# Petition for Writ of Certiorari — Rogers v. Moore > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1665%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2001 - **Citation:** 532 U.S. 941 ## Text 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 | SM: RMN aee Pomn tc” melt ee passim MUG Giese passim -Vi- BO ER, BB eitccictsttcniaitiiaendaiti ke ne ee 17 Rules eke hf ee 4 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. -4- 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)