Opposition Brief — Kelley v. Crosby

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Case No. 04-1196 1 APR R -

2005

IN THE SUPREME COURT OF THE UNITED STATES

WILLIAM H. KELLEY,

Petitioner.

SECRETARY OF THE FLORIDA

DEPARTMENT OF CORRECTIONS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

RESPONDENT?’S BRIEF IN OPPOSITION

CHARLES J. CRIST, JR.

ATTORNEY GENERAL

CAROL M. DITTMAR

Senior Assistant Attorney General

*Counsel of Record

Florida Bar No. 0503843

3507 E. Frontage Road, Suite 200

Tampa, Florida 33607-7013

Telephone: 813-287-7910

Facsimile: 813-281-5501

CAPITAL CASE

QUESTION PRESENTED

Whether this Court should exercise certiorari

jurisdiction to review a fact-intensive decision by the Eleventh

Circuit Court of Appeals, reversing the granting of federal

habeas corpus relief, where the decision does not conflict with

any other court opinion or address any unsettled question of

federal constitutional law?

TABLE OF CONTENTS

QUESTION PRESEN ES? 4cssancoees ves ate deeb sa

TABLE OF ALY THIRRRI Sie 6 whee se leu cause ess iv

STATEMENT OF 'T0Re Ce noc ceed ee se ace k anges

REASONS WHY THE WRIT SHOULD BE DENIED .. 10

QUESTION 23.5445 ee 12

1. Certiorari review should be denied because there is

no conflict between the circuit courts in applying

the materiality element of Brady. .............. 12

2. Certiorari review should be denied because the

Eleventh Circuit correctly resolved the fact-

CHIVES WME. ...i snc eee eee eee ao 18

3. Certiorari review should be denied because Kelley

seeks application of a new rule of constitutional law

in acollateral proceeding. ................... 22

QUESFION TW . ca ae eee 1

1. Certiorari should be denied because the Eleventh

Circuit properly determined Kelley's claim of

ineffective assistance of counsel had not been

exhausted in ete GUM -< 7 cases ene crates 24

|

‘ 2. Certiorari should be denied because the Eleventh

Circuit’ properly rejected Kelley's claim of

ineffective assistance of counsel based on the court's

inability to find, and the district court's failure to

identify, any prejudice....................... 26

oe, ll EI ERs a 34)

emer Ale OF SERVICE . 2... occ ccc ccnnccee 3)

ll

TABLE OF AUTHORITIES

FEDERAL CASES

Amadeo v. Zant,

480 U.S. 214 (1988)

> s+

oe a a oe wa Se oe oe i oe ae ee ee ee et he ee ee

Anderson v. Harless,

459 U.S. 4 (1982)

ee ee ee oe oe ee ee ee oe ee ee ee ee ee ee ee ee ee ee

Baldwin v. Reese,

i i oe ae ee a a ee te a ee ee oe er oe er a a Ok Ok ee ee eee a ee

541 U.S. 27 (2004)

Banks v. Dretke,

540 U.S. 668 (2004)

Bartlett v. Stephenson,

535 U.S. 1301 (2002)

Benn v. Lambert,

283 F.3d 1040 (9th Cir. 2002)

Bovette v. Lefevre.

246 F.3d 76 (2d Cir. 2001)

Brady v. Maryland,

373 U.S. 83 (1963)

Crivens v. Roth,

172 F.3d 991 (7th Cir. 1999)

East v. Johnson,

123 F.3d 235 (Sth Cir. 1997)

19

16

Giglio v. United States,

EP Ale ROR ATED oe re eae Ce ee ee 14

Keeney v. Tamayo-Reyes,

Pe Asics FUG ho eed ree ee Fe

Kelley v. Secretary of the Department of Corrections,

377 F. 3d 1317 (11th Cir. 2004) .... 10,18, 20, 21, 24, 25.

27

Kimmelman v. Morrison,

G77 EE. See ee ee oe xa eee 24-26, 29

Kyles v. Whitley,

SES US. SEO CI ook ck a cen pe ee 11, 13,23

Napue v. Illinois,

MGS. eC hk hs ee eee 13,14

Ortiz v. Stewart,

149 F 36 925 (9th Cir. 1998) . 2 kc ccc ccc cuuccdncnuce 16

Picard v. Connor,

GOS U.5. £PO IST s sac cbse eee 25

Purkett v. Elem,

SEO ULS. Peels 3 «koe eee eee 20

Rice v. Sioux City Memorial Park Cemetery, Inc.,

SOP US. TOUIGSS) 3c hvcd cade ckdee ne 19

Rockford Life Insurance Co. v.

Illinois Department of Revenue.

SOe Uc Gee CUO « hc ceca kate teen 18

Routly v. Singletary,

33 F.3d 1279 (11th Cir. 1994)

Strickland v. Washington,

4060 U.S. 6068 (1984) .

[cague v. Lane,

489 U.S. 288 (1989)

Pexas v. Mead,

465 U.S. 1041 (1984)

United States v. Agurs,

4727 U.S. 97 (1976)

United States v. Amiel,

95 F.3d 135 (2d Cir. 1996)

United States v. Bagley.

473 U.S. 667 (1985)

United States v. Bowie,

198 F.3d 905 (D.C. Cir. 1999)

United States v. Cronic,

466 U.S. 648 (1984)

United States v. Derr,

990 F.2d 1330(D.C. Cir. 1993)

United States v. Johnston,

268 U.S. 220 (1925)

. 26,

29

29

19

Nm

Ww

16

. 29

United States v. O'Conner.

64 F.3d 355 (8th Cir. 1995) .... 22000000002. 13

United States v. Rosen,

94 Fed. Appx. 567 (9th Cir. 2004),

vacated, remanded in light of United States v. Booker.

S43. US. , 1258S. Ct. 738 (2005).

SP is Ae WEE CO av occ so bes 0.0 oe wok kd ke necks 14

United States v. Scheer.

168 F.3d 445 (11th Cir. 1999) ...................... 16

United States v. Seabolt.

958 F.2d 231 (8th Cir. 1992).

cert. denied, 507 U.S. 971 (1993) ................... 27

United States v. Smith,

77 F.3d 511 (D.C. Cir. 1996)... 0.00000... 12, 13, 15

United States v. Vgeri.

51 F.3d 876 (9th Cir. 1995) ........................ 16

Watt v. Alaska.

Pe Was BORNE Dac oon a oc cc ket mnkcwcin. uae OO

Wiggins v. Smith,

539 U.S. 510 (2003)

Wood v. Bartholomew.

Pee ae EE so Ba os oy oe Poe 28

STATE CASES

Jones v. State,

678 So.2d 309 (Fla. 1996),

cert. denied, 519 U.S. 1152 (1997)

Kelley v. State,

480 So.2d 578 (Fla.),

cert. denied, 479 U.S. 871 (1986)

Kelley v. State,

569 So. 2d 754 (Fla. 1990)

Voorhees v. State.

699 So.2d 602 (Fla. 1997)

OTHER AUTHORITIES

Antiterrorism and Effective

Death Penalty Act of 1996 ...............0..005.

Vill

rere eer re 27

STATEMENT OF THE CASE

/ The Statement of the Case included at pages 2-13 of the

Petition is misleading and argumentative. Although

Respondent acknowledges its obligation to correct any

perceived misstatement of fact or law in the Petition, many

errors are insignificant and unrelated to the question of

certiorari; therefore, Respondent will identify the more

troubling misstatements, but will otherwise rely on the facts as

found and extensively related by the Eleventh Circuit opinion

rendered below. '

Respondent disagrees with Petitioner's assertion that the

Court of Appeals reversed the grant of habeas relief, "despite

substantial evidence that the convicted defendant was entirely

the wrong man" (Petition, p. 2). Respondent also disagrees

with the comment that the Eleventh Circuit "broke ranks" with

other circuit courts in the application of Brady v. Maryland, 373

U.S. 83 (1963), to the facts of this case (Petition, p. 3), as well

as the legal analysis which follows. Respondent disagrees with

the statement that, "What Brady and its progeny demand in

these latter circumstances is the subject of disagreement among

the circuits," and cannot understand why an argument that the

circuit courts are in conflict over applying Brady is even

discussed in the "Statement of the Case" section, which is

typically offered to summarize the factual and procedural

history of the actual case in controversy rather than provide

legal argument. This argument is particularly out of place in

this petition, as the claim of a circuit split was never even

Suggested to the Eleventh Circuit and can in no way be

‘The Eleventh Circuit, for the most part, reincorporated

the factual findings which had been made in state court

following the postconviction evidentiary hearing but which

were disregarded by the district judge in granting habeas relief.

l

considered to be part of the history of this case.

The facts underlying Petitioner Kelley's murder

conviction and resultant sentence of death are outlined in the

Florida Supreme Court opinion in Kelley's direct appeal, Kelley

v. State, 486 So.2d 578 (Fla.), cert. denied, 479 U.S. 871

(1986):

Appellant's conviction represented — the

resolution of a highly unusual case, raising some

unusual issues. Appellant was indicted in December

of 1981 for the Maxcy murder, committed in October

of 1966. An explanation of this delay in prosecution

requires an examination of the figures involved and

the evidence adduced at appellant's trial.

John Sweet, involved in an illicit love affair

with Irene, the victim's wife, planned the murder so

that he and she could live together on Maxcy's

inheritance. Towards this end, Sweet contacted a

Walter Bennett in Massachusetts and made the

necessary arrangements. A price was set, and 1n early

October of 1966 appellant Kelley and one Von Etter

carried out the sinister task.

Because prosecutors found the evidence

insufficient to proceed against appellant and Von

Etter, and because Irene Maxcy received immunity in

return for her testimony in the case, only Sweet was

originally tried. His first trial resulted in a mistrial,

and the conviction resulting from his second trial was

reversed on apyeal. Sweet v. State, 235 So.2d 40 (Fla.

2d DCA), cert. denied, 239 So.2d 267 (Fla. 1970).

At that point, the state felt unable to proceed

against Sweet due to the lapse of time and the loss of

certain witnesses’ testimony. Thus, the case lay

dormant for over ten years. This standstill was broken

Nm

only after Sweet, in 1981, became involved in a

criminal situation he found threatening and

approached law enforcement authorities in order to

seek some protection by receiving immunity in return

for his testimony as to a wide variety of crimes.

It was this testimony upon which appellant's

indictment and prosecution in this case were centrally

based. Sweet testified as to the details of the planning

and execution of the murder, as well as to a purported

conversation with appellant several years after the

murder in which appellant allegedly said "Boy,

[Maxcy] was a powerful guy. I stabbed him three or

four times and he kept coming after us, so I had to

shoot him in the head." The other central testimonial

evidence presented in appellant's trial below was that

of one Abe Namia, a private detective originally hired

after the murder by Sweet's defense counsel. Namia

testified as to some purported statements of Sweet's

made in 1967 incriminating appellant. The statements

were admitted to rebut an inference of recent

fabrication established by the rigorous

cross-examination of Sweet as to his extensive

immunity and possible motives to fabricate.

486 So.2d at 579-580.

Although the facts of the crime itself are not

- complicated, the procedural history is considerable and

fact-intensive. As noted, the State initially prosecuted John

Sweet for Maxcy's murder. According to the Petition, Sweet

named two hitmen in his trial, and the State had named hitmen

as well, but all of these individuals were deceased by the time

Sweet agreed to provide information about the murder years

later (Petition, p. 7). In fact, Sweet testified at his trials that he

had nothing to do with the murder; he did not identify any

actual hitmen. Furthermore, the State had identified William

Kelley as being one of the killers, and presented testimony to

establish Kelley's participation in the murder at that time.

Specifically, at Sweet's trial in 1968, the State presented

evidence that two men from Boston, William Kelley and

Andrew Von Etter, had killed Maxcy. Testimony placed Kelley

and Von Etter together in Daytona in October, 1966. Two

witnesses, Kay Meyer [aka Kaye Carter] and Kelley's wife,

Jeanne Kelley [aka Jennie Adams] identified Kelley as the man

with Von Etter in Daytona, and testified that Kelley and Von

Etter went off together during the day on October 3, 1966,

returning about 8:30 that evening.

Sweet returned to Massachusetts after his successful

appeal. In 1981, he approached authorities regarding criminal

activity taking place in that state. Sweet was involved in a

number of criminal activities, including gambling, drug

trafficking, and prostitution. The Massachusetts authorities

agreed to arrange a deal for protection in return for information.

Sweet was asked whether he knew about any murders, and

answered "Just the one in Florida,” and identified Kelley as one

of the killers hired to murder Maxcy. The FBI and Florida

prosecutors were notified, and Sweet ultimately secured

separate immunity agreements from Massachusetts and Florida

authorities for a number of different crimes.

After securing Sweet's cooperation, Florida officials

obtained an indictment against Kelley for first degree murder on

Dec. 16, 1981. At that time, Kelley was "on the run" from the

law and sought as a fugitive. Kelley was apprehended in

Tampa, Florida, on June 16, 1983. Numerous pretrial motions

were filed and Ittigated, discovery was pursued, and potential

defense witnesses were identified. Kelley was initially tried in

January, 1984, but the jury was unable to agree on a verdict,

and a mistrial was declared.

Kelley's retrial occurred in March, 1984. The principal

witness against Kelley was John Sweet, who identified Kelley

as one of two men that he hired to kill Maxcy. According to

Sweet, the men stayed at a hotel in Daytona, and t him ata

shopping center in Sebring. Sweet drove the men Maxcy's

home in their car and dropped them off, telling them the front

door was unlocked and Maxcy would be home shortly. Sweet

observed that Kelley was carrying a satchel, which he opened

to show Sweet several knives and guns, and that Kelley was

wearing a glove. He left their car ina shopping center parking

lot, picked up his own car, and drove around for awhile until he

saw Maxcy's car parked at the shopping center.

Kelley's theory of defense was that Sweet was lying. To

that end, as noted in the Florida Supreme Court opinion, Sweet

was subjected to "rigorous cross-examination ... as to his

extensive immunity." Kelley, 486 So.2d at 580. On direct

examination, Sweet acknowledged having secured immunity in

Massachusetts for hijacking and loan sharking, among other

things. Sweet also testified that he had been given immunity in

Florida for Maxcy's murder and for perjury he committed in

testifying in his own trials and denying his complicity. He

admitted that he had testified at both of his trials, and that he

had lied repeatedly, many times, every time he was asked about

knowing Kelley or Von Etter or anything about the Maxcy

murder.

On cross examination, the defense elicited Sweet's

admissions to having received immunity for everything he

talked about, including first degree murder and perjury in

Florida, and loan sharking, breaking and entering, hijacking,

prostitution, larceny, narcotics violations, bribery, making false

police reports, arson, bookmaking, and ownership of counterfeit

plates in Massachusetts. When Sweet could not recall details

of the offenses or particular immunity deals, detense counsel

used 1) transcripts of Sweet's testimony before a Massachusetts

grand jury on March 18, 1981, in the Kodak theft case; 2)

Sweet's testimony in a 1982 Massachusetts trial of a defendant

Evans; and 3) a letter from Massachusetts prosecutor Kane

revealing immunity promises that had beer. made to Sweet, to

remind Sweet of the details. Sweet admitted that Florida

officials had traveled to Massachusetts to meet with him and his

attorney; that he had seven cases of immunity in Massachusetts,

but not all of the prosecutor's promises were part of his formal

immunity; that one incident of prostitution involved a fourteen

year old girl; that he had been married for 49 years and had

children and grandchildren, but lived in the federal witness

protection program with his 24-year-old friend, Lisa Miller.

Sweet acknowledged over and over that he had lied at his prior

trials and when he denied that he knew Kelley; he had lied

under oath so many times that he couldn't guess. He was

impeached with his testimony from Kelley's first trial, and

denied that he ever confessed his involvement to Abe Namia.

Kelley claims that, "Apart from Sweet's testimony that

Kelley was the murderer, the only arguably significant evidence

of Kelley's involvement," was a motel registration showing a

"William Kelley" had registered there at the relevant time

(Petition, p. 8). While the Respondent acknowledges that

Sweet was a key witness, there was other incriminating

testimony related. Specifically, Kaye Carter [Meyer] testified

at Kelley's trial about meeting Kelley, Kelley's wife, and the

Von Etter family in Daytona in October, 1966. She noted that

Kelley and Von Etter were gone together during the day of

October 3, arriving back in Daytona later that evening.

Testimony was also presented corroborating Sweet's

testimony as to the time and circumstances of Maxcy's murder;

bank records and telephone calls connecting Sweet with

Maxcy's estate and with Walter Bennett and Andrew Von Etter;

hotel and car rental records putting Sweet in Daytona at the

same time as Donald Evans and Von Etter; and hotel records

6

showing that a "Mr. and Mrs. William Kelley," with a

Dorchester, Massachusetts address and driving a Chevrolet with

a Massachusetts tag number G-990077 were registered at the

Daytona Inn at the time of the murder. Former Massachusetts

state police officer John Kulik testified that he knew Kelley to

frequent Walter Bennett's establishments and to drive Jennie

Adams' car, which was the one registered at the Daytona Inn

motel. Other testimony included FBI Special Agent Ross

Davis, who noted incriminating statements Kelley made upon

his arrest in Tampa in 1984, and private investigator Abe

Namia, who testified that he had worked with John Sweet's trial

defense team and that Sweet had made prior consistent

statements implicating Kelley in the late 1960's. There was

_ testimony that Kelley's appearance had changed in the

seventeen years between the time of the murder and the time of

his trial. A deputy testified that fingerprints were lifted from

the crime scene and from Maxcy's car, but that, to his

knowledge, the prints were never identified.

In his closing argument, defense counsel Kunstler

described Sweet as an evil man that had received immunity for

numerous serious offenses. He tied all of Sweet's benefits

squarely back to Kelley: "He had to give them somebody, and

this is the man he had to give. This is the only one alive that he

knew. He had to give them Mr. Kelley to get all this." The

prosecutor's closing argument acknowledged that Sweet had

received immunity, but challenged defense counsel's assertion

that Sweet "had to give them Kelley," stating that "John Sweet

did not have to give the police Kelley in order to get immunity.

John Sweet got immunity from Massachusetts on a long list of

things. It has nothing to do with the Maxcy case or giving them

Kelley on the Florida cases." Defense counsel Edmund had the

final closing argument, and reminded jurors that Sweet "walked

away free," with immunity from everything except the perjury

he had committed against Kelley. Edmund listed the numerous

offenses, effectively pairing them up) with the Ten

Commandments.

Kelley's direct appeal and request for certiorari review

were denied. Kelley v. State, 486 So.2d 578 (Fla.), cert. denied,

479 U.S. 871 (1986). State postconviction proceedings were

initiated by the filing a motion to vacate on November 20,

1987. The Honorable Randolph E. Bentley, Circuit Court

Judge, granted an evidentiary hearing which was conducted July

18-19, 1988. The witnesses Kelley presented at that hearing

were: defense trial attorney William Kunstler; Florida attorneys

Donald Ferguson and Barry Haight and Massachusetts attorney

Robert Jubinville (testifying to Kelley's contacts with them in

1981 or 1982, concerned whether an indictment had been filed

against him); Boston newspaper reporter James Harrington;

Massachusetts private investigator and former police detective

William Stuart; FDLE investigator Roma Trulock; and Mark

Nezer, a private investigator that worked for Kelley's

postconviction attorneys. The State presented FDLE Special

Agent Joseph Mitchell and defense trial co-counsel Jack

Edmund.

Following the evidentiary hearing, Judge Bentley denied

relief and, on appeal, the Florida Supreme Court affirmed his

ruling in all respects. Kelley v. State, 569 So.2d 754 (Fla.

1990). Judge Bentley's factual findings were adopted and

incorporated into the appellate opinion. Judge Bentley

expressly found that Sweet's Massachusetts immunity was not

contingent upon providing information incriminating Kelley,

and that there was no support for the suggestion that Kelley had

read the Boston news articles about his indictment in 1981.

Kelley, 569 So.2d at 758-760. He concluded:

The fingerprint report, the transcript of John Sweet's

first trial, and the original 1967 police report were the

only items of evidence which the defense did not

possess or have access to. The results of the

fingerprint report were known to the defense and

utilized at trial. The alleged items of exculpatory

testimony presented at Sweet's first trial were either

known to defense counsel, admitted by Sweet at the

defendant's trial, or irrelevant as not involving Sweet,

and Kaye Carter's questionable identification of the

defendant in 1967 was immaterial.

But most important, this court, as trial court, observed

the actions and conduct of both defense attorneys in

the course of the two trials, and found their

representation of the defendant to be capable and

effective. The court does recognize that Mr. Edmund

and Mr. Kunstler disagreed at the hearing in regard to

which attorney acted as lead counsel at trial and other

.catters. Mr. Kunstler has strong feelings against the

death penalty. Apparently those feelings have affected

his perception of the attorneys’ actions at the trial.

However, he conveniently finds the greatest fault to be

with co-counsel, not himself. He remained silent at

trial and for four years thereafter. A large part of his

testimony is not credible. Based on demeanor, and the

court's own observations in the courtroom, the court

accepts Mr. Edmund's version insofar as any conflict

exists.

Kelley, 569 So.2d at 758, 761.

Following the state court rejection of his claims, Kelley

filed a petition for writ of habeas corpus in the United States

District Court, Southern District of Florida. The petition was

filed in October, 1992, and on August 31, 2000, the Honorable

Norman Roettger denied three claims. Thereafter, Judge

Roettger granted an evidentiary hearing on the remaining three

claims, which commenced in Boston, Massachusetts, in April,

2001.

The district court issued an Order granting habeas relief

pursuant to Brady on September 19, 2001, followed by an Order

of December 30, 2001, finding that Kelley's trial attorneys

provided ineffective assistance of counsel by relying on Harvey

Brower for the pretrial investigation. On appeal, the Eleventh

Circuit rendered an extensive opinion reversing the grant of

habeas relief. Kelley v. Secretary of the Department of

Corrections, 377 F. 3d 1317 (11th Cir. 2004). The instant

Petition seeks review of that opinion.

REASONS WHY THE WRIT SHOULD BE DENIED

Rule 10 of this Court's rules governs the appropriate

considerations in determining the propriety of certiorari review:

Review ona writ of certiorari is not a matter of

right, but of judicial discretion. A petition for a writ

of certiorari will be granted only for compelling

reasons. The following, although neither controlling

nor fully measuring the Court's discretion, indicate the

character of the reasons the Court considers:

(a) a United States court of appeals has entered

a decision in conflict with the decision of another

United States court of appeals on the same important

matter; has decided an important federal question in a

way that conflicts with a decision by a state court of

last resort; or has so far departed from the accepted

and usual course of judicial proceedings, or sanctioned

such a departure by a lower court, as to call for an

exercise of this Court's supervisory power;

10

(b) a state court of last resort has decided an

important federal question in a way that conflicts with

the decision of another state court of last resort or of

a United States court of appeals:

(c) a state court or a United States court of

appeals has decided an important question of federal

law that has not been, but should be, settled by this

Court, or has decided an important federal question in

a way that conflicts with relevant decisions of this

Court.

Petitioner Kelley has offered two questions relating to

the opinion entered by the Eleventh Circuit below. First, he

asserts that his petition should be granted due to an alleged

conflict among United States Courts of Appeals regarding the

proper scope of "materiality" for purposes of assessing

disclosure requirements under Brady v. Maryland, 373 U.S. 83

(1963), when the undisclosed information relates to the

credibility of a key witness that was impeached at trial. See

generally, Banks v. Dretke, 540 U.S. 668 (2004): Kyles v.

Whitley, 514 U.S. 419 (1995); United States v. Bagley, 473

U.S. 667 (1985). His second question claims that the Eleventh

Circuit did not properly apply this Court's exhaustion doctrine

or Sixth Amendment precedent in reversing the district court's

finding of ineffective assistance of counsel. As will be seen,

these issues are unworthy of this Court's certiorari jurisdiction

for anumber of reasons, and this Court should deny the petition

for review.

11

QUESTION ONE

1. Certiorari review should be denied because there is

no conflict between the circuit courts in applying the

materiality element of Brady.

Kelley initially asserts that this case meets this Court's

standards for extraordinary review due to an a.Jeged conflict

between the circuit courts in the application of this Court's

directives on assessing the materiality of impeachment

information withheld by the prosecution prior to a criminal trial.

However, a review of the relevant caselaw establishes that no

such conflict exists. Kelley has merely established that

different cases present different facts which compel different

results. Contrary to Kelley's claim for certiorari, the decision

below, reversing the granting of federal habeas relief, was fully

consistent with this Court's precedents and all applicable federal

law

Kelley asserts that in this case the Eleventh Circuit

applied Brady in a manner inconsistent with precedent from the

Ninth and District of Columbia circuits. Specifically, Kelley

contends that the Eleventh Circuit contradicted "the rule"

imposed by the Ninth and District of Columbia circuits in

assessing the materiality element of a Brady claim involving

impeachment information related to a key witness. He attempts

to create “conflict” among circuit courts by contrasting the

language used below with that of other circuit decisions

reaching different results in different cases.

Kelley claims that the District of Columbia circuit

adopted a bright-line rule in United States v. Smith, 77 F.3d

511,515 (D.C. Cir. 1996),° when that court rejected the state's

‘According to the petition, Smith repudiated a contrary

rule from United States v. Derr, 990 F.2d 1330, 1336(D.C. Cir.

| ,

argument that the Brady information was immaterial because it

would only provide cumulative impeachment evidence. The

relevant language, "the fact that other impeachment evidence

was available to defense counsel does not render additional

impeachment evidence immaterial,” is offered as a quote from

United States v. O'Conner, 64 F.3d 355, 359 (8th Cir. 1995),

citing Napue v. Illinois, 360 U.S. 264, 270 (1959)). The court

then instructs that the proper inquiry looks "not to the ways

defense counsel was able to impeach ..., but to the ways in

which the witness’ testimony was allowed to stand

unchallenged,” to determine materiality in accordance with

Bagley.

According to the petition, this analysis is contrary to the

Eleventh C'rcuit's interpretation of Bagley in the opinion

rendered below. Kelley asserts that a conflicting rule is applied

in the Eleventh Circuit, joined by the First, Fifth, and Seventh

Circuits, which have all rejected Brady claims upon finding that

the withheld information was immaterial where it provided only

cumulative impeachment evidence. Kelley traces the beginning

of this alleged rule to United States v. Amiel, 95 F.3d 135, 145

(2d Cir. 1996), which held that, "suppressed evidence is not

material when it merely furnishes an additional basis on which

to impeach a witness whose credibility has already been shown

to be questionable."

1993). The Smith court addressed Derr in a2 footnote, but did

not characterize tts holding as overruling any prior rule. Rather,

the court distinguished Derr factually, as well as noting that

decision predated Kyles v. Whitley, 514 U.S. 419 (1995). See

Smith, 77 F.3d at 515, n.2.

‘Petitioner does not cite O'Conner or allege that the

Eighth Circuit is involved in the purported split among the

circuits.

—

wd

Ihe cases cited by Kelley acknowledge the same

standard cited below, usually quoted directly as set forth in

Bagley, and merely apply that standard to the particular facts

present. None of the cases purport to establish a bright-line rule

one way or the other, as suggested by Kelley. Smith itself

demonstrates that the alleged rule 1s not a new rule at all, but

relates back to the observation in Napue that the taint of false

testimony ts not removed by the fact that the witness testifying

falsely was impeached. Similarly, a reading of Benn_v.

Lambert, 283 F.3d 1040, 1058 (9th Cir. 2002), establishes that

case was decided after a careful review of the record, rather

than a dispositive determination that a key witness had already

had his credibility called into question. The court in Benn even

acknowledged the proposition that undisclosed impeachment

evidence is immaterial and cumulative when the witness is

already sufficiently impeached, citing Ninth Circuit cases

rejecting relief under such circumstances. And following Benn,

the Ninth Circuit has continued to deny habeas relief when

undisclosed impeachment evidence does not undermine

confidence in the tnal. See United States v. Rosen, 94 Fed.

Appx. 567, 572 (9th Cir. 2004), vacated, remanded in light of

United States v. Booker, 543 U.S. _, 125 S. Ct. 738 (2005),

125 S. Ct. 1041 (2005).

‘It is noteworthy that Kelley’s asserted rule has its

genesis in Napue, which, like Giglio v. United States, 405 U.S.

150 (1972) and many of the cases in the petition, involved a due

process violation premised on the prosecutor’s knowing failure

to correct false testimony rather than a failure to disclose

impeachment evidence to the defense. The Napue/Giglio

materiality standard is different from Brady, and the defense has

never asserted in this case that Sweet’s testimony was false or

misleading, let alone that the prosecution knew and failed to

correct such testimony.

14

Benn ts easily factually distinguished from the instant

case. The court there concluded, "|t]he undisclosed benefits ...

added significantly to the benefits that were disclosed," but, in

the instant case, the revelation of the FDLE memorandum adds

nothing significant to what the jury heard at trial. It 1s not

surprising that the court would reach a contrary conclusion on

materiality. The degree of impeachment at trial will be a

significant factor in determining whether, and to what extent,

additional impeachment evidence will impact the jury and

affect the credibility of the witness. The immateriality in the

instant case is not premised merely on the fact that John Sweet

was impeached at trial; it is that the trial impeachment was so

substantial, and the withheld material provided so little, if any,

additional impeachment value, that the jury's verdict remains

worthy of confidence. The degree of trial impeachment, and

not just the fact of attempted impeachment, is a key distinction

setting this case apart from Benn. Furthermore, this same

critical distinction sets this apart from Banks, Smith, and other

cases that Kelley claims apply a different rule.

Whether or not impeachment evidence is material for

Brady purposes depends on the nature of the evidence itself,

and necessarily considers the extent to which the witness was

impeached, and the nature of that impeachment. The facts

determinative of the ultimate conclusion on materiality are

obviously going to be different in every case, which is one

reason a bright-line rule is not a prudent answer to the

materiality question. As is appropriate, all courts currently

perform a fact-intensive review of the nature and quality of the

impeachment evidence in light of the trial record, including the

extent to which the witness was previously impeached, the

extent the witness’ testimony is corroborated by other evidence,

and the strength of the case against the defendant independent

of the witness’ testimony.

Moreover, the suggestion of the existence of a hard and

15

fast rule is soundly refuted by other cases from the various

circuits which hold contrary to the "rule" Kelley would assign

their analyses. That is, the Ninth and District of Columbia

circuits have, in some cases, found immateriality based on

withheld cumulative impeachment evidence, just as the other

circuits have granted Brady relief based on withheld

impeachment evidence even where the credibility of the witness

had already been called into question at trial. See Boyette v.

Lefevre, 246 F.3d 76, 93 (2d Cir. 2001) (granting habeas relief,

rejecting State's argument that withheld impeachment evidence

was cumulative since witness was impeached); Cnvens v. Roth,

172 F.3d 991, 998-999 (7th Cir. 1999) (granting habeas relief,

finding withheld impeachment information could have affected

credibility of key witness); United States v. Scheer, 168 F.3d

445, 458 (11th Cir. 1999) (granting habeas relief for withheld

impeachment evidence on critically important witness whose

credibility had already been called into question); East_v.

Johnson, 123 F.3d 235, 239 (Sth Cir. 1997) (granting habeas

relief for undisclosed impeachment information on key witness,

noting critical factor was extent to which witness’ testimony had

been corroborated); United States v. Bowie, 198 F.3d 905 (D.C.

Cir. 1999) (rejecting Brady relief based on impeaching

evidence, noting question is "how effectively the evidence

could have been used in cross-examination,” and what effect it

would have had on the jury's assessment of credibility); Ortiz v.

Stewart, 149 F.3d 923, 936 (9th Cir. 1998) (undisclosed

impeachment evidence is immaterial and cumulative when the

witness is already sufficiently impeached); United States v.

Vgen, 51 F.3d 876, 880 (9th Cir. 1995) (same). These

decisions again confirm that no "rule" is necessary or even

prudential, and certainly none currently exists that is recognized

as such by any court.

Thus, an objective review of relevant case law

demonstrates that there is no conflict among the circuit courts

16

as to this issue. In fact, there are no cases recognizing the

"split" in authorities suggested by Kelley. The courts do not

apply different sets of rules, but caselaw reveals that the circuit

courts uniformly apply this Court's directives on assessing

materiality under the totality of circumstances as mandated in

Brady and the line of cases interpreting materiality.

Notably, Kelley's appellate brief to the Eleventh Circuit

never suggested to that Court that it should adopt a different

standard, or that its caselaw on this issue was inconsistent with

other circuits. In fact, Kelley did not even cite to any Ninth or

District of Columbia circuit decisions anywhere in his brief.

The opinion below cited to Routly v. Singletary, 33 F.3d 1279,

1286 (11th Cir. 1994), a decision cited in the State's brief and

not distinguished or even mentioned in Kelley's brief. In this

Court, Kelley has criticized the Eleventh Circuit for failing to

recognize that, as a matter of law, undisclosed information

relating to the credibility of a witness must be material if that

witness was impeached at trial. Yet Kelley's brief to that court

did not admonish it to do so; Kelley therein presented a

fact-specific argument to support the district judge's finding of

materiality. These facts reinforce the conclusion that Kelley's

claim of circuit conflict is an illusory afterthought created solely

to entice this- Court's review of this case rather than a

compelling basis for certiorari.

The Eleventh Circuit opinion below acknowledged the

proper materiality standard, quoting Bagley, and extensively

analyzed the possible impact of the withheld information on

Kelley's prosecution. The court then concluded:

Whether or not the five items the district court

identified should have been disclosed to defense

counsel, their effect taken individually and

cumulatively could not have been legally significant to

the outcome of Kelley's trial. As explained at length

17

above, defense counsel effectively capitalized--in one

way or another--on every potentially valuable

argument the five items support, even though the

items themselves were unavailable to counsel at the

time of trial. It follows in this instance that the pretrial

disclosure of the items would not have created a

"reasonable probability that . . . the result of the

proceeding would have been different.” Bagley, 473

U.S. at 682, 105 S. Ct. at 3383. Thus, although the

State ultimately prevailed in a factually challenging :

case, Kelley's due process nights were not offended.

Kelley, 377 F.3d at 1369 (Pet. App. 99a). Kelley has failed to

demonstrate that this conclusion warrants any further

consideration by this Court.

Thus, this issue involves neither conflict nor unsettled

federal law. Although the failure to meet any of the Rule 10

considerations is not controlling, this Court has noted that cases

which have not divided the federal or state courts or presented |

important, unsettled questions of federal law do not usually

merit certiorari review. Rockford Life Insurance Co. v. Illinois

Department of Revenue, 482 U.S. 182, 184, n. 3 (1987).

Because Kelley has failed to demonstrate conflict

among courts, an unsettled question of federal law, or any other

reasonable basis for review, his request for certiorari review of

the rejection of his Brady claim must be denied.

2. Certiorari review should be denied because the

Eleventh Circuit correctly resolved the fact-intensive

issue.

In order to decide the specific issue of whether Kelley

is entitled to a new trial, it would be necessary for this Court to

engage in a fact-intensive review of the evidence in this case.

—_——_—-

18

Such 1s inappropriate for certiorari review.

The law is well-settled that this Court does not grant a

certiorari "to review evidence and discuss specific facts.”

United States v. Johnston, 268 U.S. 220, 227 (1925): Texas v.

Mead, 465 U.S. 1041 (1984). Nor does this Court sit to correct

alleged mistakes committed by other tribunals. Watt v. Alaska,

451 U.S. 259, 275 (1981) (Stevens, J., concurring). Rather, this

Court is "consistent in not granting the certiorari except in cases

involving principles, the settlement of which is of importance

to the public as distinguished from that of the parties." Rice v.

Sioux City Memorial Park Cemetery, Inc., 349 U.S. 70 (1955).

See Bartlett v. Stephenson, 535 U.S. 1301, 1304 (2002) (issues

with few, if any, ramifications beyond the presenting case do

not satisfy any of the criteria for exercise of certiorari

jurisdiction). The instant case is a particularly poor vehicle for

certiorari, since the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA) has changed the standard for habeas

—review of constitutional claims on state court judgments; federal

courts are no longer to conduct their own Brady analyses, but

must defer to reasonable legal holdings by the state courts. The

reduction in the scope of review under AEDPA narrows any

impact this case could have, and further diminishes any

arguable basis for certiorari.

An extensive factual review would only confirm that

relief has been properly denied in this case. The district court

held that two documents, a "Contract for Immunity,” between

John Sweet and the State of Massachusetts dated March 13,

1981, and a memorandum by Florida Agent Joe Mitchell

describing meetings between John Sweet, Sweet's attorney, and

Florida and Massachusetts officials, both should have been

disclosed to the defense prior to trial. Although defense

attorneys Kunstler and Edmund testified in state court that they

had not seen these particular documents prior to trial, the trial

record demonstrates that the defense had extensive information

19

about Sweet's rmmunity deals. The state courts found:

The fact that John Sweet received immunity in

both Florida and Massachusetts was well known by

defense counsel. Sweet was extensively

cross-examined by Mr. Edmund concerning the crimes

for which he received immunity in Massachusetts.

The court finds no evidence to support the inference

that Sweet's Massachusetts immunity was contingent

upon his testimony in the defendant's Florida trial.

The fingerprint report, the transcript of John Sweet's

first trial, and the original 1967 police report were the

only items of evidence which the defense did not

possess or have access to.

Kelley, 569 So.2d at 758. The finding that Sweet's immunity

was fully disclosed is a finding of historical fact, and the district

court committed clear error in disregarding the state courts and

determining that Sweet's immunity had been suppressed.

Purkett v. Elem, 514 U.S. 765, 769 (1995) (state court findings

may be set aside, absent procedural error, only if unsupported).

Moreover, as the court below found and Kelley did not

contest, the Massachusetts Order of Immunity "cannot

constitute Brady material because there is no indication in the

record that the State possessed the order, nor is there any

indication that the order was more accessible to the State than

it was to Kelley's defense team;" in fact, the court below found

this Order was a public document equally accessible to the

defense. Kelley, 377 F.3d at 1356, n. 39 (Pet. App. 71a). In

addition, Kelley's claim of materiality was premised on his

assertion that the timing of the Massachusetts Order, in

conjunction with the undisclosed FDLE report, established that

Sweet's Massachusetts immunity was contingent on Sweet

20

providing information about Kelley's involvement in Maxcy's

murder. The defense had argued such contingency to the jury,

which the State disputed, and this factual contest has continued

ever since. The state trial judge reviewed the documents and

heard testimony about Sweet's immunity in a full and fair

postconviction evidentiary hearing in state court, concluding

thereafter that the Massachusetts immunity was independent of

Sweet's cooperation with Florida authorities. The federal

district court ignored this conclusion, and, without identifying

any deficiency in the state fact-finding procedure or even

acknowledging that the finding had been made, reviewed the

documents, entertained testimony, and concluded Sweet would

not have received immunity in Massachusetts without

cooperating with Florida authorities. The Eleventh Circuit

extensively reviewed the documents and explained why the

state court conclusion was supported by the evidence, finding

it "obvious" that the district court judge had confused the

Massachusetts immunity with Sweet's desire for immunity in

Florida, and determining the evidence, "leads inexorably to the

fact that Pickard [the prosecutor] told the truth" in his closing

argument to the jury. Kelley, 377 F.3d at 1359 (Pet. App. 77a).

Kelley asserts that the Eleventh Circuit rejected his

Brady claim by holding "that the jury was not ‘entitled to know

of" the withheld impeachment evidence (Petition, p. 14-15). In

fact, what the Eleventh Circuit determined was that the jury

already knew all necessary information about Sweet's

Massachusetts immunity. Additionally, the withheld FDLE

report does not even mention the Massachusetts immunity. A

conclusion of immateriality is clearly compelled on these facts.

Kelley also argues that the Eleventh Circuit's reversal of

the district court finding on this particular issue provides an

independent basis for summary reversal of the opinion below,

claiming the Eleventh Circuit violated Amadeo v. Zant, 486

U.S. 214 (1988), by improperly substituting its appellate

21

_

fact-finding rather than deferring to the district court (Petition,

p. 22-23). Kelley's claim is not well taken. In Amadeo, there

were no relevant state court factual findings, and after the

Eleventh Circuit had remanded the case for a federal

evidentiary hearing, it improperly rejected the facts as found by

the district judge. The instant case is clearly distinguishable as

the district judge should have acknowledged the relevant state

court factual finding, and had no basis for accepting and

considering additional evidence before concluding contrary, to

all of the evidence, that Brady relief was warranted.

Kelley has no viable Brady claim, as there was no

significant information which the jury did not hear at trial.

Because the Eleventh Circuit properly resolved this

fact-intensive claim, certiorari review must be denied.

Se Certiorari review should be denied because Kelley

seeks application of a new rule of constitutional law

in a collateral proceeding.

Finally, this Court should decline to exercise its

certiorari jurisdiction because Kelley is seeking a change in law

which would not be subject to retroactive application to his

conviction and sentence, which have been final since 1986. In

Teague v. Lane, 489 U.S. 288, 316 (1989), this Court

announced the principle that "habeas corpus cannot be used as

a vehicle to create new constitutional rules of criminal

procedure” unless the rule would meet the standards for

retroactivity adopted in Teague.

In this case, Kelley's attempt to have this Court adopt a

bright-line rule for assessing the materiality of withheld

impeachment information seeks a clear break with the totality

of the circumstances review currently mandated by this Court's

precedents. This break constitutes such a significant change in

the due process analysis that it amounts to a new rule under

22

Fae ee eee

Teague; 1.¢., it is not dictated by this Court's current line of

Brady decisions. Teague, 489 U.S. at 301. The proposed rule

cannot meet either exception for retroactivity. It does not place

private conduct beyond the power of lawmakers’ ability to

proscribe, and is not a bedrock procedure, implicit in the

concept of ordered liberty. Teague, 489 U.S. at 310-311.

Kelley is not asking this Court to simply reinforce and

apply the materiality standard as it has been developed in the

Brady line of cases; he is seeking rejection of Brady's directive

to reach a conclusion on materiality based on the totality of the

circumstances. Currently, a materiality analysis requires a court

to evaluate the undisclosed evidence "in the context of the

entire record.” United States v. Agurs, 427 U.S. 97, 112

(1976). A defendant must show that the undisclosed

information, “could reasonably be taken to put the whole case

in such a different light as to undermine confidence in the

verdict;” and that "a reasonable probability of a different result"

exists if the information had been disclosed. Kyles, 514 U.S. at

434-435. The pivotal question for a reviewing court is whether

its confidence in the jury verdict has been undermined. Bagley,

473 U.S. at 678. Kelley would abandon this standard and

require a rule that information is material as a matter of law if

it provides impeachment evidence relating to_a key witness

whose credibility was called into question at trial. Because this

would amount to a new rule of constitutional law, it is not

available in a habeas proceeding, and certiorari must be denied.

QUESTION TWO

1. Certiorari should be denied because the Eleventh

Circuit properly determined Kelley's claim of

ineffective assistance of counsel had not been

exhausted in state court.

Petitioner Kelley also asserts that certiorari review is

compelled by the Eleventh Circuit's reversal of the district

court's finding that a new trial was warranted due to ineffective

assistance of trial counsel. According to the petition, the

Eleventh Circuit circumvented this Court's decisions in

Kimmelman v. Morrison, 477 U.S. 365 (1986), and Wiggins v.

Smith, 539 U.S. 510 (2003), because Kelley's trial attorneys

allegedly did nothing at all to prepare for trial,’ yet the Eleventh

Circuit denied that a Sixth Amendment violation occurred.

However, a review of the history of this claim establishes that

the Eleventh Circuit ruling below is entirely consistent with this

Court's precedents, and no basis for certiorari review has been

demonstrated.

Kelley focuses his argument initially on an attorney's

constitutional obligation to meaningfully investigate and

prepare for trial. He relies on Kimmelman and Wiggins to

assert that his attorneys’ performance fell below the standard of

*Kelley repeatedly suggests that his assertion of trial

counsel’s failure to conduct any pretrial investigation

whatsoever is unrebutted, undisputed, and conceded (Petition,

p. 25-26). It is not. In fact, the record reflects that Kelley was

represented by several attorneys and a reasonable pretrial

investigation took place. The Eleventh Circuit noted the

“oddity” of the district court’s criticism of trial counsel, given

the record of pretrial motions filed in this case. Kelley, 377

F.3d at 1347, n.30 Pet. App. 53a-54a).

24

ii sits Po oe

reasonableness, and indignantly demands that this Court

summarily reverse the Eleventh Circuit for failing to uphold

habeas relief on this issue.

The first difficulty with Kelley's argument is that the

Eleventh Circuit did not even purport to apply Kimmelman or

Wiggins in the case at hand. The stated basis for the Eleventh

Circuit's rejection of Kelley's ineffective assistance claim was

the holding that the specific issue upon which the district court

granted relief -- counsel's failure to prepare generally and

reliance on Harvey Brower specifically -- had not been

exhausted in state court. Kelley does not offer any persuasive

analysis as to how the Eleventh Circuit is mistaken in this

ruling, he simply disagrees with the conclusion of the court

below. Kelley believes that his presentation of a general claim

of lack of preparation should be cognizable in federal court as

long as the specific allegations of deficient performance in state

court related to a general lack of preparation.

The Eleventh Circuit painstakingly analyzed Kelley's

state and federal pleadings in order to determine whether the

state courts had reasonable notice of the particular allegations

of ineffective assistance of counsel on which Kelley ultimately

prevailed in the district court. Kelley, 377 F.3d at 1345-1350

(Pet. App. 49a-60a). The court concluded that the claim as

presented in federal court was radically different than that

litigated in state court and held that the district judge should

have dismissed this allegation as unexhausted. The fact that the

specific deficiency upon which the district court granted relief

shares a common umbrella of "lack of pretrial investigation"

with other specific deficiencies which were exhausted does not

demonstrate exhaustion where, as here, the deficiency upon

which relief was granted was never presented to the state court.

See generally, Baldwin v. Reese, 541 U.S. 27 (2004); Keeney

v. Tamayo-Reyes, 504 U.S. 1, 10(1992); Picard v. Connor, 404

U.S. 270 (1971); Anderson v. Harless, 459 U.S. 4, 6 (1982). No

25

certiorari review is compelled.

Kelley's strongest argument to protest the application of

the exhaustion doctrine asserts that the State waived any

defense based on lack of exhaustion by failing to assert such

while the case was still in state court. Kelley does not explain

why the State would offer a federal habeas defense while in

state court; the problem is not that Kelley changed his claim

between the state trial and appellate courts, the problem, as

pointedly explained by the Eleventh Circuit, is that the claim

changed between state and federal court. As the court below

noted, the Respondent pled the lack of exhaustion at the first

appropriate opportunity, in the initial response to the petition

for writ of habeas corpus, and it was reasserted repeatedly

throughout the district court proceedings. On such facts,

Kelley's attempt to avoid application of the exhaustion doctrine

must be rejected.

2. Certiorari should be denied because the Eleventh

Circuit properly rejected Kelley's claim of

ineffective assistance of counsel based on the court's

inability to find, and the district court's failure to

identify, any prejudice.

Even if there were an avenue by which this Court could

review the unexhausted claim of ineffective assistance upon

which the district court granted relief, no reasonable basis for

certiorari has been offered. By focusing on Kimmelman and

Wiggins rather than Strickland v. Washington, 466 U.S. 668

(1984), it appears Kelley is most concerned about the deficient

performance prong, since those decisions are concerned with

counsel's performance rather than prejudice. This is curious

since the court below did not discuss the reasonableness of

counsel's performance, focusing rather on the fact that the

district judge had failed entirely to identify any prejudice, and

26

noting that such prejudice would be “difficult, if not

impossible" to find on the facts of this case. Kelley, 377 F.3d

at 1352 (Pet. App. 64a).

Finally, the assertion of prejudice in Kelley's petition ts

weak and unpersuasive. Kelley claims that, had counsel

investigated as constitutionally required, he would have

discovered and presented two witnesses, Hobart Willis and

Charles Busias, that would have convinced the jury that Kelley

was innocent because the real hired killer was Steven Busias.

Both witnesses testified at the federal evidentiary hearing.°

Willis testified via videotaped deposition that sometime around

1968, Steven Busias told Willis that he had committed a murder

down in Florida. Willis stated that he knew Busias was talking

about the Maxcy murder because Willis had previously been

solicited to commit this murder himself.

This testimony would be hearsay, and inadmissible

under Florida law. Assuming the defense would have offered

the testimony under the "statements against interest" exception

to the hearsay rule, Florida law restricts this exception to

statements which bear sufficient independent indicia of

trustworthiness to be reliable. Voorhees v. State, 699 So.2d

602 (Fla. 1997); see United States v. Seabolt, 958 F.2d 231, 233

(8th Cir. 1992), cert. denied, 507 U.S. 971 (1993) (concluding

that "a statement by one criminal to another criminal ... is more

apt to be jailhouse braggadocio than a statement against his

criminal interest"). In Florida, the defendant has the burden of

presenting the corroborating circumstances to demonstrate

trustworthiness of the hearsay statements. Jones v. State, 678

So.2d 30S, 314 (Fla. 1996), cert. denied, 519 U.S. 1152 (1997).

However, Kelley has never identified a predicate which could

*That these witnesses were never presented or even

mentioned in state court confirms the lack of exhaustion on this

issue.

27

be used to establish the admissibility of this testimony.

According to Willis, Busias made the alleged confession in the

course of a general social conversation; as Willis put it,

"gangster talk - who was getting paid, who was killing who."

Busias offered absolutely no details of his alleged actions,

stating only that he had "taken care of that contract that [ Willis}

refused a few years ago." The absence of any details or

corroborating circumstances to Willis’ testimony would

preclude its admission under Florida law. Compare, Wood v.

Bartholomew, 516 U.S. 1 (1995) (reversing grant of habeas

relief because Ninth Circuit misapplied materiality element in

finding Brady violation based on information not admissible at

trial).

The other witness to implicate Steven Busias was

Charles Busias, Steven's son. According to Charles, sometime

around 1966 his father took a trip to Florida, and after the trip,

their financial situation improved dramatically. Charles

testified that his father purchased a car and a lounge after this

and had multiple stacks of hundred dollar bills in cash on hand.

This testimony in no way establishes that Steve Busias killed

Maxcy. In fact, Hobart Willis’ testified that Busias admitted to

him that he had acquired a club and taken over the

establishment after killing the owner; this provides another

reasonable explanation for Charles’ memories. Furthermore,

given the trial testimony that Von Etter's partner was only paid

a total of $5,000 for the murder, and trial testimony that several

different individuals from Massachusetts had come to Florida

to explore Sweet's offer to pay for Maxcy's murder, there are

other convincing explanations for Charles Busias' testimony.

Kelley has never demonstrated how his attorneys knew or

should have known about Charles Busias; even if they could

have discovered him, however, given the limited value of this

testimony, they cannot be deemed ineffective for failing to

present it.

28

Against this backdrop, the Eleventh Circuit credits the

testimony of Kelley's trial attorneys relating their reluctance to

present evidence and lose the right to offer the final closing

summation to the jury. The court also noted that the defense

investigation had continued after a mistrial was declared in the

first trial, and that the defense had the unique advantage of a

full record of the state's case. Given all of tne relevant facis, the

court below was at a loss to explain how the district court could

have found the prejudice necessary to grant relief on a claim of

ineffective assistance of counsel. In light of the lack of

prejudice, certiorari review of Kelley's Sixth Amendment claim

must be denied.

To the extent the petition may be read to suggest that no

prejudicial showing is necessary if a sufficient case of deficient

performance under Kimmelman or Wiggins is established, it is

mistaken. Wiggins confirmed rather than eliminating the

element of prejudice necessary for the finding of a Sixth

Amendment violation. The notion that a poor enough job of

lawyering will give rise to a new tnal without regard to any

prejudicial effect is protected in United States v. Cronic, 466

U.S. 648 (1984), and needs no embellishment, particularly from

a case where no deficient performance has reasonably been

shown. In addition, if this Court were to eliminate the prejudice

prong from an ineffective assistance analysis, this would create

a new standard and constitute such a departure from Strickland

that it would amount to a new rule of constitutional law,

unavailable in the habeas context under Teague, 489 US. at

316, as noted previously.

With this issue, Kelley has not even attempted to show

any conflict or unsettled federal law, worthy of this Court's

certiorari review. He has offered no special or important

reasons compelling certiorari review of his case. Accordingly,

this Court must deny the instant petition.

CONCLUSION

Wherefore, based upon the foregoing arguments and

authorities, the Respondent, Secretary for the Florida

Department of Corrections, respectfully requests that this

Honorable Court DENY the petition for writ of certiorari filed

herein.

Respectfully submitted,

CHARLES J. CRIST, JR.

ATTORNEY GENERAL

CAROL M. DITTMAR

Senior Assistant Attorney General

*Counsel of Record

Florida Bar No. 0503843

Concourse Center 4

3507 E. Frontage Road, Suite 200

Tampa, Florida 33607-7013

Telephone: (813) 287-7910

Facsimile: (813) 281-5501

30