Petition for Writ of Certiorari — Michael Lawrence Cassidy, Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections

Supreme Court briefMar 9, 2023

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MAR 0 9 2023

In The Supreme Court Of The United States LSEBlgSK®

Michael Lawrence Cassidy

Petitioner

Vs.

Ricky D. Dixon, Secretary,

Florida Department Of Corrections - Respondent

On Petition For A Writ Of Certiorari To

The Eleventh Circuit Court Of Appeals

Petition For A Writ Of Certiorari

Michael Lawrence Cassidy, pro se

DC# P48348

Wakulla C.I. Main Unit

110 Melaleuca Drive

Crawfordville, FL 32327

Questions Presented

Mr. Cassidy raised a claim of actual innocence to excuse the

untimeliness of his § 2254 petition, relying upon his military documents

not presented at trial to undermine the credibility of the alleged victim.

The District Court denied the petition as untimely, but granted a

certificate of appealability (“COA”) on issues unrelated to actual

innocence. Petitioner filed a motion to enlarge the COA to include

actual innocence with the Eleventh Circuit Court of Appeals. In denying

his request, Circuit Judge Barbara Lagoa found (l) that since

Petitioner's evidence was known at the time of trial, then it was not

“new” to support a claim of actual innocence, and (2) that he failed to

make a substantial showing of the denial of a constitutional right. As

such, this case presents two questions for this Court's consideration1. If a habeas petitioner seeks to expand a previously granted

COA on a petition that was denied for procedural reasons, is it

necessary for him to make another, separate showing of the

denial of a constitutional right?

2. For a habeas petitioner raising actual innocence under

McQuiggin v. Perkins,1 to by-pass the AEDPA’s 1 year statute

of limitations, does the “new evidence” rule articulated in

Schulp v. Delo,2 require the evidence to be newly discovered

after trial, or can the petitioner rely upon evidence known

about at the time of trial, but was not presented to the jury due

to the ineffective assistance of counsel?

1 569 U.S. 383 (2013)

2 513 U.S. 298 (1995)

Table Of Contents

Questions Presented

Table Of Contents

111

Table Of Authorities

Opinions Below................

Statement of Jurisdiction

Statutory And Constitutional Provisions Involved

Statement Of The Case

Reasons for Granting the Writ..............................................................

II.

III.

IV.

The Circuit Judge’s analysis misapplied the proper COA

inquiry after a COA had been issued....................................

The Circuit Judge misapplied the “new evidence” rule of

Schlup...........................................................................................

There is a split among the Circuit Courts as to what

constitutes “new evidence” for a claim of actual

innocence..................................................................

The Circuit Judge’s Order is a Summary Judgment of

Petitioner's Actual Innocence Claim.....................................

Petitioner will be barred from raising actual innocence

again under the doctrine of collateral estoppel, should

he prevail on appeal below......................................................

Conclusion

iii

Table Of Authorities

Cases:

Armine v. Bowersox, 238 F.3d 1023 (8th Cir. 2001)

16, 17, 21

Barton v. Stange, 959 F.3d 867 (8th Cir. 2020).......

Buck v. Davis, 580 U.S. 100 (2017)............................

9, 11

Calderon v. Thompson, 523 U.S. 538 (1998)............

Calloway v. Sheriff, 2022 U.S. App. LEXIS 12283 (11th Cir.

2022)...................................................................................................

Cassidy v. State, 130 So.3d 229 (Fla. 1st DCA 2014)..............

Cassidy v. State, 263 So.3d 749 (Fla. 1st DCA 2018)..............

Cleveland v. Bradshaw, 693 F.3d 626 (6th Cir. 2012).............

Giglio v. United States, 405 U.S. 150 (1972)....

5, 13, 21

Gomez v. Jaimet, 350 F.3d 673 (7th Cir. 2003)

Gonzalez v. Thaler, 565 U.S. 134, 181 L.Ed.2d 619, 630

(2012)...........................................................................................

. 9, 10

Griffin v. Johnson, 350 F.3d 956 (9th Cir. 2003)

17, 18

Hohn v. United States, 529 U.S. 236 (1998).......

House v. Bell, 547 U.S. 518 (2006)......................

22, 23, 24

Jiminez v. Quarterman, 555 U.S. 113 (2009).....

Majoy v. Roe, 296 F.3d 770 (9th Cir. 2002)

McQuigginv. Perkins, 569 U.S. 383 (2013)

6, 14, 15, 16

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

9, 11, 13, 14

Reeves v. Fayette SCI, 897 F.3d 154

(3rd Cir. 2018)

11, 16, 18, 19, 20, 21, 22

Riva v. Ficco, 803 F.3d 77 (1st Cir. 2015).........

Rivas v. Fischer, 687 F. 3d 514 (2nd Cir. 2012)

Schulp v. Delo, 513 U.S. 298

(1995)

5, 11, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24

Sistrunk v. Armenakis, 296 F.3d 669 (9th Cir. 2002).....

Slack v. McDaniel, 529 U.S. 473, 484 (2000).....................

9, 16, 18

Constitutional Provisions, Statutes, and Court Rules:

28 U.S.C. § 1254(1)......................................................................

28 U.S.C. § 2101(e).......................................................................

28 U.S.C. § 2244...........................................................................

28 U.S.C. § 2244(b)(2)(B)............................................................

28 U.S.C. § 2244(d)(1)(D).............................................................

28 U.S.C. § 2253(c)(1)..................................................................

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

3, 8,9

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

28 U.S.C. § 2254(e)(2)..................................................................

Supreme Court Rule 11 ..............................................................

U.S. Const. 14th Amendment............................................

3, 5

Index to Appendices

A. Eleventh Circuit Court of Appeals order denying enlargement of COA

B. District Court Order granting COA

C. Magistrate Judge’s Report and Recommendation for Issuance of COA

D. District Court Order dismissing § 2254 petition as untimely

E. Petitioner's Amended § 2254 Petition

F. First Judicial Circuit Court of Florida Order granting in-part and

denying in-part Defendant's postconviction motion.

PETITION FOR A WRIT OF CERTIORATE

Petitioner Michael Cassidy respectfully petitions for writ of

certiorari to review the decision of the Eleventh Circuit Court of

Appeals on denying his request to enlarge the COA.

Opinions Below

The following opinions and orders below are pertinent here, all of

which are unpublished, but are reprinted in the appendix (“appx”) to

this petition- Eleventh Circuit Court of Appeals Order denying

enlargement of COA Appx. A; U.S. District Court of Northern District

of Florida Order granting COA Appx. B; U.S. Supreme Court denying §

2254 petition as being untimely Appx. D; and First Judicial Circuit

Court, in and for Okaloosa County, Florida, Order granting impart and

denying in-part Mr. Cassidy’s postconviction motion Appx. F.

Statement of Jurisdiction

1- On December 12, 2022, Eleventh Circuit Judge Barbara Lagoa denied

Petitioner's request to expand the COA.

2. This Court had jurisdiction under 28 U.S.C. § 1254(l) to review by

certiorari the decision of a circuit judge to deny a request for COA.

Accord Hohn v. United States, 529 U.S. 236 (1998).

3. This Court's jurisdiction is also being invoked prior to a final judgment

of the Eleventh Circuit Court of Appeals upon Petitioner's appeal from

the District Court’s dismissal of his § 2254. See 28 U.S.C. § 2101(e).

4. Pursuant to Supreme Court Rule 11, this Court should exercise its

jurisdiction and deviate from the normal appellate practice because

the issues herein are of great public importance to warrant this

Court's immediate determination. Specifically, this case presents two

questions about appellate review standards for enlarging a COA, as

well as the “new evidence” rule for Actual Innocence claims.

5. Should the Court decline to address Petitioner's actual innocence

claim at this stage, and the Eleventh Circuit does grant his appeal,

there is a substantial risk that Petitioner will lose the actual

innocence exception to those claims that are, not just time barred, but

procedurally defaulted from state court proceedings. Specifically, the

Circuit Judge’s opinion on Mr. Cassidy’s actual innocence claim will

stand as the law of the case, unless this Court intervenes.

Statutory And Constitutional Provisions Involved

28 U.S.C. £ 2253(c)(1) provides that “unless a circuit justice or

judge issues a certificate of appealability, an appeal may not be taken to

the court of appeals from (A) the final order in a habeas corpus

proceeding...”.

28 US. C. § 2253(c)(2) provides that “[a] certificate of appealability

may issue under paragraph (l) only if the applicant has made a

substantial showing of the denial of a constitutional right.”

14th Amendment, section 1. provides impart^

...nor shall any State deprive any person of life,

liberty, or property, without due process of law...

Statement Of The Case

Petitioner Michael Cassidy was convicted by a Florida jury of

three counts of sexual battery in 2012. He was sentenced to 35 years in

prison, followed by 15 years of probation. Florida’s First District Court

of Appeal affirmed the convictions and sentences on direct appeal.

Cassidy v. State, 130 So.3d 229 (Fla. 1st DCA 2014).

In state postconviction proceedings, Mr. Cassidy raised several

claims of ineffective assistance of counsel, of importance here was his

claim that his attorney had evidence, prior to trial that he was outside

the state during the time period alleged in Count 3. After holding an

evidentiary hearing, the trial court found Petitioner's counsel had

rendered constitutionally ineffective assistance on that specific issue.

Appx. F. The court entered an order vacating Count 3,3 resulting in an

amended judgment being entered on October 10, 2017. Mr. Cassidy

appealed from the denial of the remainder of his claims. The appellate

court affirmed the denial and issued its mandate on March 7, 2019.

Cassidy v. State, 263 So.3d 749 (Fla. 1st DCA 2018).

The vacating of count 3 simultaneously removed the 15 years probation.

On March 6, 2020, Petitioner filed his initial § 2254 petition, and

subsequently amended it. To address the question of timeliness of the

petition, Mr. Cassidy asserted that (l) the 2017 amended judgment

restarted the 1 year time limitation period, and (2) he was actually

innocent4 of the charges, and that his evidence demonstrates that the

alleged victim and another state witness testified untruthfully to at

least one allegation,5 thereby undermining their credibility. Appx. E at

20-21.

Respondent filed a motion to dismiss the petition as untimely.

Among their arguments for dismissal was that Petitioner's evidence

was not newly discovered as both he and his counsel had it in their

possession at the time of trial. Thus, the Respondent reasoned, Mr.

Cassidy could not suffice the new reliable evidence to establish a claim

of actual innocence under Schlup.

Petitioner replied to this argument by pointing out that the

majority opinion in Schlup held that the evidence need only to have not

been presented at trial. He further argued that the Respondent’s logic

4 Petitioner's actual innocence claim rests upon the independent constitutional violations e raised

in grounds one and two of his amended petition.

5 This would be ground two of the petition - the Giglio violation - which resulted in the denial of

due process under the 14th Amendment. Accord Giglio v. United States, 405 U.S. 150 (1972)

contradicts the holding of McQuiggin, in which the Court found that the

timing of discovery of evidence for actual innocence affects its

reliability, not its applicability. He concluded that he made a pnma

facie showing of actual innocence to warrant evidentiary testing of his

evidence.

The magistrate judge’s first report and recommendation found Mr.

Cassidy’s petition to be timely by one day. She did not address the

actual innocence claim. Respondent objected to the magistrate’s

recommendation, and the district court sided with the Respondent by

dismissing the petition as untimely. Appx. D. Like the magistrate

judge, the district court did not address Petitioner's actual innocence

claim. Id. Mr. Cassidy timely filed a rule 59(e) motion to alter or amend

the judgment. He specifically raised the court’s failure to address his

actual innocence claim. The district court denied the motion, again

without addressing the actual innocence issue.

Petitioner filed a notice of appeal, along with an application for a

COA on three issues - including his claim of actual innocence. The

magistrate judge evaluated Mr. Cassidy’s petition for COA, and found

that jurists or reason could debate the court’s procedural ruling, Appx.

C at 3-6; and that jurists of reason would find the petition states one or

more valid claims of denial of constitutional rights, Id. at 6-8. She

recommended that a COA should be granted on two issues; however,

she did not address the actual innocence issue. See Appx. C generally.

The district court adopted the magistrate’s COA recommendations, and

issued a COA on those two issues. Appx. B.

On February 21, 2022, Petitioner filed a motion to enlarge the

COA to include actual innocence with the Eleventh Circuit Court of

Appeals. On December 12, 2022, Circuit Judge Barbara Lagoa denied

Mr. Cassidy’s request. Appx. A. The four page order found that (l)

reasonable jurists would not debate the merits of his claim, because (2)

his evidence was not “new” since it was known about at the time of his

trial; and (3) he failed to make a substantial showing of the denial of a

constitutional right. Id. at 4.

Petitioner now seeks certiorari review of the Circuit Judge’s

Order.

Reasons for Granting the Writ

Summary of the Arguments■'

Petitioner Cassidy petitions this Honorable Court to review the

decision of the Eleventh Circuit Court judge in denying his request to

expand the COA to include his claim of actual innocence as a gateway

against the untimeliness of his § 2254 petition. Judge contends that the

decision was based on a misapplication of the COA inquiry, and

involves a misunderstanding of the “new, reliable evidence” rule for

actual innocence claims. Consequently, the order is tantamount to a

summary judgment of Petitioner's claim, conflicts with other circuit

courts on similar matters, and will likely result in a miscarriage of

justice if not corrected. As such, this Court should accept jurisdiction

and quash the order below.

Standard ofReview for Issuance of a COAIn order for a COA to be granted, a petitioner has to make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). This substantial showing “includes showing 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.” Slack v. McDaniel, 529 U.S.

473, 484 (2000)(internal quotations omitted).

When a petition is dismissed on procedural grounds - such as

untimeliness (as is the case here) - a petitioner must show both that

jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and whether the

district court was correct in its procedural ruling. Gonzalez v. Thaler,

565 U.S. 134, 181 L.Ed.2d 619, 630 (2012)(citing Slack, 529 U.S. at 484).

This Court has emphasized that COA inquiry “is not coextensive

with a merits analysis.” Buck v. Davis, 580 U.S. 100, 115 (2017).

Rather, “the only question is whether the applicant has shown that

jurists of reason could disagree with the district courts resolution of his

constitutional claims or that jurists could conclude the issues presented

are adequate to deserve encouragement to proceed further.” Id. (citing

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)).

Because 28 U.S.C. § 2253(c)(2) “speaks only to when a COA may

issue - upon a substantial showing of the denial of a constitutional

right” - then “it would be ... strange if, after a COA has [been] issued,

each court of appeals...were...to revisit the threshold showing and

gauge” the “substantial showing” on its own terms. Gonzalez, 565 U.S.

134, 181 L.Ed.2d at 631-32. To do so undermines the very premise of a

COA and the authority of a district court to issue a COA; an appellate

court could quash a COA based on its own view that an applicant failed

to make the substantial showing of the denial of a constitutional right

because the COA issuer failed to explicitly sate such a showing was

made. Cf. Gonzalez, 565 U.S. 134, 181 L.Ed.2d at 630. (finding the

failure to indicate which issue a petitioner had made a substantial

showing of the denial of a constitutional right does not deprive a court

of appeals of the power to adjudicate the appeal).

I. The Circuit Judge’s analysis misapplied the proper COA inquiry

after a COA had been issued

Since Mr. Cassidy’s petition was dismissed for being untimely - a

procedural ruling - he had to show both that reasonable jurists would

find it debatable whether the district court’s procedural ruling was

correct, and whether the petition states a valid claim of the denial of a

constitutional right. Jiminez v. Quarterman, 555 U.S. 113, 118 n. 3

(2009)(citing Slack, 529 U.S. at 484). The magistrate judge found that

the Petitioner satisfied both prongs. Appx. C at 6, 8. The district court

adopted the magistrate’s report and recommendation for a COA, and

accordingly, granted Mr. Cassidy a COA. Appx. B at 2. Thus, for an

enlargement of COA, it can be presumed that both prongs are met

based on the granting of a COA.

In the denial order, the circuit judge found that “although the

district court did not specifically address Cassidy’s actual innocence

claim, reasonable jurists would not debate the merits of his claim.”6

Appx. A at 4. But this finding misapplies the extent of a COA inquiry.

As this Court stated in Buck, the COA inquiry “is not coextensive with a

merits analysis.” Buck, 580 U.S. at 115. What the COA inquiry asks is

if reasonable jurists could disagree with the district court’s ruling or

whether the issues presented are adequate to deserve encouragement to

proceed further. Id. (citing Cockrell, 537 U.S. at 327).

The crux of Petitioner’s actual innocence claim is that the alleged

victim and her mother testified untruthfully at trial about the

accusations surrounding events, and the prosecutor knew the testimony

was untruthful. Mr. Cassidy’s evidence not only proved that he was

outside the State during the time period charged in Count 3, but also

6 This determination was predicated upon Petitioner’s evidence was known about at the time of

trial, and thus, was not “new” for an actual innocence claim. But this reasoning misconstrues the

“new evidence” rule articulated in Schlup, and conflicts with the Third Circuit’s decision in

Reeves v. Fayette SCI, 897 F.3d 154 (3rd Cir. 2018). See Points II and IV below.

demonstrates that the prosecutor’s complicitness in the untruthful

testimony: the date range for Count 3 matched exactly with Mr.

Cassidy’s deployment dates (January 2-30, 2005). This was abnormal

because the Prosecutor’s normal practice for alleging a particular date

range is to go from the first of the month to the first of another month.

The fact the dates matched exactly was not by random chance, nor for a

charge where the alleged victim and her mother provided the most

compelling testimony of all three accusations. In a case where there is

not an iota of direct evidence of guilt,7 and the only evidence of a crime

comes from the lips of the alleged victim, how is it not material for a

fact-finder to know that, on at least one of the accusations, her

testimony was not credible? How else can a person demonstrate their

innocence in a case such as this but by showing the accuser lacks

credibility on the remaining accusations, given the proof that one

accusation did not occur.

7 ff-t

There was, however, circumstantial evidence of some guilt introduced at trial. As part of his

reply to the Respondent’s motion to dismiss, Petitioner submitted an affidavit with exhibits to

rebut the prosecution’s argument that Mr. Cassidy exhibited guilt for those charged offenses.

Petitioner asserted that he did do inappropriate things with the alleged victim when she was 18

(taking nude photos of) to which he felt remorse for. That is the guilt he demonstrated during the

phone calls. But guilt for an immoral, yet legal, act should not equate to guilt for a criminal act.

But the issue here is not whether Mr. Cassidy is, in fact, innocent.

Nor, is it whether his evidence is sufficiently reliable to meet the Schlup

standard to excuse the time bar. Rather, the question is whether

reasonable jurists could conclude that the issue is “adequate to deserve

encouragement to proceed further” or that the court’s resolution of the

claim is debatable. Cockrell, 537 U.S. at 327 To that question,

Petitioner avers that some members of this Honorable Court should

find that he has met this standard to have been granted a COA, based

upon their own experiences with false accusations,8 and in light of

Petitioner's evidence (without an evidentiary hearing).

As for the second prong - the question of whether the petition

states a valid claim of the denial of a constitutional right - the circuit

judge’s order conflicts with the magistrate judge’s finding. Compare

Appx. A at 4 with Appx. C at 7-8. Particularly so, where Petitioner's

actual innocence claim rests upon the Giglio violation alleged in ground

Petitioner does not mean to disrespect any member of this Honorable Court. He only wishes to

show the similarities between his case with those of the confirmation hearings of both Justices

Clarence Thomas and Bret Kavanough. Both men had faced accusations, unsupported by any

direct evidence, to which they maintained their innocence and vehemently denied the accusations

ever occurred. In such cases, the triers of fact must rely upon the credibility of those testifying. In

both of these Justices’ cases, their triers of fact (the U.S. Senate) had enough reasonable doubt as

to the accusations that they confirmed both men to this Honorable Court’s bench. At this stage,

Petitioner is not saying he has established reasonable doubt as to his other two convictions, only

that his issue - his actual innocence claim as supported by his evidence - is sufficiently debatable

to have warranted a COA.

two of his petition as well as the prosecutor’s complicitness in eliciting

false testimony alleged in ground one. Both grounds assert that these

errors deprived Mr. Cassidy due process of law under the 14th

Amendment, and rendered his trial fundamentally unfair. See Appx. E

at 6-11.

Because Mr. Cassidy was seeking only to expand the COA to

include actual innocence, the proper inquiry was whether reasonable

jurists could disagree with the district court’s ruling: that the petition

should be dismissed as untimely. In context of an actual innocence

claim, the circuit judge should have applied this Court's rationale in

McQuiggin to the case. That is, an untimely first federal habeas petition

alleging a gateway actual innocence claim is not subject to the modified

version of the miscarriage of justice exception under 28 U.S.C.

2244(b)(2)(B) and 2254(e)(2). McQuiggin, 569 U.S. at 396-97. Instead,

the

circuit judge

subjected Petitioner's

claim

to the

modified

miscarriage of justice exception under 2244(d)(1)(D) by finding the

evidence was not “new” since “his records were available at the time of

his trial, as he admitted that he provided them to counsel.” Appx. A at 4

(citing to McQuiggin, 569 U.S. at 386, 399; and Schlup, 513 U.S. at 330).

II. The Circuit Judge misapplied the “new evidence” rule of Schlup

The order below found that the evidence was not “new” to support

Petitioner's claim of actual innocence because it was known about at the

time of trial. Appx. A at 4. But this finding is erroneous as it

misconstrues Schlup’s holding, as well as McQuiggiris holding for an

untimely first federal habeas petition alleging actual innocence as a

gateway.

In Schlup, this Court plainly stated that:

...a claim [of actual innocence] requires petitioner

to support his allegations of constitutional error

with new reliable evidence

whether it be

exculpatory scientific evidence, trustworthy

eyewitness accounts, or critical physical evidence

- that was not presented at trial.

Id., 513 U.S. at 324 (emphasis added). The Schlup Court did not

hold that such evidence must be newly discovered after trial - only that

it was not presented at trial. In McQuiggin, this Court found that the

timing of discovery of the evidence affects its reliability, not its

applicability. The McQuiggin Court stated that an “[unexplained delay

in presenting new evidence bears on the determination whether the

petitioner has made the requisite showing” of actual innocence. Id., 569

U.S. at 399.

Petitioner presented his evidence in a timely state postconviction

motion alleging ineffective assistance of counsel. The state court found

counsel ineffective, and vacated Mr. Cassidy’s conviction and sentence

for Count 3. Appx. F at 4-5, 9. The mandate from the state appellate

court was issued on March 7, 2019. At that time, Petitioner retained an

attorney to file his habeas petition; however, said attorney did not find

sufficient grounds for pursuing § 2254 petition and notified Mr. Cassidy

in February 2020. Despite the short-notice, Petitioner filed his § 2254

petition - under the Respondent’s own assertion - 26 days late. That is a

far cry from the 11 year delay in McQuiggin.

The Petitioner’s contention that for a first habeas petition alleging

actual innocence, the “new evidence” rule is evidence not presented at

trial. Schlup, 513 U.S. at 324. This interpretation is supported by a

majority of circuit court’s,9 including the First,10 Second,11 Third,12

Sixth,13 Seventh,14 and Ninth15 circuits.

The circuit judge’s order appears to follow the Eighth Circuit’s opinion in Armine v. Bowersox,

238 F.3d 1023,1028 (8th Cir. 2001) that “evidence is new only if it was not available at trial and

could not have discovered earlier through the exercise of due diligence” (internal citations and

quotations omitted). See also Calloway v. Sheriff, 2022 U.S. App. LEXIS 12283 (11th Cir. 2022)

See Riva v. Ficco, 803 F.3d 77, 84 (1st Cir. 2015)

11 See Rivas v. Fischer, 687 F.3d 514, 543, 546-47 (2nd Cir. 2012)

12 See Reeves, 897 F.3d at 163-64.

13 See Cleveland v. Bradshaw, 693 F.3d 626, 633 (6th Cir. 2012)

14 See Gomez v. Jaimet, 350 F.3d 673, 679-80 (7th Cir. 2003)

This Court should accept jurisdiction to clarify the “new, reliable

evidence” rule for a claim of actual innocence, whether it is evidence

simply not presented at trial, or whether it must be newly discovered.

See Point III below.

III. There is a split among the Circuit Courts as to what constitutes

“new evidence” for a claim of actual innocence

As discussed above, there is a split among the Circuit Courts as to

the precise meaning of “new evidence” to support a Schulp claim. That

is, whether the evidence was simply not presented at trial, accord

Schulp, 513 U.S. at 324; or whether it must be newly discovered as held

by the Eighth Circuit in Armine,as well as the Circuit Judge17 in the

order below. Petitioner urges this Court to resolve the split in favor of

the mitigating of circuit courts which held the evidence to be “newly

presented,” accord Griffin and Reeves supra.

In Griffin, the Ninth Circuit considered what evidence constitutes

“new evidence” for a Schulp claim. Griffin, 350 F.3d at 961-62. The

Griffin Court started with the majority opinion in Schulp, finding that

multiple “passages in Justice Stevens’s majority opinion suggest that a

15 See Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003)

16 The Eighth Circuit reaffirmed its Armine holding in Barton v. Stange, 959 F.3d 867, 872 (8th

Cir. 2020)

17 See e.g. Calloway v. Sheriff, 2022 U.S. App. LEXIS 12283 (11th Cir. 2022)

habeas petitioner may pass through the Schulp gateway without ‘newly

discovered’ evidence if other reliable evidence is offered ‘that was not

presented at trial.’” Griffin, 350 F.3d at 961 (quoting Schulp, 513 U.S. at

327-28). The Griffin Court also observed Justice O’Connor’s separate

concurring, in which she discussed the evidence, as being newly

discovered, in order to have a successive habeas claim heard on the

merits. Id. at 962 (citing Schulp, 513 U.S. at 332). The Griffin Court,

relying upon other Ninth Circuit cases,18 concluded “that habeas

petitioners may pass Schulp’s test by offering ‘newly presented'

evidence of actual innocence.” Griffin, 350 F.3d at 963.

In Reeves, a case similar to Petitioner's situation, the Third

Circuit

considered

“(l)

whether the

evidence

Appellant

relied

on...constitutes new evidence and (2) whether Appellant's evidence

satisfied the actual innocence standard.” Id., 897 F.3d at 159 (internal

quotations and alterations omitted). In district court proceedings, the

appellant raised a claim of ineffective assistance of counsel for failing to

investigate and present exculpatory evidence. Reeves conceded that his

petition was untimely, but argued that he had shown actual innocence

See e.g. Majoy v. Roe, 296 F.3d 770 (9th Cir. 2002); and Sistrunk v. Armenakis, 296 F.3d 669

(9th Cir. 2002)

to excuse the procedural bar. The magistrate judge found that the

evidence Reeves relied upon for his actual innocence claim did not

qualify as new evidence because it was available to him and his

attorney at the time of his trial. The magistrate judge concluded that

Reeves failed to demonstrate actual innocence to overcome the time bar,

and the district court adopted the magistrate judge’s recommendation

to dismiss Reeves’s petition as untimely. The district court also denied a

COA for Reeves. Id.

The Third Circuit, in its analysis of this Court's precedents on

actual innocence, recognized that the Court has not explicitly defined

“new evidence,” and that there is a split among the Circuits as to

whether it means newly discovered - as with the Eighth Circuit - or

evidence not presented at trial - as held by the Seventh and Ninth

Circuits. Id. at 161-62. The Third Circuit’s evaluation first focused on

the wording of the Schulp decision. The Reeves Court observed that the

Schulp Court’s:

...reference to “wrongly excluded” evidence

suggests that the assessment of an actual

innocence claim is not intended to be strictly

limited to newly discovered evidence - at least not

in the context of reaching an ineffective

assistance of counsel claim based on counsel's

failure...to present such exculpatory evidence, as

was the case in Schulp. In addition, in

articulating

the

new,

reliable

evidence

requirement, the Supreme Court stated that the

petitioner must “support his allegations of

constitutional error with new reliable evidence...

that was not presented at trial.”

Reeves, 897 F.3d at 162 (quoting Schulp, 513 U.S. at 324, 27-28).

The Third Circuit also noted that “the Supreme Court did not discuss

the significance of the evidence’s availability nor reject the evidence

outright, which... it would have done if the actual innocence gateway

was strictly limited to newly discovered evidence.” Id. at 162-63. Thus,

the Reeves Court concluded that Schulp stood on the proposition that

the “new evidence in the actual innocence context refers to newly

presented exculpatory evidence.” Id. at 163 (citing

Calderon v.

Thompson, 523 U.S. 538, 559 (1998)).

Finally, the Reeves Court pointed out the absurdity that would

result if the Eighth Circuit’s interpretation was correct[S]ay that a petitioner was convicted of a murder,

and the prosecutor had withheld a videotape

depicting a different person committing the

crime. Further assume the tape was not revealed

until years after the trial. That petitioner could

invoke the actual innocence gateway to pursue

this Brady due process claim because the

evidence was newly discovered. Now, assume the

same videotape was produced to trial counsel, but

counsel did not present it to the jury. Under

Armine, that petitioner would be forced to

concede that the evidence was not new because it

was available at trial, and he would be foreclosed

from seeking relief under the actual innocence

gateway.

Reeves, 897 F.3d at 164. That hypothetical scenario is Petitioner's

current reality: he is barred from pursuing his Giglio due process claim

or any other constitutional violation * under the actual innocence

gateway because his attorney had this evidence at the time of trial, but

failed to present it to the jury.19

Petitioner does acknowledge that the “newly discovered evidence”

standard has a place for claims of actual innocence ■ for second or

successive § 2254 petitions which are governed under the provisions of §

2244. But that is not applicable here * this is Mr. Cassidy’s first habeas

petition. Accord McQuiggin, 569 U.S. at 396-97.

Lastly, and for the sake of the principle of “Rule of Law,” this

Court should accept jurisdiction to clarify the “new evidence” rule under

Schulp. Especially so, where there is inconsistent applications of the

“new evidence” standard across the Circuit Courts, with each Circuit’s

19 Petitioner's situation is even more absurd given that the state court had found counsel was

ineffective with respect to this evidence. See Appx. F at 4-5

application dependent upon its own interpretation of this Court’s

precedent, and in light that if Mr. Cassidy had filed his habeas petition

in the Third Circuit Court of Appeals, he would have been entitled to

evidentiary hearing on his actual innocence claim under that Court’s

Reeves holding. Simply put, rule of law should mean consistency in the

application of the law.

IV. The Circuit Judge’s Order is a Summary Judgment of Petitioner's

Actual Innocence Claim

Notwithstanding the circuit judge’s misapplication of the “ new

evidence” standard for actual innocence claim, her order is tantamount

to a summary judgment of Mr. Cassidy’s actual innocence claim. Such a

determination has been disapproved of by this Court.

In House v. Bell,20 this Court re-emphasized what a Schulp

inquiry entails...that [a] habeas court must consider “all the

evidence,” old and new, incriminating and

exculpatory, without regard to whether it would

necessarily be admitted under “rules of

admissibility that govern at trial.”

Id. 547 U.S. at 538 (quoting Schulp, 513 U.S. at 327-28). The Court

reiterated that:

20 547 U.S. 518(2006)

[b]ecause a Schulp claim involves evidence the

trial jury did not have before it, the In] the inquiry

requires the federal court to assess how

reasonable jurors would react to the overall,

newly supplemented record...[i]f new evidence so

requires, this may include consideration of “the

credibility of the witnesses presented at trial.”

Id., 547 U.S. 538-39 (quoting Schulp, 513 U.S. at 330).

This assessment of the evidence employs a different standard from

that of a motion for summary judgment. In the latter, the “court does

not assess credibility or weigh the evidence, but simply determines

whether there is a genuine factual issue for trial.” Id., 547 U.S. at 559GO (citing Schulp, 513 U.S. at 332). Whereas, the “[assessing [of] the

reliability of new evidence ... is a typical fact finding role, requiring

credibility determinations and a weighing of the ‘probative force’ of the

new evidence in light of ‘the evidence of guilt adduced at trial.’” Id.

Thus, this Court has found that an actual innocence inquiry requires

“more than simply checking] whether there are factual issues for

trial.” Id.

But it is Chief Justice John Robert’s separate opinion in House

that provides the clearest command that actual innocence claims should

not be resolved by summary judgment:

The point in Schulp was not simply that a

hearing was required, but why - because the

District Court had to assess the probative force of

the petitioner’s newly presented evidence by

engaging in fact finding rather than performing a

summary judgment - type inquiry.

House, 547 U.S. at 560 (citing Schulp, 513 U.S. at 331-32).

Because there was no fact finding done in the proceedings below,

so as to determine the probative force of Petitioner's newly presented

evidence of actual innocence in relation to the evidence of guilt, then the

circuit judge’s order stands as a summary judgment of his claim of

actual innocence. Such an inquiry is inappropriate when there is a

substantial risk of wrongfully convicting and incarcerating an innocent

person.

Especially in light of this evidence

having previously

demonstrated that the accusations in Count 3 were unfounded.

Therefore, this Court should accept jurisdiction and vacate the

order below, and remand for proceedings consistent with this Court's

precedents governing the inquiry into claims of actual innocence.

V. Petitioner will be barred from raising actual innocence again under

the doctrine of collateral estoppel, should he prevail on appeal below

Petitioner contends that should the Court decline to accept his

case, and he prevails on appeal in the Eleventh Circuit Court of

Appeals,21 then he will likely be precluded from raising actual innocence

for claims that, while filed on a timely petition, are procedurally

defaulted.22 That is because the circuit judge’s decision below will be the

law of the case with respect to Mr. Cassidy’s claim of actual innocence,

regardless of the errors in the judge’s order. Thus, collateral estoppel

will bar Petitioner from relitigating his claim of actual innocence. Thus

would result in a miscarriage of justice because Mr. Cassidy is actually

innocent of the offenses he has been accused of, convicted for, and

incarcerated on.

Therefore, this Court should accept jurisdiction and clarify

whether a claim of actual innocence can survive collateral estoppel.

In the event that Petitioner succeeds on appeal with the appellate court finding his 2017

amended judgment to be a new judgment, it would restart the 1 year statute of limitations period.

Such a finding would render Mr. Cassidy’s § 2254 petition to be timely filed by one day.

Even with a timely petition, at least three claims are procedurally defaulted as they were not

raised in accordance with Florida’s postconviction procedures.

Conclusion

Petitioner prays that this Honorable Court grant writ of certiorari

to review the order of the circuit judge below, and address the issues

presented herein.23

Respectfully submitted,

7^7

Michael Lawrence Cassidy, pro se

DC# P48348

23 Petitioner stresses that he is not asking the Court to address the merits of his actual iinnocence

claim, or whether his evidence meets the demanding standards of Schulp (i.e. sufficiently

reliable) - he is only asking the Court to address those issues raised herein: the COA, the “new

evidence” rule for an actual innocence claim, and collateral estoppel doctrine as a barrier to

actual innocence.

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.