Petition for Writ of Certiorari — Jorge Almeida, Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections

PROVIDED TO

CORRECT

Appeal No.: 24-11318

District No.: 0:21-CV-62447

IN THE

SUPREME COURT OF THE UNITED STATE

Supine Court, ulT

Fl LED

Jorge Almeida—Petitioner

JAN 3 0 2025

°E22£oftheclerK

vs.

Ricky Dixon, Sec., FDOC—Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO

United States Court of Appeal—Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Jorge Almeida

52 West Unit Drive

Sneads, Florida 32460

QUESTIONS PRESENTED

I. Almeida received Ineffective Assistance of Counsel as a result of his trial counsel's strategy of

conceding guilt to lesser included offenses instead of presenting the only viable defense, “not

guilty by reason of insanity.”

II. Almeida was denied due process of law as a result of the Florida Supreme Court precedent

which barred his use of psychiatric evidence of mental disease or defect and medical evidence

of traumatic brain injury to rebut an element of each chaiged offense that is, specific intent or

mens rea and as a corollary his trial counsel was ineffective for failing to preserve this issue for

direct appeal by proffering a defense of lack of specific intent or mens rea resulting from his

mental condition and traumatic brain injury.

LIST OF PARTIES

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

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

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

petition is as follows:

RELATED CASES

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TABLE OF AUTHORITIES CITED

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CASES

Barefoot,

463 U.S. At 893 n.4

;.. 21

California v. Trombetta,

467 U.S. 479,485,81 L. Ed. 2d 413,104 S. Ct. 2528 (1984)

26

Chambers v. Mississippi

26

Davis v. Alaska,

415 US. 308 (1974)

26

Evans v. State,

946 So. 2d 1,11 (Fla. 2006)

19

Grannis v. Ordean,

234 U.S. 385,394 (1914)

26

Hodges v. State,

885 So. 2d 338,352 n.8 (Fla. 2004)

18

Oliver,

333 U.S. 257,273 (1948)

26

Strickland v. Washington,

466 U.S. 668,684-685 (1984)

26

United States v. Bartlett,

856 F. 2d 1071,1082 (8th Cir. 1988)

United States v. Cameron,

907 F. 2d 1051,1063-66 (11th Cir. 1990)

19

19,25

United States v. LaPlante,

No. 96-1316,1997 U.S. App. LEXIS 3687, at *2 (2nd Cir. Feb. 28,1997)

19

United States v. Newman,

889 F. 2d 88, 91-92 &n.l (6th Cir. 1989),

cert. Denied 459 U S. 959,109 L. Ed. 2d 748,110 S. Ct. 2566 (1990)

19

United States v. Pohlot,

827 F. 2d 889, 897-98 (3rd Cir. 1987),

cert. Denied, 484 U.S. 1011, 98 L. Ed. 2d 660,108 S. Ct. 710 (1988)

19

United States v. Twine,

853 F. 2d 676,679 (9th Cir. 1988)............................

Washington v. Texas,

388 U.S. 14,18 L. Ed. 2d 1019,87 S. Ct 1920 (1967)

19

27

TABLE OF CONTENTS

...... 1

OPINIONS BELOW

JURISDICTION........................................................ ....................

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE............:....... .....................................

REASONS FOR GRANTING THE WRIT.......................................

2

3

4

21

29

CONCLUSION

INDEX TO APPENDICES

APPENDIX A

Report and Recommendations

APPENDIX B

Order on Report and Recommendations

APPENDIX C

Almeida Objections to Report and Recommendation

APPENDIX D

Amended Order of Report and Recommendation

APPENDIX E

Request for Certificate ofAppealability

APPENDIX F

Appellee in Opposition of Request

APPENDIX G

Opinion United States Court ofAppeals

IN THE

SUPREME COURT OF THE UNITED STATES

PETlfION FOR WRIT OF CERTIORARI

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

OPINIONS BELOW

G

CVl'lFor cases from federal courts:

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

the petition and is

[ Imported at_____________ ______ _

; or,

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

[ ] is unpublished.

to

The opinion of the United States district court appears at Appendix

the petition and is

[ ] reported at_________________ ______________ _ »or,

Mffras been designated for publication but is not yet reported: or

[ ] is unpublished.

[] For cases from state courts:

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

Appendix

„ to the petition and is u r •

[ ] reported at ■ -........'" ____________ _ ; or,

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

N is unpublished.

The opinion of the _

court

appears at Appendix

to the petition and is

[ ] reported at ___

_______ _____ ; or,

f 3 has been designated for publication but is not yet reported; or,

f J is unpublished.

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JURISDICTION

[ ] For cases from federal courts:

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

>vVvi>ywas

[v/fNo petition for rehearing was timely filed in my case.

t 1 A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:---------- —;--------- ----- >

a C0Py °*

order denying rehearing appears at Appendix

.0

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

(date) on------ -- --------------(date)

to and including-------in Application No. —A

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

i

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix--------r ] A timely petition for rehearing was thereafter denied on the following date:

•

_____________, and a copy of the order denying rehearing

appears at Appendix

—.

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

to and including------------------- (date) on------- ------------ (date) in

Application No. —A-------The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

FIFTH AMENDMENT

z

FOURTEENTH AMENDMENT

TILTE 28, UNITED STATES CODE § 2253(c)(1)(a)

RULE 22(b) FEDERAL RULES OF APPELLATE PROCEDURE

TITLE 28, UNITED STATES CODE § 2253(c)(2)

)

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5

;

3

GROUND ONE STATEMENT OF THE ISSUE AND SUPPORTING FACTS

1

ALMEIDA RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL1 AS A RESULT OF HIS TRIAL COUNSEL'S STRATEGY

“ceding GUILT TO LESSER INCLUDED OFFENSES

WHEN THE CONCESSION OF GUILT HAD NO CHANCE OF

SUCCESS INSTEAD THE ONLY VIABLE DEFENSE WAS A

DEFENSE OFNOTGUILTY BY REASON OF INSANITY, AND

DEFENSE OF nu,defense whjch should HAVE BEEN

THAT WAS THE

ARGUED.2

SUPPORTING FACTS

•Ms case arises from convictions for one count of attempted first degree

murder of Brandon Haynes, two counts of armed kidnapping of Haynes and lanette

Lackore, his mother, and two counts of attempted armed robbery of Haynes and

Lackore.

The trial record shows that the defendant accosted a college student (Haynes)

and his mother (Lackore) with a gun while Lackore was showing Haynes how to

drive a

stick shift, and he took them to a rest stop and boat ramp where his gun

discharged in a struggle, hitting Haynes in the knee. The gun then jammed, thwarting

As used herein references to ineffective assistance ofcounsel refer to the right

eastmnce ofcounsel guaranteed Ahne.da under the S.x|h»dF—

to effectiv

Amendments to the United States Constitution and Article I, § 16 of the Florida

Constitution.

a The fill in the blank AO-241 form did not allow enough room to My set

forth file ground raised. This statement of the Ground is that upon which Alme

relies.

1

the defendant’s attempt to fire it again. As they continued to struggle, the defendant

pulled out an unopened knife. Another person at the rest area helped subdue the

defendant. During the entire episode and after his arrest the defendant made a number

of confused statements including that he wanted to be killed by the victims or by the

police. The defense contended that the defendant did not intend to kill Haynes, and

that he was guilty of lesser offenses as to the kidnaping and attempted robbery

charges. (T 653-55)3

TRIAL TESTIMONY

Mrs. Janette Lackore testified that on December 21,2015, she was teaching her

son, Brandon Haynes, how to drive a stick shift in the parking lot at Gator Run

Elementary in Weston (T 236). The school was closed, and the parking lot was empty

(T 237). They put die car in reverse, drove back to the location where they had

started, and she saw a man was standing outside of their jeep with a gun pointed at

her stomach (T 238-239). Mrs. Lackore testified that the man asked if she wanted to

live or die and told her to get in the backseat (T 239). Appellant got in the front seat

and told her son to drive at gunpoint (T 240). Appellant told her son to get off at US

27 (T 241). Eventually Appellant told her son to turn into a boat ramp (T 244).

Mrs. Lackore testified Appellant told them to walk towards the picnic benches

3 Record references are to the trial transcript unless otherwise noted.

5

(T 245). Appellant asked her son, “Do you want to live, or do you want to die?” (T

246). Her son said, ‘1 want to live” (T 247). Appellant again asked her if she wanted

to live or die, and she told Appellant she wanted to live (T 247). Appellant told them

to keep calm, don’t worry, this is all going to be like a joke and we will all laugh at

this one day (T 247-248). Appellant said we have two options; kill me now, here is

the gun, or you can help me (T 248). Her son immediately said, we will help (T 248).

Mrs. Lackore told Appellant I can get as much money as you want from an ATM (T

248). Appellant’s demeanor changed (T 248). Appellant asked where she worked,

how many cars they had, and asked about their bank accounts (T 249). Appellant said

/

he wanted the money to buy drugs (T 249);

Appellant kept looking towards the parking lot and told them we have company

(T 249). Mrs. Lackore testified that Appellant asked if they wanted these people to

die (T 250). Appellant told them to get back in the Jeep and he would tell them where

to drive next (T 250). Mrs. Lackore testified her soh asked if she could drive because

this was his first time driving a stick shift.(T 251). Appellant agreed (T 251). Mrs.

Lackore testified she was on the driver’s side and her son and Appellant were on the

passenger’s side (T 251). For a brief moment Appellant stepped in front of her son

to open the door (T 252). She heard a commotion and saw her son on top ofAppellant

wrestling for the gun; her son was screaming for help (T 252). Mrs. Lackore told her

soil to let Appellant go (T 252). Her son looked at her and said no, mom (T 252).

Both of their hands were inside Appellant’s pocket trying to get control of the gun (T

253). The gun came out, her son was trying to get the gun away from Appellant, and

she heard a gunshot (T 253).

Mrs. Lackore testified Appellant was pointing the gun at her son’s chest;

Appellant took another shot arid the gun just clicked; it didn’t fire (T 254). Her son

was able to take the gun away, unload the magazine, and throw it off to the side (T

254). She told the man in the SUV that Appellant had kidnapped them and was trying

to kill them (T 255). Appellant took out a knife and attacked her son again, trying to

kill him (T 255). Her son was able to kick the knife out ofAppellant’s hand (T 255).

Her son held Appellant down and the man from the SUV helped hold Appellant down

(T 256). Her son told her to call 911; she was so distraught she couldn’t remember

how to call 911 (T 256). She was very scared and had a hard time describing where

they were (T 257). The 911 recording was played for the jury (T 258-265).

On cross-examination, defense counsel asked Mrs. Lackore how she knew the

boat ramp was now closed to the public (T 285). Mrs. Lackore testified that as part

of her therapy session, she was asked to go back to that same spot (T 285). Defense

counsel asked ifAppellant asked her to keep calm and Mrs. Lackore testified she was

shaking a lot (T 286). When Appellant said you can kill me now, the gun was on the

n,

table with Appellant’s hand on top of it (T 287). Appellant said he was ready to die

(T 288). Mrs. Lackore knew she was going to die; Appellant kept his hand on the gun

(T 290-291). Defense counsel asked if Mrs. Lackore had ever made a different

statement and if it would help if they showed her that statement (T 291). The State

asked for a recess stating that it appears she needs one (T 292). The trial court took

a five-minute break (T 292). The defense moved for a mistrial (T 292). The trial court

denied the motion (T 293).

After the recess, Defense counsel asked Mrs. Lackore if she was really

distraught through the whole incident and Mrs. Lackore answered, yes (T 295). Mrs.

Lackore testified she saw die gun when it discharged (T 299). The second time she

heard a click (T 301), When she heard the click, Appellant was pointing the gun at

Brandon’s chest (T 302). Mrs. Lackore testified that when Appellant was attacking

her son with the knife, her son was underneath Appellant with his back on the ground

(T 303). Defense counsel again asked Mrs. Lackore if she was distraught at the time

(T 303).

Brandon Haynes testified they turned into a boat dock (T 320). It was a remote

location off Of US-27 (T 320). There were two benches and about six parking spots

(T 321). Appellant walked them to the benches and told them to sit down, (T

322-323). Appellant put the gun on the table (T 323). Appellant said he wanted

money for drugs (T 324). Appellant said they could either help him or they could kill

him now (T 324). Mr. Haynes testified he told Appellant they would help him (T

325). Mr. Haynes testified that if he grabbed the gun, it could have been a trick and

Appellant could have killed him (T 325). Mr. Haynes testified it was a very scary

situation and he was thinking about howto get out of the situation (T 325). Appellant

said at the end of the day, years later, they would laugh at this (T 326). Appellant

asked what jobs they had and said he wanted money for drugs (T 327). Mr. Haynes

testified he told Appellant he was a student and his mother was a scientist (T 327).

Appellant told them somebody just pulled in, and two people got out of the car

(T 329). Appellant said if the people come over he will shoot them in the head

without any thought (T 329). Appellant asked them for money (T 329). Mr. Haynes

told Appellant they could go to an ATM and take out a couple thousand dollars; they

did not have cash on them (T 329). Appellant agreed to go to an ATM (T 330).

Appellant said he didn’t want to hurt anybody, but if he had to he would kill for it (T

330). Appellant said he wasn’t afraid of a shootout with the cops; he wasn’t afraid of

dying; he wanted money for drugs and then would take his own life (T 330).

Deputy Chris Kostrzecha testified that on December 21, 2015, he was

dispatched to the scene (T 409-411). It took about ten minutes to get to the location

(T 411). Deputy Kostrzecha observed the red Jeep and several people in the parking

%

lot (T 413). People were laying on top ofthe person

they were holding down (T 414).

Brandon Haynes and Janette Lackore told him .he person on the gronnd was hying

,o shoot them with a gun (T 416). Appellant was handcuffed and placed into a police

car (T 417).

Appellant was talkmg a lot, so Deputy Kostrzecha read Appellant his Miranda

warnings (T 417).

Appellant said he thought they would be easy prey O' 421).

hed the victims in the Jeep, pulled out a gun, and told them

Appellant said he approac

picnic table area with the gun

to drive (T 421). Appellant said he ordered them to a

(T 421). Appellant said he obse

rved two vehicles pull into the boat ramp (T 421).

Appellant said he decided to order them to

walk back to the red Jeep (T 421).

kled him and a straggle ensued (T 422). Appellant

Appellant said the male victim tac

d (T 422). Appellant said he dropped the handgun

said the handgun fired and jamme

, tackled him and held him down

on the ground, the male victim kicked the gun away

Lentioned a knife (T 422). Appellant said his intention m

(T 422). Appellant never m

have the victims kill

kidnapping the victims was to either be killed by the police or to

(T 422). Deputy Kostizecha testified Appellant said he would have killed the

him

Victims if necessary to attain his goal (T 422). Appellant said he wanted te die (T

422) Mr. Haynes testified that appellant said he would attain his goal by killing tire

victims first (T 423). The gun was laying on tire ground (T 423). The slide was back

lb.

slightly, and a shell casing was stuck in the slide (T 423). The magazine was laying

on the ground a couple feet away (T 428). There was a knife and an unspent cartridge

on the ground (T 430). Brandon Haynes had a gunshot wound to his right knee (T

436).

FACTS SPECIFIC TO CLAIM

Almeida’s counsel had Almeida evaluated by two Ph.D. psychologists, Dr.

Michael Gene Simonds, and Dr. Allan Ribbler. Neither doctor was prepared to give

an opinion that Almeida met die Florida legal standard for insanity at the time of the

offense, but Dr. Simonds did render an opinion that Almeida suffered from traumatic

brain injury from a motorcycle accident and suffered from bi-polar disorder and that

at the time of the offense, he was in a manic bi-polar episode, not having slept for

days. Dr. Nibbler also found that Almeida suffered chronic deficits fromhis traumatic

brain injury which affected his executive decision making functions and caused him

to have abnormal emotional reactions,,

■

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■.

Given Almeida’s lack of criminal history and his professional educational and

career background, this anomalous caijacking was only explainable as the product of

a psychotic manic episode complicated by traumatic brain injury.

Defense counsel apparently was of the opinion that an insanity defense could

not be presented without an expert opinion that the defendant met the Florida legal

\l

/

standard for insanity and apparently did not consider the possibility of an insanity

defense once the single expert found he did not meet the legal standard in that

expert’s opinion. The only viable defense available to Almeida on the facts ofhis case

was insanity. No expert was required to present this defense.

Mental health experts may form opinions about a defendant’s mental state. But

courts do not afford any special deference to such opinions, as shown by the fact that

a defendant may establish insanity without presenting expert testimony. The facts of

the case, the prosecution’s witnesses, lay testimony or any combination thereof is

sufficient to raise the issue of insanity. Expert psychiatric testimony is not necessary

to raise the issue of insanity, nor is it necessaiy for the state to present expert medical

testimony that a defendant is sane in order to counter the defense experts testimony

regarding insanity. It is by now settled that expert psychiatric testimony is not

necessarily required to establish an insanity defense and that nonpsychiatric testimony

is admissible for that purpose. An insanity defense does not require the expert

testimony of a psychologist or psychiatrist. Opinion testimony of experts is not

necessary on the issue of insanity. Expert psychiatric testimony is not necessaiy to

raise the issue of insanity.

Indeed, a factfinder may deem a defendant insane based on lay testimony even

if an expert opines that the defendant isn’t insane. Opinion testimony regarding a

o.

defendant’s sanity is not reserved for experts. Lay witnesses may also testify

concerning whether in their opinion a defendant is sane or insane. Indeed, a factfinder

may credit lay witness testimony over that of an expert, if it finds the lay witness

testimony concerning the defendant’s mental state to be more persuasive.4

Indeed, in the federal courts, experts are prohibited from testifying about their

opinion on the ultimate issue of insanity, but this has certainly not stopped the

presentation of the defense.

However, defense counsel was further deficient in failing to continue to seek

an expert who would have been able to opine that Almeida was legally insane. Just

because one, or even two experts decline to find a defendant insane by no means

suggest that a third expert will not reach an opposite conclusion. Given the lack of

any dispute that Almeida suffered from bi-polar disorder, which is a serious mental

disorder, and the lack of any dispute that he was not on any medication to control this

mental disorder, and further given that the evidence was seemingly clear that

Almeida, not having slept in days, was in an extreme manic phase of his mental

disorder, and further given his undisputed serious, traumatic brain injury and its effect

4 Evidence of Almeida’s mental condition and the presentation of the insanity

defense would not have required the presentation of any expert nor could the jury

have been informed that the defense had chosen to not use the experts who had

rendered the adverse opinions. Milbum v. State, 742 So. 2d 362 (Fla. 2nd DCA1999).

13,

on his judgment and reasoning, and combine all of this with his actions which were

so irrational, including his repeated statements that he wanted to commit suicide or

be killed either by his victims or by the police, in contrast to his decades of law

abiding conduct, it would seem self-evident that a legitimate expert opinion could

have been obtained to support the insanity defense.

Put simply: when Dr, Simonds was unable to opine that Almeida was legally

insane, a doctor should have been found who would so testify and it is reasonable to

believe that such an expert could have been found had one been diligently pursued.

Any reasonably competent defense counsel on the facts of this case would have

continued to seek an expert until an expert were found who would support the

insanity defense, and had one been obtained and used this Court cannot be confident

the outcome of the trial would have been the same.

, There was no real dispute as to the essential facts of the case, that Almeida had

seized this mother and son at gun point and commandeered their vehicle forcing them

at gunpoint to drive to a park, where he had asked to be killed, and when the son

attempted to wrestle the gun from Almeida, the gun went off, striking the son in the

knee.5 The son then was able to get the gun away from Almeida, who then pulled a

5 The only disputed essential fact was whether Almeida intentionally tried to

shoot the son. The knife attack was not disputed.

\L\.

knife. The son was able to kick the knife from Almeida’s hand and then began to

wrestle him to the ground at which time a person who had driven up while this was

happening joined in and helped the son subdue Almeida and hold him until the police

arrived.

The defense closing argument focused on the fact that Almeida’s underlying

intent was to kill himself, that he was mentally ill and distraught. When the people

drove into the park where the incident was happening, the defense argued that in the

“DVD in his mind” Almeida thought these were undercover cops and he would

commit suicide by cop. Defense counsel stated in closing that the jury knows beyond

a shadow of a doubt he was suicidal and that guns and mental health don’t mix.

Defense counsel then argued for a guilty verdict as to a lesser included

misdemeanor assault as to count two and a no to the special interrogatories, same for

count three, on count four she asked for guilty on a lesser misdemeanor assault, and

count five, guilty of a lesser included misdemeanor assault. The defense counsel

asked for a not guilty verdict on count one, attempted first degree murder, but did not

tell the jury any reason why they should reach such a not guilty verdict nor did she

offer any reason to support the guilty verdict on lesser included misdemeanors as to

the other counts. In particular there was no explanation or reason offered in closing

argument why the jury should return a no answer to the interrogatories regarding the

IS.:

discharge of the firearm and the serious bodily injury arising out of the discharge of

the firearm. The defense had conceded that Almeida was armed with a firearm and

conceded that he had taken the mother and son at gun point and demanded money

from them and that the discharge of the firearm took place when the victim tried to

wrestle the gun from Almeida. So on the facts the defense conceded there was no

evidentiary basis for the jury to return a not guilty verdict on any of the lesser

included offenses and no basis to return a no answer to the special interrogatories.

The defense made a briefabandonment/renunciation argument. Abandonment

was a theoretical affirmative defense to attempted murder, and attempted armed

robbery, but as a matter of law was not a defense to armed kidnapping which earned

a mandatory twenty-five year to life sentence with the discharge of the firearm and

serious bodily injury. Inotherwords, abandonment was an imperfect defense because

it left Almeida undefendant on a life offense.

Once the defendant was found guilty of the special interrogatory of discharge

of a firearm with serious bodily injury, he then faced a day for day mandatory

minimum 25 year up to life sentence and the judge imposed a life sentence stating

that despite the mitigation presented at sentencing, the legislature intended a life

sentence for such offenses.

Had the defense used the evidence available to it regarding the defendant’s

K,.

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mental state and insanity, this would have been a viable defense to all of the charges.

The defense presented was no real defense to any of the charges and was no defense

at all in fact or at law to the kidnaping charges. This constituted deficient

performance. The Court cannot be confident beyond a reasonable doubt that the jury

would have returned a not guilty by reason of insanity defense had it been presented

given the undisputed evidence that Almeida had traumatic brain injury and bi-polar

disorder and was suffering a bi-polar manic episode at the time of the incident.

17.

GROUND TWO SUPPORTING FACTS

B. ALMEIDA WAS DENIED DUE PROCESS OF LAW AS A

RESULT OF THE FLORIDA SUPREME COURT PRECEDENT

WHICH BARRED HIS USE OF PSYCHIATRIC EVIDENCE OF

MENTAL DISEASE OR DEFECT AND MEDICAL EVIDENCE OF

TRAUMATIC BRAIN INJURY TO REBUT AN ELEMENT OF EACH

CHARGED OFFENSE, THAT IS, SPECIFIC INTENT OILMENS REA

AND AS A COROLLARY HIS TRIAL COUNSEL WAS

INEFFECTIVE FOR FAILING TO PRESERVE THIS ISSUE FOR

DIRECT APPEAL BY PROFFERING A DEFENSE OF LACK OF

SPECIFIC INTENT OR MENS REA RESULTING FROM HIS

MENTAL CONDITION AND TRAUMATIC BRAIN INJURY.6

SUPPORTING FACTS

Almeida adopts the facts set forth in ground one above.

Binding precedent from Florida’s highest appellate court at the time of

Almeida’s trial barred Almeida from presenting expert evidence of or otherwise

present a defense of diminished mental capacity arising out of either his bi-polar

disorder or traumatic brain injury or both. Hodges v. State, 885 So. 2d 338,352 n.8

(Fla. 2004) ("This Court has held on numerous occasions that evidence of an

abnormal mental condition not constituting legal insanity is inadmissible to negate

specific intent.")

But even after the Insanity Defense Reform Act which altered Rule 704, federal

6 The fill in the blank AO-241 form did not allow enough room to fully set

forth the ground raised. This statement of the Ground is that upon which Almeida

relies.

i*.

courts have held with near unanimity that a trial court cannot bar psychiatric or other

evidence to support a diminished capacity defense addressed to lack of specific intent

or mens rea. See Most of the circuits that have considered the question, however,

have determined that evidence ofmental disease can still be used to disprove specific

intent for specific intent crimes. United States v. Cameron, 907 F.2d 1051,1063-66

(11th Cir. 1990); United States v. Twine, 853 F.2d 676,679 (9th Cir. 1988); United

Statesv. Bartlett, 856 F.2d 1071,1082(8thCir. 1988); United States v. Newman, 889

F.2d 88,91-92 & n.l (6th Cir. 1989), cert, denied, 495 U.S. 959,109 L. Ed. 2d 748,

110 S. Ct. 2566 (1990); United States v. Pohlot, 827 F.2d 889,897-98 (3d Cir. 1987),

cert, denied, 484 U.S. 1011, 98 L. Ed. 2d 660, 108 S. Ct. 710 (1988), and United

States v. LaPlante, No. 96-1316,1997 U.S. App. LEXIS 3687, at *2 (2d Cir. Feb. 28,

1997).

To hold otherwise would violate Due Process. Florida’s blanket prohibition

of such evidence and the defense itself violates Due Process. This Court cannot be

confident beyond a reasonable doubt that the outcome of the trial would have been

the same if Almeida had been permitted to present a diminished capacity defense

attacking specific intent or mens rea.

Despite the holding in Evans,7 a reasonably competent criminal defense

7 Evans v. State, 946 So. 2d 1,11 (Fla. 2006).

n

*> .

counsel would have recognized that Florida’s per se rule prohibiting diminished

capacity defenses challenging specific intent violates Due Process, and would have

proffered the defense Mid sought a jury instruction on the defense, arguing that

Almeida’s right to Due Process guaranteed under the Fifth and Fourteenth

Amendments was violated by Florida’s per se rule, and had counsel done so, this

Court cannot be confident that the outcome ofthe trial would have been the same had

such evidence and defense been presented to the jiuy.

Almeida is entitled to issuance of a certificate of appealability as to both

claims.

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REASONS FOR GRANTING THE PETITION

A certificate must issue if the appeal presents a "question of some substance,"

i.e., at least one issue (1) that is "'debatable among jurists ofreason'"; (2) "'that a court

could resolve in a different manner"'; (3) that is "'adequate to deserve encouragement

to proceed further'"; or (4) that is not "squarely foreclosed by statute, rule, or

authoritative court decision, or .

. [that is not] lacking any factual basis in the

record." Barefoot, supra, 463 U.S. at 893 n.4, (quoting White v. Florida, 458 U.S.

1301,1302(1982)).

HI.

REASONS FOR GRANTING A CERTIFICATE OF APPEALABILITY

ALMEIDA RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL

AS A RESULT OF HIS TRIAL COUNSEL’S STRATEGY OF

CONCEDING GUILT TO LESSER INCLUDED OFFENSES, WHEN

THE CONCESSION OF GUILT HAD NO CHANCE OF SUCCESS,

INSTEAD THE ONLY VIABLE DEFENSE WAS A DEFENSE OF

NOT GUILTY BY REASON OF INSANITY, AND THAT WAS THE

DEFENSE WHICH SHOULD HAVE BEEN ARGUED.

Almeida respectfully disagrees with the District Court’s conclusion that

Almeida enjoyed the effective assistance of counsel (see R&R paragraphs B., B. 1,

and B. 2, Doc. 17, pp-13-17) with respect to counsel’s concessions ofguilt and failure

to present any defense to a charge with respect to an offense which carried a

mandatory 25 years to life sentence, given that there was an abundant record to

support an insanity defense, it was a viable defense, and it would have applied to all

of his charges - nothing needed to have been

conceded had the insanity defense been

presented.

unsel failed entirely to present any defense to the 25 year to life

When co

i-hwm mandatory charge, as a matter of logic it simply cannot be said that the

failure to present an available defense of insanity was a reasonable strategic choice.

If ever a record supported an insanity defense this record did, and for that reason

Almeida respec

tfujly disagrees with the conclusion that Almeida did not explain how

the defense would have been successful

Almeida outlined in detail in his statement

of facts in support of this ground the reasons

why the defense would have been

successful.

Dr. Simonds, an expert retained by defense counsel, rendered an opinion that

Almeida suffered from traumatic brain injury fromamotorcycle accident and suffered

fa,m bi-polar disorder and that at the time of the offense, he was in a manic bi-polar

episode, not having slept for days. Dr.Nibbler, another defense expert, also found

its from his traumatic brain injury which affected

that Almeida suffered chronic deficits

d caused him to have abnormal emotional

his executive decision making functions an

reactions.

lack of criminal history and his professional educational and

Given Almeida’s

career background, this anomalous carjacking was only explainable as the.product of

a psychotic manic episode complicated by traumatic brain injuiy.

That long after the incident when no longer in a manic state, confronted by the

detective, he expressed remorse and wished to take responsibility for his actions, in

no wise affects the conclusion that at the time ofthe crazed carjacking and struggle

he was suffering a bipolar manic psychotic episode. Rather just the opposite. The

contrast only heightens the conclusion that at the time of the caijacking he was

insane.

The District Court’s focus on the failure to have an expert prepared to offer an

expert opinion that Almeida was insane is misguided. Undersigned counsel has tried

cases including an insanity defense. As Almeida noted and this Court is well aware

the federal rules, which were amended after the assassination attempt against

President Ronald Reagan, prohibit the use of expert testimony on the ultimate

insanity issue. None of this frankly weakens the ability to present an insanity

defense, rather it makes it easier^ Jurors are not predisposed to accept expert

psychiatric testimony and are more willing to apply common sense and listen to and

accept lay witness testimony to determine the issue of insanity.

This was not only not a frivolous defense strategy (the District Court appears

to accept that it was not a frivolous defense) - it would have been a compelling and

strong defense, certainly one which meets the habeas prejudice standard. There can

3*3.

be no confidence that this verdict would have been the same

had an insanity defense

been presented.

If this were a matter where trial counsel had presented an alternative defense

to all the charges, there might be the basis to by to argue

alternative defense strategy wa

- unsuccessfully that an

sareasonablechoice-but here no defense whatsoever

No defense versus a defense founded on the

was offered to the 25 to life charge.

nable and cannot be a reasonable strategic choice.

evidence of the case is not a reaso

tp^attmATIC brain injury to rebut an element of each

SJSfbctm Jwmewo to preserve nos

mental condition and traumatic brain injury.

’s conclusion that the second claim, the

With respect to the District Court s

of a diminished capacity defense to

argument that Florida’s prohibition on the use

rebut specific intent violates Due Process, is procedurally barred is incorrect, as is the

District Court’s conclusion that thefailure to reply to the procedural bar argument in

constitutes an abandonment of the claim, as

Almeida’s reply to the State’s response

claim fails on the merits. (See Doc. 17, pp. 17-20)

is the conclusion that Almeida s

3H,

Almeida argued that his trial counsel was ineffective for failing to preserve the

claim. Because trial counsel failed to preserve the claim it was not preserved for

appeal, therefore the failure to exhaust the issue on appeal does not bar a trial counsel

ineffectiveness claim.

Second, the District Court cites not binding authority for its curious conclusion

that a failure to rebut an argument in a discretionary reply in a habeas proeceeding

somehow constitutes an abandonment of a claim. If that were true then every appeal

in which no reply brief was filed would be deemed abandoned. Counsel has been at

this long enough to remember when replies in 2255 proceedings were not even

permitted absent a special grant of permission. Certainly the amendment of the rule

to permit reply did not thereby intend to mandate a reply. The State’s argument was

not on point. It needed no reply.

Finally, Almeida cited United States v. Cameron, 901. F2nd 1051, 1063-66

(11th Cir. 1990), which carefully elucidates the proper use of expert testimony

regarding diminished capacity to rebut specific intent. This opinion and others cited

within it provided Almeida’s trial counsel with the legal reasoning needed to make

die argument that he be permitted to present such evidence in his trial. That the

Florida Supreme Court’s blanket prohibition on the introduction of evidence to rebut

3-S.

ific intent violates Due Processs would at least to this counsel appear to be selfspeci

evident and requires not new Constitutional decision from our Supreme Court. The

Constitutional right is already well established and the Florida Court’s decision to the

contrary is an unreasonable application of the controlling precedent.

Nonetheless, without “[signaling] any diminution in the respect

traditionally accorded to the States in the establishment _and

exclusion of the proffered testimony about the circumstances of

petitioner’s confession deprived him of a fair trial. Id., at 302-303.

v. Texas, 388 U.S. 14,23 (1967);Davis v. Alaska,4\5\1.S. 308 (1974),

the Constitution guarantees criminal defendants a meanmgfrl

('The Constitution guarantees a fair trial through die Due £roce?

Clauses, but it defines the basic elements of a fair tnal largely through

the several provisions of the Sixth Amendment"). We break no new

ground in observing that an essential component ofprocedural fairness

is an opportunity to be heard. In re Oliver, 333 U.S. 257,273 (19 ),

Grannis v. Ordean, 234 U.S. 385,394 (1914).

Crane v. Kentucky, 476 U.S. 683,690 (1986).

ssrwsrs sayyz- sts z

cross-examining a witness and from presenting witnesses on his own

behalf by operation of Mississippi's "voucher and hearsay rules. The

2L

Court held that the application of these evidentiary rules deprived the

defendant of a fair trial. "Where constitutional rights directly affecting

the ascertainment of guilt are implicated, the hearsay rule may not be

applied mechanistically to defeat the ends of justice." 410 U.S. at 302.

The plurality's characterization of Chambers as "case-specific error

correction," ante, at 52, cannot diminish its force as a prohibition on

enforcement of state evidentiary rules that lead, without sufficient

justification, to the establishment of guilt by suppression of evidence

supporting the defendant's case.

In Crane, a trial court had held that the defendant could not introduce

testimony bearing on the circumstances of his confession, on the

grounds that this information bore only on the "voluntariness" of the

confession, a matter already resolved. We held that by keeping such

critical information from the jury this exclusion "deprived petitioner of

his fundamental constitutional right to a fair opportunity to present a

defense." 476 U.S. at 687. The Court emphasized that, while States have

the power to exclude evidence through evidentiary ruies that serve the

interests of fairness and reliability, limitations on evidence may exceed

the bounds of due process where such limitations undermine a

defendant's ability to present exculpatory evidence without serving a

valid state justification.

In Washington v. Texas, 388 U.S. 14,18 L. Ed. 2d 1019, 87 S. Ct. 1920

(1967), the trial court refused to permit a defense witness to testify on

the basis of Texas statutes providing that persons charged or convicted

as coparticipants in the same crime could not testify for one another,

although they could testify for the State. The Court held that the

Constitution prohibited a State from establishing rules to prevent whole

categories of defense witnesses from testifying out of a belief that such

witnesses were untrustworthy. Such action by the State detracted too

severely and arbitrarily from the defendant's right to call witnesses in his

favor.

These cases, taken together, illuminate a simple principle: Due process

demands that a criminal defendant be afforded a fair opportunity to

defend against the State's accusations. Meaningful adversarial testing of

yt,.:

the State's case requires that the defendant not be prevented from raising

an effective defense, which must include the right to present relevant,

probative evidence.

Montana v. Egelhojf, 518 U.S. 37,62-63 (1996).

The clear trend in the decisions of our Supreme Court is to emphasize the

Constitutional importance of specific intent. This is a Due Process claim against the

State ofFlorida as to which the failure of trial counsel to present the argument bears

first and foremost on the exhaustion question, which in turn looks to counsel s

deficient performance in failing to preserve the claim, but otherwise the Due Process

claim is directed against the State of Florida.

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CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

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