Petition for Writ of Certiorari — Harry Franklin Phillips, Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections

Supreme Court briefSep 12, 2024

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DOCKET NO. ______

OCTOBER TERM 2024

═════════════════════════════════

IN THE

SUPREME COURT OF THE UNITED STATES

HARRY FRANKLIN PHILLIPS

Petitioner,

vs.

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS.

Respondent.

═════════════════════════════════

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

═════════════════════════════════

PETITION FOR A WRIT OF CERTIORARI

═════════════════════════════════

Marie-Louise Samuels Parmer

Special Assistant CCRC-South

Fla. Bar No. 0005584

marie@samuelsparmerlaw.com

Counsel of Record

OFFICE OF THE CAPITAL

COLLATERAL REGIONAL COUNSELSOUTHERN REGION

110 SE 6th St., Suite 701

Fort Lauderdale, FL 33301

TEL: (954) 713-1284

FAX: (954) 713-1299

CAPITAL CASE

QUESTION PRESENTED

More than 30 years ago, this Court held that the Kotteakos 1 substantial and

injurious influence harmless-error standard applies in habeas cases raising constitutional

trial error. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). However, this Court left open

“the possibility that in an unusual case, a deliberate and especially egregious error of the

trial type, or one that is combined with a pattern of prosecutorial misconduct, might so

infect the integrity of the proceeding as to warrant the grant of habeas relief, even if it did

not substantially influence the jury's verdict. Cf. Greer v. Miller, 483 U.S. 756, 769 [ ] (1987)

(Stevens, J., concurring in judgment).” Brecht, 507 U.S. at 638, n. 9. Since then, nine federal

courts of appeals have issued conflicting rulings on whether Brecht’s harmless-error

standard applies to claims of constitutional trial error in cases marred by a pattern of

prosecutorial misconduct, and another has wavered on the question without determining an

answer. This Petition presents an ideal vehicle to resolve an entrenched circuit split and

answer Brecht’s open question:

Whether a habeas court must apply Brecht harmless-error analysis to

Giglio/Napue 2 claims intertwined in a proceeding marred by a pattern of egregious

prosecutorial misconduct.

Kotteakos v. United States, 328 U.S, 750 (1946).

2 Giglio v. United States, 405 U.S. 150 (1972); Napue v. Illinois, 360 U.S. 264 (1959).

PARTIES TO THE PROCEEDINGS

Petitioner Harry Franklin Phillips was the petitioner/appellant in the United States

District Court and the Court of Appeals.

Respondent Secretary, Florida Department of Corrections, was the

respondent/appellee in the United States District Court and the Court of Appeals.

RELATED PROCEEDINGS

Underlying Trial:

Circuit in and for Miami-Dade County, Florida,

State of Florida v. Harry Franklin Phillips, 83-435

Judgment Entered: February 1, 1984

Direct Appeal:

Florida Supreme Court

Phillips v. State, 476 So. 2d 194 (Fla. 1985)

Judgment Entered: August 30, 1985

Habeas Corpus After Death Warrant Signed:

Florida Supreme Court

Phillips v. Dugger, 515 So. 2d 227 (Fla. 1987)

Judgment Entered: November 19, 1987

First Postconviction Proceeding:

Circuit in and for Miami-Dade County, Florida,

State of Florida v. Harry Franklin Phillips, 83-435

Judgment Entered: February 13, 1989

Florida Supreme Court

Phillips v. State, 608 So.2d 778 (Fla. 1992)

Judgment Entered: September 24, 1992

Supreme Court of the United States

Phillips v. Florida, 509 U.S. 908 (1993)

Judgment Entered: June 21, 1993 (Affirmed in part and reversed in part; sentence vacated

and remanded for resentencing)

Resentencing Proceeding:

Circuit in and for Miami-Dade County, Florida,

State of Florida v. Harry Franklin Phillips, 83-435

Judgment Entered: April 20, 1994

Second Direct Appeal:

Florida Supreme Court

Phillips v. State, 705 So.2d 1320 (Fla. 1997)

Judgement Entered: September 25, 1997

Supreme Court of the United States

Phillips v. Florida, 525 U.S. 880 (1998)

Judgment Entered: October 5, 1998

Second Postconviction Proceeding:

Circuit in and for Miami-Dade County, Florida,

State of Florida v. Harry Franklin Phillips, 83-435

Judgment Entered: August 28, 2000

iii

Florida Supreme Court

Phillips v. State, 894 So.2d 28 (Fla. 2004)

Judgment Entered: As Revised on Denial of Rehearing, January 27, 2005

Third and Fourth Postconviction proceedings:

Circuit in and for Miami-Dade County, Florida,

State of Florida v. Harry Franklin Phillips, 83-435

Judgment Entered: October 23, 2004

Postconviction Proceeding on Intellectual Disability

Circuit in and for Miami-Dade County, Florida,

State of Florida v. Harry Franklin Phillips, 83-435

Judgment Entered: May 5, 2006

Florida Supreme Court

Unpublished order, Case No. SC04-2476

Judgment Entered: June 21, 2007

Circuit in and for Miami-Dade County, Florida,

State of Florida v. Harry Franklin Phillips, 83-435

Judgment Entered: September 24, 2007

Florida Supreme Court

Phillips v. State, 984 So.2d 503 (Fla. 2008)

Judgment Entered: March 20, 2008

Florida Supreme Court

Phillips v. State, 996 So.2d 859 (Fla. 2008)

Judgment Entered: September 23, 2008

Fifth Postconviction Proceeding:

State of Florida v. Harry Franklin Phillips, 83-435

Judgment Entered: January 27, 2011

Florida Supreme Court

Unpublished Order, Case No. SC11-472

Judgment Entered: April 26, 2012

Sixth Postconviction Proceeding:

Circuit in and for Miami-Dade County, Florida,

State of Florida v. Harry Franklin Phillips, 83-435

Judgment Entered: April 27, 2017

Florida Supreme Court

Phillips v. State, 234 So. 3d 547 (Fla. 2018)

Judgment Entered: January 22, 2018

Supreme Court of the United States

Phillips v. Florida, 139 S. Ct. 187 (2018)

Judgment Entered: October 1, 2018

Seventh Postconviction Proceeding:

Circuit in and for Miami-Dade County, Florida,

State of Florida v. Harry Franklin Phillips, 83-435

Judgment Entered: June 14, 2018

Florida Supreme Court

Phillips v. State, 299 So. 3d 1013 (Fla. 2020)

Judgment Entered: May 21, 2020

Supreme Court of the United States

Phillips v. Florida, 141 S.Ct. 2676 (2021)

Judgment Entered: May 24, 2021

Federal Habeas Review

United States District Court (S.D. Fla.):

Phillips v. Jones, Civ. No. 08-23420 (November 19, 2015)

United States Court of Appeals (11th Cir.):

Phillips v. Secretary, Florida Department of Corrections, No. 15-15714-P

(February 9, 2024) (Rehearing and rehearing en banc denied, April 15, 2024)

TABLE OF CONTENTS

QUESTION PRESENTED ........................................................................................................ i

PARTIES TO THE PROCEEDINGS ....................................................................................... ii

RELATED PROCEEDINGS.................................................................................................... iii

TABLE OF CONTENTS.......................................................................................................... vi

TABLE OF AUTHORITIES .................................................................................................. viii

PETITION FOR A WRIT OF CERTIORARI ........................................................................... 1

OPINIONS BELOW ................................................................................................................. 1

JURISDICTION ....................................................................................................................... 1

CONSTITUTIONAL AND STATUTORY PROVISONS INVOLVED ..................................... 2

STATEMENT ........................................................................................................................... 2

Background ............................................................................................................... 6

B. Facts and Procedural History ......................................................................................... 9

The crime and subsequent investigation .............................................................. 9

The trial ................................................................................................................12

William Scott ........................................................................................................13

Malcolm Watson ...................................................................................................14

William Farley......................................................................................................15

Larry Hunter ........................................................................................................17

Forensic evidence .................................................................................................17

The evidentiary hearing .......................................................................................18

William Scott ........................................................................................................19

Malcolm Watson ...................................................................................................20

William Farley ........................................................................................................21

Larry Hunter ........................................................................................................23

The postconviction and habeas ruling .................................................................25

REASONS FOR GRANTING THE PETITION ......................................................................26

THE DECISION BELOW DEEPENS A CLEAR CIRCUIT SPLIT ........................27

The Second, Third, Fourth and Ninth Circuits .............................................................28

II.

The First, Eighth and Eleventh Circuit ..............................................................30

The Sixth Circuit ..................................................................................................30

The Tenth Circuit .................................................................................................31

The Fifth Circuit ..................................................................................................32

THE DECISION BELOW WAS WRONGLY DECIDED ........................................32

III.

THE QUESTION PRESENTED IS EXTREMELY IMPORTANT ..........................38

CONCLUSION ........................................................................................................................40

INDEX TO APPENDIX

A. Phillips v. Sec’y, Fla. Dep’t of Corr., No. 1:08-cv-23420-AJ, 2024 WL 512442 (11th Cir.

Feb. 9, 2024)……………………………………………………………….……………………….......3

B. United States Court of Appeals for the Eleventh Circuit, Order Denying Petition for

Rehearing En Banc (Apr. 15, 2024)………..……………………………………………………...63

C. Petitioner Appellant’s Petition for Panel Rehearing or Rehearing En Banc (March 11,

2024)…………………………………………………………………………..………………....…...67

D. United States District Court for the Southern District of Florida, Order

Denying Habeas Corpus Petition (Sept. 30, 2015) ……………………………………..….181

E. Phillips v. State, 608 So. 2d 778 (Fla. 1992)………………………………………………247

F. Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, Final

Order Denying Motion to Vacate Judgment and Sentence (Feb. 13,

1989)……………………………………………………………………………………..…………262

vii

TABLE OF AUTHORITIES

Cases

Atkins v. Virginia, 536 U.S. 304 (2002)...................................................................................12

Barrientes v. Johnson, 221 F.3d 741 (5th Cir. 2000) ..............................................................32

Berger v. United States, 295 U.S. 78 (1935) ............................................................................38

Brady v. Maryland, 373 U.S. 83 (1963) ................................................................................... 7

Brecht v. Abrahamson, 507 U.S. 619 (1993) ........................ i, 7, 8. 9, 24, 28, 29, 31, 34, 35, 40

Chandler v. Lee, 89 Fed.Appx. 830 (4th Cir. 2004) ...........................................................27, 29

Chapman v. California, 386 U.S. 18 (1967) ............................................................................. 8

Coulson v. Johnson, 273 F.3d 393 (5th Cir. 2001) .................................................................32

Davis v. Ayala, 576 U.S. 257, 268 (2015) ................................................................................36

Douglas v. Workman, 560 F.3d 1156 (10th Cir. 2009) ............................................................31

Drake v. Portuondo, 553 F. 3d 230 (2d Cir. 2009).............................................................27, 29

Engle v. Isaac, 456 U.S. 107 (1982) ...................................................................................28, 34

Giglio v. United States, 405 U.S. 150 (1972 ...................................................................... i, 7, 8

Gilday v. Callahan, 59 F.3d 257 (1st Cir. 1995) ...............................................................27, 30

Guzman v. Sec’y Dept. of Corrections, 663 F.3d 1336 (11th Cir. 2011 .....................................33

Guzman v. State, 868 So. 2d 498 (Fla. 2003) ......................................................................4, 25

Harrington v. Richter, 562 U.S. 86, 101 (2011).......................................................................33

Haskell v. Superintendent Greene SCI, 866 F.3d 139 (3d Cir. 2017) ......................... 27, 28, 38

Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005) ..................................................................27, 29

In re Winship, 397 U.S. 358 (1970) .........................................................................................38

Jackson v. Brown, 513 F. 3d 1057 (9th Cir. 2008) ...................................................................36

Kotteakos v. United States, 328 U.S, 750 (1946) ..........................................................i, 7, 8, 34

Kyles v. Whitley, 514 U.S. 419 (1995) ..............................................................................6, 7, 35

Mooney v. Holohan, 294 U.S. 103 (1935) ...................................................................... 6, 29, 37

Napue v. Illinois, 360 U.S. 264 (1959 ...........................................................................i, 7, 8, 35

O'Neal v. McAninch, 513 U.S. 432 (1995) ................................................................................ 8

Parker v. Head, 244 F. 3d 831 (11th Cir. 2001) .......................................................................33

Phillips v. State, 476 So. 2d 194 (Fla. 1985 ....................................................................3, 9, 18

Renico v. Lett, 559 U.S. 776, 783 (2010) ..................................................................................33

Rodriguez v. Sec’y, Fla. Dep’t of Corr. 756 F.3d 1277 (11th Cir. 2014)....................................34

Rosencrantz v. Lafler, 568 F.3d 577 (6th Cir. 2009) ...............................................................31

Routley v. State, 590 So. 2d 397 (Fla. 1991) ........................................................................4, 25

Shih Wei Su v. Filion, 335 F.3d 119 (2d Cir. 2003) ................................................................29

Strickler v. Greene, 527 U.S. 263 (1999) ...........................................................................30, 38

Tassin v. Cain, 517 F.3d 770 (5th Cir. 2008) ..........................................................................32

Trepal v. Sec’y, Fla. Dep’t of Corr., 684 F.3d 1088 (11th Cir. 2012) ........................... 27, 28, 30

U.S. v. Clay, 720 F.3d 1021 (8th Cir. 2013) ............................................................................30

United States v. Agurs, 427 U.S. 97 (1976) .........................................................................8, 35

United States v. Bagley, 473 U.S. 667 (1985) ..................................................................7, 8, 35

United States v. Lane, 474 U.S. 438 (1986).............................................................................34

Williams v. Taylor, 529 U.S. 362 (2000) .................................................................................33

Statutes

28 U.S.C. § 1254 ....................................................................................................................... 2

28 U.S.C. § 2254 ..................................................................................................................2, 33

viii

Other Authorities

Amber Dance, Scientists are Fixing Flawed Forensics that Can Lead to Wrongful

Convictions, Science & Society, June 6, 2024 at ................................................................18

Carrie Leonetti, The Innocence Checklist, 58 Am. Crim. L. Rev. 97 (2021) ..........................39

.Report to the President, Forensic Science in Criminal Courts: Ensuring Scientific Validity

of Feature-Comparison Methods, Sept. 2016, ....................................................................18

https://www.cbsnews.com/miami/news/veteran-miami-prosecutor-quits-after-judges-rebukeover-conjugal-visits-for-jailhouse-informants/....................................................................15

https://www.law.umich.edu/special/exoneration/Pages/Exonerations-in-the-United-StatesMap.aspx ............................................................................................................................39

Rules

Florida Rule of Criminal Procedure 3.850 ..............................................................................18

DOCKET NO. ______

OCTOBER TERM 2024

═════════════════════════════════

IN THE

SUPREME COURT OF THE UNITED STATES

HARRY FRANKLIN PHILLIPS

Petitioner,

vs.

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS.

Respondent.

═════════════════════════════════

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

═════════════════════════════════

PETITION FOR A WRIT OF CERTIORARI

═════════════════════════════════

Petitioner Harry Franklin Phillips respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for the Eleventh Circuit in this

case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 3a- 62a) is unreported. The order

denying rehearing and rehearing en banc (App., infra, 64a- 67a) is unreported. The opinion

of the district court denying habeas relief (App., infra, 181a- 246a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on February 9, 2024. On June 20,

2024, the Honorable Clarence Thomas extended the date for the filing of this petition to

September 12, 2024. (Application - 23A1165) This Court has jurisdiction pursuant to 28

U.S.C. § 1254.

CONSTITUTIONAL AND STATUTORY PROVISONS INVOLVED

The Fifth Amendment to the Constitution of the United States provides in relevant

part:

No persons . . . shall . . . be deprived of life, liberty, or property, without due

process of law.

The Fourteenth Amendment to the Constitution of the United States provides in relevant

part:

No State shall . . . deprive any person of life, liberty, or property, without due

process of law.

28 U.S.C. § 2254 provides in relevant part:

(d) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in State court proceedings unless

the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus

by a person in custody pursuant to the judgment of a State court, a

determination of a factual issue made by a State court shall be presumed to be

correct. The applicant shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence.

STATEMENT

This case implicates an acknowledged and entrenched conflict between nine

courts of appeals regarding the standard of review applicable to claims of

constitutional trial error in habeas cases marred by a pattern of prosecutorial

misconduct. In Brecht, this Court left open the question of whether habeas courts

must apply the Kotteakos harmless-error standard in unusual habeas cases evidencing

deliberate constitutional error, or where the prosecution has engaged in an egregious

pattern of misconduct. This case presents an ideal vehicle for this Court to resolve an

entrenched circuit split on an important federal question.

Petitioner was convicted of murder and sentenced to death for the 1982 murder

of Bjorn Svenson, the supervisor of the Miami-Dade parole office. There were no

eyewitnesses to the shooting and no physical or forensic evidence linked Petitioner to

the crime. The State’s case rested primarily on the testimony of four jailhouse

informants who claimed Petitioner made admissions to them. Petitioner maintained,

and continues to maintain, his innocence.

On direct appeal, the Florida Supreme Court affirmed Petitioner’s conviction

and sentence of death. See Phillips v. State (Phillips I), 476 So. 2d 194 (Fla. 1985).

Petitioner timely collaterally challenged his judgment and sentence. Petitioner’s postconviction counsel uncovered and presented evidence that each of the jailhouse

informants misled the court and the jury, on some or all of the following

circumstances: 1) their prior records, 2) benefits they were to receive, including

favorable sentencing outcomes and monetary benefits given to them by the prosecutor

and lead detective, 3) the nature of their relationship with the Miami-Dade police as a

cooperating witness/informant, and 4) in the case of one of the informants, complete

failure to disclose an extensive documented history of severe mental illness, including

schizophrenia. One of the witnesses lied about when the detective started recording his

interview, a fact which the prosecutor not only knew was false but also relied on to

argue to the jury that the witness was credible because there was no way he could

have known certain facts about the crime when he gave his initial statement.

At no point during the proceedings did the lead prosecutor, David Waksman,

correct the informants’ false testimony even though he knew, or should have known,

the testimony was false. Waksman admitted to personally altering police reports in a

manner which concealed the alteration before turning them over to defense counsel.

Waksman and the lead detective on the case, Gregory Smith, fed information about the

crime to the informants. Two of the jailhouse informants recanted their testimony

entirely in postconviction, while the other two admitted to having been state

informants at the time of trial and receiving sentencing and financial benefits.

The state post-conviction court, applying the Brady materiality standard, found

“that Phillips has failed to establish that any favorable evidence was withheld by the

State” and denied Petitioner’s claim. (App,. infra, 265a- 268a) The Florida Supreme

Court affirmed, citing to Giglio but relying on its own precedent, Routley v. State, 590

So. 2d 397, 400 (Fla. 1991), a case it would later recede from when the court

acknowledged that its prior precedent had failed to clearly distinguish between the

Brady and Giglio materiality prongs. (App,. infra, 35a; see Guzman v. State, 868 So. 2d

498, 505–06 (Fla. 2003)). The Florida Supreme Court also failed to address some of the

more egregious forms of misconduct, including the prosecutor’s redaction of the police

reports. (App., infra, 36a -37a)

Petitioner timely filed for habeas relief, which the federal district court denied.

The district court was troubled by the prosecutorial misconduct in the case,

particularly the prosecutor’s routine habit of altering the police reports and concealing

the alteration, noting that the lead prosecutor, Waksman, admitted to this and

“somewhat incredibly, testified unapologetically to doing so.” (App 190a – 210a). The

district court applied Brecht to its analysis of Petitioner’s Giglio claims as required by

controlling Eleventh Circuit precedent and denied the petition. (App., infra, 209a –

210a) (“[B]ecause the harmless error standard [from Brecht v. Abrahamson, 507 U.S.

619 (1993)] is more strict from a habeas petitioner’s perspective than the Giglio

materiality standard, federal courts confronted with colorable Giglio claims in § 2254

petitions in many instances choose to examine the Brecht harmlessness issue first.”

(App., infra, 209a)

The court of appeals, while “condemn[ing] the [prosecutor’s] conduct[,]” finding

it ”dishonest and unethical[,]” (App., infra, 56a), nonetheless affirmed the district

court’s decision finding that Petitioner could not establish that the Giglio errors had a

substantial and injurious effect on the verdict as required by Brecht. (App., infra, 46a;

55a) The court of appeals noted binding Eleventh Circuit precedent required that

“when a Giglio claim arises on collateral review, a petitioner also must satisfy the

more onerous standard set forth in Brecht[,]”and denied the claim without addressing

whether AEDPA deference applied. (App., infra, 42a) Judge Wilson, concurring, noted

that the prosecutorial misconduct in Petitioner’s case was “so egregious that it can

easily cast a shadow on the entire criminal trial and our criminal justice system more

broadly.” (App., infra, 62a) Petitioner timely moved for rehearing en banc, (app., infra,

67a – 180a) asking the court to overrule its binding precedent requiring the application

of Brecht to Giglio claims on habeas review, which the court denied. (App., infra, 63a –

66a)

The First, Eighth and Eleventh Circuits have held that Brecht applies to

Giglio/Napue claims. However, the Second, Third, Fourth, and Ninth Circuits have

held that Brecht’s harmless-error standard should not be applied to Giglio/Napue

claims. The Sixth Circuit has left the question open of whether Brecht applies to cases

involving egregious prosecutorial misconduct, while the Tenth Circuit has held that

the Brecht harmless-error standard and the Kyles v. Whitley, 514 U.S. 419 (1995)

reasonable probability standard are functionally identical. The Fifth Circuit has

identified the issue but has not yet squarely ruled.

The Eleventh Circuit’s approach is erroneous and mistakenly disregards important

concerns acknowledged by this Court. The reasoning of the Second, Third, Fourth and

Ninth Circuits in finding that in cases with an egregious pattern of prosecutorial

misconduct, as is the case here, the justice system’s interest in the finality of

convictions, of avoiding federal intrusion into a state’s good faith attempt to honor

constitutional rights and avoiding liberal granting of the writ which degrades the

prominence of the trial, are lessened, is the correct approach. When a conviction is

obtained in blatant violation of constitutional rights and the state has failed in making

good faith efforts to protect those rights, the prominence of the trial and the finality of

the conviction carry less weight. This Court’s jurisprudence on prosecutorial

misconduct supports the Second, Third, Fourth and Ninth Circuits’ approach.

This case presents an excellent vehicle for resolving the entrenched circuit conflict,

not least because much of the prosecutorial misconduct during Petitioner’s trial is

undisputed, and the district court and the court of appeals expressly premised their

denial of Petitioner’s Giglio claims on the application of Brecht. The question presented

also asks this Court to resolve an exceptionally important question affecting hundreds

of habeas petitioners, including capital defendants, nationwide. The petition for a writ

of certiorari should be granted.

A. Background

This Court has long recognized that the knowing, deliberate presentation of false

evidence to a court or jury is incompatible with “rudimentary demands of justice.” Mooney

v. Holohan, 294 U.S. 103 (1935). “[T]he same result obtains when the State, although not

soliciting false evidence, allows it to go uncorrected when it appears.” Napue v. Illinois, 360

U.S. 264, 269 (1959). Four years later this Court held that “the suppression by the

prosecution of evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or punishment, irrespective of the good faith or bad faith

of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). “When the ‘reliability of a

given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence

affecting credibility falls within this general rule.” Giglio, 405 U.S. at 154 ( (citing Napue,

360 U.S. at 269). A “prosecutor has a duty to learn of any favorable evidence known to the

others acting on the government’s behalf in the case, including the police.” Kyles, 514 U.S.

at 437-38. The prosecutor’s “responsibility for failing to disclose known, favorable evidence .

. . is inescapable.” Id.

Defendants raising a Brady or Giglio violation must also show “materiality.” But the

materiality analysis for Brady and Giglio violations are different. To prevail on a Brady

claim, e.g. the suppression of favorable evidence, a habeas petitioner must show “there is a

reasonable probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 685

(1985) (internal quotation marks omitted); see also Kyles, 514 U.S. at 433. A “reasonable

probability” of a different result exists when the government's evidentiary suppressions,

viewed cumulatively, undermine confidence in the guilty verdict. Id. at 434, 436-37 n. 10.

“[O]nce a reviewing court applying Bagley has found constitutional error there is no

need for further harmless-error review.” Kyles, 514 U.S. at 435. A Bagley error could not be

treated as harmless because the Bagley standard “necessarily entails the conclusion that

the suppression must have had “’substantial and injurious effect or influence in

determining the jury’s verdict.’” Brecht, 507 U.S. at 623, quoting Kotteakos, 328 U.S. at 776.

The Giglio/Napue “materiality” standard is equivalent to the harmless-error standard

articulated in Chapman v. California, 386 U.S. 18, 24 (1967) (requiring the State to

demonstrate the error was harmless beyond a reasonable doubt), see Bagley, 473 U.S. at

680 n.9.

A state violates the Fourteenth Amendment's due process guarantee when it knowingly

presents or fails to correct false testimony in a criminal proceeding. See Napue, 360 U.S. at

269; Giglio, 405 U.S. at 153. “[A] conviction obtained by the knowing use of perjured

testimony is fundamentally unfair and must be set aside if there is any reasonable

likelihood that the false testimony could have affected the judgment of the jury.” United

States v. Agurs, 427 U.S. 97, 103 (1976), holding modified by Bagley at 667. A conviction

must be set aside even if the false testimony goes only to a witness's credibility rather than

the defendant's guilt. Napue, 360 U.S. at 270. The standard of review applicable to perjured

testimony claims is “strict.” Agurs, 427 U.S. at 104. This is so “not just because [those

claims] involve prosecutorial misconduct, but more importantly because they involve a

corruption of the truth-seeking function of the trial process.” Id.

In Brecht, this Court imposed an actual-prejudice standard on constitutional trial errors

raised in habeas proceedings, as opposed to on direct review, holding that a petitioner is

generally entitled to relief only if he can show “actual prejudice.” Brecht, 507 U.S. at 631.

Brecht error is met when the error had a “substantial and injurious effect or influence in

determining the jury's verdict.” Id. (quoting Kotteakos v. United States, 328 U.S., at 776).

“[I]f a judge has ‘grave doubt’ about whether an error affected a jury in this way, the judge

must treat the error as if it did so.” O'Neal v. McAninch, 513 U.S. 432, 438 (1995) (internal

quotation marks omitted). However, this Court left open “the possibility that in an unusual

case, a deliberate and especially egregious error of the trial type, or one that is combined

with a pattern of prosecutorial misconduct, [constitutional trial error] might so infect the

integrity of the proceeding as to warrant the grant of habeas relief, even if it did not

substantially influence the jury's verdict. Cf. Greer v. Miller, 483 U.S. 756, 769 [ ] (1987)

(Stevens, J., concurring in judgment).” Brecht, 507 U.S. at 638, n. 9. Since this Court’s

rulings in Brecht and Kyles, the courts of appeals have reached different conclusions on the

application of Brecht to Giglio claims raised in habeas proceedings.

B. Facts and Procedural History

Petitioner Harry Franklin Phillips was charged with the murder of Bjorn

Thomas Svenson, a parole supervisor in the Miami, Florida Parole and Probation

Office. A jury found Phillips guilty and rendered an advisory recommendation of death

by a vote of 7 to 5. Phillips, at 476 So.2d at 195.. Petitioner denied committing the

murder of Mr. Svenson and maintains his innocence to this day.

1. The crime and subsequent investigation

On August 31, 1982, witnesses heard gunshots near the Parole and Probation

building in Miami. Id. At 8:38 p.m., police found Mr. Svenson’s body in the parole building

parking lot and determined he “was the victim of multiple gunshot wounds.” Id. There were

no eyewitnesses to the shooting, and no murder weapon was found. Id.

As pressure mounted to find and convict the perpetrator, Miami-Dade police

brought Phillips in for questioning. Phillips was a suspect in law enforcement’s eyes

based on his status as a probationer and parolee and on an incident that happened two

years prior with his then-assigned parole office, Nanette Brochin. On November 14,

1980, Phillips encountered Ms. Brochin at the Publix grocery store near her home in

Broward County, just over the Dade County line. (II, V. 13, p. 2225). 3 Brochin stated

that Phillips followed her to her car and asked her for a kiss, which she rejected. Id.

Later that night, Brochin noticed a car without its lights on circling her home, an

observation which she shared with her then- boyfriend, Michael Russell. 4 Id. Even

though it was dark, Brochin claimed she could see that Phillips was the driver. Id.

Brochin filed a report with the police, but the car left before officers were able to

arrive. Id. Brochin later told Svenson, her supervisor, she believed the car belonged to

Phillips and it was agreed that his conduct should be reported to the Parole Board.

(HH, V. 4, pgs. 348-49)

Phillips called Brochin at home the day after the incident – a fact which

Brochin found troubling - and told her that the reason he approached her in the

grocery store was to warn her that an anonymous woman had gotten into contact with

him, offering him money to attack Russell. (II, V. 13, p. 2228). Phillips made clear he

had not accepted the money and had no intention of attacking Russell, but wanted to

let Brochin know she may be in danger. Id. Brochin then told Svenson about Phillips’s

phone call, a fact which was also presented to the parole board. (HH, V. 4, p. 353)

At the parole hearing, Brochin, Russell and Svenson testified against Phillips.

(II, V. 14, pgs. 2280-81). The parole board revoked Phillips’ parole. Id. Although one of

the reasons Phillips had his parole revoked was for operating a motor vehicle without

headlights, neither the parole office nor the police verified that Phillips was the one

operating the car circling Brochin’s residence. Id. Phillips spent 20 months in prison

Citations to the record reflect the appendix and documents filed in the district court. These

documents do not form part of the appendix submitted with this Petition as the record in

the district court comprises thousands of pages.

4 Brochin and Russell later married but will be referred to as Brochin and Russell for

clarity.

and was re-released on parole in August 1982. (II, V. 14, p. 2310). After his release,

Svenson warned Phillips to stay away from both Brochin and Russell and assigned

Phillips to a different parole officer.

On August 23, 1982, a week before Svenson’s murder, someone fired four shots

into the home Brochin and Russell shared. (II, V. 14, p. 2317). There were no

eyewitnesses to the shooting and police never recovered a weapon from the scene. Id.

Police brought Phillips in for questioning, but ultimately released him. Phillips denied

shooting at the home and consented to submit to a gunshot residue test, the results of

which were negative. (HH, V. 5, pgs. 532-33).

Phillips voluntarily agreed to go to the Miami-Dade police homicide office the

day after Svenson’s murder. (HH, Vol. 6, p. 726). Phillips denied any involvement in

the murder of Svenson and provided an alibi, stating that at the time of the murder, he

had been running errands. (HH, V. 6, pgs. 727-33). His sister confirmed that Phillips

had picked up her and her kids and taken them to a church event and Phillips’ mother

was able to retrieve out of the garbage a receipt from Winn Dixie showing that Phillips

had purchased two containers of Minute Maid orange juice and some meat items at

9:13 p.m. the night of the murders. (HH, V. 8, pgs. 1032-1038 and HH, V. 8, p. 1052).

The store manager confirmed the authenticity of the receipt. (HH, V. 6, pgs. 777-79).

During his interrogation, Phillips denied committing the offense, but struggled to

remember the finer details of his alibi, often confusing times and locations. Phillips’s

statements to law enforcement were presented at trial, where his confusion as to the

exact times of his location were highlighted to suggest they were false. (HH, V. 5, pgs.

482-84). In post-conviction it was established that Phillips’ I.Q. is in the Intellectually

Disabled range and he has “significantly sub-average intellectual functioning.” 5 (EH,

p. 9080-9087)

On September 2, 1982, Vivian Chabrier, Phillips’s coworker and fellow

probationer, gave a written statement to the probation office that Phillips told her he

had been firing a gun in a canal on August 25, 1982. (II, V. 14, p. 2316). Chabrier

alleged that Phillips asked her if washing his hands with Comet would remove

gunpowder residue. Id. Based on Chabrier’s statement, police issued an arrest warrant

for Phillips for violating his parole by being in possession of a weapon. (II, V. 14, p.

2318).

While being held in the Dade County Jail for the parole violation, Phillips was

placed in a cell with William Scott 6, a confidential informant for the Miami-Dade

police. Scott alleged that Phillips sua sponte confessed to murdering Svenson. As a

result of this information, the State finally had enough evidence to formally charge

Phillips with Svenson’s murder.

2. The trial

Phillips’s trial began on December 12, 1983. The prosecuting attorney on the case,

David Waksman, presented the theory that Petitioner killed Svenson in retaliation for

Svenson revoking his parole in 1980 over Phillips’ improper contact with Brochin. With no

physical evidence linking Phillips to the crime, and Phillips’ repeated denials of

This Court has noted that persons with intellectual disability are at risk of wrongful

conviction based on the possibility of false confessions. Atkins v. Virginia, 536 U.S. 304, 320

(2002).

6 After being placed in witness protection, William Scott’s legal name was changed to

William Smith. For ease of reference, he will be referred to as “Scott” throughout this

petition.

involvement in the crime and his alibi, the State’s case primarily rested on the testimony of

four jailhouse informants. 7

Each informant’s story slightly differed in detail, but they all shared two key facts:

Phillips made spontaneous, unsolicited incriminatory admissions, and each informant

stressed they had not received any promises or benefits from the State.

a. William Scott

Scott said he and Phillips crossed paths in the Dade County Jail sometime in

September of 1982. (HH, V. 5, p. 582). Scott and Phillips were placed in the same cell;

Phillips asked Scott what he had done to land himself in jail. (HH, V. 5, p. 583). Scott

informed Phillips he was incarcerated pending aggravated battery and violation of parole

charges. Id. According to Scott, Phillips then volunteered that he had been arrested for

“down[ing] one of them motherfuckers.” 8 Id. Scott further testified that Phillips informed

him that the murder weapon was being held by “some woman.” (HH, V. 5, p. 584). After

Phillips made these admissions, Scott immediately contacted Miami-Dade police via

telephone from the jail. (HH, V. 5, p. 585).

Scott denied having received any benefit for his testimony. (HH, V. 5, p. 586). He

claimed that the victim in his aggravated battery case had asked for the charges to be

dropped on his own accord. Id. On cross examination, Scott admitted to having been a paid

federal informant for about four years but denied being a current confidential informant for

The State also presented damaging testimony about Phillips’ statements to law

enforcement and interactions with Brochin and Russell shortly before the murders, as set

out by the court of appeals, but this evidence standing alone would likely have been

insufficient to sustain a conviction under Florida law. (App., infra, 5a -12a).

8 As noted supra, Phillips had not yet been charged with Svenson’s murder and had only

been arrested for possession of a firearm in violation of parole.

the State. (HH, V. 5, p. 589). Scott said he alerted the detective bureau of Phillips’s

confession because he simply wanted them to investigate Phillips’s claim. (HH, V. 5, p. 594).

b. Malcolm Watson

Phillips also crossed paths with Malcom Watson at the Dade County Jail, where

Watson was being held pending an armed robbery charge. (HH, V. 6, p. 695, 704). Phillips

and Watson were already familiar with one another. According to Watson’s testimony,

Watson owned a dry-cleaning store in Carol City, a neighborhood in Miami-Dade County.

(HH, V. 6, p. 691). Watson alleged that sometime in 1980, Phillips came into the store

asking Watson for a $50 loan, intending to use a firearm as collateral. Id. Watson would

also testify that in 1980 Phillips spontaneously admitted he was having problems with a

parole officer and intended to “get even with them.” (HH, V. 6, p. 692).

Two years later, upon first seeing Phillips at the Dade County Jail, Watson claimed

he asked Phillips if he “really killed a parole officer,” and Phillips said he did. (HH, V. 6, p.

695). Watson then contacted the police regarding Phillips’s alleged confession. (HH, V. 6, p.

698). Just like Scott, Watson denied that he had been promised anything in exchange for

his testimony, and maintained he contacted the police solely because he was morally

opposed to murder. (HH, V. 6, pgs. 698-99). Watson claimed the only time he asked for help

from the State was when word had gotten out in Dade County Jail that he had agreed to

testify against Phillips. (HH, V. 6, pgs. 700-01). Watson asked to be moved to a different

jail, and the prosecution team obliged. Id.

On cross examination, Watson admitted that the lead detective on the case, Gregory

Smith, had agreed to administer a polygraph examination to test Watson’s truthfulness

regarding his innocence in his armed robbery case. (HH, V. 6, p. 706). Watson claims this

polygraph test was not in connection to his agreement to testify but was instead offered

because Detective Smith genuinely believed in Watson’s innocence. Id.

The Defense presented Marshall Milney, an inmate, who testified that he met

Malcolm Watson in the Dade County jail law library about six months prior to the trial.

(HH, V. 8, p. 1021). Milney said that Watson told him that the prosecution had promised

him – in exchange for his testimony – that Watson was “’going out to be with [his] ex-wife,

or somebody, girlfriend and have some sex with her, and if everything goes right in [the

Phillips’] case, [Watson was] going to get his sentence mitigated.’” 9 (HH, V. 8, p. 1024).

c. William Farley

William Farley first met Phillips at the Lake Butler Correctional Institution when

they became cellmates on November 3, 1982. (II, Vol. 1, p. 35). A day later, Detective Smith

visited Lake Butler to interview Farley. Id. The interview focused on whether Phillips had

mentioned anything about a murder case. (HH, V. 7, p. 809). Farley stated that Phillips had

not told him anything. Id. Farley said the detective never asked him to press Phillips about

the case. Id. When Farley finally returned to his shared cell, he told Phillips that detectives

had interviewed him about Phillips’s potential involvement in a murder. (HH, V. 7, p. 812).

Farley said Phillips took out a newspaper clipping from a manila folder and voluntarily told

Farley that he had murdered Svenson. Id. Farley claimed Phillips told him, unprompted,

As incredible as this sounds, in March of 2024 the Miami Police Department’s homicide

unit was found to have offered conjugal visits in exchange for testimony in another decades

old Miami death penalty case. In that case, the prosecutor was also found to have

committed misconduct from the beginning of the proceedings 24 years ago including

through the 2024 resentencing. In 2022 he was recorded on a jail phone line “arranging

jailhouse meetings among several witnesses so they could coordinate their testimony.”

https://www.cbsnews.com/miami/news/veteran-miami-prosecutor-quits-after-judges-rebukeover-conjugal-visits-for-jailhouse-informants/ (last visited September 10, 2024)

that he shot Svenson “a whole heap of times” because Svenson “sent him back to prison.”

(HH, V. 7, p. 813). Prior to trial, Farley signed an affidavit admitting that he lied, and

Phillips had not confessed, but at trial he disavowed the affidavit. (App. infra, 18a)

Farley immediately informed a prison guard about Phillips’s confession, and the

guard contacted Detective Smith. (HH, V. 7, p. 815). The following day, Farley was

transferred from Lake Butler to Polk County Correctional Institution, where he met with

Detective Smith to give a tape-recorded statement. (HH, V. 7, p. 816). According to Farley,

he had no opportunity to discuss his statement with Detective Smith prior to the tape

recording, as Detective Smith chose to start taping the statement immediately. (HH, V. 7,

pgs. 822-23). Waksman focused on this alleged fact in closing argument as a reason to find

Farley’s testimony credible. The prosecutor argued to the jury that Farley was “telling the

truth beyond a reasonable doubt.” (HH, V. 8, p. 1105). The prosecutor argued the jurors

could determine this because Farley knew Svenson was carrying something based on what

Phillips had told him, and only the real killer would have known about Svenson carrying

phone books. (HH, V. 8, p. 1106). “Farley is telling the truth. Farley couldn’t have known

[the victim was carrying something] unless the killer told him.” (HH, V. 8, p. 1114). “Only

the killer could have told Farley that [the victim] had an object in his hand.” (HH, V. 8, p.

1115). When defense counsel tried to argue in closing that it is incredulous to believe that

the detective just went up to Farley and started to tape record him right away, Waksman

objected, saying, “there has been no evidence how anything happened.” (HH, V. 8, p. 1153).

Just like Scott and Watson, Farley denied having received any benefit in exchange

for his testimony. (HH, V. 8, p. 807). Farley said he was set to be released on parole on

November 9, 1984, and although Assistant State Attorney David Waksman told Farley he

would write a letter to the parole board on his behalf, Farley denied Waksman’s assistance.

(HH, V. 8, p. 807, 837). Farley said he was motivated to testify solely because “[he] wanted

to do something to serve society and help humanity.” (HH, V. 8, p. 819).

The defense presented Elwood White, an inmate at Polk County Correctional

Institution, who had helped Farley draft and sign the affidavit. When pressed about

Farley’s disavowal of his affidavit, White said,” If a man lie as much as Farley, he liable to

say anything, he liable to do anything.” (HH. V. 8, p. 1010).

d. Larry Hunter

Larry Hunter was also fortuitously present when Phillips again incriminated

himself. Hunter and Phillips met on January 19. 1983 in the Dade County Jail library.

(HH, V. 6, p. 60). Hunter claimed that upon first meeting Phillips, Phillips immediately told

him, in exacting detail that included the date, time, and cardinal directions, how he killed

Svenson. (HH, Vol. 6, pgs. 651-53). Hunter also said Phillips asked him to be an alibi

witness. (HH, Vol. 6, p. 652). Phillips handwrote a letter with details of his alibi and gave it

to Hunter. (HH, Vol. 6, p. 653).

Hunter’s roommate was the one who allegedly contacted police, and Hunter turned

over the alibi letters. (HH, Vol. 6, pgs. 653-54). Similarly to the other informants, Hunter

denied receiving any benefits in exchange for his testimony. (HH, Vol. 6, p. 668, 672). Just

like Watson, Hunter asked the prosecution and police teams to move him to a different jail

for his safety. (HH, Vol. 6, p. 661). Hunter was not asked about his mental health history.

e. Forensic evidence

The prosecution also presented Detective Steve Alter who interrogated Phillips the

day of the shooting at Brochin and Russell’s’ house. Alter admitted on cross-examination

that the test he did on Phillips for the presence of gunshot residue was negative. (HH, Vo.

5, pgs. 529-30). The prosecution also presented the testimony of Crime Scene Technician

Melvin Zahn who testified that the projectiles recovered from the shooting at Brochin and

Russell’s house were “fired .38 special or .357 Magnum spent bullets,” (HH, Vol. 5, p. 554),

and that he could say with “100 percent” certainty that it was the same weapon that was

used in both shootings: “I can say that weapon and that weapon alone fired a particular

bullet.” (HH, Vol. 5, pgs. 552-53) (emphasis added). While not challenged in 1984 at the

time of trial, toolmark evidence is now considered unreliable and forensic testimony that

purports a 100 percent degree of certainty falls outside the acceptable bounds of science. 10

The jury found Phillips guilty of first-degree murder and rendered an advisory death

recommendation by a simple majority vote of 7 to 5, which the Florida Supreme Court

affirmed. Phillips, 476 So.2d 194.

3. The evidentiary hearing

Phillips timely collaterally challenged his judgment and sentence pursuant to Florida

Rule of Criminal Procedure 3.850, alleging among other challenges that the State had

committed grave Brady and Giglio violations in connection to the testimony of the jailhouse

The 2016 President’s Council of Advisors on Science and Technology report found forensic

toolmark analysis ‘’falls short of the scientific criteria for foundational validity.” Report to

the President, Forensic Science in Criminal Courts: Ensuring Scientific Validity of FeatureComparison Methods, Sept. 2016, p. 104-114 at:

https.//obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/PCAST/pcast_foren

sic_science_report_final.pdf (archives.gov) (last visited September 10, 2024); “In 2023, a

judge ruled for the first time that this kind of evidence was inadmissible. Researchers at

NIST and the Center for Statistics and Applications in Forensic Evidence, or CSAFE, are

developing automated, quantifiable methods to improve objectivity.” Amber Dance,

Scientists are Fixing Flawed Forensics that Can Lead to Wrongful Convictions, Science &

Society, June 6, 2024 at https://www.sciencenews.org/article/investigating-crime-scienceforensics (last visited September 10, 2024)

informants. The post-conviction court conducted an evidentiary hearing on Phillips’ Brady

and Giglio claims.

William Scott

Post-conviction trial counsel uncovered records that showed Scott was a confidential

informant for both the federal government and the State in the time leading up to his

connection with Phillips. Scott’s history as a confidential informant for the Miami-Dade

Police Department began in 1972, when he assisted with a murder case in exchange for the

promise of a vacated sentence. (II, V. 16, p. 2583). Scott denied being a witness with the

Miami-Dade police department in his pretrial deposition, although trial counsel asked him

numerous questions about his role as an informant. (App., infra, 15a, n.5)

Scott was arrested on August 23, 1982 warrant for failing to appear in court which

was a parole violation. (II, V. 16, p. 2543). At his preliminary hearing a few days later, Scott

told the judge he was a confidential informant for the Miami-Dade Police Department and

the reason he was not present at his prior court hearing was because he was placed in

witness protection for his role as confidential informant in a prior murder case. (II, Vol. 16,

pgs. 2542-43). Detective Hough, the Miami-Dade detective Scott assisted in the 1972

murder case, also appeared at Scott’s first appearance to urge the judge to release Scott so

he could assist in a pending murder investigation. Id.

A few days after the preliminary hearing, Scott was taken from his own cell at 11:00

p.m. and placed in the same cell as Phillips. (Det. Smith’s report, October 10, 1982). (II, V.

1, p. 37). Within 24 hours of being placed with Phillips, Scott contacted Detective Hough to

give him Phillips’s alleged confession. Id. Since Detective Hough was not the lead detective

on the case, he passed the information along to Detective Smith. Id. Soon thereafter, on

September 13, 1982, Detective Smith got in contact with the parole office to ask for Scott’s

release, so Scott could assist in locating the murder weapon. (II, V. 16, p. 2554).

Upon Scott’s release, Scott was instructed by the detective team to visit Phillips’s

sister, Ida Phillips Stanley, at her residence to get information about a potential murder

weapon. (EH, p. 10122). Detective Smith supplied Scott with a wire and $20. (EH, p.

10125). In her evidentiary hearing testimony, Stanley said Scott claimed he was a “trustee”

at the jail and flashed a piece of paper as proof of his status. (EH, p. 8787). Scott told

Stanley that he liked Phillips and wanted to pass along $20 to him. (EH, p. 8788). Scott

admitted that he pressed Stanley and her mother for more information about Phillips, but

neither woman had any information to give him. (EH, p. 10123). Eventually, both women

asked Scott to leave the property. (EH, p. 8830). Scott explicitly told the women he was not

there on police business, but at the collateral evidentiary hearing, Scott admitted he went

to Stanley’s house at the express instruction of the Miami-Dade police in order to help them

locate the murder weapon. (EH, p. 10123, 10126).

Although Waksman was in possession of the transcripts from Scott’s

preliminary hearing, as well as Detective Smith’s letter to Scott’s parole officer,

Waksman did not provide defense counsel with the transcripts nor the letter.

Waksman did not correct Scott during his deposition when he denied working with the

Miami-Dade Police Department, nor during his trial testimony to the trial court and

jury, even though the prosecutor knew it was false. Additionally, Waksman never told

defense counsel Scott was working as a paid confidential informant for the MiamiDade Police Department.

Malcolm Watson

When Watson crossed paths with Phillips in the Dade County Jail, he was serving

time for an armed robbery conviction. Watson was considered a “career criminal,” having

been arrested more than 20 times and placed on probation at least twice. (II, V. 17, pgs.

2772-73). When facing sentencing for his armed robbery conviction, the prosecutor’s office

was adamant he should not receive less than 25 years in prison for the crime. (EH, p. 9807).

On January 21, 1982, Watson was sentenced to life in prison. (II, V. 17, p. 2880). For

reasons never documented or recorded, Watson was surreptitiously removed from state

prison to the county jail in September of 1982, where he just so happened to cross paths

with Phillips. Watson’s prior criminal record was never disclosed to trial counsel, and on

the stand, Watson said he had never been on probation and had only been convicted of

three or four felonies. (HH, V. 6, p. 703). Waksman made no effort to correct Watson’s false

testimony.

Watson asserted his Fifth Amendment right against self-incrimination at the

evidentiary hearing, but Waksman admitted that prior to Phillips’s trial, Watson’s parole

eligibility date would “probably [be] in the next century.” (EH, p. 9800). On May 11, 1984,

shortly after Phillips trial, Waksman stipulated to vacate Watson’s conviction for armed

robbery, changing Watson’s sentence from life in prison to five years’ probation. (II, V. 17, p.

2883). The stipulation was based on “newly discovered evidence,” but there was no

accompanying motion explaining what the evidence was. Id. Most tellingly, there are no

transcripts from the stipulation hearing.

c. William Farley

In his evidentiary hearing testimony, Farley admitted that his trial testimony was a

lie. (EH, p. 9658). Farley was enticed to testify against Phillips by Detective Smith, who

told Farley during their first meeting that he looked “tired of being incarcerated,” and that

Farley should get in touch if he came across any information regarding the Svenson

murder. (EH, p. 9669). Farley said he knew people who had gotten deals for “snitching,”

and he interpreted Detective Smith’s statement as a quid pro quo. (EH, pgs. 9670, 9673-74).

Farley said when he returned to their cell, he asked Phillips about the murder. (EH, p.

9675). Phillips showed him the newspaper clipping about the Svenson murder but

maintained his innocence. (EH, p. 9676). Farley said he wanted to believe Phillips was

responsible for the murder, so Farley got into contact with Detective Smith to give a

statement regarding Phillips’s purported confession. (EH, p. 9743).

Farley was then moved to Poe Correctional Institution, where he met with Detective

Smith for the second time. (EH, pgs. 9683-84). At this meeting, before the tape recording

began, Detective Smith instructed Farley to say that the victim had been shot numerous

times. (EH, p. 9685). The detective continued to feed Farley information regarding the case

for at least 15-20 minutes before beginning the tape recording. (EH, pgs. 9687-88). As noted

supra, at trial Farley had stated the recording began immediately. Detective Smith’s police

report documented that an hour and half transpired before he began taping Farley. This, of

course, was the section of the report secretly and improperly redacted by Waksman. (App.,

infra, 55a-56) (The court of appeals condemned Waksman’s practice of cutting police

reports, finding it “dishonest and unethical,” but not warranting relief under Brecht.) Once

the recording was done, Detective Smith informed Farley that Svenson’s family had a

$1,000 reward for any witness who was willing to testify at trial. (EH, p. 9692). Farley said

he believed Detective Smith was insinuating he would help Farley secure the reward

money. (EH, p. 9695).

During their third meeting, Detective Smith introduced Farley to Waksman. (EH, p.

9707). Detective Smith said Waksman would help Farley “after the trial.” Id. Waksman

also told Farley about the $1,000 reward for testifying. (EH, p. 9711). Waksman and Farley

met a total of three times before trial, and during one of those meetings, Waksman

presented Farley with a list of written questions and corresponding answers. (EH, pgs.

9710, 9714-15). Waksman told Farley that these were the questions he planned on asking

during direct examination, and that Farley should memorize the written down answers to

be able to say them during trial. Id. Farley testified at trial in the way he had been

instructed by both Detective Smith and Waksman.

By February of 1984, Farley was still in prison. Frustrated that the prosecution

team had not fulfilled their promises, Farley wrote and sent a strongly worded letter to

Waksman, stating, “I would appreciate it if you’d fulfill the promises that you made to me

and my fiancée and my father. I know… that you are indifferent to my imprisonment or

existence. But didn’t I help you win Phillips’ case and more prestige? Can’t you at lease [sic]

fulfill your promise if for no other reason than that?” (II, V. 16, p. 2691). Farley threatened

to tell the truth if Waksman did not recommend him for release by the end of the month. Id.

Farley also sent a similar letter to Detective Smith. (EH, p. 9724). Detective Smith

personally visited Farley in prison and became “pugnacious,” raising his voice at Farley for

daring to come forward with the truth. (EH, pgs. 9733-36). In retribution, Farley was

moved to a different prison cell, where conditions were much harsher. Id.

Still, Waksman gave in. A letter was sent to Probation and Parole on March 14,

1984 and Farley was released from prison on March 21, 1984. (II, V. 16, p. 2697). Later, on

May 22, 1984, Farley personally received a check for $175 signed by Waksman. (EH, p.

9732).

d. Larry Hunter

Both Hunter and Waksman testified that Hunter did not involve himself directly

with the prosecution team. 11 This fact gave credibility to Hunter’s testimony, as Hunter

appeared to not want to “rat out” Phillips but was instead forced to because Hunter’s

cellmate contacted authorities against Hunter’s wishes. This proved to be a lie. To secure

himself a better deal, Hunter contacted Waksman directly regarding Phillips’s alleged alibi

letters. Detective Smith notated this in a police report, but Waksman redacted this report

also, painstakingly pasting it back together, then copying the document and presenting it

as an original to trial counsel. (App., infra, 55a-56a)

The prosecution took such great pains to hide this fact because Hunter’s entire

testimony was false. In a sworn statement, Hunter explained that Phillips not only never

confessed to any crime, but never spoke to him about the murder at all. (II, V. 17, p. 2742).

Hunter said he was offered five years’ probation in exchange for his agreement to testify,

and that Detective Smith fed him every detail of the case, including the actual date the

crime occurred. Id. At the detective’s urging, Hunter then approached Phillips and offered

to be an alibi witness on his behalf. (II, V. 17, p. 2743). Hunter asked Phillips to write down

his alibi multiple times, and each time Phillips did so, Hunter turned the note over to the

State. (II, V. 17, p. 2744). Hunter tried to get out of testifying, refusing at one point to

attend his deposition, but ultimately testified against Phillips after his mother urged him

to. (II, V. 17, p. 2745).

Further, the State withheld other crucial facts that would have severely discredited

Hunter’s testimony at trial. Hunter had been tried and convicted in 1971, and again in

In his December 8, 1983 deposition, Waksman said the police department contacted him

regarding Hunter possibly being a witness against Phillips. Waksman said he could not

recall how Hunter got into contact with the police department.

1972, and found not guilty both times by reason of insanity. 1264. Hunter had been

confined to Florida State Hospital and declared criminally insane. (II, V. 7, p. 1262). At

various times during his stay, Hunter experienced moments of psychosis, caused by

extreme schizophrenia. (II, V. 7, p. 1289). Hunter also had a history of working as a police

informant, and had heard rumors of the State offering deals in connection with testifying

against Phillips. (II, V. 17, p. 2744). None of this information was disclosed to defense

counsel pretrial.

4. The postconviction and habeas ruling

The state post-conviction court, applying the Brady materiality standard, found

“that Phillips has failed to establish that any favorable evidence was withheld by the

State” and denied Petitioner’s claim. (App., infra, 265a- 268a) The Florida Supreme

Court affirmed, citing to Giglio but relying on its own precedent, Routley, 590 So. 2d at

400, a case it would later recede from when the court acknowledged that its prior

precedent had failed to clearly distinguish between the Brady and Giglio materiality

prongs. (App., infra, 35a; see Guzman, 868 So. 2d at 505–06. ). The Florida Supreme

Court also failed to address some of the more egregious forms of misconduct, including

the prosecutor’s redaction of the police reports. (App., infra, 36a -37a)

Phillips timely filed for habeas relief, which the federal district court denied.

The district court was troubled by the prosecutorial misconduct in the case,

particularly the prosecutor’s routine habit of altering the police reports and concealing

the alteration so they appeared to be an “unaltered document,” noting that Waksman

admitted to this and “somewhat incredibly, testified unapologetically to doing so.” (App

190a – 210a). The district court applied Brecht to its analysis as required by

controlling Eleventh Circuit precedent and denied the petition. (App., infra, 209a –

210a) (“[B]ecause the harmless error standard [from Brecht v. Abrahamson, 507 U.S.

619 (1993)] is more strict from a habeas petitioner’s perspective than the Giglio

materiality standard, federal courts confronted with colorable Giglio claims in § 2254

petitions in many instances choose to examine the Brecht harmlessness issue first.”

(App., infra, 209a)

The Court of Appeals, while “condemn[ing] the [prosecutor’s] conduct[,]”

finding it “dishonest and unethical[,]” (App., infra, 56a), nonetheless affirmed the

district court’s decision finding that Petitioner could not establish that the Giglio

errors had a substantial and injurious effect on the verdict as required by Brecht.

(App., infra, 46a; 55a) The Court of Appeals noted binding Eleventh Circuit precedent

required that “when a Giglio claim arises on collateral review, a petitioner also must

satisfy the more onerous standard set forth in Brecht[,].”and denied the claim without

addressing whether AEDPA deference applied. (App., infra, 42a) Judge Wilson,

concurring, noted that the prosecutorial misconduct in Petitioner’s case was “so

egregious that it can easily cast a shadow on the entire criminal trial and our criminal

justice system more broadly.” (App., infra, 62a) Petitioner timely moved for rehearing

en banc, (app., infra, 67a – 180a) asking the court to overrule its binding precedent

requiring the application of Brecht to Giglio claims on habeas review, which the court

denied. (App., infra, 63a – 66a)

REASONS FOR GRANTING THE PETITION

Since this Court in Brecht left open the question of whether the Kotteakos harmless-error

standard applies in cases with a pattern of prosecutorial misconduct, and declined to address

in Kyles whether the harmless-error standard applies to Giglio-specific Brady claims, a

deeply entrenched circuit split has developed among nine federal courts of appeals on

whether Brecht applies to Giglio claims. And one other court of appeals has addressed but

not affirmatively ruled on the issue, recognizing the question has not been resolved by this

Court.

THE DECISION BELOW DEEPENS A CLEAR CIRCUIT SPLIT

The Second, Third, Fourth, and Ninth Circuits have correctly held that Brecht’s harmlesserror standard cannot be applied to Giglio/Napue claims on habeas review because the

presentation of false testimony is “inconsistent with the rudimentary demands of justice.”

Haskell v. Superintendent Greene SCI, 866 F.3d 139, 141 (3d Cir. 2017). See also Hayes v.

Brown, 399 F.3d 972 (9th Cir. 2005); Drake v. Portuondo, 553 F. 3d 230 n.6 (2d Cir. 2009);

and Chandler v. Lee, 89 Fed.Appx. 830 n.4 (4th Cir. 2004).

The First, Eighth, and Eleventh Circuits, however, have held the Kotteakos harmlesserror standard applies to Giglio claims raised in habeas creating an entrenched circuit

split. Gilday v. Callahan, 59 F.3d 257 (1st Cir. 1995); U.S. v. Clay, 720 F.3d 1021 (8th Cir.

2013); and Trepal v. Sec’y, Fla. Dep’t of Corr., 684 F.3d 1088 (11th Cir. 2012). The erroneous

reasoning in these cases undermines an accused’s right to a fundamentally fair trial and

allows the small but not insignificant number of prosecutors who are willing to obtain a

conviction by deceit to do so without accountability.

Three courts of appeals have struggled to decide the standard of review applicable to

Giglio/Napue claims on collateral review. The Sixth Circuit has left open whether Brecht

applies to cases of grave prosecutorial misconduct, while the Tenth Circuit has held that

Brecht’s harmless-error standard is the functional equivalent to Kyles’s reasonable

probability standard. The Fifth Circuit has assumed but not decided a Brecht analysis

follows when a material Giglio violation has been established.

In rejecting Petitioner’s appeal, the Court of Appeals for the Eleventh Circuit deepened

the already existing split when it held that Giglio/Napue claims are subject to Brecht

harmless error review in collateral matters, relying on its own binding precedent in Trepal,

684 F.3d 1088. The holding in this case is in direct conflict with the Third Circuit Court of

Appeals’ decision in Haskell. and resulted in the Eleventh Circuit issuing an erroneous

opinion in the present case.

The Second, Third, Fourth and Ninth Circuits

In Haskell, a case involving the knowing presentation of false testimony that the

prosecutor “returned to and emphasized” in closing argument (as happened in Phillips’

case), the Third Circuit carefully analyzed whether a habeas petitioner must demonstrate a

reasonable likelihood the false testimony could have affected the judgment of the jury

under Giglio and Napue, or whether he must show “actual prejudice” under Brecht. Haskell,

866 F.3d at 147. The court reviewed the underpinnings of Giglio and Napue, and reviewed

the holdings of other circuits, in determining that Brecht did not apply.

The Third Circuit determined that “Brecht relied on three characteristics of habeas

proceedings to ground the distinction between harmless error under Chapman” and the

heightened standard on habeas under Brecht. Id. at 148. The Brecht court first gave weight

to the interest in the finality of convictions; second, to the concern that federal intrusion

frustrates a State’s “good faith attempts to honor constitutional rights,” (citing Engle v.

Isaac, 456 U.S. 107, 128 (1982)); and, third, “liberal allowance of the writ degrades the

prominence of the trial itself, and at the same time encourages habeas petitioners to

relitigate their claims on collateral review.” Id. 148 (internal citations omitted).

The Third Circuit recognized that these concerns do not apply to all constitutional

errors and “there are a number of exceptions to Brecht’s actual-prejudice requirement.” Id.

at 148-49. Relying in part on this Court’s footnote in Brecht, supra, and this Court’s

reasoning in Kyles, the Third Circuit held that the Brecht actual prejudice standard does

not apply to claims involving a state’s knowing use of perjured testimony. Id. at 152.

The court reasoned that in cases involving perjured testimony, Brecht’s three

underlying concerns were not implicated. The Third Circuit noted that the deliberate

deception of a court and the presentation of false testimony is “inconsistent with the

rudimentary demands of justice.” Id. (quoting Mooney, 294 U.S. at 112). “Thus, it is difficult

to see how concerns of finality would trump rudimentary demands of justice and

fundamental fairness when those are precisely the values the writ of habeas corpus is

intended to protect.” Id. Second, a State’s knowing presentation of perjury is not “a ‘goodfaith attempt [ ] to honor constitutional rights,’ but instead [ ] a bad-faith effort to deprive

the defendant of his right to due process and obtain a conviction through deceit.” Id.

(internal citations omitted). “Third, there is little chance that excluding perjured testimony

claims from Brecht analysis will ‘degrade[ ] the prominence of the trial itself[,]’ Brecht, 507

U.S. at 635, because a defendant petitioner most likely will not know of the prosecution's

use of perjured testimony until after the opportunity for direct review has passed. Id.

The Second and Fourth Circuits have also concluded that once a Giglio/Napue claim

meets a traditional materiality standard, no further Brecht analysis is warranted. Drake, 553

F. 3d at 241 n.6. (habeas relief granted on Giglio/Napue claim where no Brecht analysis was

performed). See also Shih Wei Su v. Filion, 335 F.3d 119 (2d Cir. 2003) (same); and Chandler,

89 Fed.Appx. at 842 n.4 (same).

The Ninth Circuit has also held that Brecht does not apply to Giglio/Napue claims.

Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005). Given this Court’s jurisprudence

regarding “the special role played by the American prosecutor in the search for truth in

criminal trials,” the Ninth Circuit recognized that Giglio/Napue error is a type of

constitutional Brady error, governed by the Agurs materiality standard as set out in Kyles.

Id. (quoting Strickler v. Greene, 527 U.S. 263, 281 (1999)). It would follow, then, that “when

the Supreme Court has declared a materiality standard, as it has for this type of

constitutional error, there is no need to conduct a separate harmless error analysis.” Id.

a. The First, Eighth and Eleventh Circuit

The First, Eighth and Eleventh Circuits have held that Brecht applies to Giglio/Napue

claims. In Trepal, the Eleventh Circuit acknowledged that “a showing of materiality under

Brady… necessarily establishes actual prejudice under Brecht,” but reasoned since “Giglio

error is trial error [and] not a structural defect,” Giglio error should be held to the Brecht

standard. Trepal, 684 F. 3d at 1112. The panel reasoned that the Brady materiality standard

is higher than the Brecht standard, whereas “the more lenient Giglio materiality standard

leaves room for the possibility that perjured testimony may be material under Giglio but still

be harmless under Brecht.” Id. at 1113. The court did not address whether cases involving

egregious prosecutorial misconduct may fall under an exception to Brecht.

The First Circuit agreed with the Eleventh Circuit’s reasoning, stating, “the Supreme

Court’s recent decision in Kyles makes clear… the approach to harmless error in the

Brady/Giglio context has evolved as the Chapman formulation of ‘harmless beyond a

reasonable doubt’” has yielded in habeas cases to the softer Brecht test of whether the error

“had substantial and injurious effect or influence in determining the jury’s verdict.” Gilday

v. Callahan, 59 F.3d 257, 267 (1st Cir. 1995) (internal citation omitted). The Eighth Circuit

has also ruled that Brecht applies to Giglio/Napue errors. See U.S. v. Clay, 720 F.3d 1021,

1026-27 (8th Cir. 2013) (application of Brecht analysis on Giglio/Napue claim).

b. The Sixth Circuit

The Sixth Circuit has recognized that this Court left open the question of whether

Brecht analyses applies to egregious prosecutorial misconduct. Although the Sixth Circuit

relied on the First Circuit’s opinion in Gilday in determining that perjured testimony was

subject to a Brecht analysis, in doing so, it also recognized that this Court in Brecht did not

seek to foreclose the possibility of granting habeas relief in cases with “deliberate and

especially egregious error[s] of the trial type, or [errors that are] combined with a pattern of

prosecutorial misconduct.” Rosencrantz v. Lafler, 568 F.3d 577, 589 (6th Cir. 2009) (quoting

Brecht, 507 U.S.at 638 n. 9). The court applied the Brecht harmless-error standard because

it did not view the “case as the unusual, especially egregious instance of prosecutorial

misconduct, or one that reveals any pattern of prosecutorial misconduct,” as identified by

this Court in Brecht. Rosencrantz, 568 F.3d at 589.

Additionally, the majority opinion in Rosencrantz conceded the “dissent [made] a valid

point in arguing that a literal reading of Giglio’s rule suggests that countenancing false

testimony implicates structural concerns,” but the majority opinion reserved judgment on

the point as this Court has “yet to explicitly hold Brady/Giglio errors are structural.” Id.

c. The Tenth Circuit

The Tenth Circuit also applied Brecht to Giglio/Napue claims, but only after

assuming the Brecht harmless-error standard is functionally equivalent to the Kyles

reasonable probability standard:

[A]ssuming the Giglio ‘reasonable likelihood standard is in fact less

demanding than the Kyles ‘reasonable probability’ standard, a petitioner who

succeeds under that standard will still have to meet the harmless error

standard of Brecht v. Abrahamson, which the Supreme Court has held is met

by the Kyles test. Thus, for all practical purposes the two standards

ultimately meet the same inquiry.

Douglas v. Workman, 560 F.3d 1156, 1173 (10th Cir. 2009) (internal citations omitted)

d. The Fifth Circuit

The Fifth Circuit has recognized the application of Brecht to Giglio claims is an open

question but has not squarely rule don the issue. See Barrientes v. Johnson, 221 F.3d 741,

755-57 (5th Cir. 2000). But see also Coulson v. Johnson, 273 F.3d 393 n. 19 (5th Cir. 2001)

(“We note that in Barrientes, this court did not require that courts in this circuit conduct [a

Brecht harmless-error standard of] review.”); and Tassin v. Cain, 517 F.3d 770 (5th Cir.

2008) (habeas relief granted on Giglio/Napue claim where no Brecht analysis was

performed).

The circuit split on whether a court may or should apply the Kotteakos harmlesserror standard to habeas petitioners raising Giglio claims in cases involving a pattern of

egregious prosecutorial misconduct results in a lack of uniformity in the law nationwide

with habeas petitioners’ claims being treated differently depending in which jurisdiction

their cases lie. This acknowledged and entrenched circuit split warrants this Court’s

intervention and guidance to the lower federal courts.

II.

THE DECISION BELOW WAS WRONGLY DECIDED

The decision below was wrongly decided for three reasons: (1) the court of appeals in

applying the Kotteakos harmless-error standard in a case involving a pattern of egregious

prosecutorial misconduct.(2) But even if the Kotteakos standard applies, Phillips met the

Kotteakos standard because the court of appeals failed to consider how knowledge of the

prosecutor’s misconduct would have affected the jury; and (3) The court also erred in

denying Phillips’ claims that the Florida state courts misapplied clearly established federal

law in merging the Giglio and Brady materiality standards and made unreasonable

determinations of fact in light of the state court record. 12 Phillips established he was

entitled to relief as AEDPA deference should not have applied. Nonetheless, the Eleventh

Circuit ultimately denied Phillips’ Giglio claim involving the prosecutor’s cutting and

pasting of the police reports, and the implications of that concealment and resulting

perjured testimony, based on Brecht. This is the focus of this Petition, although Petitioner

does not concede or abandon his argument that he has made a sufficient showing to obtain

habeas relief under Brecht and § 2254.

In assessing Petitioner’s Giglio claim, the court of appeals was bound by circuit

precedent holding that a habeas petitioner must overcome Brecht to obtain relief on a

This Court has explained this standard as follows:

Under the “contrary to” clause, a federal habeas court may grant the writ if

the state court arrives at a conclusion opposite to that reached by this Court

on a question of law or if the state court decides a case differently than this

Court has on a set of materially indistinguishable facts. Under the

“unreasonable application” clause, a federal habeas court may grant the writ

if the state court identifies the correct governing legal principle but

unreasonably applies that principle to the facts of the case.

(Terry) Williams v. Taylor, 529 U.S. 362, 412-13 (2000). AEDPA “demands that state court

decisions be given the benefit of the doubt” and “imposes a highly deferential standard.”

Renico v. Lett, 559 U.S. 776, 783 (2010). A reviewing court must ask whether the state

court’s application of the relevant constitutional standard was unreasonable. “For purposes

of §2254(d)(1), an unreasonable application of federal law is different that an incorrect

application of federal law.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal

quotations and citations omitted). A state court’s factual determinations are also entitled to

a presumption of correctness. 28 U.S.C. §2254(e)(1). But AEDPA’s statutory presumption

of correctness applies only to findings of fact made by the state court, not to mixed

determinations of law and fact. Parker v. Head, 244 F. 3d 831 (11th Cir. 2001). “A

determination of ‘materiality’ for a Brady violation is a question of law not entitled to a

presumption of correctness.” Guzman v. Sec’y Dept. of Corrections, 663 F.3d 1336, 1346 (11th

Cir. 2011).

Giglio claim. Rodriguez v. Sec’y, Fla. Dep’t of Corr. 756 F.3d 1277, 1302 (11th Cir. 2014)

(App., infra, 42a-43a).

In Brecht, this Court held that habeas petitioners seeking collateral relief based on

errors of the trial type must satisfy the Kotteakos standard, which requires a showing that

the error “had substantial and injurious effect or influence in determining the jury's

verdict." Kotteakos, 328 U.S. at 776. In other words, Brecht prevents habeas petitioners

from “habeas relief based on trial error unless they can establish that [the error] result[ed]

in ‘actual prejudice.’” Brecht, 507 U.S. at 637 (quoting United States v. Lane, 474 U.S. 438,

449 (1986)).

Brecht’s harmless error standard was motivated by three concerns. First, this Court

highlighted the importance of “the State’s interest in the finality of convictions that have

survived direct review within the state court system.” Id. at 635. The second reason

involves conceptions of “comity and federalism,” especially in the context of “’defining and

enforcing criminal law.’” Id. (quoting Engle v. Isaac, 456 U.S. 107, 128 (1982). Finally, this

Court recognized that “’’liberal allowance of the writ… degrades the prominence of trial

itself,’ and at the same time encourages habeas petitioners to relitigate their claims for

collateral review.” Id. (internal citations and quotations omitted). “The imbalance of the

costs and benefits of applying the Chapman harmless-error standard on collateral review

counsels in favor of applying a less onerous standard on habeas review of constitutional

error.” Id. at 637. Thus, this Court held that the Kotteakos standard “is better tailored to

the nature and purpose of collateral review and more likely to promote the considerations

underlying our recent habeas cases.” Id. at 638.

This Court’s concerns in Brecht were not all-encompassing, however. This Court

recognized that structural constitutional claims were not subject to harmless error review.

Moreover, this Court also expressly recognized that “a deliberate and especially egregious

error of the trial type, or one that is combined with a pattern of prosecutorial misconduct,

might so infect the integrity of the proceeding as to warrant the grant of habeas relief, even

if it did not substantially influence the jury’s verdict.” Brecht, 507 U.S. at 638, n. 9.

A common example of egregious trial error are the kinds of Brady errors set forth in

United States v. Agurs, 427 U.S. 97 (1976). In Agurs, this Court delineated three distinct

forms of Brady violations: (1) the knowing presentation of or failure to correct false

testimony; (2) failure to provide requested exculpatory evidence; and (3) failure to volunteer

exculpatory evidence never requested. Id. at 103-104. This Court held that Brecht’s

harmless-error standard is not applicable to the second and third kinds of Brady errors, as

such trial errors carry “a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different, [which] necessarily entails

the conclusion that the suppression must have had substantial and injurious effect or

influence in determining the jury's verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995)

(quoting Bagley, 473 U.S. at 682 and Brecht, 507 U.S. at 623).

The Kyles Court’s decision to decline from answering whether or not Giglio/Napue

errors are subject to Brecht’s harmless error standard does not take away from the fact that

this Court has “consistently held that a conviction obtained by the knowing use of perjured

testimony is fundamentally unfair and must be set aside if there is any reasonable

likelihood that the false testimony could have affected the judgment of the jury.” Agurs,

427 U.S. at 103.

Giglio/Napue error is firmly under the Brady error umbrella. This is because any

conviction “obtained through use of false evidence, known to be such by representatives of

the State, must fall under the Fourteenth Amendment.” Napue, 360 U.S.at 269. False

testimony has the potential to “establish such fundamental unfairness as to justify a

collateral attack on a [defendant’s] conviction” and is “as inconsistent with the rudimentary

demands of justice as is the obtaining of a like result by intimidation.” Agurs, 427 U.S. at

104 n. 7 (quoting Mooney, 294 U.S. at 112).

The Eleventh Circuit’s precedent applying Brecht to Giglio/Napue claims wrongly

separates Giglio/Napue from the Brady umbrella based on the fact that Giglio/Napue

error has a separate standard of review than other forms of Brady error.

But the “distinction between Brady materiality and Napue materiality seems

to reflect a sentiment that the prosecution’s knowing use of perjured

testimony will be more likely to affect our confidence in the jury’s decision,

and hence more likely to violate due process, than will a failure to disclose

evidence favorable to the defendant. It likely also acknowledges that every

Napue claim has an implicit accompanying Brady claim: Whenever the

prosecution knowingly uses false testimony, it has a Brady obligation to

disclose that witness’s perjury to the defense.”

Jackson v. Brown, 513 F. 3d 1057, 1076 n.12 (9th Cir. 2008).

Even if Giglio/Napue claims are distinguishable from other Brady claims, the

deliberate deception of a court or a jury by the presentation of testimony known to be false

is inconsistent with the rudimentary demands of justice that are a cornerstone of our legal

system.

The court of appeals, however, did not engage with these considerations and declined to

do so when Petitioner sought rehearing en banc. (App. infra, 67a- 94a) The court of appeals

reasoned that “the State should ‘not be put to the arduous task of retrying a defendant

based on mere speculation that the defendant was prejudiced by trial error.’” (App. infra,

43a) (quoting Davis v. Ayala, 576 U.S. 257, 268 (2015)). “Under this test, relief is proper

only if the federal court has grave doubt about whether a trial error of federal law had

substantial and injurious effect or influence in determining the jury's verdict.” Davis, 576

U.S. at 267-268 (internal citations and quotations omitted). The court of appeals also held

that under circuit precedent, when a habeas court is presented with a “colorable Giglio

claim,” the court could “choose to examine the Brecht harmlessness issue first.” (App., infra,

44a) “’Because [the court of appeals] consider[s] the Brecht question in the first instance on

federal habeas review, there is no state court Brecht actual-prejudice finding to review or to

which we should defer.’ Trepal v. Sec’y, Fla. Dep’t of Corr., 684 F.3d 1088, 1112 (11th Cir.

2012).” (App., infra, 44a)

However, the court of appeals failed to give full weight to the extent of the misconduct

in this case, so that it would fall under the Brecht exception of a pattern of egregious

misconduct that this Court recognized and also rose to the level of substantial and injurious

effect. The court of appeals went through the categories of Giglio violations present in this

case, including the determinations by the State court of promises of leniency and monetary

benefits made to the witnesses, Scott’s status as an agent for the Miami-Dade police,

Farley’s lie about the timing of the recording of his interview connected to Waksman’s

cutting and pasting of the police reports, and other instances. (App., infra, p. 45a – 55a) The

court then stated that, “[r]ather than address whether this aspect of the Florida Supreme

Court’s decision is entitled to deference under AEDPA, we conclude that Phillips is not

entitled to relief because, under Brecht, any error was harmless given the State’s other

evidence about Phillip’s guilt[.]” (App., infra, 45a)

This assessment was erroneous because the concerns of comity, federalism, the finality

of the trial and the State’s good faith attempt to honor constitutional rights was either

diminished or not present here. The deliberate deception of a court and the presentation of

false testimony is “inconsistent with the rudimentary demands of justice.” Mooney, 294 U.S.

at 112. A State’s knowing presentation of perjury does not honor or protect constitutional

rights but is instead a “bad-faith effort to deprive the defendant of his right to due process

and obtain a conviction through deceit.” Haskell, 866 F.3d at 152. (internal citations

omitted). Further, the prominence of the trial will not be degraded, and principles of comity

and federalism will still be honored as it is the federal court’s role to protect a defendant’s

constitutional rights in a case with an egregious pattern of prosecutorial misconduct as was

present here. The court of appeals’ assessment was wrongly decided.

III.

THE QUESTION PRESENTED IS EXTREMELY IMPORTANT

The question presented is extremely important, not only because this case is an ideal

vehicle for this Court to address the lingering issue left open in Brecht, but also to address

the issue of the appropriate standard of review for habeas petitioners raising claims of

prosecutorial misconduct which have undermined the fairness of the underlying trial. This

Court has long emphasized “the special role played by the American prosecutor in the

search for truth in criminal trials.” Strickler v. Greene, 527 U.S. 263, 281 (1999). Allowing a

pattern of egregious Giglio/Napue errors as seen in the present case to remain uncorrected

would be a miscarriage of justice and undermine the truth-seeking function of criminal

trials.

An accused’s due process rights to a fair trial are constitutionally enshrined in our

jurisprudence. See In re Winship, 397 U.S. 358, 364 (1970) (“[W]e explicitly hold that the

Due Process Clause protects the accused against conviction except upon proof beyond a

reasonable double of every fact necessary to constitute the crime with which he is charged.”)

The government’s interest in a criminal prosecution then “is not that it shall win a case, but

that justice shall be done,” Berger v. United States, 295 U.S. 78, 88 (1935). Instances of

prosecutorial misconduct not only harm the integrity of the courts and the public’s trust in

the justice system, but prosecutorial misconduct is frequently a factor in cases involving

wrongful conviction. 13 By permitting the decision below to stand, this Court risks affirming

that there are few, if any, consequences to prosecutorial misconduct used to unfairly gain

an advantage in a criminal trial. Indeed, as noted supra, the Miami-Dade State Attorney’s

office has been found just within the last year to have engaged in the same or similar

egregious types of prosecutorial misconduct in at least one other capital case.

Most prosecutors hold themselves to high ethical standards and scrupulously honor a

defendant’s right to a fair trial. They are to be commended for their service to our system of

justice. But in unusual cases such as this case, where there has been a breakdown in

standards of conduct, ethical norms and the foundations of a fair trial, this Court must step

in to protect the integrity of our system of justice. This is particularly so in a capital case.

Phillips has steadfastly maintained his innocence in this case. And while to be sure the

prosecution had evidence suggesting Petitioner had a motive and was a reasonable suspect

to investigate, the main evidence pinning Petitioner to the crime was the testimony of the

four jailhouse informants, all of whom were tainted by false testimony and the hiding of

impeachment evidence that bore directly on their credibility. At least two of them directly

admitted that they committed perjury at the direction of the prosecutor and lead detective.

Further, defense counsel’s efforts were hampered based on the fact that he was relying on

police reports that were clandestinely doctored by the prosecuting attorney.

Prosecutorial misconduct and incentivized testimony are both present in more than 60%

of wrongful conviction cases, including 53% (prosecutorial misconduct) and 57%

(incentivized testimony) of Florida wrongful conviction cases since 1989.

https://www.law.umich.edu/special/exoneration/Pages/Exonerations-in-the-United-StatesMap.aspx (last visited Sept. 10, 2024); see also Carrie Leonetti, The Innocence Checklist, 58

Am. Crim. L. Rev. 97 (2021) ((known causes of wrongful convictions include prosecutorial

misconduct, witness coaching, diminished mental capacity, recantations, police corruption,

and snitch testimony).

Brecht’s concerns over habeas proceedings rightly rest on concepts of comity and

integrity of final trial decisions, but as this Court said in Brecht itself, “the writ of habeas

corpus has historically been regarded as an extraordinary remedy, a bulwark against

convictions that violate fundamental fairness.” Brecht, 507 U.S. at 633 (emphasis added).

This is exactly the unusual habeas case deserving the extraordinary remedy of habeas.

Additionally, clarity on the question presented will have immediate and robust

practical implications. District courts and courts of appeals decide hundreds of habeas cases

each year, many of which raise Giglio claims. This Court’s clarification of the standard of

review on habeas when courts are presented with cases that involve patterns of egregious

prosecutorial misconduct would immeasurably assist the lower courts in issuing uniform

rulings on similarly situated cases and provide much needed guidance in this complex area

of the law.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

/s/Marie-Louise Samuels Parmer

Marie-Louise Samuels Parmer

*Counsel of Record

Capital Collateral Regional

Counsel-South

110 S.E. 6th St. Suite 701

Fort Lauderdale, FL 33301

September 12, 2024

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.