Prologue — In re Smith

Suprem: Court. U.S

Dia a.

— .. 057565 0CT 2 & 2005

Case No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2005

In re

PATRICK J. SMITH,

Petitioner,

Original Proceeding

PETITION FOR WRIT OF HABEAS CORPUS

ROBERT AUGUSTUS HARPER

Harper & Harper Law Firm, P.A.

325 West Park Avenue

Tallahassee, Florida 32301-1413

(850) 224-5900/fax (850) 224-9800

FL Bar No. 127600/GA Bar 328360

COUNSEL FOR PETITIONER

A, QUESTIONS PRESENTED FOR REVIEW

l. Whether Crawford v. Washington, 541 U.S. 36

(2004) is a “watershed” change of the law to which Petitioner

would have the nght of retroactive application, an issue over

which the circuits differ.

B. PARTIES INVOLVED

The parties involved include James V. Crosby, Jr. as

Secretary, Department o: Corrections, State of Florida.

-iii-

C. TABLE OF CONTENTS AND TABLE OF

AUTHORITIES

A. QUESTIONS FRESENTED FOR REVIEW ...... il

ae fs A Sa Re iii

iy TABLE OF CONTENTS AND TABLE OF

FEED 8 850 bi 0s Ca adicabsareretee iv

] GT 5 as ace ks ok aad ee ee hb oe bare vi

2 Statutes, Rules and Constitutional Provisions |

pr ReEK ees eeee sc wEb eerste Cees Rees vi

D CITATION TO OPINION BELOW ............. 2

E. BASIS FOR JURISDICTION ................. 2

F CONSTITUTIONAL AND STATUTORY

PRAT ee tee NV ORNVED 6 icc ciccicowcsevas 2

1. Constitutional Provisions .................. 2

Fs IE nd K ccc beep eres sawn ce 2

G. STATEMENT OF THE CASE ..........560.6: 3 .

& Course of Proceedings Below. ........... 3

r A Statement Of he Facts... 20. ccc cc ccacees 7

(a) State trial court facts. ............ 7

-]V-

rif ao EY Ra 14

(b)

(c) Direct Appeal to the District Court of

Appeal, First Appellate District of

PI + ced oh ki cette b ks 16

(d) Federal Habeas Corpus Petition under

Be hes OR 6 ck ved sane 18

H. | REASONS FOR GRANTING THE WRIT...... 18

l. The Questions Presented are Important ... 18

2. The Decision of the Court of Appeals is

, ea eon teeueeseeaeyeesene 20

(a) The decision of the Second Circuit

COUNT OE ROGUE ec csi i teks 20

(b) The conflicting decision of the Ninth

Circuit Court of Appeals. ....... 23

, | CUO 5 a GS eee 25

TABLE OF CITED AUTHORITIES

1. Cases

‘

Beard v. Banks, 124 S.Ct. 2504, 2510, 159 L. Ed.2d 494

TRS E TIO CIPRO ES, Speen fea 85, IE HERS 24

Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005)~...... 23

Bruton v. United States, 391 U.S.123 (1968) 4,6, 14, 19, 20

Cov v. lowa, 487 U.S. 1012 (1988) .................. 19

Crawford v. Washington, 541 U.S. 36 (2004) .. 7, 20,21, 22

4,25

Gaines v. Kelly, 202 F.3d 598 (2d Cir. 2000) .......... 22

In re Patrick Smith, No. 05-11312-B (1 1th Cir. 2005) ... 20

Mungro v. Duncan, 393 F.3d 327 (2d Cir. 2004) . 20,21, 22

Smith v. Crosby, 61 Fed. Appx. 670 (11th Cir. 2003) ..... 2

Smith v. State, 746 So. 2d 1162

ee MIs on chu 4a cs ou cub cakes 4

Teague v. Lane, 489 U.S. 288, 103 L.Ed. 2d 334, 109 S.Ct.

PE acs Gh Satlavucwsd¥ot cs ohne baes Se

2. Statutes, Rules and Constitutional Provisions

@. 8, SPP ee eerie Tirta kere 14

SRE PA Bd du dams ven cena nes datens 14

Fe Gide: ED 6 06 004.5 ow 6096084 behead eres 3

Se ee ED oe HER oe 4b Nc Aen ks hs eenkene weal

EE NUE 0% 6:45.56 Voce bece nuke ebaukecasan 2

es EE sv dccytes se koeersseaeavees 2, 20

Be As OE 6 bone ob tt aenrienth skied 7

EP EE. obs Kb 00d 6k asue Kas ethtnaeadesoa 7

Daas Wo Sedcckcchobadetdoudbaae ~. 4,5, 18

SF as PIRES 60s ad Soca nesancobacshaunwes 21

RCE. Vaasa Rk s 00 ds bk bree teekcinatene 2

-Vil-

Case No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2005

In re

PATRICK J. SMITH,

Petitioner,

Original Proceeding

PETITION FOR WRIT OF HABEAS CORPUS

The Petitioner, Patrick J. Smith, respectfully prays the

Court to issue its writ of habeas corpus to release Petitioner

from the custody of the Department of Correction State of

Flonda.

D. CITATION TO OPINION BELOW

Smith v. Crosby, 61 Fed. Appx. 670 (11th Cir. 2003).

E. BASIS FOR JURISDICTION

The jurisdiction of the Supreme Court of the United

States is invoked pursuant to 28 U.S.C. § 2241(c\3) to

determine whether the Petitioner is in custody in violation of

the Constitution or laws or treaties of the United States.

F. CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. Constitutional Provisions

This case requires interpretation and application of

Amendment VI to the Constitution of the United States, which

provides in pertinent part that “[{ijn all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with

witnesses against him.”

2. Statutory Provisions

28 U.S.C. § 2241(a) states, “writs of habeas corpus may

be granted by the Supreme Court, any justice thereof, the

>

district courts and any circuit judge within their respective

jurisdictions. The order of a circuit judge shali be entered in

the records of the district court of the district wherein the

restraint complained of is had.”

18 U.S.C. §2241(c)(3) states, “the wnt of habeas corpus

shall not extend to a prisoner unless he is in custody in violation

of the Constitution or laws or treaties of the United States.”

G. STATEMENT OF THE CASE

1. Course of Feccsediines Below.

On 07 December 1996, the Petitioner, Patrick Joseph

Smith, a juvenile, was arrested in Okaloosa County, Florida.

On 13 January 1997, a two count indictment was returned

against Petitioner Smith charging first degree murder with a

weapon and robbery with a firearm. (S1-014).'

A jury trial took place between i2 January and 16

January 1998. The state court jury returned a verdict of guilty

'“S” will denote the siate court record on appeal with volume and page

number.

as charged on both counts on 16 January 1998. (S1-124-125).

Mr. Smith was sentenced to life in prison without the possibility

of parole as to count one and nineteen years and two months in

prison on count two. (S2-221-230).

Petitioner Smith took a direct appeal to the Florida

District Court of Appeal, First Appellate District, wherein he

raised an error pursuant to Bruton v. United States, 391 U.S.

123 (1968). In a published opinion, Smith v. State, 746 So. 2d

1162 (Fla. lst DCA 1999), the state appellate court held the

admission of the redacted statement of the codefendant

incriminating Petitioner Smith violated the Confrontation

Clause, but the constitutional violation was harmless error.

Petitioner Smith sought review of the First District Court of

Appeal’s decision in the Supreme Court of Florida but the

Supreme Court of Florida declined to grant review.

On 05 February 2002, Petitioner Smith filed a petition

for federal habeas corpus relief under 28 U.S.C. § 2254. In the

petition, Mr. Smith argued that the admission of the “redacted”

statement of Harry Tipton, especially in the manner in which it

was accomplished,’ denied him of his right to confront the

witnesses against him and denied him a fair tnal. Petitioner

Smith also alieged that the subsequent affirmance of his

conviction by the state appellate court was founded on an

unreasonable application of the harmless error standard.

On 17 April 2002, the United States District Court for

the Northern District of Florida, Hon. Roger Vinson, denied

relief. Petitioner Smith timely sought a certificate of

appealability, which was denied by the district court. The

Eleventh Circuit Court of Appeals granted a certificate of

appealability on the issue of “{wJhether the district court

correctly denied [Petitioner Smith's] 28 U.S.C. § 2254 habeas

>The state prosecutor in the presence of the jury stated: Judge, only all

the references to [Petitioner] Patrick Smith have been removed.” (S6-740) The

state court judge stated to the jury, “these are matters in which Patnck Smith's

name 1s mentioned, and we're keeping his name out from your hearing.”

5