Petition for Writ of Certiorari — Downey v. Moore

LL

00 937 DEC - 6 2000_

OFFICE OF THE CERAM

IN THE SUPREME COURT OF THE UNITED STATES

NO.

GERALD DOWNEY,

Petitioner,

— against —

MICHAEL MOORE,

Secretary, Department of Corrections, State of Florida

Respondent,

and

The Attorney General of the State of Florida

Additional Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ROBERT ROSENTHAL

523 East 14" Street

Suite 8D

New York, New York 10009

(212) 353-3752

Attorney for Petitioner Gerald Downey

VU]

BNR bs

ISSUE I

Whether certiorari must be granted because Mr. Downey’s

federal constitutional right to Due Process was violated

when the prosecution’s principal expert (a) vouched for

the veracity of the accusations and (b) claimed that

scientific analysis indicates the occurrence of the crime,

and thus Mr. Downey’s guilt.

ISSUE I

Whether certiorari must be granted because Mr. Downey’s

federal constitutional right to Confrontation was violated

when the trial court prevented face-to-face confrontation

between the complainant and Mr. Downey.

ISSUE Ill

Whether certiorari must be granted because procedural

rules do not bar review of Mr. Downey’s petition for

habeas corpus.

THE PARTIES

The caption in this case contains the names of all of the

parties.

il

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

THE PARTIES

TABLE OF CASES AND AUTHORITIES

TABLE OF CONTENTS OF APPENDIX

OPINION BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

RELEVANT FACTS

The Investigation

Medical Examination

The Trial

The Prosecutor’s Summation

Jury Deliberations

Conviction and Sentence

REASONS FOR GRANTING CERTIORARI

>

I

ISSUE I 13

CERTIORARI MUST BE GRANTED BECAUSE MR.

DOWNEY’S CONSTITUTIONAL RIGHT TO DUE

PROCESS WAS VIOLATED WHEN THE

PROSECUTION’S PRINCIPAL EXPERT

VOUCHED FOR THE VERACITY OF THE

ACCUSATIONS 13

Testimony Vouching for a Complainant’s

Veracity Requires That A Writ Of Habeas

Corpus Issue 13

Dr. Crum Vouched For Billy’s Veracity 15

1, Dr. Crum Vouched for the Accusations

in this Case 15

2. Dr. Crum Claimed Expertise in Differentiating

True From False Claims of Abuse. 15

The Prosecutor Stressed Dr. Crum’s Improper

Testimony in Her Summation. 18

The Use of so Much Vouching testimony to Convict

Mr. Downey Violated His Constitutional Rights 20

Dr. Crum’s Improper Testimony was Material 21

This Claim Was Exhausted in the State Courts 21

. The Claims Presented Herein Warrant Relief Under

The Anti-Terrorism and Effective Death

Penalty Act 22

CLAIM II

CERTIORARI MUST BE GRANTED BECAUSE MR.

DOWNEY’S CONFRONTATION RIGHTS WERE

VIOLATED WHEN THE TRIAL COURT

PREVENTED FACE-TO-FACE CONFRONTATION

CLAIM III

CERTIORARI MUST BE GRANTED BECAUSE

PROCEDURAL RULES DO NOT BAR MR.

DOWNEY’S PETITION FOR HABEAS CORPUS

Overview

[1] The Petition States a Valid Claim of the

Deniai of a Constitutional Right

[2] Jurists of Reason Would Find it Debatable

Whether the District Court was Correct in

its Procedural Ruling

CONCLUSION

23

25

30

TABLE OF CITED AUTHORITIES

CASES

Calderon v. U.S. Dist. Ct for Central Cal.,

128 F.3d 1283 (9" Cir. 1997) 26

Davis v. Johnson, 158 F.3d 806 (5" Cir. 1998),

cert. den’d, 119 S.Ct. 1474 (1999) 26

Edwards v. Carpenter _U.S._, 120 S.Ct. 1587 (2000) 27

Fisher v. Johnson, 174 F.3d 710 (5" Cir. 1999) 26

Goodman v. United States, 151 F.3d 1335 (11" Cir. 1998) 29

Irwin v. Department of Veterans Affairs, 498 U.S. 89,

111 S.Ct. 453 (1990) 26

Johnson v. United States Postal Serv., 861 F.2d 1475

(10th Cir.1988) 26

Lindh v. Murphy, 96 F.3d 856 (7" Cir. 1996),

rev'd, 117 S.Ct. 2059 (1997) 25

Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157 (1990) =. 23

Miller v. Marr, 141 F.3d 976, 978 (10th Cir.),

cert. den'd, 119 S.Ct. 210 (1998) 26

Miller v. New Jersey State Dept. of Corr.,

145 F.3d 616, (3rd Cir. 1998) 26

Murray v. Carrier, 477 U.S. 478 (1986) 30

Neelley v. Nagle, 138 F.3d 917 (11 Cir. 1998) 22

Osborne v. Wainright, 720 F.2d 1237, 1238 (11" Cir. 1983) 21

Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997) 26

Reyes v. Keane, 90 F.3d 676 (2d Cir. 1996) 26

Sandvick v. United States, 177 F.3d 1269 (11 Cir. 1999) 29

Schlup v. Delo, 130 L.Ed. 2d 808 (1995) 30

Slack v. McDaniel, _U.S. _, 119 S.Ct. 1025 (2000) 24, 25

Snowden v. Singletary, 135 F.3d 732

(11™ Cir. 1998); cert. denied,

119 S.Ct. 405 (1998) 2, 13, 20, 21, 22, 25

State v. Townsend, 635 So.2d 942 (Fla. 1994) 23

Tingle v. Florida, 536 So.2d 202, 205 (Fla. 1988) 23

United States. v. Azure, 801 F.2d 336 (8th Cir. 1986) 14

United States v. Binder, 769 F.2d 595 (9th Cir. 1985) 14,20

United States v. Provist, 875 F.2d 172 (8th Cir. 1989) 14,20

United States v. Scop, 846 F.2d 135,

reh'g granted on other grounds, 856 F.2d 5

(2d Cir. 1988) 14, 20

United States v. Simmonds, 111 F.3d 737 (10th Cir. 1997) 26

Wilcox v. Singletary, 158 F.3d 1209 (11" Cir. 1998) 26

Statutes and Constitutional Provisions

United States Constitution, Amendment V

United States Constitution, Amendment VI

United States Constitution, Amendment XIV

United States Constitution art. I, § 9, cl. 2

Vii

H.R. Conf. Rep. 104-518, 94" Cong. 2d Sess. 1111 (1996)

28 U.S.C. § 2253(c)(2)

Scientific Research Literature and Authority

Bruck, Ceci, Francouer and Barr, / Hardly Cried When I Got

My Shot!”’: Influencing Children’s Reports About a Visit to

Their Pediatrician. Child Development, 66,

193-208 (1995) 7

Bruck, Ceci and Hembrook, Children’s Reports of

Unpleasant Events In Reed and Lindsay (eds.)

Recollections of Trauma: Scientific Research and

Clinical Practice. N.Y. Plenum Press (1997). 7

Ceci and Bruck, The Suggestibility of the Child Witness:

A Historical Review and Synthesis,

Psychological Bulletin, 113, 403-439 (1993) 7

Leichtman and Ceci, The Effect of Stereotypes and Suggestions

on Preschoolers’ Reports. Developmental Psychology, 31,

568-578 (1995) 7

TABLE OF CONTENTS OF APPENDIX

Decision of circuit court denying motion for certificate of

appealability upon reconsideration (September 15,2000) A3

Decision of circuit court denying motion for certificate of

appealability (July 6, 2000) A4

District court order denying a certificate of appealability

(April 20, 2000) AS

Vili

District court order denying motion to alter and amend

(March 17, 2000) AT

District court order denying petition for writ of

habeas corpus (June 8, 1999) A9

Police Officer Stempinsky Report (Excerpt) Al3

OPINION BELOW

The circuit court decisions denying a certificate of

appealability from which Petitioner seeks discretionary review

is not in the official reporters. They are appended at Al and

A2. The district court decisions are appended at A5, A7, and

A9. Decisions of the district court of appeal of Florida are

reported at 652 So. 2d 824 (1995) and 718 So. 2d 181 (1998).

RISDICTION

On July 6, 2000, the United States Court of Appeals

denied Mr. Downey’s motion for a certificate of appealability.

Mr. Downey timely filed a motion for reconsideration which

was denied on September 15, 2000.

This petition is timely filed and the jurisdiction of this

Court is invoked under 28 U.S.C. § 1254.

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment V, United States Constitution, provides:

No person shall ... be deprived of life, liberty, or property,

without due process of law.

Amendment VI, United States Constitution, provides:

In all criminal prosecutions, the accused shall enjoy the

right ... to be confronted with the witnesses against him....

Amendment XIV, United States Constitution, provides:

... nor shall any state deprive any person of life, liberty, or

property, without due process of law....

STATEMENT OF THE CASE

Gerald Downey — currently serving two life-sentences — is

an innocent man. Nevertheless, in a Florida state court in 1993,

he was convicted of capital sexual battery and lewd and

lascivious activity with his son Billy who lived with his

mother, Virginia Beebe. Mr. Downey pled not guilty and

testified at trial, denying all accusations and charges against

him. He continues to assert his innocence.

The case against Mr. Downey was manufactured. Billy’s

mother — Mr. Downey’s former girlfriend — his great aunt and

maternal grandmother, as well as police, Human Resource

Services (HRS) workers, and the prosecutor all subjected him

to massive amounts of influence to accuse his father of abuse.

The acts of abuse allegedly occurred three to four years

prior to trial when Billy was between three-and-a-half and

four-and-a-half years old. Billy’s testimony was equivocal at

best. Other state witnesses polluted the trial with unreliable

hearsay, repeating accusations they extracted from Billy in the

years before trial. The state also presented a medical expert

who was unable to provide physical evidence of abuse.

The state’s most powerful witness was psychologist

Joseph Crum who told the jury, inter alia, that the accusations

against were true and that Billy had indeed been molested. This

type of vouching testimony has been recognized as

unconstitutional by the circuit courts that have considered the

issue. Thus, the Eleventh Circuit’s refusal to consider this case

and grant the writ of habeas corpus represents a departure from

the settled constitutional standard.

Federal court review is particularly important in this case

in which the subject matter -- child abuse -- often inspires

community passions that state courts cannot bear. Thus, the

2

need for a dispassionate review by the federal judiciary is

crucial to the administration of justice. The lower federal

courts in this case abdicated responsibility, denying Mr.

Downey’s petition for habeas relief without even considering

its merits. Neither lower court even requested that the state file

an answer, opting instead to summarily deny relief.

Circuit court judge Dubina denied Mr. Downey’s petition

for a certificate of appealability, stating only that Mr. Downey

had failed to “make a substantial showing of the denial of a

constitutional right.” In fact, Mr. Downey showed that his

federal constitutional right to due process was violated, and

alerted the circuit court that it had very recently reversed the

district court and issued a writ of habeas corpus in a nearly

identical case, Snowden v. Singletary, 135 F.3d 732, cert.

den'd 119 S.Ct. S.Ct. 405 (1998).

This Court denied Florida’s request for a certificate of

appealability in Snowden. Thus, the constitutional error on

which the writ of habeas corpus was based in that case is

sufficient to require that the writ issue here.

Relevant Facts

Mr. Downey was a Greyhound bus driver in Boston. In

1978, he moved to Florida to be near his parents. He is 60

years-old. Before this case he had no criminal record.

Mr. Downey met Ms. Beebe — a licenced nurse — in 1983.

(Tr. 174, 434) They dated for about a month and then began

living together in Mr. Downey’s home. (Tr. 435)

After about a year and a half, Ms. Beebe became pregnant

and wanted to marry. (Tr. 175, 436) Mr. Downey wanted to

continue living with Ms. Beebe, but felt that marriage would

not work because of the difference in their ages and because

3

their relationship was not “that solid.” (Tr. 436) “A little

angry,” Ms. Beebe left Mr. Downey. (Tr. 175, 437)

When Billy was two and-a-half, Mr. Downey wanted to

spend time with him. (Tr. 180, 441) He explained, “I wanted to

see him and have an association with him.... | thought I had

something to offer him.” (Tr. 445)

For nearly a year, Ms. Beebe accompanied Mr. Downey

and Billy during the weekly visits. Billy enjoyed the visits and

there were “absolutely no problems.” (Tr. 180, 220-221)

When Billy was about three-and-a-half Ms. Beebe stopped

accompanying them. The visits became more frequent and

eventually Mr. Downey watched Billy while Ms. Beebe was at

work. There was no indication during this time that anything

improper occurred during the visits. (Tr. 187)

Ms. Beebe testified that when Billy was about four years

old, he began exhibiting behavior problems and began “having

accidents in his pants....bowel movements,” which his doctor

diagnosed as a diet problem. Billy was placed in a program for

emotionally disturbed children. (Tr. 183-184, 202)

Ms. Beebe conceded that Billy’s behavior problems began

when she changed jobs and work schedules and that this might

have had some bearing on his behavior.”' (Tr. 183)

While Billy had these behavior problems, Ms. Beebe — a

‘During the year of unsupervised visits, Billy’s behavior

problems diminished. Ms. Beebe found his progress

remarkable. (Tr. 210) School reports from that time indicate

“significant strides.” (Tr. 312) It was not until after claims of

molestation were extracted that his problems began. (Tr. 211)

4

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nurse — cleaned and bathed him daily. She never noticed

anything wrong with his rectum or anus. (Tr. 202-203) At no

time did Billy indicate in any way that he experienced

problems with any part of his body. (Tr. 204)

On May 26, 1991, after years of successful visits, Mr.

Downey and Billy had “a bad visit.” Mr. Downey testified:

It was a bad visit that we had all day long....He was

carrying things around the house.....(Tr. 446) He was

dragging things around the house. He went out into the

garage and brought in my bug spray can...and started

spraying that around the house... And he sat in my car for a

while, and he was beeping the horn because he was

playing schoo! bus driver.... This was the worst day. (Tr.

460)....He broke my vacuum cleaner. He broke a few

things. I have fruit trees in the back yard and he took that

long pole with the fruit picker on the end of it...and he

stuck a hole in the screen porch. (Tr. 461)

Losing his patience on that “worst day,” Mr. Downey

“slapped him on the head.” “I gave him a pretty good crack

and it made him upset,” Mr. Downey testified. (Tr. 445)

That day, Ms. Beebe came home from work and called Mr.

Downey to tell him to bring Billy home. (Tr. 222) Mr. Downey

told Billy “he had been a bad boy all day and that it was almost

time for him to go home.” We would usually stop at

McDonald’s.... I didn’t stop because he was so bad.” (Tr. 447)

Before he left Billy at home, Billy “said that he was very upset

and that I didn’t love him anymore.” (Tr. 446)

Ms. Beebe testified that Billy “was very upset” that night,

and said his father didn’t love him anymore. She was surprised

by that comment but didn’t ask him about it. (Tr. 188,224) She

bathed him that night and noticed nothing wrong or unusual

5

with any part of his body. (Tr. 225)

That evening, Ms. Beebe called Mr. Downey and told him

she wanted to return to supervised visits. (Tr. 189) According

to Ms. Beebe, Mr. Downey sad’ that Billy had gotten into

trouble that day. (Tr. 189) Mi Downey, providing more detail

of that conversation, testified

She asked me what had tappened during the day and why

Billy was so upset and crying and saying that I didn’t love

him anymore. And | saidthat he had misbehaved. He was

breaking things in the house and made a pest of himself

and I just lost my temper with him...! think she said

something like, we should start the three-way visits again,

and I believe the visits were moved to Saturday.” (Tr. 448)

The next day, Billy waned to see his father. (Tr. 226)

According to Ms. Beebe, the day after the “bad visit”,

Billy was playing with his cit, touching its “anal area.” She

told him not to do that, to wiich he said: “Daddy touches me

there all the time.” (Tr. 190’ Ms. Beebe became upset and

“decided that after | calmeddown to take him over to my

aunt’s house so he could tak with her.” (Tr. 190) Her aunt

couldn’t make him talk about inappropriate touching. (Tr. 191)

At Billy’s insistence, hs visits with Mr. Downey

continued, although Ms. Bebe accompanied him. (Tr. 191)

Some six weeks after the “bad visit,” Ms. Beebe’s mother,

Mrs. McCloud persuaded Billy to say that his father: “tried to

put his penis in Billy’s mouth (Tr. 197); “put his pretend snake

in [Billy’s] mouth, and...touched him a lot” (Tr. 230); and

anally raped him. (Tr. 236) She also elicited a story about

molestation in a public bathroom at a grocery store that was

witnessed by a store employee (Tr. 232) and in a public park.

6

(Tr. 236) No witnesses were presented at trial.

Neither Ms. Beebe nor Mrs. McCloud contacted police.

Instead, Ms. Beebe mentioned to a friend the claims Billy’s

grandmother elicited. The friend contacted HRS. (Tr. 230-231)

ss baieiaies

On July 10, 1991, HRS worker Pitt and police officer

Stempinski each conducted an interview of Billy. (Tr. 231)

Officer Stempinski found Billy “difficult to interview.” (A13)

On July 15, 1991, Billy’s mother and grandmother took

him to be interviewed by Detective Benitez-Kleiman. (Tr.

327) By the time of that interview, Billy had become very

compliant and Benitez-Kleiman easily elicited accusations and

even demonstrations from Billy. (Tr. 328-339)

Benitez-Kleiman testified that prior to interviewing Billy

she was told of the stories of abuse elicited by his mother, great

aunt, grandmother and of officer Stempinski’s opinion: “that

something occurred surrounding the child’s penis being

touched by his father....” (Tr. 345, 348, 357: A 7) It was only

then, having learned of all these conclusions and accusations,

that the detective questioned Billy and elicited accusations.

Benitez-Kleiman testified that Billy’s allegations were not

influenced by any of the adults who questioned him. (Tr. 333)?

*Her conclusions are wrong. The literature concerning

effects of suggestion on a child’s reports shows that children

subjected to suggestive questioning adopt suggestions as fact —

even when they involve events never experienced. Also, the

research shows that once subjected to suggestive questions,

children’s false reports are indistinguishable from accurate

7

She also said that her own questions were not leading or

suggestive.’ (Tr. 335)

According to Benitez-Kleiman, Billy said:

that his dad kisses on his privates, and I asked him to teil

me a little more about that, how he kisses him. And he

said that he pulls his pants down and kisses and sucks on

his private parts.....He also told me that his dad plays with

him and makes him get on his back. I asked him what he

meant by that. He got off the chair and put his hands

behind his back, he laid down and put his legs straight up

in the air. And he told me that is what his dad makes him

do. He puts his finger in his butt hole. (Tr. 334-335)

She also elicited a claim that his father “was mean and

likes to blow up cars,” that his father would put bug spray in a

car and make it blow up and that “his daddy doesn’t love him.’

She claimed that when she asked Billy why he felt that way, he

said “because he squeezed my front privacy.” (Tr.332)

?

The detective scheduled a medical examination for the

same day. (Tr. 195)

ones. Ceci & Bruck, Suggestibility of the Child Witness: A

Historical Review and Synthesis, Psychological Bulletin, 113,

403-439 (1993); Bruck, Ceci, Francouer & Barr, / Hardly

Cried When I Got My Shot!”: Influencing Children’s Reports.

Child Development, 66, 193-208 (1995); Leichtman & Ceci,

The Effect of Stereotypes and Suggestions on Preschoolers’

Reports. Developmental Psychology, 31, 568-578 (1995).

*Because she did not record her interview, there is no way

of supporting her claims in this regard.

8

Medical Examination

Dr. Smith provides “medical examinations for the [state

‘child protection’] team.” She testified the children HRS refers

to her “[are] victim[s] of child abuse....” (Tr. 373) After being

told that he reported abuse by his father, including penetration

of his anus, Smith examined Billy. (Tr. 380,381, 388)

Dr. Smith found that Billy’s penis appeared normal and

gonorrhea cultures were negative. (Tr. 379) She also found:

[T]he rectal area and the buttocks were normal. The skin

around the anus had a small amount of stool on it, but

otherwise appeared normal. The folds around the anus

appeared to be more smooth than normally I have seen. It

was all the way around. And there was a small area near

the top, that would be upward from the genital area, that

was red and a little bit irritated.... The muscle tone of the

anus appeared to be normal. (Tr. 375, 379)

Dr. Smith was aware that Billy experienced problems with

constipation during the year prior to her examination and that

he had “a problem with not wiping himself well.” She agreed

that constipation can cause the smoothness she described and

that the irritation can be caused by chronic irritation of the

skin. She added, however, that the smoothness around the anal

area could be the result of penetration.’ (Tr. 376, 377, 383)

“By the time of Smith’s examination, Billy had not been

with Mr. Downey for some six weeks. Smith said the normal

muscle tone around Billy’s anus could be consistent with

penetration because any injury would have healed. The same

logic holds that redness, irritation or smoothness of his anus

were the result of something other than alleged penetration by

Mr. Downey. After all, any injury would have healed. Thus,

9

Following questioning by his mother, great aunt, and

grandmother, HRS workers and police, and the invasive genital

and anal examination, Billy was put in counseling where

remained through trial. (Tr. 196, 237-238, 240) In preparation

for trial, Billy was also questioned by state psychologists

Joseph Crum and Gail Azar and the prosecutor.

The Trial

The state’s case was comprised of testimony from Billy,

his mother, detective Benitez-Kleiman, and “expert” witnesses,

psychologist Crum and physician Smith.

Billy was permitted to testify without facing Mr. Downey.

He said that on numerous occasions the adults named above

talked with him about allegations they had elicited. (Tr. 135,

155) The prosecutor also talked to him about what he was to

Say in court as recently as that morning. (Tr.143-144)

Billy’s testimony was tentative, full of contradiction, and

generally limited to the words “penis and butt” in response to

prosecutor questions. (Tr. 121 -158) It is noteworthy for his

one-word assents to prosecutor questions and his inability to

remember anything about his father other than stories of abuse

elicited from him by family members, investigators, experts

and therapists during the years prior to trial. In fact, Billy said

that all he could remember of his father was: “I think we just

probably watched T.V.” “I just can’t remember the rest. I just

know that he took me to the park.” (Tr. 126, 128)

Billy could not remember any details of abuse. He didn’t

know whether he had ever seen his father’s penis. (Tr. 132) He

the condition of Billy’s anus could not have been caused by

Mr. Downey. (Tr. 375-376, 379)

10

couldn’t remember what room he and his father were in when

his father allegedly touched him. (Tr. 131, 133)

Asked whether Mr. Downey did anything other than put

Billy’s penis in his mouth, Billy answered, “yes.” When asked

what else Mr. Downey did, he said:

I messed up. No. I think — I don’t - I’m a little nervous. I

just don’t remember. It’s hard for me to make up my mind.

Years have passed and I don’t remember all of the stuff.

(Tr. 132)

Billy said he was “very scared” of his father and afraid of

his father being mean to him. He couldn’t remember, however,

when or how his father had ever been mean to him. (Tr. 154)

Billy’s grandmother had elicited a claim that his father

molested him in a grocery store and in a public park. At trial,

he said he never told his grandmother either of these things.

(Tr. 146, 148) He said he never told his mother he didn’t want

to see his father again or that he hated his father. (Tr. 151)

Summing up his own testimony Billy said, it is “hard to

make up my mind” about what happened because the last time

he had seen his father was “so long ago.” (Tr. 158)

Billy’s mother, Ms. Beebe, was not a witness to any

alleged abuse, thus, she served only to introduce the out of

court statements she extracted from Billy.

Detective Benitez-Kleiman vouched for Billy’s veracity,

claiming his accusations were not the product of suggestion or

influence. (Tr. 333) She also repeated out of court statements

she elicited from Billy. (Tr. 332-354)

The detective testified that she assumed Billy’s claim that

11

his father urinated on the carpet was a report of ejaculation.

She conceded that the police found no evidence of any bodily

fluid on any carpet in Mr. Downey’s home. (Tr. 350-353)

The state used Dr. Crum to validate Billy’s accusations.

He told the jury, inter alia, that Billy’s accusations were true

and that Billy exhibited the characteristics of an abused child.

The Prosecutor’s Summation

The prosecutor hammered hard on Dr. Crum’s testimony,

reminding the jury that the doctor’s expert opinion was that the

accusations against Mr. Downey were true.

Jury Deliberations

The jury requested a read-back of testimony from Billy

and the detective. The court denied the request. (Tr. 523)

The jury wanted to know if Billy described oral copulation

or merely answered “yes” or “no” to a question by the

prosecutor. The jury asked the same question about the claim

of penetration. The court denied the requests.’ (Tr. 525-527)

Conviction and Sentence

Shortly after the jury’s requests were denied, a verdict of

guilty was reached on three counts. (Tr. 530) Mr. Downey was

immediately sentenced to two life sentences and one sentence

of 18 months. (Tr. 532-533)

*Thus, the jury revealed its concern that the accusations

were the product of suggestion and the trial court left the jury

with only Dr. Crum’s unconstitutional vouching claims.

12

Se gtr nea aa I a

After his direct appeal and state post conviction relief

petition were denied, Mr. Downey sought federal habeas relief

on May 27, 1999, within a year of the denial of his motion for

rehearing in state court. His petition was 52 pages in length

and accompanied by a substantial appendix. On June 8, 1999 —

just over a week after filing — the district court denied the

petition without a hearing. A motion to alter and amend filed

on June 23, 1999 was denied on March 17, 2000. Mr. Downey

filed a timely notice of appeal in the district court on April 13,

2000. The district court denied a certificate of appealability.

On May 8, 2000, Mr. Downey filed a motion for a

certificate of appealability in the Eleventh Circuit. That motion

was denied on July 6, 2000 (Dubina). A motion for

reconsideration by a panel or the Court was denied on

September 15, 2000 (Tjoflat, C.J. and Black, J.).

REASONS FOR GRANTING CERTIORARI -

ISSUE |

CERTIORARI MUST BE GRANTED BECAUSE MR.

DOWNEY’S CONSTITUTIONAL RIGHT TO DUE

PROCESS WAS VIOLATED WHEN THE

PROSECUTION’S PRINCIPAL EXPERT VOUCHED FOR

THE VERACITY OF THE ACCUSATIONS.

Dr. Crum’s testimony violated the constitutional

proscriptions on vouching testimony and violated Mr.

Downey’s right to Due Process.

A. Testimony Vouching For a Complainant’s Veracity

Violates Due Process

Several circuit courts hold that expert vouching for the

veracity of a witness violates due process rights.

13

In Snowden v. Singletary, 135 F.3d 732 (11" Cir. 1998),

cert. denied, 119 S.Ct. 405, 142 L.Ed.2d 329 (1998) —a

molestation case similar to this one — the Eleventh Circuit

reversed the district court’s denial of a petition for a Writ of

Habeas Corpus because a prosecution expert offered an

opinion on the veracity of children. The circuit court wrote:

“that such testimony is improper, in both state and federal

trials, can hardly be disputed.”

In United States v. Provist, 875 F.2d 172, 176 (8th Cir.

1989) the Eighth Circuit condemned an expert’s “isolated

statements” which implied her belief in the allegation. And in

United States v. Azure, 801 F.2d 336 (8th Cir. 1986), the

circuit court reversed a sexual abuse conviction because an

expert testified that he could “see no reason why [the child]

would not be telling the truth in this matter.” Azure, 801 F.2d

at 339. The circuit court held that by “putting an impressively

qualified expert’s stamp of truthfulness” on the accusation, the

comment “invaded the exclusive province of the jury to

determine the credibility of witnesses.”

The Ninth Circuit in United States v. Binder, 769 F.2d 595

(9th Cir. 1985), a sexual abuse case, condemned an expert’s

claim that “the complaining witnesses were able to distinguish

reality from fantasy and truth from falsehoods.”’/d, at 602.

And, in U.S. v. Scop, 846 F.2d 135, reh’g granted on other

grounds, 856 F.2d 5 (2d Cir. 1988), the Second Circuit held,

“expert witnesses may not offer opinions on relevant events

based on their personal assessment of the credibility of another

witness’ testimony.” Jd, 846 F.2d at 142.

Accordingly, the circuit courts that have considered this

issue have recognized that the Constitution will not tolerate the

use of vouching testimony as a means to a conviction.

14

The Eleventh Circuit, it’s decision in Snowden |

notwithstanding, has departed from this rule in this case. Thus,

certiorari should be granted by this Court.

B. Dr. Crum Vouched For Billy’s Veracity

1. Dr. Crum Vouched for the Accusations in this Case.

et vouched tor the Accusations in this Case.

Defense counsel objected to the legal admissibility of Dr.

Crum’s testimony, warning that he would vouch for Billy’s

accusations. (Tr. 245-279)

The prosecutor told the court that Dr. Crum twice

examined Billy and would testify about the profile “of the type

of behaviors kids exhibit as abused children” and that Billy’s

behavior is inconsistent with having been subjected to

Suggestive questioning.° (Tr. 246) Thus, the prosecutor

conceded, Dr. Crum would vouch for the accusations.

Noting: “It is my firm belief that Dr. Crum thinks that

everybody the State Attorney sends to him has been sexually

abused....”, the trial court ruled that Dr. Crum would not be

permitted “to testify as to whether or not in his opinion

someone has been sexually abused.” (Tr. 248) But, the court

permitted him to testify “that [Billy] fits the criteria of a

sexually abused child...”, about “the characteristics of an

abused child, and any such characteristics in this case...” (Tr.

249,300). In fact, Dr. Crum vouched for the accusations.

2. Dr. Crum Claimed Expertise in Differentiating True

From False Claims of Abuse.

*The scientific research literature soundly rejects these

claims. See note 2, supra.

15

Dr. Crum claimed expertise in distinguishing true from

false accusations, telling the jury he was “compiling a

statistical study with regard to true and false sexual abuse

allegations.” (Tr. 282) Thus, he assured the jury that he is an

expert in determining the truth of a child’s claim of abuse.

Bolstering his own opinions, Dr. Crum told the jury that

his conclusions were based on a scientific protocol. He claimed

that his examination of a child includes an assessment “of the

child’s capacity to understand the concept of telling the truth

versus telling a lie ...[and] a personal evaluation as to what the

child’s incentive is, and the child’s fantasies, and these kinds

of things.” (Tr. 283) Dr. Crum told the jury, he uses complex

psychological tests. He testified, in part:

I’m looking, obviously, at the content of the interview.... I

also observe the feelings aspect of the emotional aspects of

whatever it is that they’re feeling. So with those two

factors I also combine with the information that has been

provided. (Tr. 297-299)

Based on this, Dr. Crum testified, his examination of Billy

revealed no “evidence of contamination [or] suggestibility....”

(Tr. 323) In other words, he told the jury, they are true.’

Further, Dr. Crum’s very presence in court on behalf of the

state, is a statement to the jury that he believed the accusations

were true. After all, had he not believed in Mr. Downey’s guilt,

he wouldn’t have testified in support of them.

Dr. Crum also vouched for the accusations by telling the

jury that there are certain behaviors that are indicative of abuse

"Note that Dr. Crum’s claims are of his own invention.

There are no such protocols or diagnostic methods. He offered

nothing in support of his claims.

16

and that Billy exhibited these behaviors. (Tr. 299)

He added that in addition to the behaviors reported by his

mother, Billy exhibited symptoms of sexual abuse that were

not observable to a lay person, but which he -- as an expert --

could recognize.* He testified:

[T]he anxiety that I am talking about is not necessarily

observable anxiety....And I felt that in part was a way that

he managed his stress..... the fact that the child does not

really, you know, look upset, or demonstrate behavioral

problems certainly doesn’t mean that there is not a

disturbance... (Tr. 315)

Dr. Crum claimed that he based his finding on — in addition to

behaviors reported by Ms. Beebe — “many more behaviors...

that [Billy] displayed.” (Tr. 321)

Further, Dr. Crum conceded that a school report written in

May 1991 — the month of Billy’s alleged disclosure — stated

that Billy had made significant improvement with regard to his

behavior. However, he then characterized that report as a

comment only on Billy’s “observable behavior.” Thus, again

he told the jury that there are behaviors that only he could see,

and that these were in fact indicative of abuse.? (Tr. 313)

‘Dr. Crum offered no scientific basis for his claim. Indeed,

there is none.

"In another unbelievably bizarre and twisted piece of

testimony, Dr. Crum told the jury that the “child sexual abuse

accommodation syndrome” is an indicator of abuse. He then

said, “[the]...syndrome is not a syndrome and it is a way of

understanding how children disclose alleged abuse.” (Tr. 290)

17

He also told the jury that although Billy’s behaviors could

have been related to any stressor in his life, it was his “expert”

conclusion that they were characteristic of abuse. Thus, he

concluded that the accusations elicited from Billy are true.'°

(Tr. 301-303, 309, 317)

Although the accusations were extracted from Billy by his

mother, great aunt, grandmother, and police, Dr. Crum said he

detected “some indications of the child sexual abuse [sic] from

the way that [Billy] disclosed the allegations.” (Tr. 322)

Finally, Dr. Crum said that Billy exhibited the symptoms

or behaviors of an abused child. (Tr. 302)

In sum, Dr. Crum told the jury in any number of ways that

the accusations were true and accurate and that Mr. Downey

was guilty. This testimony violated the constitutional

prohibition on vouching.

C. The Prosecutor Stressed Dr. Crum’s Improper

Testimony in Her Summation.

The prosecutor capitalized on Dr. Crum’s unconstitutional

testimony during closing argument, highlighting his opinion

about Billy’s veracity and his claims that Billy exhibited the

characteristics of an abused child. The prosecutor argued:

@ Dr. Crum testified that it is not unusual for a child to

disclose slowly. Thus, the additional and inconsistent

accusations that were elicited from Billy during the years

until the trial were characteristic of a sexually abused

child. (Tr. 484)

'° Again, there is no scientific basis for Dr. Crum’s claims.

Indeed, he offered none.

18

If you go back and remember Dr. Crum’s testimony, who

is recognized by this Court as an expert, he told you that

it is not uncharacteristic for a child to disclose slowly. He

saw Billy on at least two occasions ...and that in his expert

opinion Billy exhibited the characteristics of a sexually

abused child. (Tr. 487)

Now he didn’t say that it was conclusive, but he said that

the characteristics were those of a sexually abused child.

And I asked him what the basis of his opinion was and

he went back and he told you what it was that he

recognized. He said that he talked to the family and

found out about his sexually acting out, and that was the

inference to the cat’s anus. (Tr. 487)

Dr. Crum said, in his expert testimony, that this child

Showed signs of being sexually abused. We asked Dr.

Crum and he said that this kid exhibited those signs of

being sexually abused. (Tr. 517-518)

[Dr. Crum] saw Billy on at least two occasions, I believe

he specifically said three, and that in his expert opinion

Billy exhibited the characteristics of a sexually abused

child. ... (Tr. 487-488)

Dr. Crum said, in his expert testimony, that this child

showed signs of being sexually abused. We asked Dr.

Crum and he said that this kid exhibited those signs of

being sexually abused. (Tr. 517-518)

Dr. Crum came in here and told you that this kind of

acting out is consistent to somebody that has been

sexually abused. (Tr. 521)

19

D. The Use of So Much Vouching Testimony to Convict

Mr. Downey Violated His Constitutional Rights.

Dr. Crum’s testimony violates the constitutional

prohibition on vouching testimony as set out in cases from the

Second, Eighth and Ninth circuits, supra.

He testified that he saw no evidence of the suggestion used

by adults to elicit accusations from Billy and that his

examination revealed no indication that Billy’s claims were

anything but true. This wert well beyond the expert’s claim in

Azure that there was “no reason why” the accusation would not

- be true. Thus, Dr. Crum’s testimony violated Azure.

Testifying that he tested Billy’s “ability to understand the

concepts of telling the trutk versus telling a lie” (Tr. 296), and

then supporting the claims of abuse, Dr. Crum violated Binder,

supra, in which the circuit court condemned an expert claim

that the complainant was “able to distinguish reality from

fantasy and truth from falsehoods.” Binder, 796 F.2d at 602.

In Provist, supra, the court condemned an “isolated

statement” implying beliefin an allegation. Dr. Crum’s

vouching pervaded his testmony and the prosecutor’s

summation. Hence, Dr. Crum’s vouching violated Provist.

Dr. Crum violated Scop, supra, because his performance

as a State witness was the kind of condemned “secondary

opinion” based on his “assessment of the truthfulness [and]

accuracy of” Billy, whose credibility was the sole issue here.

Dr. Crum’s vouching testimony violated the Eleventh

Circuit’s opinion in Snowden, as it was nearly identical to the

testimony there that resulted in the writ being issued.

20

The Eleventh Circuit in Snowden, 135 F.3d 732 (11"™ Cir.

1998), cert. den’d, 119 S.Ct. 405 (1998), set out the test for

determining when vouching testimony violates Due Process.

Even though the Snowden prosecution’s expert never

mentioned the complainant, the court held, “denial of

fundamental fairness occurs whenever improper evidence ‘is

material in the sense of a crucial, critical, highly significant

factor.’ Osborne v. Wainright, 720 F.2d 1237 (11 Cir.1983).”

Determining that the improper vouching testimony in

Snowden was material, the circuit court considered that it was

one component of a prosecution including three child

witnesses and medical evidence. Snowden, 135 F.3d at 738.

Dr. Crum’s testimony was even more material here, where

the other evidence was limited to a single child witness and his

out of court statements.

Further, Mr. Downey’s prosecutor used summation to

highlight the expert vouching testimony, reminding the jury of

all the improper, unreliable, and false claims he made.

Thus, Dr. Crum’s unconstitutional vouching testimony

was material.

F. This Claim was Exhausted in the State Courts.

In his direct appeal, Mr. Downey presented the violations

caused by the state’s expert vouching testimony. Pages 11-16

of his state court brief provide citations to Dr. Crum’s

improper testimony and to federal and state case law. Thus,

State courts had a full and fair opportunity to reverse the

conviction based on the issues presented in the federal courts.

21

G. The Claims Presented Herein Warrant Relief Under

The Anti-Terrorism and Effective Death Penalty Act.

In Neelley v. Nagle, 138 F.3d 917 (11" Cir. 1998), the

Eleventh Circuit established a three-step process for

determining whether constitutional violations presented in a

petition for habeas corpus satisfy AEDPA requirements: 1)

survey the legal landscape to determine whether the

petitioner’s claims are based on legal principles clearly

established by the Supreme Court “at the time the state court

adjudicated petitioner’s claim”; 2) determine whether the state

court “face[d] a set of facts that is essentially the same as those

the Supreme Court has faced earlier” but reached a different

conclusion than the Supreme Court. If so, the state court

decision is deemed “contrary to” existing federal precedent and

relief is mandated; and 3) determine whether the state court

decision was “unreasonable.” A state court decision is

unreasonable if it “is so incorrect that it would not be debatable

among jurists.”

Pursuant to the Nee/ley standard, habeas relief is required.

The Eleventh Circuit in Snowden noted: “That such evidence

[like Dr. Crum’s in this case] is improper, in both state and

federal trials, can hardly be disputed.” Thus, the principle at

the heart of Mr. Downey’s petition -- that the state’s vouching

testimony violated Mr. Downey’ s Due Process rights -- is

clearly established.

Mr. Downey objected to Dr. Crum’s improper testimony,

alerting the trial court that Dr. Crum’s testimony was nothing

more than unsubstantiated and improper vouching. Thus, the

state courts were faced with the same facts that had previously

been recognized as unconstitutional by the circuit courts and —

by denying certiorari — by this Court.

Finally, the state courts’ decisions regarding the issues

22

presented there were unreasonable. The trial court -- even after

citing Dr. Crum’s penchant for finding abuse regardless of the

circumstances — permitted Dr. Crum to vouch for the

accusations. The post conviction courts denied Mr. Downey’s

petitions without opnion. Hence, there is no evidence that any

state court even considered the claims presented.'!

For these reasons, Mr. Downey’s petition satisfies the

Neelley requirements and requires that certiorari be granted.

CLAIM II

CERTIORARI MUST BE GRANTED BECAUSE MR.

DOWNEY’S CONFRONTATION RIGHTS WERE

VIOLATED WHEN THE TRIAL COURT PREVENTED

FACE-TO-FACE CONFRONTATION

The trial court permitted the prosecution to rearrange the

configuration of the courtroom to present Billy as a witness

without having him face Mr. Downey. Because there was no

finding that facing Mr. Downey would have caused Billy any

harm, the deprivation of face-to-face confrontation violated

Mr. Downey’s Confrontation Clause right.

Contrary to the requirements of this Court in Maryland v.

Craig, 497 U.S. 836, 110 S.Ct. 3157 (1990), the trial court

never made a particularized finding that Billy would be

traumatized by face-to-face confrontation. In fact, Billy told

''Evidence of the unreasonableness of the state courts’

decisions in this case is found in their disregard for Florida

law. In State v. Townsend, 635 So.2d 942 (1994) and Tingle v.

Florida, 536 So.2d 202 (1988), the state Supreme Court held

that an expert cannot vouch for credibility. The state courts’

refusal to grant relief on the same claims is unreasonable.

23

the court that it would not “be a problem or a pain” if he saw

Mr. Downey while he was testifying. (Tr. 150-152, 12/22/92)

The court even found that Billy would not be traumatized by

face-to-face confrontation. (Tr. 4-6, 4/20/93) Nevertheless, at

trial, the court permitted Billy to be escorted in through the

back door of the courtroom and placed in the witness box, with

the judge’s bench fully blocking his view of Mr. Downey.

Thus, there was no possibility of face-to-face contact between

Mr. Downey and Billy as he testified.

Accordingly, Mr. Downey was deprived of his Sixth

Amendment confrontation right and the jury was denied the

opportunity to assess Billy’s demeanor as he confronted Mr.

Downey face-to-face during his testimony.

That this was a constitutional violation was clearly

established by this Court at the time of trial. The state court

faced facts essentially the same as this Court faced in Craig,

supra. And, the state court’s violation of Mr. Downey’s right

to confrontation was unreasonable, especially, because the

court found that Billy would not be traumatized by facing him.

CLAIM III

CERTIORARI MUST BE GRANTED BECAUSE

PROCEDURAL RULES DO NOT BAR REVIEW OF

MR. DOWNEY’S PETITION FOR HABEAS CORPUS

Overview

In Slack v. McDaniel, U.S. _, 119 S.Ct. 1025 (2000), this

Court held:

When the district court denies a habeas petition on

procedural grounds without reaching the prisoner’s

underlying constitutional claim, a COA should issue (and

24

an appeal of the district court’s order may be taken) if the

prisoner shows, at least, [1] that jurists of reason would

find it debatable whether the petition states a valid claim

of the denial of a constitutional right, and [2] that jurists of

reason would find it debatable whether the district court

was correct in its procedural ruling.

The district court denied Mr. Downey’s petition and

motion to alter and amend, without a hearing, solely on

procedural grounds. It denied a certificate of appealability

within just three business days of filing. Thus, the court never

considered the constitutional claims presented. Accordingly,

the two-prong Slack analysis is required.

{1}. The Petition States a Valid Claim of the Denial of a

The facts and arguments presented above reveal that the

conviction was caused by the same type of unconstitutional

expert testimony condemned for constitutional reasons in

Snowden v. Singletary, supra, and the cases from the other

circuit courts cited. Accordingly, the merits of the petition state

a valid claim of the denial of a constitutional right.

[2] — of Reason Would Find it Debatable Whether the

urt W. ct in its P dural Ruli

The time limit provisions of the AEDPA have proven to

be remarkably confusing and have prompted extraordinary

amounts of litigation from the enactment of the Act through

the present. e.g., Lindh v. Murphy, supra (7" Cir. 1996)

through Slack v. McDaniel,119 S.Ct. 1025 (2000). Simply, the

AEDPA left petitioners, and courts without a clear explanation

of the way time limits might be applied.

It is now settled that the time limit provisions of the

25

AEDPA may not be used to deprive a petitioner from taking a

reasonable time to file a federal habeas corpus petition. e.g.,

Wilcox v. Singletary, 158 F.3d 1209 (11" Cir. 1998); Peterson

v. Demskie, 107 F.3d 92 (2d Cir. 1997); United States v.

Simmonds, 111 F.3d 737 (10th Cir. 1997); Reyes v. Keane, 90

F.3d 676 (2d Cir. 1996).

Further, equitable tolling is also available to a petitioner

whose filing is untimely. Fisher v. Johnson, 174 F.3d 710 (5"

Cir. 1999)(“court’s judicious discretion equitably to toll helps

safeguard habeas”); Miller v. New Jersey State Dept. of Corr.,

145 F.3d 616, (3rd Cir. 1998)(period of limitation is subject to

equitable tolling); Davis v. Johnson, 158 F.3d 806 (5" Cir.

1998), cert. den’d, 119 S.Ct. 1474 (1999)(AEDPA one-year

statute of limitations not a jurisdictional bar and can be

equitably tolled); Miller v. Marr, 141 F.3d 976, 978 (10th

Cir.)(limitation period subject to equitable tolling), cert. den’d,

119 S.Ct. 210 (1998); Calderon v. U.S. Dist. Ct for Central

Cal., 128 F.3d 1283 (9" Cir. 1997)(time limit may be tolled);

Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111

S.Ct. 453, 112 L.Ed.2d 435 (1990)(equitable tolling available

when petitioner is induced into missing filing deadline);

Johnson v. United States Postal Serv., 861 F.2d 1475, 1481

(10th Cir.1988)(equitable tolling appropriate when petitioner

was deceived by incorrect representation by an adversary, court

or agency).

Here, Mr. Downey was deceived, in the midst of preparing

his state post conviction relief petition, by the enactment of a

confusing federal statute that changed the time limits for filing

a State post conviction relief motion.

Immediately following his direct appeal, Mr. Downey

retained Robert Pope, Esq. to file a state post conviction relief

26

——————————

motion. Mr. Pope had little federal litigation experience.'”

When Mr. Pope was retained, there were no time limits

governing the filing of a federal habeas petition and Florida’s

post conviction relief statute had a two year statute of

limitations. Adhering to the state statute, Mr. Pope timely filed

the state post conviction relief petition on April 15, 1997."

'7An affidavit of Robert W. Pope was submitted to the

district court. In it, attorney Pope states, in part:

I relied on the guidance of the Florida law [3.850] as I

allowed nearly the full two years to elapse between the

final ruling on [Mr. Downey’s] direct appeal and the filing

of his post-conviction relief petition.

As I was following the Florida post-conviction relief

statute — including time limits — to the letter, it never

occurred to me that a change in federal law could possibly

curtail Mr. Downey’s right to take all of the time allowed

by the state to prepare and file his petition for post

conviction relief...

... throughout my work on his case, Mr. Downey and his

family encouraged me to file his petition. In fact, he and

his family expressed their impatience on more than one

occasion. Thus, it is no fault of Mr. Downey that his

petition was not filed sooner.

"In Edwards v. Carpenter, U.S._, 120 S.Ct. 1587 (2000),

this Court held that a claim not properly presented in state

court pursuant to state law is not preserved for federal review.

“That is not a hard question,” the Court wrote. The converse

principle is as simple: a claim properly presented pursuant to

state law is preserved for federal review.

27

During the two-year period for filing the state motion, the

AEDPA was enacted, establishing a one-year limit from the

termination of state court proceedings. It never occurred to

attorney Pope that the time limits on the newly enacted federal

statute would cut in half the time for filing a state post

conviction relief motion. Mr. Pope was not alone in his

ignorance. Petitioners and courts have grappled with AEDPA

time limit issues from the date of its enactment.

Mr. Downey’s state post conviction relief petition was

decided on May 29, 1998 and he filed his petition for a Writ of

Habeas Corpus in this Court on May 27, 1999 — less than one

year from that date. Thus, he demonstrated his firm intent to

follow all applicable procedural requirements. '*

Given that the change in the law has left courts “grappling

. with the AEDPA and time bar limitation” (Goodman v. U.S.

151 F.3d 1335 (11" Cir. 1998)), it defies principles of equity to

deprive Mr. Downey of the protections of the writ solely

‘Dismissing Mr. Downey’s petition as time-barred, the

district court suggested he was trying to exercise “unfettered

discretion in deciding when to file a federal habeas petition.”

(Opinion p. 2) But Mr. Downey’s state court litigation was

limited to a single, timely, direct appeal and post-conviction

relief motion. His habeas petition was filed within one year of

those proceedings. The Conference Committee report on the

AEDPA states: “This title incorporates reforms to curb the

abuse of the statutory writ of habeas corpus, and to address the

acute problems of unnecessary delay and abuse in capital

cases.” H.R. Conf. Rep. 104-518, 94" Cong. 2d Sess. 1111

(1996) Mr. Downey’s conscientious conduct makes clear he is

not the problem litigant the AEDPA was drafted to address.

28

because his attorney was unaware.’° Thus, the circumstances of

this case warrant equitable tolling of the AEDPA’s time limit

provision. Jurists of reason would debate the appropriateness

of the district court’s procedural dismissal.'®

The facts and circumstances of this case demand that Mr.

Downey’s petition for habeas corpus be considered on its

"Indeed, Attorneys General from states in every circuit

believed, and argued, that the AEDPA time limits should be

_ Tetroactively applied. The circuit courts and this Court rejected

that argument. That so many states’ highest ranking legal

officials were confused — and wrong — about the application of

the AEDPA time limits evidences their complexity. Fairness

and Due Process demand that Mr. Downey not be forced to die

in prison because of a latent effect of the AEDPA on the

procedure for filing a state post conviction relief motion.

The district court denied the motion to alter and amend

relying entirely on Sandvick, supra, in which counsel waited

until just days before the petition was due to file by mail. It

arrived late and was dismissed as untimely. The error here

was not so pedestrian. Here, counsel was fooled by a new,

complicated law that had an unanticipated effect of cutting a

State statute of limitations on which counsel had relied

countless times. Thus, unlike Sandvick, counsel here was

unable to interpret far-reaching effects of a new law that would

be subject to interpretation for years after its enactment.

Also, the circumstances of this case are unique. Any

lateness of Mr. Downey’s filing was caused by the enactment

of a new and confusing statute. Cases caught in the whirlpool

of AEDPA interpretive litigation are limited. Indeed, this case

may be the last. Thus, Sandvick does not support a refusal to

consider the merits of Mr. Downey’s petition.

29

merits. Any other result would represent a fundamental

miscarriage of justice in which constitutional errors “probably

resulted in the conviction of one who is actually innocent.”

Murray v. Carrier, 477 U.S. 478, 496 (1986) No procedural

default can prevent relief in such a situation. Schlup v. Delo,

130 L.Ed.2d 808, 839 (1995).

CONCLUSION

As shown in his petition, briefs and pleadings before this

Court and in the lower courts, Mr. Downey has made the

requisite showing for the issuance of a writ of habeas corpus.

He has also made the requisite showing for issuance of

certificate of appealability.

For these reasons, Mr. Downey respectfully requests that

this Court grant certiorari. |

| ;

Respectfully submitted,

|

|

Robert Rosenthal

523 East 14" Street

Suite 8D

New York, New York 10009

(212) 353-3752

Dated: November 25, 2000

APPENDIX

NO.

IN THE SUPREME COURT OF THE UNITED STATES

GERALD DOWNEY,

— against —

MICHAEL MOORE,

Secretary, Department of Corrections, State of Florida

Respondent,

and

The Attorney General of the State of Florida

Additional Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI

Decision of circuit court denying motion for certificate of

appealability upon reconsideration (September 15,2000) A3

Decision of circuit court denying motion for certificate of

appealability (July 6, 2000) A4

District court order denying a certificate of appealability

(April 20, 2000) A5

Al

District court order denying motion to alter and amend

(March 17, 2000) A7

District court order denying petition for writ of

‘indueas turpis (var %, 199%, A9

Police Officer Stempinsky Report (Excerpt) Al3

Decision of circuit court denying motion for certificate of

appealability upon reconsideration (September 15, 2000)

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 00-11967-J

GERALD DOWNEY,

Petitioner-Appellant,

versus

MICHAEL W. MOORE, Secretary,

Department of Corrections, State of F lorida,

ROBERT BUTTERWORTH,

Attorney General of the State of Florida,

Respondents-A ppellees.

Appeal from the United States District Court for the

Middle District of Florida

Before TJOFLAT and BLACK, Circuit Judges.

BY THE COURT:

Upon reconsideration of this Court’s order dated July 6,

2000, appellant’s motion for a certificate of appealability is

DENIED because appellant has not made the requisite

showing. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 120

S.Ct. 1595, 1600-01 (2000).

A3

Decision of circuit court denying motion for certificate of

- appealability (July 6, 2000)

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 00-11967-]

GERALD DOWNEY,

Petitioner-Appellant,

versus

MICHAEL W. MOORE, Secretary,

Department of Corrections, State of Florida,

ROBERT BUTTERWORTH,

Attorney General of the State of Florida,

Respondents-Appellees.

Appeal from the United States District Court for the

Middle District of Florida .

ORDER:

Appellant’s motion for a certificate of appealbility is

DENIED for failure to make a substantial showing of the

denial of a constitutional right. 28 U.S.C. § 2253(c)(2).

Joel F. Dubina

United States Circuit Court Judge

A4

District court order denying a certificate of appealability

(April 20, 2000)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION ,

GERALD DOWNEY,

Petitioner-Appellant,

versus Case No. 8:99-CV-1245-T-17B

MICHAEL W. MOORE,

Respondent.

Appeal from the United States District Court for the

Middle District of Florida

ORDER

On June 6, 1999, this Court denied the petitioner’s petition

for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On

April 13, 2000, the petitioner filed a Notice of Appeal (Doc.

8), which this Court construes as a request for a certificate of

appealability.

On April 24, 1996, the President signed into law the

Antiterrorism and Effective Death Penalty Act of 1996 (the

“Act”) which contains amendments to 28 U.S.C. §§ 2244,

2253, 2254, 2255, Appellate Rule 22, and 21 U.S.C. § 848(q).

As amended, 28 U.S.C. § 2253 provides that an appeal may

not be taken from a district judge’s ruling on a state prisoner’s

habeas corpus petition unless a “circuit justice or judge” issues

a “certificate of appealability.”

AS

As amended, Rule 22 of the Federal Rules of Appellate

Procedure reads, in part:

(B) CERTIFICATE OF APPEALABILITY. — In a habeas

corpus proceeding in which the detention complained of

arises out of process issued by a state court, or in a § 2255

proceeding, the applicant cannot take an appeal unless the

district or a circuit court judge issues a certificate of

appealability pursuant to section 2253 (c).

Therefore, while 28 U.S.C. § 2253 does not by its wording

authorize district court judges to issue certificates of

appealability, Rule 22 of the Federal Rules of Appellate

Procedure grants district court judges that authority.

Pursuant to U.S.C. § 2253, a certificate of appealability

should issue only if the petitioner makes “a substantial

showing of the denial of a constitutional right.” The petitioner

in this case has failed to meet the statutory test.

Accordingly, the petitioner’s construed request for a

certificate of appealability (Doc. 8) is DENIED.

ORDERED in Tampa, Florida, on April 20" 2000.

Elizabeth A. Kovachevich

United States District Court Judge

A6

District court order denying motion to alter and amend

(March 17, 2000)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

GERALD DOWNEY,

Petitioner-Appellant,

versus Case No. 8:99-CV-1245-T-17B

MICHAEL W. MOORE,

Respondent.

Appeal from the United States District Court for the

Middle District of Florida

ORDER

Before the Court is the petitioners motion to alter or

amend judgment pursuant to Rule 59(e), Fed. R. Civ. P. (doc.

4). In his motion, the petitioner states that even though his

petition for writ of habeas corpus was filed outside the one

year limitations period, he is entitled to equitable tolling of the

limitations period. The Court disagrees. The Eleventh Circuit

holds that a petitioner is entitled to equitable tolling when

extraordinary circumstances beyond the petitioner’s control

and unavoidable even with due diligence make it impossible to

file the petition on time. Sandvick v. United States, 177 F.3d

\

1269 (11" Cir. 1999).” The Court finds that the petitioner has

failed to meet the Sandvick standard. Accordingly, the

petitioner’s motion (Doc. 4) is DENIED.

ORDERED in Tampa, Florida, on March 17", 2000

Elizabeth A. Kovachevich

United States District Court Judge

"Even though Sandvick dealt with a motion to vacate by a

federal prisoner pursuant to 28 U.S.C. § 2255 the same

standard applies to habeas corpus petitions.

A8

District court order denying petition for writ of

habeas corpus (June 8, 1999)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

GERALD DOWNEY,

Petitioner-Appellant,

versus Case No. 8:99-CV-1245-T-17B

MICHAEL W. MOORE,

Respondent.

Appeal from the United States District Court for the

Middle District of Florida

ORDER

Before the Court is the petitioner’s 28 U.S.C. § 2254

petition for writ of habeas corpus (Doc. 1). The petitioner

challenges a conviction entered on September 9, 1993, by the

Circuit Court for Pinellas County, Florida.

In his petition, the petitioner states that his conviction was

affirmed on direct appeal to the Second District Court of

Appeals on April 19, 1995. On April 15, 1997, the petitioner

filed a motion for post conviction relief pursuant to Rule

3.850, Florida Rules of Criminal Procedure, in the Pinellas

County Circuit Court. The motion was denied on July 10,

1997. The petitioner filed a motion for rehearing. On August

22, 1997, the trial court denied the motion for rehearing. On

September 9, 1997, the petitioner appealed the order denying

A9

his Rule 3.850 motion to the Second District Court of Appeal.

The order was affirmed on April 15, 1998. The petitioner filed

a motion for rehearing that was denied on May 29, 1998.

On April 24, 1996, the President signed into law the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). Prior to AEDPA’s enactment, state prisoners had

almost unfettered discretion in deciding when to file a federal

habeas petition. Even delays of more than a decade did not

necessarily bar a prisoner from seeking relief. E.g., Lonchar v.

Thomas, 517 U.S. 314, 315 (1996).

The AEDPA dramatically shortened the time for filing a

federal habeas petition to one year. Section 101 of AEDPA

amended U.S.C. § 2244 by adding the following provision:

(D)(1) A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court. The

limitation period shall run from the latest of —

(A) the date on which the judgment became final by

conclusion of direct review or the expiration of the time

for seeking such review;

(B) the date on which the impediment to filing an

application created by State action in violation of the

Constitution or laws of the United States is removed, if the

applicant was prevented from filing by such state action;

(C) the date on which the constitutional right asserted was

initially recognized by the Supreme Court, if the right has

been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

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(D) the date on which the factual predicate of the claim or

claims presented could have been discovered through the

exercise of due diligence.

(2) The time during which a properly filed application for

State post-conviction or other collateral review with

respect to the pertinent judgment or claim is pending shall

not be counted toward any period of limitation under this

subscription.

Section 101 does not start a prisoner’s one-year limitation

period running until “the date on which the judgment became

final by conclusion of direct review.” While the Supreme

Court’s denial of a certiorari petition does generally mark the

end of direct review, the this date is not necessarily the date the

judgment becomes final. In federal court, for example, a

judgment does not become final following appeal until the case

is returned to district court and the mandate is spread. See 16A

Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,

Federal Practice and Procedure § 3987, at 687 n.2 (2d ed.

1996) (“Issuance of the appellate mandate returns the case to

the district court.”). Assuming that similar procedures prevail

in the state courts. The date of final judgment may nor be the

same as the date certiorari us denied. See Calderon v. United

States District Court for the Central District of California, 112

F.3d 386, 389 (9" Cir. 1997).

Because the petitioner was convicted in 1993, his

limitations period started to run on April 24, 1996, date of

AEDPA’s enactment. Wilcox v. Singletary, 158 F.3d 1209

(11™ Cir. 1998). Three hundred fifty six days the petitioner’s

limitations period passed between AEDPA’s enactment and ~

the filing of the petitioner’s Rule 3.850 motion on April 15, ;

1997. The petitioner’s limitation period was tolled from April

15, 1997, to May 29, 1998, when the appellate court denied the

motion for rehearing on the appeal of the petitioners Rule

All

3.850 motion. Three hundred sixty three days lapsed between

the appellate’s court denial of the motion for rehearing and the

petitioner filing of this petition on May 27, 1999. Seven

hundred nineteen days that counted towards the petitioner’s

limitations period lapsed between the AEDPA’s enactment and

the petitioner’s filing of the petition, which clearly exceeded

the one year limitations period. Accordingly, the petitioner’s

petition is time-barred.

An extension of time to file a habeas corpus petition is

warranted only if “extraordinary circumstances beyond a

prisoner’s control make it impossible to file a petition on

_ time.” Calderon v. United States Dist. Court, 128 F. 1283,

1288 (9" Cir. 1997). The petitioner has failed to show that an

extraordinary circumstance beyond his control made it

impossible for him to file his writ of habeas corpus in a timely

manner. Accordingly, this action is DISMISSED as time-

barred. The Clerk is instructed to enter judgment against the

petitioner, to terminate all pending motions in this case, and to

close the file.

ORDERED in Tampa, Florida, on June 8", 1999.

Elizabeth A. Kovachevich

United States District Court Judge

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Police Officer Stempinsky Report (Excerpt)

Writer was contacted by HRS case worker Laura Pitt regarding

this incident, on HRS report number 91-070290. Apparently

the mother was hesitant to report the incident, and a friend

reported this incident to HRS.

The HRS case worker interviewed the child, and separately,

writer interviewed the child. .... The child was difficult to

interview due to his age.

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