Petition for Writ of Certiorari — Rogers v. Moore

G) Omrerne Cont, US.

oO.

IN THE

SUPREME COURT OF THE UNITED STATES

JERRY LAYNE ROGERS, SR.,

Petitioner,

v.

MICHAEL W. MOORE,

Secretary, Florida Department of Corrections, State of

Florida,

BRADLEY D. CARTER,

Warden, Union Correctional Institution, Raiford, Florida,

Respondents.

On Petition For Writ Of Certiorari To The

United States Court of Appeals for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Jerrel E. Phillips John G. Buchanan III

P.O. Box 14463 Timothy C. Hester*

Tallahassee, FL 32317 Benedict M Lenhart

(850) 877-8660 Mark E. Porada

COVINGTON & BURLING

1201 Pennsylvania Avenue, NW

Washington, DC 20004-2401

(202) 662-6000

* Counsel of Record

Jan 15, 2001 A s for Petitioner

001147 DEC 2220

eo. aoe

Ss4 pr

QUESTIONS PRESENTED

1. Whether the Eleventh Circuit erred as a

matter of law in concluding that Petitioner’s federal

habeas corpus petition was procedurally barred under

state law, when the only state court to issue a written

opinion in this matter accepted Petitioner's arguments

that the state procedural bar was inapplicable and instead

addressed his claim on the merits.

2. Whether the Eleventh Circuit erred as a

matter of law in denying a certificate of appealability

when “jurists of reason” could disagree whether

Petitioner’s timely-filed state post-conviction proceeding,

which the state court addressed on the merits, effectively

tolled the one-year federal statute of limitations under 28

U.S.C. §2244(d)(2).

-ii-

PARTIES TO THE PROCEEDING AND

RULE 29.6 DISCLOSURE

The caption to this case contains the names

of all parties to this proceeding, both here and before the

United States Court of Appeals for the Eleventh Circuit.

No corporations or parent corporations are involved in

this matter.

-iii-

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...............::ccccsccccsseeseeecees v

INO is cikiidsincsisecindaupesscachusade nee 1

SSSR RIE ee oer annem. + oY 1

ei | Re 1

SEATEMENT OF THI CAGE ........0....cccseccccccsccscceoeses: 3

I. THE STATE POST-CONVICTION

II cas tnciiccidshadettbesthachichcobicsesalache pnciesensaiss 4

Il. THE FEDERAL HABEAS CORPUS

So eg _ aE Ra eR 8

REASONS FOR GRANTING THE WRIT ..........-.cc.000-. 11

I. THIS CASE PRESENTS AN ISSUE OF

EXCEPTIONAL IMPORTANCE. ...0.......c.ccs0ecseesseees 11

Il. THE ELEVENTH CIRCUIT’S INTERPRETATION

OF THE CERTIFICATE OF APPEALABILITY

REQUIREMENT CONTRADICTS THIS COURT'S

PRIOR HOLDINGS AND THE WELL-

ESTABLISHED MEANING OF THE STATUTORY

I i 12

A. The Standard for Issuing a Certificate of

Appealability is Extremely Lenient. ................ 12

B. The Eleventh Circuit's Decision Conflicts with

this Court’s Holdings and Effectively Denies

Habeas Corpus Petitioners the Right to Appeal

Even in Cases Where They Have Raised a

_ Clearly “Debatable” Claim. ...0..........cccccecceeesses 16

CONCLUSION

-V-

TABLE OF AUTHORITIES

Federal Cases

Barefoot v. Estelle, 463 U.S. 880 (1983).............c.0000. 13, 14,15

Flanagan v. Johnson, 154 F.3d 196 (5th Cir. SP iccccticecnest 9

Franklin v. Hightower, 215 F.3d 1196 (11th Cir. 2000)..16, 21

Fuller v. Johnson, 114 F.3d 491 (5th Cir. 1997)... 16

Guenther v. Holt, 173 F.3d 1328 (11th Cir. 1999).........ccc0.... 9

Hall v. Cain, 220 F.3d 1022 (5th Cir. 2000) ........cecccssseesseeees 19

Hernandez v. Caldwell, 225 F.3d 435 (4th Cir. ye 9

Jefferson v. Welborn, 222 F.3d 286 (7th Cir. 2000)............ 21

Lambright v. Stewart, 220 F.3d 1022 (9th Cir. 2000) ....16, 19,

ponaatinncnretanietisntiatcanieteinitaibesipasighiasimiieiiainindiitiisolidei tcc vuaes 21

Lozada v. Deeds, 498 U.S. 430 (1991) (per curiam).............. 18

Mackey v. Dutton, 217 F.3d 399 (6th Cir. 2000) ...........0..00-. 16

Miller v. Johnson, 200 F.3d 274 (5th Cir. 2000) ............0:.0e-. 16

Moore v. United States, 173 F.3d 1131 (8th Cir. 1999)......... 9

Porter v. Gramly, 112 F.3d 1308 (7th Cir. 1997) 000.0... 16

Porter v. State, 670 So. 2d 1126 (Fla. Dist. Ct. App. 1996) ...6

Rogers v. United States, 180 F.3d 349 (1st Cir. 1999)........... 9

Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000) (en banc).....16

Slack v. McDaniel, --- US. ---, 120 S. Ct. 1595 (2000) . passim

Smith v. Ward, 209 F.3d 383 (5th Cir. 2000) .........sccssscessees 19

Solis v. Garcia, 219 F.3d 922 (9th Cir. basins icinientiauiias 16

Tillman v. Cook, 215 F.3d 1116 (10th Cir. I aisaiinididensien 16

United States v. Cicero, 214 F.3d 199 (D.C. Cir. 2000)........ 9

Villegas v. Johnson, 184 F.3d 467 (5th Cir. y _, SaenaeRe he 19

State Cases

Brown v. State, 596 So. 2d 1026 (Fla. 1992) .0......sccscssesssesseeses 6

Demps v. State, 696 So. 2d 1296 (Fla. Dist. Ct. App. 1997) ..6

Haag v. State, 591 So. 2d 614 (Fla. 1992) 0.0... ecccsscssseeseesees 6

Federal Statutes |

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MUG Giese passim

-Vi-

BO ER, BB eitccictsttcniaitiiaendaiti ke ne ee 17

Rules

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OPINIONS BELOW

The orders of the court of appeals d

Petitioner's motion for a certificate of appealability (App.

A-3 - A-4) and motion for reconsideration (App. A-1 - A-

2) are unreported. The orders of the district court

denying Petitioner's petition for habeas corpus (App. A-7

~ A-14) and motion for certificate of appealability (App.

A-5 - A-6) are unreported.

JURISDICTION

The order of the court of appeals was

entered on July 19, 2000. A timely motion for

reconsideration was denied on September 25, 2000. This

Court's jurisdiction rests on 28 U.S.C. § 1254(1).

STATUTES INVOLVED

Section 2244(d) of Title 28, U.S. Code

Provides in pertinent part:

(1) A 1-year statute of

limitations shall apply to an

application for a writ of

habeas corpus by a person in

Custody pursuant to the

judgment of a State court... .

(2) The time during which a

properly filed application for

State post-conviction or other

collateral review with

to the pertinent judgment or

claim is pending shall not be

counted toward any period

.%

of limitation under this

subsection.

Section 2253(c) of Title 28, US. Code

provides in pertinent part

(1) Unless a circuit justice or

judge issues a certificate of

appealability, an appeal may

not be taken to the court of

appeals from --

(A) the final order in a

habeas corpus proceeding in

which the detention

complained of arises out of

process issued by a State

court...

(2) A certificate of

appealability may issue

under paragraph (1) only if

the applicant has made a

substantial showing of the

denial of a constitutional

right.

Me

STATEMENT OF THE CASE

This case has important ramifications for

the lower federal courts’ application of the federal habeas

corpus statutes and the gatekeeping function of 28 U.S.C.

§ 2253(c). It involves the entitlement of a federal habeas

corpus petitioner to appeal a district court finding of

procedural bar that is, at the very least, “debatable among

jurists of reason.” _ Petitioner (“Rogers”) sought state

post-conviction relief under Fla. R. Crim. P. 3.850,

alleging that the State of Florida (“State”) violated Brady

v. Maryland, 373 U.S. 83 (1963), when it failed to produce

a variety of exculpatory materials to Rogers before trial.!

The federal district court held that Rogers's federal

habeas corpus petition was time-barred because the court

concluded that Rogers’s state post-conviction motion

under Fla. R. Crim. P. 3.850 was untimely under Florida

law, even though the state court had assumed that Rogers

had valid arguments for avoiding state procedural bar

and had instead denied his motion on the merits. The

district court and later the Eleventh Circuit denied Rogers

a certificate of appealability.

The lower courts’ refusal to permit an

appeal was in error as a matter of law, and conflicts with

i In a separate state petition for writ of habeas corpus,

Rogers also alleged that he was\denied his right to the

effective assistance of appellate counsel through counsel’s

failure to raise two obvious claims of reversible error on

direct appeal: (1) that the trial court improperly considered

evidence of unproven crimes in sentencing Rogers, in

violation of settled Florida law; and (2) that the jury's

verdict was tainted by impermissible fear of the defendant.

That separate habeas corpus petition is not at issue here.

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this Court's decisions that require the issuance of a

certificate of appealability whenever “jurists of reason”

could differ about the appropriate outcome. The state

trial court that heard Rogers’s Brady claim -- and the only

state court to issue a written opinion explaining its

holding -- rejected Rogers’s Brady claim on the merits

after accepting as true Rogers’s arguments for avoiding a

state procedural bar. That state post-conviction

proceeding - in which the state court decided Rogers's

Brady claim on the merits instead of rejecting it on

procedural grounds — was a “properly filed” state post-

conviction proceeding that tolled the federal habeas

corpus limitation period. The district court's conclusion

that the state proceeding was untimely contradicted the

state court’s own conclusion as to timeliness. Because

this issue is self-evidently one on which “jurists of

reason” can disagree, the Eleventh Circuit's denial of a

certificate of appealability, in these circumstances, cannot

be reconciled with this Court’s broad and lenient reading

of 28 U.S.C. § 2253(c).

Review by this Court is warranted to

ensure that the lower courts are properly applying the

standards for issuance of a certificate of appealability.

Only a case such as this one, where a certificate of

appealability has been wrongly denied, can squarely

frame the question of when an appeal should be

permitted from the denial of a federal habeas corpus

petition.

L THE STATE POST-CONVICTION

PROCEEDING

Rogers’s federal habeas corpus petition

challenges a March 1983 conviction arising out of the

robbery of a Captain D’s seafood restaurant in Orange

lb

County, Florida, for which Rogers was sentenced to 100

years’ incarceration. That conviction was later used as

substantive evidence in a murder case for which Rogers

has been sentenced to death, and it was used to support

an aggravating factor on which his death sentence is

based.?

The Brady claim advanced in Rogers’s

federal habeas corpus petition was first raised in Florida

state court on April 23, 1997, in a post-conviction motion

filed pursuant to Fla. R. Crim. P. 3.850. The state trial

court conducted a hearing on July 16, 1998, limited to the

issue of whether Rogers’s claims were procedurally

barred under state law.

Under the terms of Fla. R. Crim. P. 3.850,

Rogers was required to assert any collateral challenge to

his conviction within two years of the date his judgment

and sentence became final. However, Florida law

expressly recognizes an exception to the two-year

limitations period when “facts on which the claim is

predicated were unknown to the movant or the movant's

attorney and could not have been ascertained by the

exercise of due diligence.” Fla. R. Crim. P. 3.850(b)(3).

Florida law also recognizes an exception if “the defendant

retained counsel to timely file a 3.850 motion and counsel,

2 Both convictions were largely based upon testimony

of a disgruntled former business partner of Rogers, who

confessed to a string of robberies, including that in which

the murder occurred, for which he ultimately served only a

minor sentence under a plea bargain with the State. Before

being accused of these crimes by his former partner, Rogers

had no criminal record and continues to assert his innocence

of the crimes at issue.

ye

through neglect, failed to file the motion.” Id. Rogers

presented uncontroverted evidence (a) that the evidence

supporting his Brady claim was not discovered until well

after that two-year period, and (b) that he was actively

misled by his state-appointed lawyers into not filing a

timely Fla. R. Crim. P. 3.850 motion after the discovery of

that Brady material. The evidence presented by Rogers

showed that his lawyers had affirmatively promised him

that they would file a timely Fla. R. Crim. P. 3.850 motion,

and then failed to do so.

This evidence, if accepted, was clearly

sufficient to avoid a procedural bar under Florida law.

The limitations periods governing Florida post-conviction

proceedings under Fla. R. Crim. P. 3.850 are subject to

equitable tolling, in cases such as Rogers’s, where the

facts underlying the claims were unknown or the

defendant was actively misled by his lawyers. See, e.g.,

Steinhorst v. State, 636 So. 2d 498, 500 (Fla. 1994) (per

curiam); Brown v. State, 596 So. 2d 1026, 1027-28 (Fla.

1992); Haag v. State, 591 So. 2d 614, 616 (Fla. 1992); Demps

v. State, 696 So. 2d 1296, 1299 (Fla. Dist. Ct. App. 1997);

Porter v. State, 670 So. 2d 1126, 1127 (Fla. Dist. Ct. App.

1996).

The state trial court issued a written

decision on November 30, 1998, which denied Rogers's

Fla. R. Crim. P. 3.850 motion on the merits and not on

grounds of procedural bar. (App. A-24 - A-25.) The state

court initially noted that, strictly applying Fla. R. Crim. P.

3.850, the motion was “outside the express two-year

limitation provision in the rule” and was “several years

late.” (App. A-20 - A-21.) But the court then proceeded

to recount Rogers’s arguments that these claims could not

have been raised within two years after his conviction

became final, because the facts underlying the claims

-7-

were not known until CCR (the Capital Collateral

Representative, Rogers’s lawyers at the time) started to

uncover the police reports in April 1989. (App. A-20 - A-

21.) The court then discussed Rogers's contention that his

CCR lawyers had misled him for several years into

believing that they would file a timely Rule 3.850 motion

on his behalf, which would warrant tolling of the

limitations period in the interest of “fairness and equity.”

(App. A-22.) Although it did not explicitly resolve this

argument, the court “assum{[ed] all of what [Rogers] has

alleged is true.” (App. A-23.) The state court therefore

never rejected Rogers’s equitable tolling argument and

did not find that the motion was untimely. Rather, for

purposes of analysis, the court accepted Rogers's

arguments that the procedural bar did not apply.

After assuming the validity of Rogers's

tolling argument, the state court then proceeded to

address his Brady claim on the merits. (App. A-24 - A-25.)

The court concluded that Rogers’s Brady claim was

“flaw[ed],” and that the outcome of Rogers's trial “would

have been no different” if the State had complied with its

obligation under Brady to turn over the exculpatory

material. (App. A-24.) The state court determined that

the evidence the State failed to turn over to Rogers was

not “‘material’ as contemplated by Brady.” (Id.) While

Rogers disputes the state court's conclusions on the

merits of his Brady claim, the important point is that the

state court did, in fact, address and decide the merits of

his Rule 3.850 motion. Immediately after addressing and

rejecting the merits of Rogers’s Brady claim, the state

court ruled that, “[b]ased on the foregoing,” the Rule

3.850 motion was denied. (App. A-25.) The state court's

ruling thus did not state that Rogers's Brady claim was

denied because it was untimely under state law. To the

-8-

contrary, the court's conclusion follows immediately after

its discussion of the merits of Rogers’s Brady claim.

Rogers filed a timely notice of appeal to the

Florida Fifth District Court of Appeal. On August 10,

1999, the District Court of Appeal, without opinion,

affirmed the trial court's denial of the Rule 3.850 motion.

(App. A-15 - A-16.) Rogers sought discretionary review

in the Florida Supreme Court, which was denied on

October 4, 1999. (App. A-28 - A-29.)

Il. THE FEDERAL HABEAS CORPUS

PROCEEDING

Rogers filed a federal habeas corpus

petition on October 1, 1999, three days before the entry of

the Florida Supreme Court's decision denying Rogers's

petition for discretionary review of the District Court of

Appeal’s order affirming the state trial court’s denial of

Rogers's Fla. R. Crim. P. 3.850 motion. Thus, from April

23, 1997 through October 4, 1999, Rogers had a “properly

filed” state post-conviction proceeding pending in state

court.

The State responded to Rogers’s habeas

corpus petition by arguing that the petition was untimely

under the federal habeas corpus statute of limitations

enacted by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2244(d).

Section 2244(d)(1) provides that 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 federal courts of appeals

consistently have held that in cases such as this one,

where the habeas corpus petitioner’s conviction became

final prior to enactment of the AEDPA, such petitioners

-9.

have one year from the date of the AEDPA’s enactment —

April 24, 1996 -- to file a federal habeas corpus petition.

Rogers filed his Fla. R. Crim. P. 3.850

motion on April 23, 1997.3 The federal habeas corpus

Statute of limitations provides that 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

subsection.” 28 U.S.C. § 2244(d)(2). Thus, if Rogers's Fla.

R. Crim. P. 3.850 motion was a “properly filed

application” for state post-conviction relief, the federal

limitations period for all claims was tolled until after

Rogers filed his federal habeas corpus petition on October

1, 1999.

3 Some courts have stated in dicta that, for purposes of

applying the AEDPA limitation, one year from April 24,

1996 is April 23, 1997. See, e.g., Guenther v. Holt, 173 F.3d

1328, 1331 (11th Cir. 1999). Other courts have stated in dicta

that one year after April 24, 1996 is April 24, 1997. See, €.g.,

United States v. Cicero, 214 F.3d 199, 202 (D.C. Cir. 2000);

Rogers v. United States, 180 F.3d 349, 355 (1st Cir. 1999). The

only courts to have squarely addressed the issue, where the

exact date was dispositive, have held that the one-year

period from April 24, 1996 expired on April 24, 1997. See

Hernandez v. Caldwell, 225 F.3d 435 (4th Cir. 2000); Moore v.

United States, 173 F.3d 1131, 1135 (8th Cir. 1999); Flanagan v.

Johnson, 154 F.3d 196, 200-02 (5th Cir. 1998). In fact, under

Fed. R. Civ. P. 6(a), the one-year limitations period should

not begin to run until April 25, 1996 (the day after the

AEDPA was enacted), and thus should not expire until one

year later, April 25, 1997. By filing on April 23, 1997, Rogers

met the one-year deadline under any of these

interpretations.

-10-

The district court denied and dismissed

Rogers’s habeas corpus petition on the ground that the

“petition was not timely filed and must be denied on

timeliness grounds.” (App. All.) The district court

based its conclusion on the fact that Rogers's Fla. R. Crim.

P. 3.850 motion was filed more than two years after his

conviction became final and therefore was not a

“properly filed” state post-conviction proceeding under

28 U.S.C. § 2244(d)(2). In so holding, the district court

ignored the fact that (1) Rogers had argued before the

Florida state court that the state two-year limitations

period was equitably tolled and (2) the state court had

assumed the validity of Rogers’s arguments for equitable

tolling and instead rejected Rogers’s Brady claim on the

merits. The district court’s opinion did not take into

account the fact that the state court had addressed and

resolved Rogers's claim on the merits, nor did it explain

how a state post-conviction petition that was reached and

resolved on the merits could be anything but a “ properly

filed” state proceeding under § 2244(d)(2).

Rogers thereafter sought a certificate of

appealability in the district court, arguing that - at the

very least — “jurists of reason” could disagree as to

whether the state court's decision on the merits of

Rogers’s Brady claim meant that his state post-conviction

petition was “properly filed” under state law, such that

his federal habeas corpus petition would not be

procedurally barred. However, with no discussion

whatsoever and with no citation to any case law, the

district court denied Rogers’s motion for a certificate of

appealability. (App. A-5.)

Rogers then sought a certificate of

appealability from the court of appeals. Again, Rogers

argued that a certificate of appealability should be

-l1-

granted because, at the very least, reasonable jurists could

disagree as to whether the state court had found Rogers's

Fla. R. Crim. P. 3.850 motion to be time-barred or rather

had decided the motion on the merits. The court of

appeals denied Rogers’s motion for a certificate of

appealability in a one-paragraph order, citing this Court's

holding in Slack v. McDaniel, —- U.S. ---, 120 S. Ct. 1595

(2000). (App. A-3 - A-4) Rogers filed a motion for

reconsideration, arguing that, under Slack, a certificate of

appealability should issue whenever “reasonable jurists”

would find the district court's ruling “debatable” — a

standard that clearly has been met in this case. The court

of appeals denied Rogers's motion in a one-sentence

order, again citing Slack and providing no analysis of why

Rogers's claim failed to present a debatable issue among

jurists of reason. (App. A-1 - A-2.)

REASONS FOR GRANTING THE WRIT

I. THIS CASE PRESENTS AN ISSUE OF

EXCEPTIONAL IMPORTANCE.

Although this case has a complicated

procedural past, the issue presented here is a simple one:

may the lower federal courts disregard this Court's clear

interpretation of the statutory requirement for a

certificate of appealability and effectively deny habeas

corpus petitioners the right to appeal in cases where the

district court's holding is, at the very least, debatable?

This case has significant implications for the reach of 28

U.S.C. § 2253(c)’s requirement for a certificate of

appealability. In cases from the pre-AEDPA era, when

petitioners required a “certificate of probable cause,”

through the recent post-AEDPA Slack case, this Court has

held that the requirement of a certificate of appealability

imposes a low threshold on federal habeas corpus

-12-

petitioners. The decisions of the lower courts in this case,

denying a certificate of appealability, cannot be

reconciled with this Court’s precedent, and take an

improperly constricted view of a federal habeas

petitioner's right to appeal.

The court of appeals thus has “decided an

important federal question in a way that conflicts with

relevant decisions of this Court.” S. Ct. R. 10(c). The only

way to ensure that the lower federal courts properly

apply this Court's decisions interpreting § 2253(c) is to

review a case such as this one, where the court of appeals

has misapplied this Court's holdings and has wrongly

denied a certificate of appealability. It is troubling and

contrary to this Court's precedent to preclude appeal by a

federal habeas corpus petitioner in the circumstances

presented here.

Il. THE ELEVENTH CIRCUIT'S

INTERPRETATION OF THE CERTIFICATE OF

APPEALABILITY REQUIREMENT

CONTRADICTS THIS COURT'S PRIOR

HOLDINGS AND THE WELL-ESTABLISHED

MEANING OF THE STATUTORY

REQUIREMENT.

A. The Standard for Issuing a Certificate of

Appealability is Extremely Lenient.

The AEDPA provides the standard

governing the issuance of a certificate of appealability.

The statute provides that a “certificate of appealability

may issue . .. only if the applicant has made a substantial

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

§ 2253(c).

ti

This Court recently addressed the

appropriate standard for issuing a certificate of

appealability under 28 U.S.C. § 2253(c). In Slack v.

McDaniel, --- U.S. ---, 120 S. Ct. 1595 (2000), the Court

provided lower federal courts with a clear standard to

apply in situations such as this, where the federal district

court has denied a petitioner’s habeas corpus petition on

procedural grounds without reaching the merits of the

claims.

When the district court

denies a habeas petition on

procedural grounds without

reaching the petitioner's

underlying constitutional

claim, a_ [certificate of

appealability] should issue

when the prisoner shows, at

least, that jurists of reason

would find it debatable

whether the petition states a

valid claim of the denial of a

constitutional right and that

jurists of reason would find it

debatable whether _the

district court was correct in

its procedural ruling.

Id. at 1604. This standard requires only a showing that

“reasonable jurists could debate whether . . . the petition

should have been resolved in a different manner or that

the issues presented were ‘adequate to deserve

encouragement to proceed further.” Id. at 1603-04

(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Thus, it is clear from this Court’s holding in Slack that

lower federal courts are to apply a lenient standard when

-14-

deciding whether to grant a certificate of appealability

under § 2253(c). The question of the right to appeal

should not be converted into a premature adjudication of

the merits.‘

Although this Court has had only one prior

opportunity to interpret § 2253(c)’s post-AEDPA

certificate of appealability requirement, the Court has

provided ample guidance on the statute’s scope in pre-

AEDPA holdings concerning the former requirement of a

“certificate of probable cause.” Before the AEDPA, § 2253

permitted an appeal from the denial of a habeas corpus

petition only upon the issuance of a “certificate of

probable cause.” Section 2253 provided that “[ijn a

habeas corpus proceeding before a circuit or district

judge, the final order shall be subject to review, on

appeal, by the court of appeals for the circuit where the

proceeding is had,” if the petitioner obtained a certificate

of probable cause from “the justice or judge who

rendered the order or a circuit justice or judge.” This

Court held in Barefoot v. Estelle, 463 U.S. 880, 893 (1983),

that courts should issue such a certificate only if a

petitioner could “make a ‘substantial showing of the

denial of [a] federal right’ ” (citations omitted).

As this Court made clear in Slack, the

certificate of appealability requirement of § 2253(c)

‘ In Slack, the federal district court dismissed claims

contained in the petitioner's habeas corpus petition that had

not been raised in an earlier habeas corpus petition that in

turn had been dismissed for failure to exhaust available

state remedies. This Court l.eld that the district court's

dismissal on procedural grounds was erroneous. Slack, 120

S. Ct. at 1604-05.

eT

intended to adopt the requirements set forth in Barefoot.

“Except for substituting the word ‘constitutional’ for the

word ‘federal,’ § 2253 is a codification of the [certificate of

probable cause] standard announced in Barefoot... .”

Slack, 120 S. Ct. at 1605.

In Barefoot, the Court set forth several ways

in which a petitioner could make the “substantial

showing” necessary for the issuance of a certificate of

probable cause. To meet this “threshold inquiry,” Slack,

120 S. Ct at 1604, a petitioner needed only to

“demonstrate that the issues are debatable among jurists

of reason; that a court could resolve the issues [in a

different manner]; or that the questions are adequate to

deserve encouragement to proceed further.” Barefoot, 463

U.S. at 893 n. 4 (internal quotation marks omitted).

Therefore, it was not necessary for a petitioner to

demonstrate that he should prevail on appeal in order to

secure a certificate of probable cause. Rather, the inquiry

was simply whether a petitioner had presented a

“debatable” question whether the district court's holding

was correct. Indeed, this Court has emphasized that, in

examining a petitioner’s application to appeal from the

denial of a habeas corpus petition, “obviously the

petitioner need not show that he should prevail on the

merits. He has already failed in that endeavor.” Id. at 893

n. 4 (internal quotation marks omitted).

It is clear from Barefoot that federal courts

are barred from equating the standard for obtaining

permission to appeal with the standard for granting a

writ of habeas corpus. Although the certificate of

appealability requirement is designed as a gatekeeping

mechanism to prevent the courts from devoting scarce

judicial resources to frivolous issues, at the same time the

-16-

requirement cannot and should not be used as a

preliminary means of resolving debatable issues without

benefit of briefing and argument on appeal. In fact, many

courts of appeals have granted certificates of

appealability in cases where they ultimately have rejected

claims on the merits. See, e.g., Solis v. Garcia, 219 F.3d 922,

925 (9th Cir. 2000); Schell v. Witek, 218 F.3d 1017, 1021 n. 4

(9th Cir. 2000) (en banc); Mackey v. Dutton, 217 F.3d 399,

406 (6th Cir. 2000); Franklin v. Hightower, 215 F.3d 1196,

1199 (11th Cir. 2000); Tillman v. Cook, 215 F.3d 1116, 1120

(10th Cir. 2000). Thus, “the showing a petitioner must

make to be heard on appeal is less than that to obtain

relief.” Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir.

2000).

Furthermore, this Court and the courts of

appeals have stressed that any doubts should be resolved

in the petitioner's favor, particularly where, as here, the

conviction was later used to support a death sentence.

“In a capital case, the nature of the penalty is a proper

consideration in determining whether to issue a

certificate of probable cause . .. .” Id. at 893; see also Miller

v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000) (“the severity

of the penalty may be considered” in issuing a certificate

of appealability); Fuller v. Johnson, 114 F.3d 491, 495 (5th

Cir. 1997) (“we may properly consider the severity of the

penalty in making the determination” on a request for a

certificate of appealability); Porter v. Gramly, 112 F.3d

1308, 1312 (7th Cir. 1997) (finding that claim presented a

“debatable” issue, “especially in light of the death

sentence that hangs over [petitioner’s] head”).

B. The Eleventh Circuit’s Decision Conflicts

with this Court’s Holdings and Effectively

Denies Habeas Corpus Petitioners the

Right to Appeal Even in Cases Where

1%.

They Have Raised a Clearly “Debatable”

Claim.

It is beyond dispute that a “properly filed”

State post-conviction proceeding tolls the federal

limitation period for purposes of 28 U.S.C. § 2244(d)(2). It

is also undisputed that Rogers had a state post-conviction

proceeding pending from April 23, 1997 through October

4, 1999, and that Rogers's federal habeas corpus petition

was filed on October 1, 1999.

The court of appeals and the district court

below failed to address the pendency of Rogers’s state

post-conviction motion and its effect in tolling the federal

statute of limitations. As stated above, the Florida state

court accepted, for purposes of analysis, Rogers's

arguments that the state post-conviction statute of

limitations was tolled - arguments that if accepted would

render his Fla. R. Crim. P. 3.850 proceeding timely under

state law (and hence undisputedly a “properly filed”

proceeding for purposes of 28 U.S.C. § 2254(d)(2)). The

Florida court stated in its written opinion that it

“assum[ed] all of what [Rogers] has alleged is true.”

(App. A-23.) The state court therefore accepted that

Rogers’s post-conviction proceeding was timely for

purposes of analysis, and then proceeded to address and

reject Rogers's Brady claim on the merits. The state court

therefore did not find that the Fla. R. 3.850 motion was

procedurally barred.

At the very least, the state court's opinion

amounts to an implicit decision that Rogers's Fla. R. 3.850

petition was a “properly filed” state post-conviction

proceeding. The pendency of that proceeding tolled the

federal limitations period through, and beyond, October

1, 1999, the date on which Rogers filed his federal habeas

-18-

corpus petition. Because the state court reached and

rejected Rogers's claim on the merits, confirming it to be a

“properly filed” proceeding for purposes of 28 U.S.C. §

2244(d)(2), the court of appeals erred in concluding that

Rogers’s federal habeas corpus petition is barred under

the federal statute of limitations. And it defies common

sense for the court of appeals to hold that “reasonable

jurists could [not] debate” whether the state court

proceeding was “properly filed,” when the state court

disposed of a petitioner’s claims on the merits, not on the

basis of any procedural default under state law. Slack,

120 S. Ct. at 1603.

The court of appeals also failed to

recognize that a petitioner has raised a “debatable issue”

when other courts that have faced similar factual

situations have resolved them differently from the district

court below. In Lozada v. Deeds, 498 U.S. 430 (1991) (per

curiam), this Court held that, even though a question may

be well-settled in a particular circuit, the petitioner

satisfies the threshold standard for the certificate of

probable cause where a court in another circuit has

reached a different conclusion. In Lozada, the petitioner

had filed a habeas corpus petition alleging ineffective

assistance of counsel. The district court and court of

appeals held that the petitioner’s failure to allege any

prejudice arising from the ineffective assistance doomed

his claim under well-established Ninth Circuit law, and

so declined to issue a certificate of probable cause. Id. at

431. This Court reversed, holding that “the issue of

prejudice caused by the alleged denial of the right to

appeal could be resolved in a different manner from the

one followed by the District Court,” because “at least two

Courts of Appeals have presumed prejudice in this

situation.” Id. at 432. Thus, the fact that a court in

another circuit has decided a comparable issue in a

-19- -

different manner creates a “debatable issue” under the

Barefoot standard.

Not surprisingly, other courts faced with

facts comparable to those raised here have issued

certificates of appealability. In Lambright, for instance, the

Ninth Circuit issued a certificate of appealability when it

was “arguable that the state court adjudicated the merits

of the claim,” holding that the petitioner “met the

procedural test the Court established in Slack.” Lambright,

220 F.3d at 1027.

And in Smith v. Ward, 209 F.3d 383 (5th Cir.

2000), the Fifth Circuit issued a certificate of appealability

in a case where the state court dismissed a petitioner’s

State post-conviction petition as untimely under state law.

In Smith, the court of appeals acknowledged that, under

circuit precedent, a state post-conviction petition would

be deemed “properly filed” under 28 U.S.C. § 2244(d)(2)

only if it was “submitted according to the state’s

procedural requirements, such as the rules governing

notice and the time and place of filing.’ ” Villegas v.

Johnson, 184 F.3d 467, 469 (5th Cir. 1999). The state court

in Smith rejected the petitioner's claim as untimely

without ever reaching the merits. Nevertheless, the court

of appeals held that an untimely state post-conviction

petition will be deemed- a “properly filed” state

proceeding as long as the state court “accept[s] a

prisoner's application for filing and review[s] it to

determine whether any of the Statutory exceptions to

untimely filing are applicable.” Smith, 209 F.3d at 385; see

also Hall v. Cain, 220 F.3d 1022 (Sth Cir. 2000) (holding

that a state post-conviction proceeding that ultimately

was rejected by the state court as repetitive was a

“properly filed” state proceeding, as long as the state

court “would have to review [the claims] to discern

-20-

whether they actually were repetitive and thus not

subject to review”).

Under the Lambright and Smith holdings,

Rogers's Fla. R. Crim. P. 3.850 petition would be deemed

a “properly filed” state post-conviction proceeding. As in

Lambright, there is -- at the very least - an ambiguity as to

whether the Florida state court accepted Rogers's tolling

arguments and decided his Brady claim on the merits.

And like the Smith case, even if the state court had

rejected Rogers’s Brady claim as untimely under state law,

it is clear that the state court analyzed the exceptions to

the state statute of limitations and considered whether

such exceptions were applicable to the facts of this case.

Because both the Ninth Circuit in Lambright and the Fifth

Circuit in Smith resolved virtually identical cases by

issuing certificates of appealability - the opposite of the

result reached by the district court below -— the court of

appeals erred in concluding that Rogers failed to present

even a “debatable issue” that would support issuance of a

certificate of appealability. —

In sum, Rogers had pending a “properly

filed” state court proceeding that tolled the federal statute

of limitations until October 4, 1999 -- after Rogers filed his

federal habeas corpus petition. The court of appeals was

utterly wrong in its analysis because it overlooked the

significance of the pending state proceeding in relation to

the tolling of the one-year federal statute. The court of

appeals also failed to follow this Court's precedents that

require courts to presume that an ambiguous state court

decision rested on federal grounds, not state procedural

rules, and by inference was a “properly filed” state post-

conviction proceeding. Finally, the court of appeals

clearly erred in denying a certificate of appealability

when other courts faced with similar facts have granted

24. 3

such certificates. Because other courts have resolved

similar disputes differently, by definition it is “debatable

whether the district court was correct in its procedural

ruling.” Slack, 120S. Ct. at 1604.5

CONCLUSION

Justice Kennedy’s opinion for the Court in

Slack, 120 S. Ct. at 1603, provides a fitting conclusion for

this petition: “The writ of habeas corpus plays a vital role

in protecting constitutional rights. In setting forth the

preconditions for issuance of a [certificate of

appealability] under § 2253(c), Congress expressed no

intention to allow trial court procedural error to bar

vindication of substantial constitutional rights on

appe gd

5 Slack states that a certificate of appealability will not

be granted unless the petitioner shows both that the district

court erred in its procedural ruling and that “the petition

states a valid claim of the denial of a constitutional right.”

Because the courts below did not address the merits of

Rogers's claims, it is appropriate for the court of appeals to

address that issue upon remand. Slack, 120 S. Ct. at 1604.

Several courts of appeals have held that a petitioner will

satisfy the merits showing as long as a “quick look’ at the

face of the complaint . . . determine[s] [that] the petitioner

has ‘facially allege[d] the denial of a constitutional right’ ”

Lambright, 220 F.3d at 1026 (citing Jefferson v. Welborn, 222

F.3d 286, 289 (7th Cir. 2000)); see also Franklin v. Hightower,

215 F.3d 1196, 1200 (11th Cir. 2000). Clearly, Rogers’s

habeas corpus petition “facially alleges” two legitimate

claims, and the court of appeals would have no basis for

refusing to grant a certificate of appealability on the merits

prong of the Slack test.

a.

The petition should be granted.

Respectfully submitted,

Jerrel E. Phillips John G. Buchanan III

P.O. Box 14463 Timothy C. Hester*

Tallahassee, FL 32317 Benedict M. Lenhart

(850) 877-8660 Mark E. Porada

January 15, 2001

COVINGTON & BURLING

1201 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

(202) 662-6000

* Counsel of Record

Attorneys for Petitioner

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 00-11743-E

JERRY LANE ROGERS, SR.,

Petitioner-Appellant,

versus

MICHAEL W. MOORE, Secretary of the

Florida Department of Corrections,

D.T. O'NEILL, Warden, Union Correctional

Institution, et al.,

Respondents-

Appellees

Appeal from the United States District Court for the

Middle District of Florida

Before EDMONDSON and Hull, Circuit Judges,

A-1

BY THE COURT:

Upon reconsideration of this Court's order dated July 19,

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).

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 00-11743-E

JERRY LANE ROGERS, SR.,

Petitioner-Appellant,

versus

MICHAEL W. MOORE, Secretary of the

Florida Department of Corrections,

D.T. O'NEILL, Warden, Union Correctional

Institution, et al.,

Respondents-

Appellees

Appeal from the United States District Court for the

Middle District of Florida

ORDER:

To merit a certificate of appealability,

appellant must show that reasonable jurists would find

debatable both (1) the merits of an underlying claim, and

(2) the procedural issue that was the basis for the district

A-3

court's order of dismissal. See Slack v. McDaniel, 120

S.Ct. 1595, 1604 (2000). Because his petition is plainly

barred by 28 US.C. § 2254’s one-year statute of

limitations, appellant has failed to satisfy the second

prong of Slack. Accordingly, the motion for a certificate

of appealability is DENIED.

/s/ EMMETT R. COX

UNITED STATES CIRCUIT

JUDGE

A+

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

JERRY L. ROGERS, SR.,

Petition,

Vv. Case No. 6:99-cv-1251-Orl-

19A

MICHAEL W. MOORE, et al.,

Respondents.

ORDER

This case is before the Court on the following motion:

MOTION: PETITIONER’S APPLICATION

FOR

CERTIFICATE OF APPEALABILITY

(Doc. No. 21)

FILED: April 3, 2000

THEREON it is ORDERED that the motion is

DENIED.

A-5

Petitioner has not made a_ substantial

showing of the deprivation of any federal constitutional

right.

DONE AND ORDERED in Chambers at

Orlando, Florida, this 5th day of April, 2000.

/s/ Patricia C. Fawsett

PATRICIA C. FAWSETT

UNITED STATES

DISTRICT JUDGE

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

JERRY L. ROGERS, SR.,

Petitioner,

vs Case No. 6:99-cv-1251-Orl-

19A

MICHAEL W. MOORE, et ai.,

Respondents.

JUDGMENT IN A CIVIL CASE

Decision by Court. This action came to trial or hearing

before the Court. The issues have been tried or heard and

a decision has been rendered.

IT IS ORDERED AND ADJUDGED ad

that the petitioner, Jerry L. Rogers, Sr., take

nothing and the action be dismissed.

Date: March 6, 2000 SHERYL L. LOESCH,

CLERK

By:_/s/ M. Pleicones

M. Pleicones, Deputy

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

JERRY L. ROGERS, SR.

Petitioner

Vv. CASE NO. 6:99-cv-1251-Orl-19A

MICHAEL W. MOORE, et al.,

Respondents.

ORDER

Petitioner initiated this action for habeas

corpus relief pursuant to 28 U.S.C. section 2254. Upon

consideration of the petition, the Court ordered

Respondents to show cause why the relief sought in the

petition should not be granted. Thereafter, Respondents

filed a timely reply to the petition for writ of habeas

corpus in compliance with this Court's instructions and

with the Rules Governing Section 2254 Cases in the Unite

States District Courts (Doc. No. 13, filed December 23,

1999).

Procedural History

Petitioner was charged by information with

armed robbery. A jury trial was held, and Petitioner was

found guilty as charged in the information. On March 4,

1983, the trial court adjudicated Petitioner guilty of armed

robbery and sentenced Petitioner to imprisonment for a

term of 100 years. Petitioner filed a direct appeal with the

A-8

Florida Fifth District Court of Appeal, which affirmed per

curiam on March 20, 1984. Mandate was issued on April

6, 1984.

On March 12, 1985, Petitioner filed a

motion for postconviction relief with the state trial court,

which was denied on June 24, 1985. Petitioner appealed

the denial, and the state appellate court affirmed the

denial per curiam on July 23, 1985. Mandate was issued

on August 9, 1985.

On December 27, 1985, Petitioner filed a

second motion for postconviction relief with the state trial

court,2 which was denied on March 31, 1986. Petitioner

appealed the denial and the state appellate court affirmed

the denial per curiam on August 5, 1986. Mandate was

issued on August 22, 1986.

1 Although the motion was actually filed with the state trial

court on March 20, 1985, under the “mailbox rule,” it

appears that the motion would be deemed filed on March

12, 1985, the date when the motion was signed and

presumably submitted to the prison authorities. See Haag v.

State, 591 So.2d 614, 617 (Fla. 1992) (“Under the mailbox

rule, a petition or notice of appeal filed by a pro se inmate is

deemed filed at the moment in time when the inmate loses

control over the document by entrusting its further delivery

or procession to agents of the state. Usually, this point

occurs when the inmate places the document in the hands of

prison officials.”); see also Burns v. Morton, 134 F.3d 109, 113

(3rd Cir. 1997) (“[W]e hold that a pro se prisoner's habeas

petition is deemed filed at the moment he delivers it to

prison officials for mailing to the district court.”).

2 That was the filing date under the mailbox rule.

A-9

On April 23, 1997, Petitioner filed a third

motion for postconviction relief with the state trial court,

which was denied on November 30, 1998. Petitioner

appealed the denial, and the state appellate court

affirmed the denial per curiam on August 10, 1999.

Mandate was issued on August 27, 1999.

On December 28, 1998, Petitioner filed a

petition for writ of habeas corpus with the state appellate

court, which was denied on-January 11, 1999. On

September 17, 1999, Petitioner filed a notice to invoke the

discretionary jurisdiction of the Supreme Court of

Florida. On October 4, 1999, the Supreme Court of

Florida dismissed the case for lack of jurisdiction.

Petitioner’s Habeas Petition is Untimely

(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 of conviction

became final by the conclusion in 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 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

A-10

es ee

(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 subsection.

Section 2244(d)(1) went into effect on April

24, 1996. Thus, a prisoner, like Petitioner, whose

conviction became final prior to April 24, 1996, had until

April 23, 1997, absent any tolling, to file a federal habeas

petition regarding such conviction. Wilcox v. Florida

Department of Corrections, 158 F.3d 1209, 1211 (11th Cir.

1998) (petitioners whose convictions become final before

the enactment of the AEDPA must be provided a

reasonable time to file their section 2254 petitions, and

one year from the effective date is a reasonable period).

Petitioner’s initial federal habeas petition was file

stamped by the Clerk’s office on October 1, 1999.

Pursuant to section 2244(d)(2), the one year

period is “tolled” for the time during which a properly

filled state postconviction or collateral proceeding is

pending. However, there was no tolling in this case.

Therefore, Petitioner's October 1, 1999, habeas petition

was not timely filed and must be denied on timeliness

grounds.

The Court is aware that Petitioner filed his

third Rule 3.850 motion on April 23, 1997; that the state

trial court denied the motion on November 30, 1998, and

that the state appellate court affirmed the denial on

August 10, 1999 (issuing mandate on August 27, 1999).

A-11

However, the third motion for postconviction relief was

not properly filed under section 2244(d)(2). “[A] properly

filed application” under section 2244(d)(2) “is one

submitted according to the _ state’s procedural

requirements such as the rules governing the time and

place of filing.” Lavasz v. Vaughn, 134 F.3d 146, 148 (3rd

Cir. 1998). Florida Rule of Criminal Procedure 3.850

provides that a motion for postconviction relief must be

filed with the clerk of the court in which he (or she) was

convicted and sentenced and within two years of when

the judgment and sentence become final. Here, clearly

Petitioner did not file his third motion for postconviction

relief within the two year time limit proscribed by Rule

3.850. Therefore, his third motion for postconviction

relief was not “properly filed” under section 2244(d)(2).

See United States ex rel Morgan v. Gilmore, 26 F. Supp.2d

1035, 1038 (N.D. Ill. 1998) (an untimely state court

petition for leave to appeal the denial of a postconviction

petition did not toll the limitations period for filing a

federal habeas corpus petition; an untimely state court

petitioner was not a “properly filed application” within

the meaning of the tolling provision).3

Similarly, the petition for writ of habeas

corpus filed with the state appellate court had no tolling

3 Moreover, the trial court found that Petitioner’s third

motion for postconviction relief was untimely filed. Thus,

on the basis of the trial court's finding, the third motion for

postconviction relief was not “properly filed” under section

2244(d)(2). See Webster v. Moore, 199 F.3d 1256, 1257 (11th

Cir. 2000) (the state court’s holding that a petitioner's

motion for postconviction relief was time-barred is “due

deference”).

A-12

effect. Since the one year period concluded before

Petitioner initiated his state habeas petition, the tolling

provision of section 2244(d)(2) does not apply. See

Newton v. Strack, No. CV 97-2812 (RJD), 1997 WL 752348,

at *2 (E.D.N.Y. October 15, 1997) (“if the state motion

were filed in excess of one year after the conviction

becomes final), the state motion would be irrelevant to

the limitation calculation. The timing of such a motion is

relevant only if the motion precedes expiration of the

applicable limitations period and therefore is made when |

a habeas petition could also timely be filed.”); see also

Cromwell v. Keane, 33 F. Supp. 2d 282, 285 (S.D.N.Y. 1999)

(“Once the limitations period is expired, collateral

petitions can no longer serve to avoid a statute of

limitations.”); Bingham v. Anderson, 21 F. Supp. 2d 639,

641-42 (S.D. Miss. 1997) (if the petitioner does not “file the

application for writ of habeas corpus in federal court

within one year after the conviction becomes final, plus

the period of time as to which a motion for post

conviction relief is pending, [he or she] waive[s] or lose[s]

[his or her] right to review by federal court.”).

Accordingly, it is hereby ORDERED AND

ADJUDGED as follows:

8 The Petition for Writ of Habeas

Corpus filed by Jerry L. Rogers, Sr. is DENIED, and this

case is DISMISSED WITH PREJUDICE. The Clerk of

the Court shall enter judgment accordingly.

2 The Clerk of the Court is directed to

close this case.

DONE AND ORDERED in Chambers at

Orlando, Florida, this 3rd day of March 2000.

A-13

Copies to:

psic 3/3/

Counsel of Record

s/ Patricia C. Fawsett

PATRICIA C. FAWSETT

UNITED STATES

DISTRICT JUDGE

A-14

IN THE DISTRICT COURT OF APPEAL OF THE

STATE OF FLORIDA

FIFTH DISTRICT

JULY TERM 1999

JERRY LAYNE ROGERS, SR.,

Appellant,

v. CASE NO. 98-3525

STATE OF FLORIDA,

Appellee.

Decision filed August 10, 1999

3.850 Appeal from the Circuit Court

for Orange County,

A. Thomas Mihok, Judge

John G. Buchanan, III, Timothy C.

Hester, Benedict M. Lenhart, Catherine E.

Long and Glen D. Weinstein of Covington &

Burling, Washington, D.C., and Jerrel Phillips,

Tallahassee, for Appellant.

Robert A. Butterworth, Attorney

General, Tallahassee, and Maximillian J.

Changus, Assistant Attorney General,

Daytona Beach, for Appellee.

A-15

PER CURIAM.

AFFIRMED.

ANTOON, C.J., DAUKSCH AND HARRIS, JJ., concur.

A-16

IN THE CIRCUIT COURT OF THE

NINTH JUDICIAL CIRCUIT, IN AND

FOR ORANGE COUNTY, FLORIDA

CASE NO. CR82-1963

DIVISION 12

STATE OF FLORIDA,

Plaintiff,

vs.

JERRY LAYNE ROGERS,

Defendant.

ORDER DENYING MOTION FOR POST

CONVICTION RELIEF

This matter came before the Court for

consideration of Defendant's third Motion for Post

Conviction Relief filed on April 23, 1997, pursuant to Rule

3.850, Florida Rules of Criminal Procedure. A hearing

was held on this matter on July 16, 1998. After reviewing

the file, motion, State’s response to the motion,

Defendant's Brief in Support of Argument that

Procedural Bar Does Not Apply, State’s response to that

brief, and Defendant's reply to the State’s response to that

brief, and considering counsels’ arguments, the Court

concludes that summary denial without hearing is

warranted.

A-17

FACTS

Defendant was charged along with co-

defendant, Thomas McDermid, with the armed robbery

of a Captain D’s restaurant in Orlando. At trial,

McDermid, who pled out, testified against Defendant.

Defendant was found guilty and sentenced to 100 years

in the Department of Corrections. This judgment and

sentence was per curiam affirmed without opinion on

appeal. See Rogers v. State, 447 So.2d 1369 (Fla. 5th DCA,

1984).

Defendant subsequently filed a Motion for

Postconviction Relief, pursuant to Florida Rule of

Criminal Procedure 3.850, on March 20, 1985, alleging

ineffective assistance of counsel. That motion was denied

by Order of June 24, 1995, and was affirmed on appeal.

See Rogers v. State, 474 So. 2d 231 (Fla. 5th DCA 1985).

Defendant then submitted a second rule 3.850 motion on

January 3, 1986, again alleging ineffective assistance of

counsel. That motion, by Order of March 28, 1986, was

also denied and subsequently affirmed on appeal. See

Rogers v. State, 492 So. 2d 678 (Fla. 5th DCA 1986).

In April of 1989, pursuant to section

27.7001, Florida Statutes, Capital Collateral Regional

Counsel (“CCR”) undertook to represent Defendant in

regard to a December 1984 murder conviction entered in

St. Johns County for which Defendant was sentenced to

death. Defendant's prior conviction in the Captain D’s

robbery was used as an aggravating factor in his St.

John’s County death sentence. Defendant now submits

this, his third, rule 3.850 motion challenging his

conviction for the Captain D’s Robbery.

ANALYSIS

A-18

Defendant alleges that co-defendant

McDermid confessed (in an unrelated proceeding 10

months after Defendant was sentenced in this case) that

he and Rogers not only committed the robbery for which

they were charged in this case, but also committed many

previous robberies together. Police reports and other

documents reveal that witnesses to those previous

robberies gave physical descriptions of the robbers that

are inconsistent with Rogers’s physical attributes, ie.,

they described McDermid’s accomplice as being taller

than Rogers who is 5’4” tall. Otner documents allegedly

show that witnesses identified a different person, George

William Cope, as McDermid’s accomplice in the previous

robberies. Cope’s height falls within the range described

by all of the witnesses.

Defendant thus argues that these

documents the State had in its possession and failed to

reveal to the defense were exculpatory in that they tend

to show that because McDermid confessed that Rogers

was his accomplice in the previous robberies, and

because Cope, or some other person, more closely

matches the described height of McDermid’s accomplice

in the previous robberies, it is likely that Cope, or some

other person, was actually McDermid’s accomplice in the

previous robberies. It, therefore, follows that because

McDermid’s accomplice in the Captain D’s robbery must

be Cope, or some other person. Thus, Defendant

contends that this evidence is exculpatory and was

withheld by the State in violation of Brady v. Maryland,

373 U.S. 83 (1963).

Normally, a rule 3.850 motion must be filed

within two years of final judgment and sentence. See Fla.

R. Crim. P. 3.850(b). The two-year window for

A-19

Defendant's motion began to run on April 6, 1984, the

date the mandate issued from the Fifth District Court of

Appeal. See Rosado v. State 654 So. 2d 623, 624 (Fla. 5th

DCA 1995) (holding rule 3.850 time rums from issuance

of mandate). Thus, Defendant had until April 6, 1986, to

file a timely rule 3.850 motion regarding this case. He

did, in fact, file two postconviction motions during this

period, and both were properly denied.

CCR, by Defendant’s own admission, did

not represent Defendant until April of 1989 (Def. Br. in

Support of Arguments that Procedural Bar Does Not

apply at 4). Therefore, in this case, CCR could not have

brought a timely rule 3.850 motion on Defendant's behalf

in any event because any rule 3.850 motion filed by CCR

on Defendant's behalf would have been at least three

years outside the express two-year limitation provision in

the rule.

Nevertheless, Defendant claims his motion

is saved in that it falls under the “newly discovered

evidence” exception in rule 3.850(b)(1). Evidence is

“newly discovered” when it could not have been

discovered by a defendant or his attorney within the two-

year time frame upon exercise of due diligence. See Fla.

R. Crim. P. 3.850(b)(1). Still, the two-year limitations

period applies to any newly discovered evidence in that a

defendant is obligated to file his rule 3.850 motion within

two years of actual discovery of that evidence. See

Adams v. State, 543 So. 2d 1244, 1247 (Fla. 1989).

It appears that the police reports alleged to

be “new evidence” could have been discovered, as the

State contends, by a mere public records request.

McDermid’s confession in which he named Rogers as his

accomplice in the previous robberies was made in

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January 1984, well within two years following Rogers's

March 1983 conviction for the Captain D’s robbery. Had

defense counsel exercised due diligence in investigating

these previous robberies by simply submitting a public

records request, counsel would have received all police

reports relating to these robberies which counsel now

alleges are exculpatory. See, e.g., Ziegler v. State, 632 So.

2d 48, 50 (Fla. 1993).

In addition, even if this evidence could not

have been discovered by the exercise of the diligence,

Defendant is still time barred because he did not alert the

Court to this new evidence within two years of actual

discovery. The State correctly points out that Defendant

himself admits that his CCR representative made public

record requests on his behalf to acquire the police reports

in question. (Def. 3.850 Mot. at App. 39). This

correspondence with various police agencies spans from

October 1989 through March 1991. It indicates that, even

using the last date of correspondence, Defendant should

have alerted the Court to this newly discovered evidence

by March of 1993. Presentation of his “new” evidence is,

therefore, several year late.

Defendant also points to testimony

obtained subsequent to his trial from Mathew Armitage

and Roger Wimmer that he alleges implicates Cope in the

Captain D’s robbery. This evidence is also untimely.

Nowhere does Defendant users that these witnesses were

unavailable during discovery in Rogers's trial. Also, the

substance of this testimony is minimally exculpatory at

best.! Introduction of this evidence clearly would not

have changed the verdict rendered against Defendant.

To save his untimely motion, Defendant

asserts that CCR was ineffective in its representation in

that it did not file a rule 3.850 motion on Defendant's

behalf within two years of its discovery of the Brady

materials. (Def. 3.850 Mot. at 59-61). CCR did not

represent Defendant in this case, only in the death case

for which this conviction was used as an aggravator,

however, Defendant alleges that CCR represented that

they would investigate and collaterally attack the

judgment in this case.2, CCR counsel's alleged failure in

this regard does not give rise to a claim of ineffective

assistance of counsel upon which relief may be granted in

a rule 3.850 motion. Therefore, at best, Defendant cites

counsel’s error only as an appeal to this Court's sense of

fairness and equity.

1 Armitage generally states that McDermid once told him

about he and Cope “hitting a seafood place” sometime in

the past. (Def. 3.850 Mot. at 48). Wimmer’s testimony only

suggests that he witnessed McDermid and Cope engage in

drug and gun sales. (Def. 3.850 Mot. at 49).

_ 2 Defendant attaches to his motion a 1989 letter from CCR in

which CCR assured Defendant they would raise all

colorable claims attacking Defendant's sentence in this case

and all other cases used as aggravators in his death case.

(Def. 3.850 Mot. Ex. 43).

3 “[C]laims of ineffective assistance of postconviction

counsel do not present a valid basis for relief.” Lambrix v.

State, 698 So. 2d 247 (Fla. 1996) (citing Murray v. Giarratano,

492 U.S. 1 (1989) (death case); Pennsylvania v. Finley, 481

U.S. 551 (1987)).

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Defendant, no doubt, recognizes that

“fairness” is his best line of defense as it is argued in

considerable detail in Defendant's Brief in Support of

Argument that Procedural Bar Does Not Apply. In that

brief, Defendant submits two theories for equitable relief:

(1) that the two-year limitations period should be

equitably tolled; and (2) that CCR’s inaction and

erroneous advice deprived him of his state-created right

to effective legal representation.

“The doctrine of equitable tolling was

developed to permit under certain circumstances the

filing of a lawsuit that otherwise would be barred by a

limitation period.” Machules v. Department of Admin.,

523 So. 2d 1132, 1133 (Fla. 1988) (citing Bailey v. Glover,

88 U.S. (21 Wall.) 342 (1874)). Equitable tolling may

properly be applied “when the [movant] has been misled

or lulled into inaction” as is alleged here. Id. at 1134.

Still, even assuming all of what Defendant has alleged is

true, neither of his arguments demonstrate that denial of

his motion as untimely would be unfair because even if

this Court finds Defendant's motion to be timely filed, the

allegations contained therein would not suffice to satisfy

the four prong test set out in Brady v. Maryland, 373 U.S.

83 (1963).4

4 Defendants must show: (1) the State possessed material

evidence favorable to him, (2) he did not possess the

evidence nor could he have in the exercise of due diligence;

(3) the evidence was suppressed by the State; (4) had the

evidence been disclosed, a reasonable probability exists that

the outcome of his trial would have been different. See e.g.,

Buenoano v. State, 708 So. 2d 941, 948 (Fla. 1998).

The evidence, even if viewed in a light

most favorable to Defendant, is not “material” as

contemplated by Brady. Evidence is material “only if

there is a reasonable possibility that, had the evidence

been disclosed to the defense, the result of the proceeding

would have been different.” United States v. Bagley, 473

U.S. 667, 682 (1985); see also Gorham v. State, 597 So.2d

782 (Fla. 1992). Had this evidence been disclosed to the

defense, the defense would have been afforded the

opportunity (absent any problems with admissibility) to

make its logically strained argument that because

McDermid’s accomplice in previous crimes might have

been George William Cope instead of Defendant, as

McDermid claimed, then McDermid’s accomplice in the

Captain D’s robbery must also be Cope. This argument,

had the jury been able to understand it, would have been

minimally exculpatory at best. The outcome of the result

of Defendant's trial surely would have bee no different if

it had been presented.

Also, a fundamental flaw exists in

Defendant's argument. He claims that the police were in

possession of exculpatory evidence that should have been

turned over to him as part of discovery prior to his trial.

However, the event that put Defendant on notice that the

State possessed this evidence, so he claims, is an

“omnibus confession” made by co-defendant McDermid

in which McDermid claimed to have committed several

previous robberies with Rogers. This confession was

made ten months after Rogers was sentenced in this case.

The police, therefore, were unaware of McDermid’s

confession at the time of the alleged Brady violation.

Defendant's Brady claim is incomplete

without the link supplied by McDermid’s confession.

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Defendant argues in his motion that the police had in

their possession substantial evidence implicating Cope,

and not Rogers, in the previous robberies. At the time of

discovery in Rogers’s case, this evidence was not relevant

to Rogers because McDermid had not yet confessed. In

other words, absent McDermid’s confession, there was no

way for the State to know that the robberies they had

investigated might bear, in any way, on Rogers’s case. To

argue otherwise suggests that the state is obligated to

turn over all evidence of any other crime they have

investigated previous to the one allegedly committed by a

defendant in the hope that the defense will be able to find

some nexus between the persons being investigated in

those other crimes and the crime with which defendant is

charged that exculpates the defendant. This Court will

not support Defendant's suggestion.

Based on the foregoing, it is hereby

ORDERED:

1. Defendant's Motion for

Postconviction Relief is DENIED.

y Defendant is advised that he has

thirty (30) days from the rendition of

this Order in which to appeal.

3. The Clerk of the Court shall

promptly serve a copy of this Order

upon Defendant including an

appropriate certificate of service.

DONE AND ORDERED in Chambers, at

Orlando, Orange County, Florida this 30 day of Nov.,

1998.

/s/ A. Thomas Mihok

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Honorable A. Thomas Mihok

Circuit Court Judge

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy

of the foregoing order was furnished by U.S. mail/hand

delivery to the Office of the State Attorney for the Ninth

Judicial Circuit, Post Office Box 1673, Orlando, FL 32802

and to John G. Buchanan, III, Timothy C. Hester, Benedict

M. Lenhart and Catherine E. Long, Attorneys for

Defendant, Covington & Burling, 120 Pennsylvania.

Avenue, N.W., P.O. Box 7566, Washington, D.C. 20004,

on this 30 day of Nov. 1998.

/s/_N. Royer

Judicial Assistant

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SUPREME COURT OF FLORIDA

MONDAY, OCTOBER 4, 1999

JERRY LAYNE ROGERS, "

Petitioner, **CASE NO. 96,623

v. **DISTRICT COURT

OF APPEAL,

**5TH DISTRICT -

NO. 98-3525

STATE OF FLORIDA, =

Respondent. wd

It appearing to the Court that the notice

was not timely filed and- further that it is without

jurisdiction under Article V of the Florida Constitution, it

is ordered that the cause is hereby dismissed on the

Court’s own motion. See Jenkins vs. State, 385 So. 2d

1356 (Fla. 1980).

No motion for rehearing will be entertained

by the Court.

A True Copy H

TEST: cc: Hon. Marilyn N. Beuttenmuller,

Clerk

Hon. Fran Carlton, Clerk

Hon. A. Thomas Mihok, Judge

/s/ D. Causseaury Mr. JohnG. Buchanan, III

Debbie Causseaury Mr. Timothy C. Hester

Acting Clerk, Mr. Benedict M. Lenhart

Supreme Ct Ms. Catherine Long

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Mr. Maximillian J. Changus

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