

inadequacy turns then on whether "circumstances"

behind trial court's allowance for such constructive

amendment to indictment made its extraordinary

application permissible or not.

Florida, as well as a majority of states, recognizes a

loophole, in the legal fiction of the felony murder

doctrine, authorizing prosecutors license to pursue

uncharged predicate felony murder theories by

moving trial judges to amend first degree murder

indictments constructively via its statute's "dual

theory" language. Sloan v. State, 69 So. 2d 871, 872

(Fla. 1915).

It is well settled that, when a first-degree murder

count alleges "only" premeditation, "[t]he state does

not have to charge felony murder in the indictment,"

to prosecute both theories together. O'Callaghan v.

State, 429 So. 2d 691, 695 (Fla. 1983). Decisional law

affirming Sloan's statutory loophole delves on but one

specific amendable murder "construct" (with

exception of a variant construct analyzed in Crain v.

State, 894 So. 2d 59 (Fla. 2004)), limiting case law

recognition of the rule's procedure to only where

obvious need for amended "construction" of

indictments exists — where capital murder

indictments "only" charge premeditation. That is,

first-degree murder writs, crafted as single count

indictments containing but only premeditated theory

language — charged just by itself — provide sufficient

implicit "notice" of unutilized felony murder, so

prosecutors can also elect, at trial, to pursuit that

missing uncharged felony murder theory too since the

"dual theory" statute fists enumerated predicate

felonies which prosecutors are authorized to utilize to

establish first degree murder in lieu of premeditation.

Florida's limited Sloan rule statutorily subjects

defendants, however, to what the Court otherwise

considers denial of due process on a "substantial

right"

stemming

from

using

constructive

amendments to indictments contrary to the Grand

Jury Clause. For the Court opined that: "[t]he right to

have the grand jury make the charge on its own

judgment is a substantial right which cannot be taken

with or without court amendment." Stirone v.

United States, 361 U.S. 212 (1960). This right, upon

its racial discrimination, is recognized as structural

error. Vasquez v. HiUery, 474 US 254 (1986).

Usurping this right should be structural too. Cf. U.S.

v. Cotton, 535 US 625 (2002).

Unconstitutionality arises, then, if prosecutors

further broaden the scope of what is an already

utilized felony murder prosecution without resorting

to reindictment as misconstrual of the Sloan rule is

the easiest means to expand the set range of already

indicted felony murder prosecutions. If already in use,

there is no need then to reuse what already exists, i.e.,

no necessity exists for utilizing an already utilized

dual theory for yet "another" predicate theory.

Misconstruing Sloan facilitates an advantageous

work-around of that grand jury "substantial right"

since strategically utilizing an uncharged predicate

theory on top of an already charged predicate theory

tactically enhances the likelihood of conviction by

taxing defenses via introduction of trial surprise,

expanded criminal liabilities and other closely

associated prejudices, when,

most murder

indictments are usually crafted with that dual theory

nature already utilized.

The Sloan rule’s valid use is but a narrow one, i.e.,

existing to only fill in a vacuum whenever the

circumstances of a single count of premeditated

murder also allows a fitting in of a "missing" predicate

felony murder liability too, but only when there lays

no preexisting felony predicate. While Florida is at

liberty to construe its statutes as it sees fit, that

liberty still takes second place to constitutional

protections guaranteed every citizen. For the murder

statute cannot just accommodate granting Sloan-like

constructs unlimited sources of authority behind the

felony murder doctrine's legal fiction. Sloan is the

rare exception not the norm. Florida grand juries craft

almost all likely indictments as dual theory

indictments anyway. So the rule mostly stays unused,

as available dual theory avenues are likely indicted,

since obvious dual theories tend to be found already

worded together, i.e., both dually preexisting inside

one count.

Sloan misconstrual is highly prejudicial when that

preexisting predicate felony theory is also

incorporated inside separately charged predicate

felony count(s), i.e., readily contained within a second

count of a two count felony murder indictment

whereby, like herein, both counts are now bound

together by the overriding principle of "legally

interlocking counts." See, Brown v. State, 959 So. 2d

218 (Fla. 2007), quashing, State v. Brown, 924 So. 2d

86 (Fla. 3d DCA 2006). Legally interlocking counts is

a structural principle. It is its own powerful binding

. construct, legally rendering illogical jury verdict

outcomes subservient to it by its discharge capacities

under "true inconsistent verdicts" jury findings,

which are "[t]hose in which an acquittal on one count

negates a necessary element for conviction on another

count." Gonzalez v. State, 440 So. 2d 514, 515 (Fla.

4th DCA), review dismissed, 444 So. 2d 417 (Fla.

1983).

Thus, the structural narrative of legally interlocking

counts capacity for fatal discharges necessitates

theoretical consistency to function, or otherwise fail

defendants, a substantial right within a substantial

right rendered inherently unworkable by inclusion of

an extra (uncharged) predicate felony "theory" but not

separately charged "count." Sloan rule's misconstrual

collapses legally interlocking counts when such

(unlocked) foreign, uncharged theories cloud the

dualistic counts' force behind that true inconsistent

verdicts fixture. That is, Sloan misconstruction

unlocks the theoretical legal force rationale behind

the ability to bind outcomes of fatal verdict

inconsistencies dwelling within all interlocking dual

charged counts to the state's advantage. It relocks

both a charged crime with an added uncharged crime

into malignant quasi states of prejudicially blurred,

diffused, and theoretically inconsistent relationships

— mixed components compromising the essential,

legally binding nature preexisting between original,

mutually dualistic, interlocking counts so that "an

acquittal on one count [now does not] negates a

necessary element for conviction on another count."

Id. Sloan misconstruction negates, instead, the

effectiveness of legally interlocking counts ability to

automatically acquit any truly inconsistent verdicts

to the prejudice of the accused who stands to

significantly benefit from such structural mechanism.

Likewise, a fatal risk that prosecutors face in

pursuing weak felony murder prosecutions, as herein,

is a structural risk negated by unconstitutional

misconstrual.

Florida is at liberty to present grand juries with any

creative theory it may see fit. Yet, only grand juries

vote on indictments, thus, binding prosecutors to

indictments returned by a grand jury. Ex Parte Bain,

121 U.S. 1, 10-11 (1887). The "[g]rand jury is vested

with broad discretion... in framing the charges,"

Vasquez, id. at 275 (concurring), and, it is with grand

juries wherein "[l]ies the power to charge... numerous

counts or a single count," id., at 263 (majority), the

whole crux of this issue. So then, when that initial

determination of how many counts will be charged is

made, it is "[n]ot subject to challenge... [even if] acted

on the basis of inadequate or incomplete evidence,"

U.S. v. Calandra, 414 US 338, 345 (1974). If a grand

jury returns a first degree murder writ whereupon

two counts legally interlock into a specifically set

felony murder construct, then, given the prosecution's

heavy influence over grand juries, there is no doubt

that that fixed construct is the only construct

prosecutors sought to pursue so that is the construct

the defense prepares against, even if later seen as a

mistake in want to be "acted on the basis of

inadequate or incomplete evidence," Id., much less

then should it be later seen as means to gain that

which is "acted on the basis" of strategic

gamesmanship.

There is no genuine need to later pursue yet another

"extra" predicate felony theory during trial too, which

failed to be charged when the opportunity existed,

regardless of any rationales for updating "inadequate

or incomplete evidence," or some inspired creativity,

or last minute corrective fixes. The legitimate use, of

first-degree murder's "extraordinary" statutory

allowance when already pre-exercising, is rendered

2<o

complete by its duatl theory nature being previously

made whole, by the grand jury itself. So, once a grand

jury's labor is finished, the dual theory liberties taken

by it in crafting a set felony murder indictment are

structured and binding. Prosecutors cannot then

simply restructure the foreclosed, i.e., reset a

preexisting dual theory set with yet another "in trial"

theory. Aside Sloan's limited valid usage,

reindictment is the only valid alternative.

When indictments return charging two separate

interlocking counts, as both parts of what the felony

murder doctrine's statutory dualism allows, then

such structure's interlocking relationships must be

respected. If not, due process is offended. Since no

valid need exists for re-exercising that already set

statutory dualism, then, if not procedurally

reindicted, it is done without any legitimate reason or

procedure, and thus, without reasonable validity it

becomes void, a null misconstruction, i.e.,

unconstitutionally broadening jeopardy. The Court

should "[cjonsider an indictment to be constructively

amended when the essential elements of the offense

contained in the indictment are altered to broaden the

possible bases for conviction beyond what is contained

in the indictment." U. S. v. Ward, 486 F. 3d 1212

(11th Cir. 2007). Sloan is not some unlimited broad

application, as wide-open use of this statutory

loophole should not work around how: "[a] jury

instruction that constructively amends a grand jury

indictment constitutes per se reversible error because

such an instruction violates a defendant's

constitutional right," U.S. v. Weissman, 899 F. 2d

1111 (11th Cir. 1990). For "[e]ver since Ex Parte Bain.

121 U.S. 1, was decided in 1887 it has been the rule

that after an indictment has been returned its

charges may not be broadened through amendment

except by the grand jury itself." Stirone, supra.

When Sloan is used to just tactically re-broaden

jeopardy it wholly usurps a structural right

underpinning the due process of reindictment.

During "new trial" settings, applying Sloan offends

other pertinent principles of law too (e.g. — law-ofthe-case, judicial estoppels, prejudicial misjoinders,

even double jeopardy) which further foreclosed such

misconstrual herein. Likewise, the question of a

presumption of prosecutorial vindictiveness also

arose too since, albeit new charges are avoided

(misconstrual's side benefit), the scheme's effect is the

same as if new charges were filed, i.e, punishing

defendants for prevailing on appeal by facilitating

assured reconviction strategies. Cf. Blackledge v.

Perry, 417 U.S. 21 (1974).

The Florida Supreme Court passed on a mildly

misconstrued variation of the Sloan rule,.see Crain

v. State, 894 So. 2d 59 (Fla. 2004), where the majority

opinion found (in a hard case making for bad law) no

plain error for adding a second "uncharged"

kidnapping intent "element" within "divergent" felony

murder instructions when separate kidnapping count

"charged" by the indictment alleged only one intent

element and was instructed on only that one intent.

That court noted that: "[W]e do not address whether

the felony murder instruction given in this case would

have constituted harmful error had Crain preserved

the issue with a proper objection." Crain, id. at n. 11.

The mild Crain misconstrual is, however, highly

distinguishable.

First, the error in Crain's felony murder instruction

involved just an extra uncharged kidnapping

"element," a short phrase added to the end of the

charged element which went unnoticed, as opposed to

the severity of the instant use of a wholly separate

uncharged burglary "crime" with separate evidence,

arguments and jury instructions — alongside biases

boosting all manner of subconscious human

irrationalities behind compounded associations of

guilt conflated by additional accusations, associated

prejudices, and frustrating confusion — from one

. burglary split into separate burglary crimes. For the

misconstrual "doubly" expanded Petitioner's preset

criminal liability for felony murder, restricted to but

one "charged" predicate accusation to now two

felonious crimes divided out of the original crime. See

Brown v. Ohio, 423 US 161,169 (1977) (noting ”[t]he

Double Jeopardy Clause is not such a fragile

guarantee that prosecutors can avoid its limitations

by the simple expedient of dividing a single crime into

a series of temporal or spacial units,"). So, by

broadening a limited jeopardy, a potential acquittal of

a mere overcharged curtilage burglary that was

weakly "engineered" to entrap a vulnerable renter

was (re)engineered into a mini crime spree of two

felonious burglaries alleging inextricably intertwined

crimes tactically prejudicing a prima facie case of selfdefense.

2<\

Second, in Crain, that uncharged element was

within

unchallenged

instructed

just

once

instructions, as opposed to extreme severities of the

instant uncharged crime's language repeated use,

blanketing the jury instructions over seven times,

throughout different paragraphs, where two

paragraphs' language (including a ''special"

instructed paragraph) exclusively defined conveyance

for that uncharged crime of conveyance burglary.

Third, Crain’s unpreserved claim was raised on

appeal as fundamental (plain) error (four years before

that same court approved Fla. Std. Jury Instr, (Crim)

3.12 (d) (legally interlocking counts) which would

have significantly altered that final analysis, see, In

re Std. Jury Instr., 996 So. 2d 854 (Fla. 2008)), as

opposed to the instant claim's repeated objections

raised during its three retrials usage, including a

pretrial motion in limine, causing constant court

friction plus unsuccessful recusal motions. [(7)]

Fourth. Crain's claim involved but a mere inadvertent

slip up, at end of trial, inserting a snippet phrasing an

uncharged element, and nothing else, as opposed to

severities herein where the uncharged crime's initial

use has then re-embellished itself by continuous

reuse, i.e., cofeatured throughout two following

retrials.

7[(7) Petitioner's defense attorneys filed five motions to recuse

denied by the trial judge that presided over the last three

trials.]

Fifth, Crain's claim lacked noticeable prejudices, i.e.,

showing neither trial ambush dynamics nor

discernible jury confusion as opposed to the instant

claim where it was ever present, from initial trial

ambush frictions to repeated examples of highly

discernible jury confusion upon two juries specifically

querying about the uncharged conveyance. Lacking

special circumstances, Crain occurred at an original

trial's ending, as opposed to the severity of the instant

claim where several retrial principles of law were

violated herein.

Ultimately, convictions on uncharged crimes violate

due process. Stromberg v. California, 283 U.S. 359,

367-68 (1931). Proceedings are a nullity when

uncharged crimes are featured, argued and instructed

at trial. Uncharged crimes infiltrating trials in

misconstrued guises mimicking statutory loopholes

should offend due process too. So the Sloan rule's

loophole, if misconstrued, should also create a nullity.

Given that "death is different," expanding the felony

murder doctrine's loophole is a dangerous precedent.

There must be some constitutional limit, given basic

due process concerns, disallowing the recrafting of

statutory [misjconstruals of felony murder acts that,

by virtue of needless (re)broadening scopes of

prosecutions, should be prohibited under the Grand

Jury Clause through the Due Process Clause.

Unlike Hedgpeth v. Pulido, 555 US 57 (2008), where

the Court examined a slight, non-indictment based,

alternative felony murder instruction, the issue of

expanding Sloan usage (when death is different) for

the sake of tactically amending misconstruals by

Florida, and other states with similar statues,

thereby adding inadmissible evidence and closing

arguments in addition to extra alternative

instructions, is an issue of great national concern

regarding states' ability to circumvent the Court's

maxim that a "[c]onviction upon a charge not made

would be a sheer denial of due process." DeJonge v.

Oregon, 297 U.S. 353, 362 (1937), which, herein,

irreparably deprived Petitioner of his constitutional

rights under the Fifth, Sixth and Fourteenth

Amendments.

Hedgpeth v. Pulido, 555 US 57, Sloan v. State, 69 So.

2d 871, Crain v. State, 894 So. 2d 59, Weatherspoon

v. State. 194 So. 3d 341, Weatherspoon v. State, 214

So. 3d 578, O'Callaghan v. State. 429 So. 2d 691,

Armstrong v. State. 642 So. 2d 730, Brown v. State.

959 So. 2d 218, Gonzalez v. State. 440 So. 2d 514,

Mahaun v. State, 377 So. 2d 1158, Redondo v. State.

403 So. 2d 954, Stirone v. U.S., 361 US 212, U.S. v.

Norris. 281 US 619, U.S. v. Hunter. 558 F. 3d 495, Ex

Parte Bain. 121 U.S. 1, U.S. v. Weissman. 899 F. 2d

im.IJ. S. v. Ward. 486 F. 3d 1212, U.S. v. Madden.

733 F. 3d 1314, Stromberg v. California, 283 U.S. 359,

Blackledge v. Perry, 417 U.S. 21, Thigpen v. Roberts,

468 U.S. 27. U.S. v. Goodwin. 457 U.S. 368, DeJonge

v. Oregon, 297 US 353, Brown v. Ohio, 423 US 161,

U.S. v. Calandar, 414 US 338, Vasquezv. Hillery, 474

US 254. U.S. v. Iacaboni, 363 F. 3d 1, U.S. v. Hassan,

578 F. 3d 108. U.S. v. Centeno. 793 F. 3d 378, U.S. v.

Randall, 171 F. 3d 195, U.S. v. Lockhart, 844 F. 3d

501, U.S. v. Pigee. 197 F. 3d 879, U.S. v. Collins. 350

F. 3d 773, U.S. v. Ward, 747 F. 3d 1184, U.S. v. Farr,

536 F. 3d 1174, U.S. v. Lander, 668 F. 3d 1298

(V.) WHETHER CUMULATIVE PREJUDICIAL

EFFECT OF ERROR IS CAPABLE, BY ITSELF,

OF RENDERING A TRIAL

CONSTITUTIONALLY INADEQUATE.

Upon the undisputed facts, trial court committed

multiple errors forcing a reconviction, establishing

the reasonable likelihood that such cumulation of

errors rendered Petitioner's trial arbitrary and

fundamentally unfair. The Court has, in passing on

other questions of law, only just briefly acknowledged

the principle of cumulative prejudicial effect of error.

See, Fahy v. Connecticut, 375 US 85, 91 (1963)

(observing that: "[N]or can we ignore the cumulative

prejudicial effect of this evidence upon the conduct of

the defense at trial."), see, also, Taylor v. Kentucky,

436 US 478, 487 n. 15 (1978) (noting that: ”[t]he

cumulative effect of the potentially damaging

circumstances of this case violated the due process

guarantee of fundamental fairness in the absence of

an instruction as to the presumption of innocence...").

The mere fact that Petitioner "could" have — logically

and legally — been convicted of both charged counts

on the basis of all the evidence, still does not mean

that he "would" have been so convicted if he were not

also under extraneous burdens of broadening scopes

of cumulative error within ever expanding

reprosecutions, especially since indecision by two

prior hung-juries exemplified a very close case. There

is no sufficient basis for excluding prejudice given the

broadened jeopardy featuring, arguing and

instructing on yet another burglary theory, where a

new prejudicial range of prosecution was improperly

broad, whereupon an uncharged crime was

improperly submitted to the jury alongside other

cumulative instructional errors. Thus, given

Petitioner's original trial setback suffering reversibly

prejudiced original proceedings, there is a reasonable

likelihood that prosecutors resorted to new prejudices

in his second, third and fourth trial too, so the

possibility of thrice being irredeemably reprosecuted

with cumulative prejudicial error expounds even

extra indignation onto the unnecessary additional

prejudices, facilitated by repeated errors that, should

have rendered each retrial unconstitutionally

inadequate. [(8)]

Ultimately, "[i]t was only after admission of the

[uncharged conveyance burglary's evidence] and only

after

their

subsequent

use

[broaden

reprosecutions] and only after introduction of the

[new uncharged liabilities and prejudices] that the

[Petitioner twice] took the stand, admitted [his] acts,

and tried to establish that the nature of those acts

was not within the scope of the felony statute under

which the [Petitioner] had [not] been charged." Fahy,

id. at 91. And yet, even more cumulative error

occurred.

The Court should directly pass, with "in depth"

specific analysis, on the question of cumulative

prejudicial effect of error, in crucial need of a concise

8 [(8) Florida recklessly engaged in unsustainable trial-byattrition overreaching via deliberate piling on of cumulative

error throughout three retrials. See Green v. U.S., 355 U.S.

184, 187-188 (1957).]

answer with sufficient nuanced elaboration, more so,

given increasingly harsh new habeas standards under

AEDPA. This case is ripe. It would be of national

interest to bench and bar to learn how the Court

answers such question of law in the case of state

criminal litigants alleging constitutional violations

caused by arbitrarily prejudicial effects of cumulative

error alone, since these same litigants cannot simply

assert that such was, under AEDPA, "unreasonable

application of clearly established Federal law as

determined by the Supreme Court," when much of

such legal questioning is yet still undetermined.

Upon the undisputed record on direct appeal, a

Florida appellate court’s failure, in a close case, to

overlook cumulative prejudicial effect of error

findings, and thus, not assign reversible error based

just on aggregational prejudices of multiple

exceptions and charging errors compromising

Petitioner’s substantial rights to a fair trial within the

unreasonable trial proceedings of Petitioner's case,

deprived him of his constitutional rights under the

Fifth, Sixth and Fourteenth Amendments.

Tavlor v. Kentucky, 436 US 478, Fahv v. Connecticut,

375 US 85, Berger v. U.S., 295 US 78, Breakiron v.

Horn. 642 F. 3d 126, U.S. v. Adams. 722 F. 3d 788,

U.S.v, Wallace. 848 F. 2d 1464, U.S. v. Hands. 184 F.

3d 1322, U.S. v. Hesser. 800 F. 3d 1310, Green v. U.S.,

355 U.S. 184, Hetenvi v. Wilkins. 348 F: 2d 844,

Carsey v. U.S., 392 F. 2d 810

CONCLUSION

This Petition for a Writ of Certiorari should be granted.

Respectfully submitted,

Date:

/5-/4, 2oZO

3fc

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