Appendix — Cammarano v. Moore

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n90- 304 AUG 1 4 2000

Orrive OF THe Lin

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Supreme Court of the Gnited States

JOSEPH CAMMARANO,

Petitioner,

MICHAEL W. MOORE, Secretary,

Department of Corrections,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Appendix to Petition for Writ of Certiorari

Paul Morris

Counsel of Record

LAW OFFICES OF

PAUL MORRIS, P.A.

999 Ponce de Leon Boulevard

Suite 550

Coral Gables, Florida 33134-3037

(305) 446-2020

Counsel for Petitioner

THE LEX GROUP ¢ 1205 East Main Street Suite 2 East ¢ Richmond, VA 23219

(804) 644-4419 © (800) 856-4419 @ Fax: (804) 644-3256 Or) .

TABLE OF CONTENTS

Appendix to the Petition

Opinion,

United States Court of Appeals

for the Eleventh Circuit

CURGTOE ARETE 27, BID occ ccccecscsrecennectaresssinsinets App. 1

Order, .

United States District Court

for the Middle District of Florida

Orlando Division

entered September 2, 1998 ............cccsresscorseees App. 2

Brief of Appellant,

United States Court of Appeals

for the Eleventh Circuit

dated September 13, 19939 ...............ccccosssseee App. 28

App. i

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-3357

D.C. Docket No. 95-00696-CV-ORL-22A

JOSEPH CAMMARANO,

Petitioner-Appellant,

versus

MICHAEL W. MOORE, Secretary,

Department of Corrections,

Respondent-Appellee.

Appeal from United States District Court

for the Middle District of Florida

Entered: April 27, 2000

Before ANDERSON, Chief Judge, BLACK, Circuit Judge,

and HALL”, Senior Circuit Judge.

PER CURIAM:

We affirm on the basis on the district couri’s well-

reasoned Order dated

September 2, 1998.

AFFIRMED.

. Honorable Cynthia Holocomb Hall, Senior U.S. Circuit Judge

for the Ninth Circuit, sitting by designation.

App. 1

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

Case No. 95-0696-Civ-Orl-22A

JOSEPH CAMMARANO,

Plaintiff,

-vs-

HARRY SINGLETARY, as Secretary of

the Department of Corrections,

Defendant.

Entered: September 2, 1998

ORDER

This cause came on for consideration without oral

argument on Plaintiff's Petition for Writ of Habeas Corpus

by a Person in State Custody (Docket No. 27) and supporting

memorandum of law (Docket No. 28). I have also

considered Defendant’s Response to Petition (Docket No.

38), the Petitioner’s Reply (Docket No. 45), the notices of

supplemental authority (Docket Nos. 446, 48, 49 & 50), the

Errata to Petitioner’s Reply (Docket No. 47) and the

supporting appendix.

I. FACTS AND PROCEDURAL HISTORY.

Joseph Cammarano (“Cammarano”) was arrested on

May 24, 1984. (App. 1571, 1591). An indictment against

Cammarano and Dennis Potenzo (“Potenzo”), also known as

Dennis Perry, was returned on July 10, 1984, charging both

App. 2

defendants with two counts of murder in the first degree and

one count of armed robbery. (App. 2333-34, Tab G at 425).

Cammarano was represented pretrial, at trial, and on direct

appeal by William J. Sheaffer (“Sheaffer”).

A. Motions to Suppress.

Before trial, the defense filed motions to suppress

Cammarano’s statements both as the fruit of an illegal stop

and because some of them were made in violation of his

right to have counsel present. The Circuit Court held a

suppression hearing. (App. 1567-1800, 1899-1912).

Cammarano contended that he had been illegally

detained by the police on the day of his arrest because they

did not have a sufficient basis to stop and make inquiry of

him. Therefore, he argued, all evidence obtained as a result

of the illegal detention was taken in violation of his Fourth

Amendment rights.

Orlando Police Officer Richard Albert testified that

he saw Cammarano and Potenzo walking down a street near

the Southern 1 ‘ights lounge in an area that had a high number

of commercial and residential burglaries. (App. 1578-79).

Cammarano was carrying a bag over his shoulder and was

supporting the contents of the bag with his hand, as if it were

very heavy, (/d.). Potenzo was carrying a towel. (App.

1579). The officer stopped the two men to determine why

they were walking in that area. (App. 1581). Potenzo

dropped the towel before coming to speak with the officer.

(App. 1577-86).

Cammarano told the officer that their car had run out

of gas around the corner. (App. 1582). The officer noticed

a metal object in the Cammarano’s waistband, which

appeared to him to be a weapon. (App. 1584). When

Cammarano subsequently put down the bag he was carrying,

the officer saw wrapped currency in the bag. (App. 1585-

86). The Officer used his radio to call for assistance, stating

that he had two burglary suspects. (App. 1584). At that

App. 3

point, Potenzo fled. (App. 1585). The officer arrested

Cammarano for a possible burglary. (App. 1591). The object

in Cammarano’s waistband was a pry bar. (App. 1588).

Thereafter, the officer found a gun under the towel that

Potenzo had dropped. (App. 1587). The Court denied the

motion to suppress based on an illegal stop without making

findings of fact. (App. 2447).

Cammarano also argued that, after he had made an

_ initial statement to police and signed a waiver of his

Miranda rights, he had asked to speak with an attorney but

that the interrogation continued. Officer Jeffrey Gauntlett

testified that he advised Cammarano of his Miranda rights at

the scene of the arrest. (App. 1639-40, 1651). Cammarano

stated that he wanted to talk to the officer. (App. 1640).

Cammarano told Gauntlett that he had come from the

Southern Nights lounge where he had been working. (/d.).

He stated that Potenzo had forced him outside and that, while

outside, he heard shots fired in the building. (App. 1640-41).

He said that Potenzo forced him to walk down the street

carrying the bag. (App. 1641).

Cammarano was then taken to the Municipal Justice

Building, where he was again advised of his Miranda rights.

(App. 1642). Cammarano signed a document indicating that

he waived those rights and agreed to speak with the police.

(Id.). He made another statement and requested to take a

polygraph test, which was administered to him. (App. 1644).

Gauntlett testified that Cammarano had not asked for an

attorney up to this point. (App. 1645).

Gauntlett testified that after the polygraph test was

administered, Cammarano told him that his attorney was

William Sheaffer, and he asked whether he had the right to

an attorney. (App. 1654-55). In contrast, Cammarano

testified that he had asked to speak to Sheaffer after he got to

the Municipal Justice Building and that he repeated that

request while he was held at this building. (App. 1902-03).

Gauntlett testified that he told Cammarano that he

had the right to have his attorney present, then Gauntlett left

App. 4

nicest

the room. (/d.). When Gauntlett returned to the interview

room, he asked whether Cammarano wanted to make a

statement. (App. 1656). Cammarano said that he did. (Id.).

Each time Cammarano made a statement, his facts changed

somewhat. Ultimately, Cammarano admitted that he and

Potenzo had discussed a robbery of the bar the night before

and that Potenzo had talked about shooting someone. (App.

1013, 1015-16). Cammarano also admitted that he thought

that there would be a robbery that morning. (App. 1017).

Cammarano also signed a consent for the police to search his

apartment and his car. (App. 1681).

The Circuit Court denied the motion to suppress the

statements without making findings of fact. (App. 2447).

B. Motion to Disqualify Sheaffer.

On March 22, 1995, the State of Florida filed a

Motion to Disqualify Counsel. (App. 2434). The motion

stated that a witness for the State, Daniel Sydow, alleged that

Sheaffer and his private investigator had made “promises,

inducements and representations” to Sydow to influence him

to withhold or falsify information in Cammarano’s case.

(Id.). The State sought to disqualify Sheaffer as

Cammarano’s counsel because Sheaffer might be called as a

witness to rebut Sydow’s allegations. (Id.).

The Circuit Court held a hearing on this motion on

March 26, 1995. (App. 2274). Cammarano was present at

this hearing. (App. 2276). Counsel for Sheaffer argued that

even if a witness had to be called to rebut Sydow’s

allegations, Sheaffer’s investigator was present during all

conversations between Sheaffer and Sydow and, therefore,

the investigator could testify rather than Sheaffer. (App.

2295). Counsel for Sheaffer also represented to the Court in

Cammarano’s presence that Cammarano waived his right to

conflict-free counsel. (App. 2296-97, 2306). The Circuit

Court denied the motion to disqualify Sheaffer because he

would not be required to testify and because Cammarano

App. 5

Ee

wished to proceed with counsel of his choice. (App. 2306-

07).

C. Trial.

Potenzo pleaded . guilty and he testified against

Cammarano at trial. (App. 849, 855). Potenzo testified that

he and Cammarano agreed to rob the Southern Nights

lounge. (App. 635). Because both he and Cammarano were

known to patrons of the lounge, they agreed that whoever

was present at the time of the robbery would have to be

killed and that Potenzo would do the killing. (App. 635,

637). They went to Southern Nights lounge on May 24,

1984, Potenzo shot the two people who were there, Joseph

Romano and James Nuss, gathered the money in the lounge

and left the bar. (App. 644, 660-63).

Orlando Police Officer Richard Albert testified that

he saw Potenzo and Cammarano walking down Bumby

street near the Southern Nights lounge on the May 24, 1984.

(App. 312). Cammarano was carrying a blue bag that

appeared to be heavy because he was holding the bottom

with his hand. (App. 315). Potenzo was carrying a towel.

(App. 312, 315). When Albert stopped the men to speak

with them, Potenzo dropped the towel. (App. 317).

Cammarano told Albert that they had run out of gas

and that they were walking back to the car. (App. 317).

Albert saw a metal object protruding from Cammarano

waistband, which he believed could be a weapon. (App.

319). Albert also saw money and bank bags in the blue bag

Cammarano was carrying. (App. 320). Albert called for

back-up assistance, indicating that he might have two

burglary suspects. (App. 319-20). At that point, Potenzo

fled.

Albert drew his gun on Cammarano and determined

that Cammarano had a pry bar in his waistband. (App. 321-

22). He arrested Cammarano, handcuffed him, and placed

him in the police car. (App. 323). Albert lifted-up the towel

App. 6

Potenzo had dropped in front of the car and saw a gun under

it. (App. 324). He also searched Cammarano and found that

he was carrying a pair of black vinyl gloves and a large buck

knife. (App. 325).

Officer Jeffrey Gauntlett testified that he read

Cammarano his Miranda rights after he was arrested. (App.

971). Cammarano agreed to waive those rights and make a

statement. (App. 971-72). Cammarano stated that he was in

the Southern Nights lounge to do plumbing work that

morning when someone came in and robbed the bar. (App.

973). Cammarano heard shots fired inside the bar. (Id.). The

robber forced him outside and made him carry the blue bag

at gunpoint. (/d.).

Cammarano was then taken to the Municipal Justice

Building.(App. 330). There, Cammarano was questioned by

several officers and made several conflicting statements, all

of which were introduced against him at trial. (App. 976-83,

1009-20). In one of these statements, Cammarano admitted

that he and Potenzo, who he referred to as Perry, had talked

about robbing the lounge. (App. 1015-17).

The only witnesses called by the State who placed

Cammarano at the scene of the crime were some bystanders

who saw Cammarano and Cammarano’s car near the

Southern Nights lounge on May 24, 1998. (App. 386-410,

412-447). Other witnesses confirmed that Cammarano had

been doing plumbing work at the Southern Nights lounge.

(App. 870, 888). A suitcase was found in the trunk of

Cammarano’s car. (App. 1030). That suitcase contained

ammunition, a gun cleaning kit, a holster and a box for a

gun. (App. 1032). The suitcase also contained more than a

dozen shirts and seven pairs of pants. (App. 1032-33).

Julie Kerce testified that she and Cammarano were

close friends. (App. 929). She and Cammarano had plans to

go to the beach on May 24, 1984, but she had to cancel

through plans because she had to work. (App. 930, 934).

About three days after his arrest, Cammarano told Kerce that

he had been in the Southern Nights lounge on May 24 and

App. 7

that he heard shots fired. (App. 933). He also told her that

Potenzo held a gun on him and made him carry the blue bag

containing the money. (/d.). Pursuant to cross-examination

by Sheaffer, Kerce testified that she and Cammarano made

alternate plans to have dinner the evening of May 24. (App.

934). She called him at home on May 24 but only reached

his answering machine. (App. 935). They did not go to

dinner that evening. (App. 936).

The defense called Michael Caripy, who was in

prison with Potenzo. (App. 1151-52). Potenzo told Caripy

that he did the shooting and that Cammarano was in another

room when it occurred. (App. 1155). Potenzo also told him

that he was testifying against Cammarano because the State

had threatened to reinstate the death penalty against him if he

did not do so. (App. 1157).

Cammarano also testified. (App. 1186). He stated

that he went to the Southern Nights lounge on the morning of

May 24, 1984, do plumbing work, (App. 1208), and that he

had previously purchased supplies to do this work. (App.

1254). A representative from the supply company testified

and produced receipts of plumbing supplies purchased on

May 21, 1984. (App. 1413-18; 1422-26) :

On the way to work, Cammarano s car broke down at

the place where it was found by the police. (App. 1215).

Cammarano testified that he was working with James Nuss

in the ladies bathroom of the Southern Night lounge when he

heard a shot fired. (App. 1231). Cammarano left the ladies

room, but Nuss stayed inside. (App. 1294). Potenzo then

went into the ladies room. (App. 1295). Cammarano left the

bar. Potenzo followed shortly thereafter. (App. 1295-96).

Potenzo threw the blue bag to Cammarano as they walked

down the street. (App. 1296).

Cammarano was questioned about the various

conflicting statements he made to the police. Cammarano

said that he gave false statements to the police when he was

arrested because he was scared. (App. 1211). He also

testified that he had clothes in his suitcase from a trip he had

App. 8

taken, (App. 1204), but he denied putting ammunition, gun

cleaning equipment, a gun box and the holster in his suitcase.

(App. 1206).

Cammarano was found by the jury to be guilty of two

counts of first degree murder and one count of armed

robbery. (App. 1560-61). The Circuit Court judge

sentenced him to life imprisonment on both of the murder

counts, which sentences were to be served concurrently.

' (App. 2005).

D. Direct Appeal.

On December 4, 1985, Cammarano filed his appellate

brief with the Fifth District Court of Appeals, claiming the

following errors occurred in the trial court below: (a)

admission of tangible items and tests performed on these

items which were illegally seized; (2) admission of oral

statements made by Cammarano to law enforcement officers;

(3) refusal to admit hypnotic sessions; (4) refusal to admit

testimony of Dr. Lindenfeld as to statements made by

Cammarano during hypnotic sessions; (5) admission of

evidence of other wrongdoings of Cammarano; (6) denial of

Cammarano’s request for a new trial based on juror

misconduct; and (7) denial of Cammarano’s motion for a

new trial based on the state’s violation of discovery rules by

withholding exculpatory evidence. (App., Tab E, Tab F).

E. Post-Appeal Motions.

1. First Rule 3.850 Motion.

On May 20, 1986, two new attorneys for

Cammarano, Gary Weiner and Ira Anolik, filed a Motion to

Vacate Judgment and Sentence Pursuant to Florida Rule of

Criminal Procedure 3.850 Based Upon Denial of Effective

Assistance of Counsel. (App.427). In this motion, defense

counsel argued that Sheaffer rendered ineffective assistance

App. 9

of counsel to Cammarano because of the following acts or

omissions: (1) failure to subpoena or depose essential

witnesses; (2) failure to investigate to ascertain exculpatory

evidence and plausible line of defense; (3) failure to present

exculpatory evidence and plausible lines of defense; (4)

failure to apprise Cammarano of information gathered during

a pretrial investigation; (5) failure properly to supervise his

private investigator; and (6) failure to communicate a plea

offer to Cammarano. (/d.). The Circuit Court held a hearing

on the 3.850 motion in September, 1987. (App., Tab G).

A. Plea Offers.

The prosecutor at trial, William Sharpe, testified that

he made a plea offer to Sheaffer in Cammarano’s presence

before trial. (App., Tab G at 38-39). Sheaffer confirmed

that the prosecution had offered Cammarano life

imprisonment without possibility of parole for twenty-five

years if he pleaded guilty. (Jd. at 224). Because this offer

was made, in Sheaffer’s recollection, after the State had

indicated that the State was not seeking the death penalty,

Sheaffer recommended to Cammarano and his father that

they reject the plea because the offered penalty was the most

severe Cammarano could receive even if convicted after

trial. (App., Tab G at 224-25, 248-54). Laurie Wheeler,

Scheaffer’s legal assistant, testified that she had discussed a

plea offer made in approximately May, 1985, with both

Cammarano and his father and that Cammarano was fully

aware of that offer. (Jd. at 287-91).

B. Allegations against Sheaffer

During the 3.850 motion hearing, counsel for

Cammarano questioned Sharpe about his pretrial motion to

disqualify Sheaffer. (App., Tab G at 55). Sharpe testified

that he based the motion on information from an inmate at

the jail, Daniel Sydow, who Sheaffer had interviewed. (Id. at

App. 10

55). Sharpe further testified that the information was not

used at trial. (/d.). He confirmed, however, that the State had

questioned a number of witnesses interviewed by Sheaffer to

determine whether any improper inducements had been

offered to them to influence their testimony. (Jd. at 59-60).

Sheaffer testified that he was concerned about the

investigation as it might affect his reputation in the

community, but that it did not influence the defense he

presented for Cammarano because there was no substance to

Sydow’s allegation. (Id. at 282-83).

‘:. Failure to Investigate and to

Call Witnesses.

(i) Hinton Waters.

Hinton Waters testified that about May 22, 1985, he

wrote a letter to Dan Matsche stating that while Waters and

Potenzo were incarcerated together, Potenzo told him that

Cammarano did not participate in the charged crimes. (App.,

Tab G at 131, 138, 443-45). Thereafter, Waters was not

contacted by Sheaffer or his investigator. (Id. at 135).

Waters stated that he would have been willing to testify at

Cammarano’s trial. (Jd.) Waters testified that he thought he

had been unjustly convicted, “railroaded” to use his terms, of

the crime for which he was serving a sentence of

incarceration. (Id. at 140).

Sheaffer testified that he had been a criminal defense

attorney for over ten years. (App., Tab G at 193-94). He

had tried over 100 jury trial and approximately six capital

cases. (Id.). Sheaffer was retained to represent Cammarano

at least a year before the case went to trial. (Id. at 196).

Sheaffer successfully moved for Cammarano’s release on

bond based on statements of witnesses who said that the

main witness against Cammarano, Dennis Potenzo, had

recanted his story. (Id at 197- 98). Sheaffer met with

Cammarano frequently at the beginning of his representation

App. 11

of the defendant. (Id. at 198-99). When an investigator was

appointed to assist Sheaffer, the investigator, Doug Pollack,

met with Cammarano often while Sheaffer’s contact

decreased to once or twice a week. (Id. at 199-200).

One of the people who said Potenzo had recanted his

story was Hinton Waters. (App., Tab G at 131, 138, 443-

45). Sheaffer received Hinton Waters’ letter from Matshce

shortly after Matsche received the letter.(/d. at 200-01).

When Sheaffer received the letter, he had already learned

from a number of witnesses that Potenzo had recanted his

story inculpating Cammarano. (Jd. at 202). Waters’

explanation of events as explained by Potenzo conflicted

with the statement Cammarano made when he was arrested

and with other facts Sheaffer had gathered during the

investigation of the case. (Id. at 203-05). Sheaffer testified

that he talked with Cammarano about Waters’ letter before

the trial. (Id. at 207, 271). Sheaffer determined that Waters

had been convicted of first degree murder. (Jd. at 208). He

contacted attorneys “indirectly familiar” with Waters and

determined that Waters felt he had been unjustly convicted

and that he had made it his mission to show that Orange

County prosecutors were more interested in railroading

convictions than seeking justice. ([d. at 208-09). Sheaffer

confirmed with other lawyers' in the presence of John

Meehan. (Id. at 265-66). and with other inmates at the jail

where Waters was housed that he was not truthful. (/d. at

211). Therefore, Sheaffer made the tactical decision not to

call Waters to testify. (Id. at 211-14).

Rather than calling Waters, Sheaffer presented the

testimony of Michael Caripy, one of the witnesses who

testified about Potenzo’s recantation. (App., Tab G at 209).

Caripy’s testimony about what Potenzo had said

corresponded to the statement Cammarano made at the time

Initially, Sheaffer could not recall who these lawyers were.

(App., Tab G at 262). After a brief recess, Sheaffer testified that one of

the lawyers was William Kinane

>

App. 12

he was arrested and the evidence gathered during the

investigation of the case. (Id.).

(ii) Julie Kerce.

Julie Kerce was Cammarano’s girlfriend. (App., Tab

G at 227). During the state’s deposition of Julie Kerce,

Sheaffer learned that Doug Pollack, his investigator, had an

affair with her. (Jd. at 226). Sheaffer later confirmed this

with Pollack. (Id.). Pollack said that he had already told

Cammarano about the affair because Kerce was

Cammarano’s girlfriend. (Jd. at 227). Cammarano learned

before trial that Sheaffer had fired Pollack because of this

affair with a potential defense witness. (Id. at 105-06, 293).

Sheaffer retained George Proeche to continue the defense

investigation. (Jd. at 106, 237).

Julie Kerce was called by the State to testify at

Cammarano’s trial. (Jd. at 229). She testified that she and

Cammarano had plans to go out about the time of the

robbery and murder, thus presenting the evidence the defense

had sought to obtain from her. (Id. at 228-29). Sharpe

testified that, based on his fifteen years’ of experience in

prosecuting and defending criminal cases, whether Kerce

was called as a prosecution witness or a defense witness

would not affect the outcome of the trial because the jury

was presented with the information Kerce had to offer no

matter who called her to testify. (Id. at 26-27, 67-68).

Sheaffer testified that he benefitted from being able to cross-

examine Kerce because he was able to ask her leading

questions. (Id. at 231-33). He testified that there were no

questions he avoided asking Kerce based on her involvement

with Pollack or the investigation of Sheaffer. (Id. at 283).

App. 13

(iii) Receipts for Plumbing

Supplies.

Phillip Cammarano testified that he learned during

the trial of his son’s case that Sheaffer had not obtained

copies of receipts for plumbing supplies purchased by

Cammarano, which could be used to corroborate

Cammarano’s statement that he was doing plumbing work at

the Southern Nights lounge. (App., Tab G at 81). Sheaffer

testified that the receipts were not produced by the State in

discovery, and that Cammarano could not remember where

he purchased the plumbing supplies. (Jd. at 235). The

defense ultimately located the receipts by obtaining the

check issued to pay for the supplies from Southern Nights

and tracing the purchase back to the check’s payee. (Id. at

236-37). The check was found during the trial. (Jd. at 237)

The receipts were received in evidence during the defense

case. (Id. at 238).

D. Trial Court’s Ruling.

The Circuit Court judge ruled that there was no

prejudice from the failure to call Julie Kerce as a defense

witness because there was no showing that Kerce knew

additional facts that were not brought out during direct and

cross-examination. (App., Tab G at 341). The judge

similarly ruled that no- prejudice had been established

resulting from the introduction of the plumbing supply

receipts late in the defense case. (Id. at 341). As to the plea

offer, the judge found, pursuant to Sharpe’s testimony, that

any plea offer made or plea discussions by Sharpe that

occurred early in the pretrial stages of the case was made in

Cammarano’s presence and, therefore, Cammarano was

aware of the offer. (Jd. at 342). Finally, as to the failure to

call Hinton Waters as a witness, the Court concluded that

Sheaffer made a tactical decision not to present Waters’

testimony because it conflicted with other evidence and

App. 14

statements made by Cammarano and because the defense

was able to present testimony concerning Potenzo’s

recantation through Caripy. (/d. at 344-45). The Court

further concluded that no evidence of prejudice resulting

from the failure to call Waters had been shown. (Jd. at 346).

Accordingly, the Rule 3.850 Motion was denied.

ri Rehearing of First Rule 3.850 Motion.

Subsequently, the Circuit Court granted a motion for

rehearing on the motion to vacate. (App., Tab G at 352).

William Kinane and John Meehan, the attorneys who

Sheaffer testified he had spoken to regarding Waters’

credibility, testified. Kinane had no recollection of

discussing Hinton Waters’ credibility with Sheaffer. (/d. at

362-63). Kinane further testified that if he had had such a

conversation, he would not have said anything “seriously

derogatory” about Waters. (/d. at 27). Sheaffer confirmed

that he only had a brief conversation with Kinane.

Meehan testified that he did not discuss Hinton

Waters with Sheaffer. (Jd. at 38). Sheaffer confirmed that

following his testimony in the original hearing on the motion

to vacate, he had spoken with Meehan and concluded that he

was mistaken about having had a conversation with Meehan

about Waters. (/d. at 393). He did not recall the name of the

second attorney with whom he had spoken. (/d. at 394).

The Court again denied the motion to vacate, finding

that Kinane did not deny that he had a conversation with

Sheaffer but that Kinane simply did not recall the

conversation. (Jd. at 422). The Court affirmed its prior

ruling that the defense had failed to show prejudice resulting

from Sheaffer’s strategic decision not to call Waters as a

witness. (Jd. at 423).

3. Appellate Court’s Ruling.

Cammarano appealed the denial of the Rule 3.850

motion to the Fifth District Court of Appeals. (App., Tab G

at 481). On appeal, he argued that Sheaffer’s representation

was ineffective because he failed to investigate the

statements of and to call Hinton Waters as a defense witness,

that Sheaffer’s failure to monitor his investigator’s activities

had deprived the defense of the opportunity to call Julie

Kerce as a defense witness, and that Sheaffer’s failure

properly to investigate deprived the defense of the use of the

plumbing supply receipts until the end of its case. (App.,

Tab 11). The only reference to the investigation of Sheaffer

by the State is the argument in a single paragraph of the brief

that the investigation “had a chilling effect on Sheaffer’s

initiative to interview another potential witness, Hinton

Waters.” (Jd. at 21). The court of appeals affirmed the

Circuit Court’s denial of the Rule 3.850 motion per curiam

on July 18, 1989. (App., Tab K)

4. _ Second Rule 3.850 Motion.

On August 14, 1991, Cammarano filed a second Rule

3.850 motion. (App., Tab L). This motion was based on an

affidavit by Potenzo in which Potenzo recanted his earlier

testimony that Cammarano had been involved in the robbery

of the Southern Nights lounge. (/d. at 18). The Circuit Court

denied this motion, finding that it constituted an abuse of

Florida’s procedures for post-conviction relief. (App., Tab

M). Cammarano appealed this decision to the Fifth District

Court of Appeals. After oral argument, the appellate court

reversed the trial court’s decision and remanded the second :

Rule 3.850 motion to the Circuit Court for a hearing. (App., ;

Tab O).

Accordingly, the Circuit Court held a hearing on the

second Rule 3.850 motion. (App., Tab P). At that hearing,

Potenzo refused to appear and testify. (/d. at 8). Defense :

App. 16

counsel tried five times to have Potenzo’s affidavit admitted,

but all attempts were denied under the Florida rules of

evidence. (Id. at 32, 34, 36, 39, 40). Evidence in the form of

testimony that would support the assertions in the affidavit

was not admitted, but it was allowed as a proffer by the

defense. (Jd. at 49). The Circuit Court denied the second

Rule 3.850 motion. (Jd. at 180).

Cammarano appealed that decision to the Fifth

District Court of Appeals, alleging only misapplication of

Florida Rules of Evidence in that appeal. (App., Tab Q).

Cammarano did not raise the constitutional issues of equal

protection or due process violations in his initial or his reply

briefs. (App., Tabs Q, S). The Fifth District Court of

Appeals affirmed the order denying the second Rule 3.850

motion. (App., Tab T).

Il ANALYSIS.

A. Cammarano Failed to Raise the

Constitutional Issues Underlying His

Actual Conflict of Interest Claim Before

the State Courts, and Any Alleged Conflict

of Interest Did Not Adversely Affect

Sheaffer’s Performance

Before the trial of Cammarano’s case, a potential

witness, Daniel Sydow, accused Cammarano’s counsel,

William Sheaffer, of offering him inducements to withhold

or falsify his testimony. During the pretrial stages of the

case, the same attorneys who were prosecuting Cammarano

were also investigating these allegations against Sheaffer.

Cammarano contends that this investigation placed Sheaffer

in an actual conflict of interest with him and that he was

denied effective assistance of counsel. To establish a Sixth

Amendment violation in these circumstances, the defense

must show that the defendant had an actual conflict of

interest and that the conflict of interest adversely affected his

App. 17

lawyer’s performance. Burger v. Kemp, 483 U.S. 776, 783

(1987)(citing Cuyler v. Sullivan, 446 U.S. 335, 692 (1980));

see also Strickland v. Washington, 466 U.S. 668 (1984)(to

establish ineffective assistance of counsel defendant must

show counsel’s errors fell below an objective standard of

reasonableness and prejudiced his case).

Cammarano was aware of the allegations against

Sheaffer and the pending investigation before his case was

tried because he was present at the hearing on the State’s

motion to disqualify Sheaffer based on Sydow’s

allegations.”. Despite this notice, Cammarano did not raise

this Sixth Amendment “conflict of interest” claim arising

from the investigation of Sheaffer at trial or on direct appeal.

More significantly, he did not raise the actual conflict of

interest issue in either of his Rule 3.850 motions before the

Circuit Court or on appeal of those motions. Rather, he

referenced the conflict of interest claim only as part of his

argument that Sheaffer did not properly investigate the case -

and failed to call witnesses at trial. By failing to raise the

conflict of interest claim as a separate issue under Cuyler or

Strickland, Cammarano deprived the trial court of the

opportunity to ascertain the extent of the investigation of

Sheaffer, whether the investigation created an actual conflict

of interest between Sheaffer and Cammarano, and whether

the actual conflict of interest, if one existed, adversely

affected Sheaffer’s performance. See, e.g., Bergman v.

Duncan, 86 F. 3d 1161 (9"™ Cir. 1996)(text found at 1996

WL 272546)(conflict of interest is an issue that must be

raised separately from a general ineffective assistance of

counsel claim).

Even if this matter had been properly raised in the

state court, the record does not support a finding that the

; This notice to Cammarano distinguishes his case from the facts

in United States v. McLain, 823 F.2d 1457, 1463-64 (11" Cir.

1987)(actual conflict when defense counsel under investigation by

United States Attorney’s Office failed to advise defendant of the

investigation).

App. 18

investigation of Scheaffer adversely affected his

performance. The Circuit Court, after a hearing on a motion

to disqualify Sheaffer, determined that if Sydow testified

about alleged inducements, Sheaffer would not have to

testify because Sheaffer’s investigator was present at all

meetings between Sheaffer and Sydow. Therefore, the

investigator could present any rebuttal testimony required.

Cf, Beets v. Scott, 65 F. 3d 1258, 1276 (5" Cir.

1995)(ineffective assistance of counsel claim failed when

another witness could present same evidence in lieu of

defense attorney’s testimony). There is no suggestion in the

record that Sheaffer failed to pursue plea negotiations

because he was under investigation. Cammarano speculates

that Sheaffer failed to investigate a letter written by Hinton

Waters because he did not want to incur a further

investigation of his conduct. This argument is mere

conjecture, unsupported by any evidence in the record.

Accordingly, even if an actual conflict of interest existed,

and Cammarano had exhausted that claim in the state courts,

he has failed to show that the conflict of interest adversely

affected Sheaffer’s performance.

B. Sheaffer’s Investigation and Strategic

Decisions at Trial Fell Within the Wide

Range of Professionally Competent

Assistance.

Cammarano’s second contention is that Sheaffer

provided ineffective assistance of counsel because he failed

to investigate a statement made by Hinton Waters, he failed

to call Hinton Waters as a witness, he failed to supervise his

investigator resulting in the loss of Julie Kerce as a defense

witness, and he failed to obtain plumbing supply receipts for

use during the defense case. “To prove ineffective assistance

of counsel, a petitioner must prove that counsel’s

performance was deficient and that the deficiency prejudiced

the defendant.... To satisfy the prejudice prong, a petitioner

App. 19

‘must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable rrobability is a

probability sufficient to undermine confidence in the

outcome.” Waldrop v. Jones, 77 F. 3d 1308, 1312 (11™ Cir.

1996).

At the hearing on the: first Rule 3.850 motion,

Sheaffer testified that he made a tactical decision not to call

Waters to testify because the version of events related by

Potenzo to Waters was inconsistent with other evidence

developed in the case and with Cammarano’s statement at

the time of his arrest. Instead, Sheaffer called Michael

Caripy to testify that Potenzo had recanted his statement

implicating Cammarano in the crimes. S heaffer explained

that the story Potenzo related to Caripy was consistent with

the evidence developed in the case and Cammarano’s

statements. The Circuit Court concluded that Sheaffer made

a legitimate tactical decision and that Cammarano failed to

establish prejudice from the failure to call Waters as a

witness.

“The question of whether an attorney’s actions were

actually the product of a tactical or strategic decision is an

issue of fact, and a state court’s decision concerning that

issue is presumptively correct.” Provenzano v. Singletary,

No. 97-2576, 1998 WL 458467, at *2 ( 11" Cir. Aug. 6,

1998). Cammarano does not challenge the Circuit Court’s

finding that the failure to call Hinton Waters was a tactical

decision. Instead, he argues that because Sheaffer

insufficiently investigated Waters’ statements, he could not

make a reasonable tactical choice. This Court must

determine, therefore, “whether the strategic or tactical

decision is reasonable enough to fall within the wide range

of professional competence.” Jd.

“[S]trategic choices made after less than complete

investigation are reasonable precisely to the’ extent that

reasonable profession judgments support the limitations on

investigation.” Burger v. Kemp, 483 U.S. at 794. In this

App. 20

ee

case, Sheaffer testified that he had identified four witnesses,

one of whom was Waters, who knew that Potenzo had

recanted his statement about Cammarano’s involvement in

the charged crimes. Of the four witnesses, the version of

events Potenzo gave to Michael Caripy was consistent with

other evidence developed in the case and with Cammarano’s

statements at the time he was arrested. Therefore, Sheaffer

chose to call Caripy to testify about Potenzo’s recantation.

Sheaffer’s explanation of the reason for this tactical decision

falls well within the “wide range of professional competent

assistance.” Jd. at 795.

Cammarano also has not presented any evidence that

Waters’ testimony would have been more persuasive than

Caripy’s testimony. He has, therefore, failed to show that

any error in failing to investigate or call Waters at trial raises

“a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would

have been different.” Waldrop v. Jones, 77 F. 3d 1308, 1312

(11™ Cir. 1996). ,

Similarly, Cammarano has not shown the method and

timing of the introduction of Julie Kerce’s testimony and the

plumbing supply receipts was prejudicial to his case.

Despite the affair between Kerce and the defense

investigator, Kerce testified at trial as a witness for the state.

Sheaffer testified that he elicited all the information he hoped

to obtain from Kerce on cross-examination. Cammarano has

not presented evidence that Kerce would have given

additional testimony had she been called as a defense

witness. The plumbing supply receipts were also introduced

at trial and therefore, were before the jurors for their

consideration. While Cammarano complains that the

plumbing supply receipts should have been introduced

earlier in the trial, he has not presented any evidence

suggesting that the timing of the introduction of this

evidence raises a reasonable probability that the result of the

proceeding would have been different if the evidence had

been introduced earlier.

App. 21

on Cammarano Had a Full and Fair

Opportunity to Litigate His Fourth

Amendment Claims in State Court and

Admission of His Post-Arrest Statements

Was, At Most, Harmless Error.

l. Fourth Amendment Claim.

Cammarano objects to the introduction of “certain

incriminating statements that he allegedly made to the

authorities following his unlawful arrest.” (Docket No. 28 at

15). The first issue actually raised by this claim is a Fourth

Amendment claim’, because Cammarano claims that all

statements he made were the result of his “unlawful arrest.”

The Circuit Court held an evidentiary hearing on the

“unlawful arrest” issue at which Cammarano was given an

Opportunity to present witnesses and evidence. (Id.). The

court denied this motion. (App. 2381, 2447). At trial,

Cammarano again objected to the introduction of these

incriminating statements, but his objection was overruled.

Cammarano raised this issue again on direct appeal.

In Stone v. Powell, 428 U.S. 465 (1976), the Supreme

Court determined that “where the State has provided an

Opportunity for full and fair litigation of a Fourth

Amendment claim, a state prisoner may not be granted

federal habeas corpus relief on the ground that evidence

obtained in an unconstitutional search or seizure was

introduced at his trial.” Jd. at 494 (footnotes omitted). In

order to be entitled to federal habeas review of a Fourth

Amendment claim, the Cammarano must demonstrate that he

“was denied an opportunity for a full and fair litigation of

that claim at trial and on direct review.” Jd. at 495. Federal

courts will not consider the merits of Fourth Amendment

cases merely because the state courts erred in their Fourth

. Cammarano alleges that the arresting officer had no rational

basis to detain Cammarano or to ask for identification.

App. 22

Oe ee ee

Amendment analysis. See Swicegood v. Alabama, 577 F. 2d

1322, 1324 (5" Cir. 1978).

Cammarano has failed to demonstrate that the

hearing conducted by the trial court on his motion to

suppress denied him of an opportunity for a full and fair

litigation of his Fourth Amendment claim. This Court

determines that Cammarano was afforded a full and fair

opportunity to litigate this claim, and he should not be

permitted to further relitigate the same issue. See Harris v.

Dugger, 874 F. 2d 756, 761 (11™ Cir.1989)(federal habeas

petitioner, who had fully and fairly litigated his Franks claim

in the state courts of Florida, was precluded from federal

habeas review of his claim); Boggs v. Bair, 892 F. 2d 1193,

1200 (4™ Cir. 1989)(federal habeas petitioner “was afforded

every full and fair opportunity to litigate and have

adjudicated the Fourth Amendment claim with respect to the

search of his vehicle and ... he should not be permitted to

further relitigate the same ....”’).

2. Edwards vy. Arizona Clain.

Cammarano asserts that certain of his post-arrest

statements were improperly admitted at trial because the

police continued to interrogate him after he requested to

speak with an attorney in violation of Edwards v. Arizona,

451 U.S. 477 (1981). At the suppression hearing,

Cammarano testified that following his first voluntary

statement to the police, he asked to speak with his attorney.

Officer Gauntlett testified that Cammarano merely said that

Sheaffer was his attorney and asked whether he had the right

to have Sheaffer present. Gauntlett responded that

Cammarano had the right to have his attorney present, but

Cammarano never asked that Sheaffer be present before he

made further statements. After Cammarano made his

reference to Sheaffer, Gauntlett left the room. When he

returned, Gauntlett asked Cammarano if he wished to make a

statement. Cammarano said that he did. Based on this

App. 23

testimony, the trial court denied the motion to suppress

without making any factual findings.

“Only unequivocal requests for counsel require

officers to cease questioning a suspect.” Craig v. Singletary,

127 F. 3d 1030, 1039 (11" Cir. 1997); accord State v. Owen,

696 So.2d 715 (Fla. 1997); Davis v. United States, 512 U.S.

452, 462 (1994)(“Maybe I should speak to an attorney” was

not an unequivocal request for counsel that required law

enforcement agents to cease questioning the defendant).

Because the trial court did not make factual findings in

support of its denial of the motion to suppress Cammarano’s

statements, it is difficult to determine whether the Court

made a credibility judgment between Gauntlett’s testimony

that Cammarano made an equivocal request for counsel and

Cammarano’s testimony that he made an unequivocal

request for counsel. If Cammarano’s testimony is credited,

then questioning of him could only resume if Cammarano

initiated further conversation. Edwards, 451 U.S. at 484.

The record does not support a finding that Cammarano

initiated the conversation after he made his request for

counsel.

The Court does not have to reach this credibility issue

because admission of Cammarano’s statements would be, at

most, harmless error. The Supreme Court’s standard for

assessing harmless error at trial is whether the improperly

admitted evidence had a “substantial and injurious effect or

influence in determining the ... verdict.” Brecht y.

Abrahamson, 507 U.S. 619, 637 (1993); Correll v.

Thompson, 63 F. 3d 1279, 1291 (4" Cir. 1995)(applying

harmless error analysis to Edwards violation). If, after

reviewing the trial transcripts de novo, “the record is so

evenly balanced that a conscientious judge is in grave doubt

as to the harmlessness of the error,” the Court should resolve

the doubt in favor of the petitioner.

I do not find that admission of Cammarano’s

statements made after he asked for or about counsel had a

substantial and injurious effect or influence in determining

App. 24

P PO ON) eS es

‘ Pe TS OM I ee

the verdict. Potenzo, an eyewitness, testified about

Cammarano’s participation and involvement in the robbery

which resulted in Potenzo killing Romano and Nuss. Other

witnesses placed Cammarano at the scene of the crime.

Immediately following the crime, Cammarano was found by

law enforcement walking away from the Southern Nights

lounge carrying a bag of money stolen from the lounge,

accompanied by Potenzo who was carrying the murder

weapon. Cammarano does not contend that his first false

statement to the police, made at the time of his arrest, was

taken in violation of Edwards v. Arizona. Therefore, this

initial false statement would have been admitted, even if the

other statements had been excluded. The remaining

statements, even if taken in violation of Edwards v. Arizona,

were also admissible to impeach Cammarano. Harris v. New

York, 401 U.S. 222 (1971). Considering the weight of this

evidence, I concluded that admission of Cammarano’s

statement made after he referred to or requested to speak

with his attorney was harmless.

D. Admission of Evidence is a Question of

State Law That Is Not Reviewable By This

Court Because Cammarano Failed to Raise

the Constitutional Issues of Equal

Protection and Due Process Under the

Fourteenth Amendment in the Sate

Proceedings.

Cammarano claims that he was denied equal

protection of the laws and due process of law in violation of

the Fourteenth Amendment because Potenzo’s affidavit was

not admitted during the hearing before the Circuit Court

following remand by the Fifth District Court of Appeals of

Cammarano’s second 3.850 motion. (App., Tab P). This

federal claim was first articulated in the habeas petition now

before the court.

In order for the states to be given the opportunity to

correct alleged violations of prisoners’ federal rights, “they

must surely be alerted to the fact that the prisoners are

asserting claims under the United States Constitution.”

Duncan v. Henry, 513 U.S. 364, 365-66 (1995). Cammarano

did not assert these federal rights at any time in the state

proceedings. Thus, he failed to give the state the opportunity

to correct these alleged violations.

Additionally, “a state’s interpretation of its own laws

provides no basis for federal habeas relief since no question

of a constitutional nature is involved.” Beverly v. Jones, 854

F. 2d 412, 416 (1 1" Cir, 1988). “This limitation on federal

habeas review is of equal force when a petition, which

actually involves state law issues, is ‘couched in terms of

equal protection and due process.” Branan v. Booth, 861 F.

2d 1507, 1508 (11™ Cir. 1988)(quoting Willeford v. Estelle,

538 F. 2d 1194, 1196-98 (5" Cir. 1976)). To the extent that

Cammarano is asking the federal court to reexamine state

court determinations on questions of state law, the federal

court should defer to the state court. Estelle v. McGuire, 502

U.S. 62, 67-68 (1991). A state court’s interpretation of its

own laws or rules provides no basis for federal habeas

corpus relief, since no question of a constitutional nature is

involved. Carrizales y. Wainwright, 699 F. 2d 1053, 1055

(11" Cir. 1983).

In the instant case, the underlying matters for which

Cammarane seeks relief are within Florida’s state law,

namely, the Florida evidence rules. Federal habeas relief is

not available for “[q]uestions of pure state law.” Carrizales,

699 F. 2d at 1054.

App. 26

Ill. CONCLUSION.

For the foregoing reasons, the Petition for Writ of

Habeas Corpus By a Person in State Custody (Docket No.

27) is DENIED.

DONE and ORDERED in Orlando, Florida on this 2"! day of

September, 1998.

/s/ Anne C. Conway

ANNE C. CONWAY

UNITED STATES DISTRICT JUDGE

Copies furnished to:

Counsel of Record

App. 27

IN THE

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

CASE NO. 98-3357-HH

JOSEPH CAMMARANO,

Petitioner - Appellant,

Vv.

MICHAEL W. MOORE, et al.,

Respondents - Appellees.

ON APPEAL FROM

THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

OPENING BRIEF OF APPELLANT

PAUL MORRIS

Law Offices of Paul Morris, P.A.

999 Ponce de Leon Blvd.

Suite 550

Coral Gables, FL 33134-3037

(305) 446-2020

Counsel for Appellant Joseph Cammarano

App. 28

CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT

Cammarano v. Singletary

Court of Appeals Docket Number 98-3357

Hon. John H. Adams, Sr.

Irving Anolik, Esq.

Hon. Anne C. Conway

Hon. Gary L. Formet, Sr.

Hon. James G. Glazebrook

Paul Morris, Esq.

Dennis Potenzo

David Raben, Esq.

James M. Russ, Esq.

James Schneider, Esq.

James Schneider, Esq.

William R. Scharpe, Esq.

William J. Schaeffer, Esq.

Hon. R. James Stroker

Daniel Sydow

Michael H. Tarkoff, Esq.

Rebecca Roark Wall, Esq.

Gary D. Weiner, Esq.

Jeffrey S. Weiner, Esq.

/s/ Paul Morris

PAUL MORRIS

STATEMENT REGARDING ORAL ARGUMENT

The appellant respectfully requests oral argument on

the basis that it will aid in the decisional process.

CERTIFICATE OF TYPE SIZE AND STYLE

The size and style of type used in the brief is 10 point

Courier.

TABLE OF CONTENTS

CERTIFICATE OF TYPE SIZE AND STYLE

TABLE OF CONTENTS

STATEMENT OF THE ISSUES

STATEMENT OF THE CASE

ARGUMENTS

I. WHETHER THE DISTRICT COURT

ERRED IN RULING THAT CAMMARANO

FAILED TO PRESENT TO THE STATE |

COURTS HIS FEDERAL CLAIM THAT HE

WAS DENIED HIS SIXTH AMENDMENT

RIGHT TO EFFECTIVE ASSISTANCE OF

COUNSEL BECAUSE HIS_~ TRIAL

COUNSEL LABORED - UNDER A

CONFLICT OF INTEREST

CONCLUSION

Il. WHETHER THE DISTRICT COURT

ERRED IN RULING THAT CAMMARANO

WAS NOT DENIED HIS_ SIXTH

AMENDMENT RIGHT TO EFFECTIVE

ASSISTANCE OF TRIAL COUNSEL

WHERE COUNSEL FAILED TO INTER-

VIEW AND PRESENT WITNESSES WHO

WOULD HAVE TESTIFIED THAT THE

PROSECUTION'S . STAR WITNESS

CONFESSED TO THEM THAT HE WAS

FALSELY IMPLICATING CAMMARANDO.....

Ill. WHETHER THE DISTRICT JUDGE

ERRED IN RULING THAT THE STATE

COURT'S FAILURE TO SUPPRESS

CAMMARANO'S STATEMENTS, EVEN IF

VIOLATIVE OF MIRANDA AND ITS

PROGENY, CONSTITUTED HARMLESS

SPEED tisiianiinivntiiiiaabiteee edie Mae

IV. WHETHER THE DISTRICT COURT

ERRED IN RULING THAT CAM-

MARANO'S DUE PROCESS RIGHTS

WERE NOT VIOLATED WHERE, AT A

POST-CONVICTION PROCEEDING, THE

STATE COURT EXCLUDED EVIDENCE

THAT THE PROSECUTION'S STAR

WITNESS CONFESSED THAT HIS

TESTIMONY IMPLICATING CAM-

mi

41

MARANO WAS PERJURIOUS. .......ccccsessecssssesses 48

TABLE OF CITATIONS

Cases

Arizona v. Roberson,

486 U.S. 675, 108 S.Ct. 2093,

100 L.Ed.2d 704 (1988)

Baker v. State,

336 So. 2d 364 (Fla. 1976)

Bergman vy. Duncan,

86 F.3d 1161 (9th Cir.1996)

Birt v. Montgomery,

709 F.2d 690 (7th Cir.1983), cert. denied,

469 US. 874, 105 S.Ct. 232, 83 L.Ed.2d 161 (1984)

Blanco v. Singletary,

943 F.2d 1477 (11th Cir.1991), cert. denied

Blankenship v. Estelle,

545 F.2d 510 (Sth Cir.1977), cert. denied,

444 US. 856, 100 S.Ct. 115, 62 L.Ed.2d 75 (1979)

Boykins v. Wainwright,

737 F.2d 1539 (11th Cir.1984)

Brecht v. Abahamson,

507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ...

Bruno v. Rushen,

721 F.2d 1193 (9th Cir. 1983)

Burden v. Zant,

871 F.2d 956 (11th Cir.1989)

App. 33

Cave v. Singletary,

ITA F.2d 1514 (11th Cir. 1992) .....cccceccocesscsseseecesss 38, 41, 47

Chambers v. Mississippi,

CED BE Ee iiinisicconueai cc 23, 24

Coleman v. Singletary,

FO ESE PARC OS oii i i 43

Craig v. Singletary,

EST POM AGIO (TT Cie. 1997) .cssccsvincieveicsesosecherssdeccchsesso,, 44

Cummings v. Dugger,

862 F.2d 1504 (11th Cir.1989) o.oo cccccsssscsssscsseceee. 29, 48

Cuyler v. Sullivan,

446 U.S. 335, 100 S.Ct. 1708,

OF Le BI Ce isiccstiesscbiscacbinccsucikcnie: 33, 34, 37, 38

Davis v. United States,

512 U.S. 452, 114 S.Ct. 2350,

DED ETT GE (1G) iano ovnvicccnincevtcdccsccossees 42, 43, 51, 53

Davis v. Zant,

BOT ee RAP RA OI vnsincaicicesree ek S 51

Edwards v. Arizona,

451 U.S. 477, 101 S.Ct. 1880,

OR Ee FO inclines a bo ae

Evans v. Lewis,

855 F.2d 631 (9th Cir.1988) ovbiibidisiliskeiambibentieiasbipineiniaiieane act 40

Fare v. Michael C.,

442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 kb tp | aa 42

Fox v. Kelso,

PEF ee OF a IN. UGB oo visactitsointtsncescvorntetncinien 24, 36

Gonzales v. Lytle,

BOF Fe LOE CIs Car, 1S ov ce svesieivcsccepsbencesvnsens indies 50

Government of Virgin Islands v. Zepp,

FR ae EEE A Kevctilce teenies spiiiiaasinmmidiniarcuinds 34

Hamilton v. Ford,

969 F.2d 1006 (11th Cir.1992), cert. denied,

507 U.S. 1000, 113 S.Ct. 1625,

Be Weg PE 6 A SDs viiwtsciosnninscamvncsivsdiuenibonnnanen 29, 34, 38

Harris v. New York,

FE ie ee GE ED aickassinsnvsniesinhansseienlapviiaenitaandialannpiinaediines 46

Holloway v. Arkansas,

435 U.S. 475, 98 S.Ct. 1173,

Pe RUIN SANE MRD csntnincincnnee vnnntnsenabvensohvesaiibiiiiien 34, 36

Hoots v. Allsbrook,

FD ee BOE CGA) iichnssinvesvnsvscncneitnitanesassinstaniocie 40

Hutchins v. Wainwright,

715 F.2d 512 (11th Cir.1983), cert. denied,

465 U.S. 1071, 104 S.Ct. 1427,

PRI Fel 0 hedasacitinncnierassehndeapeaiaeineuntinniniinentied 48

Huynh v. King,

PF Oe CF POET FRO) tice snsvscrnscisiongionrseentovecoons 38, 40

Kyger v. Carlton,

A ee oF CR FIED rsisnrncscenssoesnsesentnicservescenensontion 43

Lisenba v. California,

314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166 (1941) ............. 25

App. 35

Mannhalt v. Reed,

847 F.2d 576 (9th Cir. 1988) .......ccccsccessesseeeeeeeeneeeens 34, 35

McNeil v. Wisconsin,

501 U.S. 171, 111 S.Ct. 2204,

115 L.BG.2d 158 (1991). ..cccrcrrcccresscscscsesccsssrsesesccsssens 42, 43

Minnick vy. Mississippi,

498 U.S. 146, 111 S.Ct. 486,

112 L.Ed.2d 489 (1990)........ccccccscsssecsseerseereeseseseeneeeseneees 42

Miranda v. Arizona,

384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).......... l

Mitchell v. United States,

U.S. _, 119 S.Ct. 1307,

[2s (DAO acces 49

Morgan v. Zant,

743 F.2d 775 (11th Cir. 1984) ......ccecsesseeseeeeeeaneeeeeneenees 32

Osborne v. Wainwright,

720 F.2d 1237 (11th Cir. 1983) .......cccecsseseeeneeeeeeees 32, 48, 50

Owen v. Alabama,

849 F.2d 536 (11th Cir. 1988) ........cccsseeseneerseneeeeeenees 53, 46

Parker v. Singletary,

974 F.2d 1562 (11th Cir.1992) .......ccceceeeeneereeneeenennnenns 42

Picard v. Connor,

404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).......... 29

Richardson v. State,

706 So. 2d 1349 (Fla. 1998) ......cccssesseseeseenesereenernennensennes 53

App. 36

Rivera v. Director, Department of Corrections,

State of Iilinois,

915 F.2d 280 (7th Cir.1990)...........0. ctondiiensauennieunepvennenense 50

Smith v. Illinois,

469 U.S. 91, 105 S.Ct. 490,

Bee ee UI EI css’ sscescanncnsatcieansinsebnananlesiaaoicebcoakins 42, 53

Snowden v. Singletary,

Se eae Fie 0 Se Gt A TD cc ineonsctennaesetnbenetinneemnscinin 29, 50

Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052,

Sere REEE RETO TIT hitsiciceihnstainententnitianitanticndanesinis 33, 39

United States v. Cancilla,

Fe eG scsi cetniniiteiniiienninapehirabanationinn 34

United States v. Daoud,

741 F.2d 478 (Ist Cir.1984) 0.0... cccecsseeeseeees S snbieiiacanbababl 53

United States v. Fulton,

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United States v. Gray,

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United States v. Grieg,

SF Fae CO CP Rs LIES seccn cen nereisaninsvereenssnaniins 34-36

United States v. Hernandez,

ee Ce ETE erscsurinctiscsiednctians 44

United States v. Kallin,

50 F.3d 689 (9th Cir.1995)........... seiaiaaiiadieshenaiahabiasliatamuiiilaaad 53

App. 37

United States v. McDonald,

OAD F268 SIP CO GAO on escssnimatrconsccctessnariaoaeain 53

United States v. McLain,

SoS FOS PSST CEU Ce. IGG) aeeeserivicrivcsicscencrerteecoiinn 34

United States v. Tatum,

DRS FA STO CO Ge UGG AD vssnccncccnsccccpaviinsnicnernabiniien 35

United States v. White,

FOO Fe Fae Ce CE, LIES) icccccccesessssvcarinantsincaseetiionianin 34

Watson v. Dugger, ;

POS FB FET CE I Ge. FOOD cesccicsinssssesintsieeiaaenion 32, 48

Wilks v. Israel,

627 F.2d 32 (7th Cir.1980), cert. denied,

449 U.S. 1086, 101 S.Ct. 874,

GG Fe SET CERT vcccsccccsercresssenercentetnenennscinbineial 32

Wood v. Georgia,

450 U.S. 261, 101 S.Ct. 1097,

CF Le Zee CIPO EP eriisniansecesrenciererianeninlantnias 34, 38

Zamora v. Wainwright, ;

610 F.Supp. 159 (S.DD.Fie. 1965) ..ccccccssssocsosasonssesestssesvecnens 29

Other Authorities

BO ULBL. § FES) cssessccissssecsrcassissrniansecnunasinmnesieiien 24, 49

Fed R.Bvid. SOGLG IS) ....0cccisciescieseressncscanveinenienecaioveinaniobeten 51

Florida Rule of Criminal Procedure 3.172(h)............s+++ 53

Florida Rule of Criminal Procedure 3.850 .........:seseeees 13

App. 38

Florida Statutes § 90.804..............cssscsssssssssssssessssssseeseseeees

Florida Statutes § 837.021

Florida Statutes § 914.04

App. 39

STATEMENT OF JURISDICTION

This jurisdiction of this Court has been invoked

pursuant to 28 U.S.C. § 1291.

App. 40

STATEMENT OF THE ISSUES

i.

WHETHER THE DISTRICT COURT ERRED IN RULING

THAT CAMMARANO FAILED TO PRESENT TO THE

STATE COURTS HIS FEDERAL CLAIM THAT HE WAS

DENIED HIS SIXTH AMENDMENT RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE

HIS TRIAL COUNSEL LABORED UNDER A CONFLICT

OF INTEREST.

Il.

WHETHER THE DISTRICT COURT ERRED IN RULING

THAT CAMMARANO WAS NOT DENIED HIS SIXTH

AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE

OF TRIAL COUNSEL WHERE COUNSEL FAILED TO

INTERVIEW AND PRESENT WITNESSES WHO

WOULD HAVE TESTIFIED THAT THE

PROSECUTION'S STAR WITNESS CONFESSED TO

THEM THAT HE WAS FALSELY IMPLICATING

CAMMARANO.

Il.

WHETHER THE DISTRICT COURT ERRED IN RULING

THAT THE STATE COURT'S FAILURE TO SUPPRESS

CAMMARANO'S STATEMENTS, EVEN IF VIOLATIVE

OF MIRANDA AND ITS PROGENY, CONSTITUTED

HARMLESS ERROR.

App. 41

IV.

WHETHER THE DISTRICT COURT ERRED IN RULING

THAT CAMMARANO'S DUE PROCESS RIGHTS WERE

NOT VIOLATED WHERE, AT A POST-CONVICTION

PROCEEDING, THE STATE COURT EXCLUDED

EVIDENCE THAT THE PROSECUTION'S STAR

WITNESS CONFESSED THAT HIS TESTIMONY

IMPLICATING CAMMARANO WAS PERJURIOUS.

Ann 49

STATEMENT OF THE CASE

Course of Proceedings and

Dispositions in the Court Below

The petitioner/appellant, Joseph Cammarano, was

charged by the State of Florida, along with Dennis Potenzo,

with two counts of murder in the first degree and one count

of armed robbery. (App.A-2333-2334). Following a trial by

jury, Cammarano was found guilty as charged and sentenced

on the murder charges to two concurrent life sentences with

no possibility of parole for twenty-five years. Sentence was

withheld as to the armed robbery. (App.A-1560-1561; 2004-

2005; 2523-2525). After exhausting state remedies,

Cammarano filed a petition for writ of habeas corpus in the

United States District Court for the Southern District of

Florida which was removed to the Middle District of Florida

and refiled. (R1-1-14, 27-28).

On September 2, 1998, Cammarano’s amended

petition for writ of habeas corpus was denied without an

evidentiary hearing by United States District Judge Anne C.

Conway who also denied a certificate of probable cause.

(R2-60). A timely notice of appeal was filed with this Court

(R2-62) which granted a certificate of probable cause.

Cammarano is incarcerated.

Statement of the Facts - Introduction

Cammarano was arrested on May 24, 1984. (App.A

1571, 1591). On July 10, 1984, an indictment was returned

charging Cammarano and Dennis Potenzo with two counts

of first degree murder and one count of armed robbery.

(App.A 2333-34, App.G 425-26). Cammarano was

represented pretrial, at trial and on direct appeal by William

J. Sheaffer. The trial judge was the Honorable R. James

Stroker.

App. 43

Potenzo shot and killed two employees of a bar and

stole the bar’s receipts. The prosecution relied upon the

testimony of Potenzo to support its theory that Cammarano

was guilty of felony murder. According to Potenzo,

Cammarano knew about and assisted in Potenzo's robbery.

The only other evidence offered by the prosecution to prove

Cammarano's guilty knowledge consisted of statements he

made after his arrest. Cammarano unsuccessfully sought

suppression of the statements for violation of Miranda’ and

its progeny. Cammarano testified on his own behalf and

presented witnesses to support the defense that he was

employed to do plumbing work at the bar, that on the day in

question Potenzo accompanied him to the bar to help with

the work, and that Potenzo committed the robbery and

murders without Cammarano's knowledge.

Motion to Suppress Statements

Prior to trial, Cammarano sought suppression of his

statements on the ground that they were obtained after and

despite his request for counsel in violation of Miranda and

Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68

L.Ed.2d 378 (1981). An evidentiary hearing was held on the

motion to suppress. (App.A 1567-1800, 1899-1912).

Orlando Police Officer Richard Albert testified at the

hearing that at approximately 10:50 a.m. on May 24, 1984,

he observed two men later identified as Cammarano and

Potenzo walking near the Southern Nights [the bar] in

Orlando. (App.A 1577-78). Albert stopped them because he

was wondering what they were doing in what he described as

a high crime area for residential and commercial burglaries.

Albert observed Potenzo walk to the curb, drop a towel in

front of the patrol car and return to Cammarano's side.

Cammarano was carrying a bag which he eventually placed

on the ground. (App.A 1578-80; 1585-86; 1599).

Upon questioning by Albert, Cammarano indicated

that he was doing plumbing work at the bar and that they

App. 44

were walking to Cammarano's car which was running out of

gas. (App.A 1013; 1582-83). Albert observed something

metallic in Cammarano's waistband and radioed for backup.

Albert looked into the bag and observed currency. At the

same time, Potenzo ran away. (App.A 1581-85). Albert drew

his weapon on Cammarano, handcuffed him and placed him

in the patrol car. (App.A 1586). Albert picked up the towel

that Potenzo dropped and observed a gun. (App.A 1587).

The metallic object in Cammarano's waistband was a small

plumbing tool. (App.A 1588). Potenzo was later

apprehended. (App.A 667).

Detective Jeffrey Gauntlett testified that he arrived on

the scene. (App.A 1637). Gauntlett searched Cammarano's

bag and found, among other things, cash and bank bags.

(App.A 1638). Gauntlett went over to Cammarano in the

patrol car. (App.A 1639). Cammarano orally waived his

rights. (App.A 1640; 1651). Gauntlett asked about the

money. Cammarano responded that the money came from

the bar. Gauntlett sent an officer to the bar who found two

employees who were shot to death. (App.A 1640-41).

Gauntlett testified that Cammarano said he was

working at the bar when he heard two shots. The gunman,

whom Cammarano denied knowing at that time, forced

Cammarano outside to the area where Albert stopped them at

which time the gunman ran away. (App.A 1640-41). (When

Cammarano was first advised that two people at the bar were

shot to death, Gauntlett testified at the trial that Cammarano

appeared "shocked". (App.A 997)).

Gauntlett testified that Cammarano was taken to the

police station where he was re-advised of his rights by

Gauntlett. Cammarano signed a rights card, stated that his

attorney's name was Sheaffer, and asked if Sheaffer could be

present. Gauntlett responded in the affirmative and left the

interrogation room. (App.A 1654-57). Outside the room,

Gauntlett approached Investigator Mundy. Mundy testified

that Gauntlett told him that Cammarano "wished an

attorney." (App.A 1684). Mundy asked Gauntlett whether

App. 45

Cammarano wanted to talk. When Gauntlett told Mundy that

he did, Gauntlett and Mundy returned to the interrogation

room. Gauntlett did not tell Cammarano that any attempt

would be made to contact Sheaffer and Gauntlett made no

such effort. Nor was Cammarano allowed to contact

Sheaffer. Instead, Gauntlett and Mundy asked whether

Cammarano would give them a statement. Cammarano

responded that he would and an interrogation ensued

resulting in an oral statement which was followed by a tape

recorded statement.

Another statement was taken by Sergeant Rakes

during a polygraph examination. (App. A 1642; 1654-1659;

1678; 1680). Subsequently, Mundy and Gauntlett took yet

another statement. (App.A 1659-60). The officers obtained

the statements from Cammarano over a period of

approximately eight hours. (App.A 1661).

Cammarano testified at the suppression hearing. He

stated that when he was brought to the police station for

questioning, he was advised of his rights. He named his

attorney, Sheaffer, and asked Gauntlett for permission to

speak to him. (App.A 1901-02). Gauntlett simply left the

room and later returned with Mundy. (App.A 1902).

Cammarano asked for a telephone to call Sheaffer. Gauntlett

and Mundy left the room for approximately thirty minutes.

Gauntlett returned and read Cammarano his nights.

Cammarano again asked to place a telephone call but was

instead questioned resulting in the statements Cammarano

sought to suppress. (App.A 1903-04). The state trial judge

denied the motion to suppress the statements without making

any findings of fact. (App.A 2447).

The Prosecutor's Investigation of Sheaffer and

Motion to Disqualify Sheaffer

The case against Cammarano was prosecuted by

Assistant State Attorney William Sharpe. Sharpe's list of trial

witnesses included an inmate in a Florida prison, Daniel

App. 46

Sydow. Prior to the trial, Sheaffer interviewed Sydow at the

prison. Afterwards, Sydow told Sharpe that Sheaffer offered

him a bribe in exchange for favorable testimony. Based upon

Sydow's accusation, Sharpe launched an investigation and

filed a motion to disqualify Sheaffer as trial counsel on the

ground that he was a potential witness. (App.A 234-235).

A pretrial hearing on the motion to disqualify counsel

was held before the trial judge on March 26, 1985. At the

hearing, the prosecutor argued that even though he no longer

intended to call Sheaffer as a witness, Sheaffer should still be

removed as Cammarano's counsel. The trial court denied the

motion to disqualify on the basis that the prosecution was not

going to call Sheaffer as a witness. However, at no time

during the hearing (or any time thereafter) was Cammarano

advised by the judge or anyone else that the State Attorney's

investigation of his counsel for bribery of a witness and/or

suborning perjury raised an issue of ineffective assistance of

counsel due to conflict of interest. Nor did Cammarano ever

waive his right to conflict-free counsel. (App.A-2274-2308).

Sheaffer obtained counsel who filed a motion to

appoint a special prosecutor. (App.A 2506-10). The motion

noted that after the hearing on the prosecutor's motion to

disqualify, Sheaffer was advised that a local grand jury

would hear the allegations against him. (App.A-2509).

Approximately ten days before the motion for

disqualification of Sheaffer was filed, Hinton Waters, a

Florida prison inmate, wrote a letter to Chaplain Dan

Matsche of the Orange County Jail. In the letter, Waters

related that he was told by Potenzo that Cammarano knew

nothing of Potenzo's plan to rob the bar and did not know

about the murders until after his arrest. Waters further

advised Chaplain Matsche that Potenzo told him that he

would do whatever was necessary to save himself from the

electric chair. Potenzo also stated that Cammarano deserved

whatever happened to him, blaming Cammarano's inaction

when the two were approached by police as the reason for

Potenzo's arrest. (App.G 443-445; 448-450).

App. 47

Not long after he received the letter from Waters,

Chaplain Matsche saw Sheaffer and showed him the letter.

Sheaffer took the letter but appeared to the Chaplain to be

disinterested. (App.G 161-162; 451-452). Waters was never

contacted by Sheaffer concerning the contents of the letter

and Sheaffer did not call Waters as a witness at trial. (App.G

450).

The Trial

At the trial, it was established that the bar hired

Cammarano to do plumbing work. (App.A 558). On May 21,

1984, the Monday of the week of the shooting, Potenzo

accompanied Cammarano to assist him in plumbing work at

the bar. The bar gave money to Cammarano to purchase

plumbing supplies. (App.A 877-79). The week of the

shooting, Cammarano was scheduled to return to the bar to

finish plumbing repairs. (App.A 577-80, 872-73; 878-79). A

bar employee testified for the state that he searched all the

receipts for plumbing supplies and at first could only find

receipts dated May 10, 1984. (App.A 884-86).

The prosecution's key witness at the trial was

Potenzo. Potenzo entered a plea of guilty to two counts of

murder in the first degree. Although Potenzo admitted to

having killed the two victims in an execution style murder,

the prosecution waived the death penalty resulting in two

concurrent life sentences in return for Potenzo's testimony

implicating Cammarano. (App.A 623). Potenzo testified that

he pled guilty to both murders in exchange for the life

sentences, a recommendation that he not be sent to Florida's

three most dangerous prisons, and testifying against

Cammarano. (App.A 624-26).

Potenzo came to Florida from New York two months

before the murders and moved into Cammarano's apartment.

(App.A 627). Potenzo claimed that he and Cammarano

agreed to rob the bar and that Potenzo would kill any

witnesses to prevent identification. (App.A 633-37). They

entered the bar and employees were there. Potenzo had a

criminal record, was a fugitive from New York, and a

cocaine addict. Potenzo claimed he was acting at the

direction of Cammarano (who was only 19 and without any

criminal record). Potenzo testified that he and Cammarano

planned to flee to Fort Lauderdale after the robbery. Potenzo

further claimed that to avoid suspicion during their absence,

Cammarano changed the message on _ his telephone

answering machine to announce that Cammarano went to

Fort Lauderdale and would be away for several days. (App.A

717-19), -

3 However, the testimony of prosecution witness Julie

‘Kerce contradicted Potenzo. Kerce testified that on the

evening of Wednesday, May 23, 1984, she saw Cammarano

at the bar at approximately 10:00 p.m. The two planned to

spend the next day together. But Kerce had to work so they

agreed to meet for dinner. When Cammarano failed to

appear (because of the arrest), she called his telephone

number four times. Contrary to Potenzo's: testimony that

Cammarano changed the message on the answering machine,

Kerce testified that each time she called, the recording

simply asked the caller to leave a message. (App.A 930-36).

Kerce also testified that two weeks prior to the

shooting, Potenzo asked her where the safe was located in

the bar's office and how many people were in and out of the

office during the day. (App.A 938). Kerce also recalled that

Cammarano once showed her his gun which he kept hidden.

Cammarano stated that he was hiding the gun from Potenzo.

(App.A 939).

State witness Tammy Brown testified that the

evening before the shootings, Potenzo was alone at the bar.

(App.A 945). Brown also testified that she was in a car alone

with Potenzo when he showed her a gun which he stated he

took without Cammarano's permission. (App.A 946-47).

Detective Gauntlett recounted Cammarano's initial

oral statement made in the police car. Gauntlett testified that

later at the police station, Cammarano made a second oral

App. 49

statement. In that statement, Cammarano said that he went to

the bar that morning with Potenzo to do plumbing work.

Their car ran out of gasoline so they parked. They walked to

the bar and Cammarano carried a bag with tools. The front

door was open. Cammarano went to check on the toilet and

lost sight of Potenzo. Cammarano then went to an area of the

showroom bar and heard a noise like a muffled gunshot or

hammer hitting something. Then he heard another.

Cammarano then walked toward the office and Potenzo

emerged stating that they had to get out of there. Cammarano

did not know what was happening but he was afraid and ran

for the door. Potenzo had the bag. Cammarano did not see a

gun. They ran around the corner and Potenzo threw the bag

at Cammarano. Seconds later, they were stopped by Officer

Albert and Potenzo fled. (App.A 976-80). Cammarano said

that the gun seized belonged to him and he had last seen the

gun in his apartment. (App.A 980-81). After that interview,

Gauntlett took a tape recorded statement from Cammarano

which was played for the jury. (App.A 981-83; State Exhibit

52).

After this taped interview, Cammarano was

interviewed by Investigator Mundy and Sergeant Rakes (in

connection with polygraph examinations). (App.A 983).

Mundy testified that Cammarano stated that he knew that

Potenzo wanted to commit a robbery. (App.A 1013). After

those interviews, another taped statement was taken by

Gauntlett and Mundy which was played for the jury. (App.A

983.; State's Exhibit 53).? Cammarano consented to a search

of his apartment. No evidence connected with the homicides

was found there. (App.A 827; 838).

Cammarano testified on his own behalf. The direct

examination by Sheaffer comprises 36 pages of the trial

transcript. (App.A 1186-1222). Sheaffer asked but one

question of Cammarano with regard to what happened at the

bar, namely, whether his statement made at the Office of the

State Attorney was a true account of what took place.‘

(App.A 1207). No other details of the crime were adduced

App. 50

by Sheaffer. Instead, Cammarano was closely questioned on

cross-examination by the prosecutor about the events with

emphasis upon the differences among all of Cammarano's

statements. That cross examination comprises 82 pages of

the trial transcript. (App.A 1226-1308). Sheaffer's redirect

examination encompasses three pages. (App.A 1308-10).

An employee of a plumbing supply company testified

that supplies, including a toilet and parts for its installation,

were purchased on May 21, 1984 for the bar, as Cammarano

claimed. The receipts were admitted into evidence. (App.A

1413-21). Employees of the bar confirmed the purchase and

added that the documentary proof of the purchase was not

sought until the night before they testified. (App.A 1426-27;

1432).

Throughout his closing argument to the jurors, the

prosecutor relied upon Cammarano's statements. (App.A

1447-49; 1458, 1462, 1464-67). The sole issue in the case,

according to the prosecutor, was whether Cammarano knew

that a robbery of the bar would take place. The prosecutor

told the jurors that if Cammarano had such knowledge, the

verdict should be guilty of felony murder. But if Cammarano

did not know a robbery was going to take place, the jurors

should vote not guilty. (App.A 1452).

According to the prosecutor, the statements proved

Cammarano's guilt due to their admissions and

contradictions. (App.A 1466-67, 1469). The prosecutor also

contrasted Cammarano's statement to Officer Albert on the

scene with Cammarano's taped statements (App.A 1458) and

with Albert's testimony. (App.A 1464-65). The prosecutor

dismissed the testimony of defense witness Michael Caripy

as that of a four-time convicted felon who could not be

believed. (App.A 1467-68).°

In his closing argument, the prosecutor urged the

jurors to return a guilty verdict against Cammarano because

he was represented by privately retained counsel whereas

Potenzo had appointed counsel.” Sheaffer did not object to

App. 51

the prosecutor's argument. (App.A 1470). Cammarano was

found guilty as charged. (App.A 1560-61).

The Direct Appeal

On direct appeal to the District Court of Appeal of

Florida, Fifth District, Sheaffer raised as error, inter alia, the

trial judge's denial of the motion to suppress Cammarano's

statements in violation of Edwards v. Arizona. (App.B at i-

ii). The appellate court affirmed without an opinion.

Cammarano vy. State, 494 So. 2d 219 (Fla.Sth DCA 1986).

(App.E, F).

The First Post-Conviction Motion and Hearing

On May 20, 1987, Cammarano filed a motion to

vacate his judgment and sentence pursuant to Florida Rule of

Criminal Procedure 3.850 [first 3.850 motion]. The first

3.850 motion was based in pertinent part upon the denial of

Cammarano's sixth amendment right to effective assistance

of counsel. (App.G 427-457). The first 3.850 motion alleged,

inter alia, that the prosecutor's investigation of Sheaffer for

witness bribery impaired Sheaffer's ability to afford effective

assistance of counsel. In part, the 3.850 motion raised that

issue as follows:

During the course of the trial in this matter,

many unusual and irregular events occurred

which may have impaired trial counsel's

ability to perform effectively. State Attorney

Sharpe initiated a proceeding to determine

whether William Sheaffer and his investigator

had offered a witness money in return for

favorable testimony. Certainly, the attempt

by the Assistant State Attorney to have Mr.

Sheaffer removed as trial. counsel on

allegations of misconduct, created an

App. 52

atmosphere in which anyone would have

difficulty performing.

(App.G 441).

The first 3.850 motion alleged many instances of

Sheaffer's ineffectiveness. Attached to the motion was the

affidavit of Dan Matsche, the Chaplain of the Orange County

Jail in Orlando, Florida (App.G 451-52), a copy of a

handwritten letter to Matsche from Hinton Waters dated

March 12, 1985 (App.G 443-45), and an affidavit of Waters

(App.G 448-50). In his affidavit, Matsche stated that hc

received the letter from Waters prior to Cammarano's trial.

At the time, Waters was sharing a cell with Potenzo. The

letter related that Potenzo told Waters that Cammarano had

nothing to do with the murders and knew nothing about

them. Matsche immediately spoke with Waters who

confirmed the letter's accuracy. Matsche brought the letter to

Sheaffer who did not seem interested and gave no indication

that he wanted to know anything about Matsche's

conversation with Waters. Matsche subsequently learned that

there was no follow-up investigation by Sheaffer and that the

information was not used. (App.G 451-52). In his affidavit,

Waters corroborated Matsche and related Potenzo's

confession. (App.G 448-450).

Cammarano also executed an affidavit which was

attached to the first 3.850 motion. Cammarano stated that

Sheaffer neither discussed Waters’ letter with him nor

indicated during the course of trial preparation that the letter

existed. (App.G 456-57). The 3.850 motion listed numerous

other examples of Sheaffer's inadequate performance.

(App.G 441-442).

On September 17-18, 1997, an evidentiary hearing

was held on the first 3.850 motion before the Honorable

Gary E. Formet, Sr. Cammarano's father testified that

Sheaffer agreed to communicate with him on every

important matter in the case. (App.G 75). Not until after the

trial did Sheaffer inform the father of the letter from Hinton

App. 53

Waters to Chaplain Matsche. (App.G 78-9). Cammarano

testified consistently with his affidavit. (App.G 99-125).

Hinton Waters testified that he met Potenzo at the Orange

County Jail. On March 22, 1985, he wrote his letter to

Chaplain Matsche and thereafter spoke to the Chaplain.

Sheaffer never contacted Waters. (App.G 130-334). Waters

would have testified at Cammarano's trial if asked. Waters

did not know Cammarano. (App.G 135-36). Waters

reiterated that Potenzo "flat out, no if's, and's or but's about

it" said several times that Cammarano was without any

advance knowledge of Potenzo's plan to commit a robbery.

(App.G 155). Waters added that he once told Potenzo that

Clyde Barrow once said that the most important part of a

bank robbery plan was the getaway and Waters could not

figure out why Cammarano did not know what to do.

Potenzo responded that Cammarano was not told about

Potenzo's plan to rob the bar because "he would have blown

the whole thing." (App.G 154-55). Chaplain Matsche's

testimony confirmed that which he stated in his affidavit.

(App.G 158-64).

Prosecutor Sharpe testified for the state at the

hearing. Sharpe conducted an investigation of Sheaffer after

learning of bribery allegations against Sheaffer. Sharpe's

office interviewed several witnesses with whom Sheaffer had

contact. (App.G 59-60). Sharpe concluded that "Mr. Sheaffer

could not represent Mr. Cammarano..." and therefore moved

to disqualify Sheaffer. (App.G 55). Sharpe believed that

evidence could have been adduced at Cammarano's trial

which would have forced Sheaffer to defend himself. (App.G

55). Sharpe could not dispute that there was media coverage

given to the allegations against Sheaffer. (App.G 57-58).

Sharpe acknowledged that at least a month prior to the trial

and during the trial that Sheaffer was under a cloud of

suspicion. (App.G 58). Sharpe opined that he would not have

wanted to be in Sheaffer's position. (App.G 58).

Sheaffer was called as a witness by the prosecution.

In an effort to show that he conducted a proper pretrial

App. 54

investigation into the background of Waters and that the

decision not to call Waters was reasonable trial strategy,

Sheaffer testified that he met with Chaplain Matsche,

considered Waters’ letter, and decided that some of it was

inaccurate. Sheaffer never interviewed Waters. Sheaffer

stated that he interviewed several attorneys who previously

represented Waters. Sheaffer claimed that these attorneys

told him that Waters was a liar and on a mission due to his

own unjust conviction. (App.G 202-213; 258). Sheaffer also

claimed that he told Cammarano about Waters’ letter.

(App.G 271). Sheaffer refused to divulge the names of the

attorneys he claimed he consulted about Waters. When the

trial judge ordered Sheaffer to provide the names of the

attorneys, Sheaffer testified that he could not remember their

names. The trial judge took a recess and instructed Sheaffer

to review his notes and attempt to recall the attorneys’ names.

Following the recess, Sheaffer named William Kinane and

John Meehan as the attorneys. (App.G 259-266).

Sheaffer testified that at Cammarano's trial he

presented the testimony of Caripy who stated that Potenzo

recanted. According to Sheaffer, Caripy's testimony, unlike

Waters' letter, matched the evidence and Cammarano's

account. (/d. at 209). Sheaffer acknowledged that in addition

to Waters and Caripy, there were at least two other

witnesses, also not called by Sheaffer, who were toid by

Potenzo that Cammarano was innocent but whom Sheaffer

did not call to testify on behalf of Cammarano. (Jd. at 202).

Sheaffer testified: "I was concerned about the effect

of the investigation on two fronts, one my immediate

representation of Joe Cammarano, and two, my future career

as a criminal defense attorney in Orange County.” "You

might as well take my license if you take my reputation." (Id.

at 256).

Sheaffer also explained his decision to subject

Cammarano to hypnosis.’ Sheaffer thought hypnotically

refreshed out-of-courts statements were admissible. But if

the statements were excluded (which they were), Sheaffer's

App. 55

intended to file the statements with the clerk of the court in

the hope that a juror's family would see the statements in the

press and that the juror would "swing everybody else" or at

least "hold out" for a not guilty verdict. (Jd. at 243).

The trial judge entered an oral ruling denying the first

3.850 motion. Essentially, the trial judge found that

Cammarano failed to prove prejudice. (Jd. at 340-46).

The Rehearing on the First Post-Conviction Motion

Meehan and Kinane were thereafter contacted and

denied Sheaffer's testimony. Based thereon, a motion for

rehearing was filed. An evidentiary hearing was held on July.

15, 1988. (App.G 352-55; 461-475).

Meehan testified that Sheaffer never had a

conversation with him about Waters. Moreover, had he been

asked, Meehan would have said that Waters was a person of

veracity who would have made a truthful witness. (App.G |

391).

Kinane testified that he had no specific recollection

of a conversation with Sheaffer about Waters but that it was

possible there had been a fleeting conversation while Kinane

was "on the run". (App.G 362). But if he had been asked

about Waters, Kinane testified that he would not have said

that Waters was an unbelievable or unreliable witness.

(App.G 362-63; 381). To the contrary, Kinane testified that

Waters was articulate and credible. (App.G 382-383).

Sheaffer testified again and insisted not only did he

consult Kinane, but also that Kinane counseled against using

Waters as a witness, despite Kinane's contrary testimony.

(App.G 393, 397). Additionally, and for the first time,

Sheaffer now claimed that he consulted another attorney

other than Meehan. When pressed for details, Sheaffer said

he did not recall the name of the attorney, did not know

whether the person was a man or a woman, did not recall if

the second attorney had ever represented Waters, and did not

App. 56 |

remember if the other attorney practiced law in Orlando.

(App.G 394, 396, 399).

On July 22, 1988, the state judge entered a two-page

order denying Cammarano’s 3.850 motion and motion for

rehearing. (App.G 478-480). In essence, the judge found that

Cammarano suffered no prejudice. Jd. |

Cammarano appealed to the Fifth District Court of

Appeal. Cammarano presented to the appeals court the

argument that the prosecutor's criminal investigation of

Sheaffer "undoubtedly affected [Sheaffer's] ability to

function effectively during the course of preparing

[Cammarano's}] case." (App.H 20). The appellate court

affirmed without opinion. Cammarano v. State, 548 So. 2d

671 (Fla.Sth DCA 1989). (App.K). The Supreme Court of

Florida dismissed review. Cammarano vy. State, 551 So. 2d

460 (Fla.1989).

The Second Post-Conviction Motion and Hearing

On August 14, 1991, Cammarano filed a second

3.850 motion. (App.L). Attached to the motion was an

affidavit executed by Potenzo. In the affidavit, Potenzo

recanted his trial testimony and stated that he would testify

that he carried out the crimes without any assistance or

knowledge on Cammarano’s part. (App.P 146-164). The

affidavit further indicated that Potenzo lied at Cammarano's

trial because he was angry with Cammarano and sought to

avoid a sentence of death for the two homicides Potenzo

committed. (App.P 163-164). The second 3.850 motion was

summarily denied on the ground that Potenzo's recantation

could have been discovered upon the exercise of due

diligence. (App.M). On appeal by Cammarano, the summary

denial was reversed and remanded. Cammarano v. State, 602

So. 2d 1369 (Fla.Sth DCA 1992). Upon remand, a hearing

was held on the second 3.850 motion on December 11, 1992

before the Honorable John H. Adams, Sr.

App. 57

Although he did not retreat from his affidavit that his

testimony at Cammarano’s trial was perjury, Potenzo did, by

way of another affidavit, state that if called as a witness to

testify at the second 3.850 hearing, he would invoke his

privilege against self-incrimination. That affidavit was

introduced into evidence at the hearing. (App.P 34, 124).

Cammarano's father testified that in 1987, in

preparation for the first 3.850 proceeding, Potenzo was

contacted about recanting the false testimony he gave at

Cammarano's trial. Potenzo declined stating that he was

worried about jeopardizing his own situation. (App.P 14-15;

16-17).

Several months later, Potenzo telephoned

Cammarano's father. Potenzo said he was sorry for what he

did but that he felt his life was at stake. He believed that he

could not change his testimony without risking his plea

bargain or facing a perjury charge. The father pled with

Potenzo to come forward and tell the truth. Potenzo said he

could not and was too worried about his own situation.

(App.P 16-20).

On April 18, 1991, Steven Votra, a licensed private

investigator and notary, interviewed and wrote out what

Potenzo told him which Potenzo executed under oath as an

affidavit. The judge denied admission of this affidavit into

evidence. (App.P 17-32; Exhibit B).

On July 11, 1991, Votra visited Potenzo again and

presented Potenzo with a typewritten affidavit prepared from

the handwritten one. They reviewed the affidavit for

accuracy and Potenzo executed it under oath. The judge

denied admission of this affidavit into evidence. (App.P 37-

40). This affidavit was attached to the second 3.850 motion.

(App.P 163-64). In the affidavit, Potenzo stated the

following: the idea to rob the bar and commit the murders

was solely his; the crimes were committed without

Cammarano's knowledge; Cammarano did not participate in

the robbery or murders; and he testified falsely against

Cammarano. (Id.) ;

App. 58

Cammarano attempted to call Waters as a witness.

The prosecution objected and the trial court sustained the

objection. Waters testified as a proffer as follows. Waters

runs the Worldwide Prison Ministries out of Oxford,

, Georgia. The organization works with defendants after they

have been released to prevent recidivism. Waters, now a

minister, was himself released from incarceration in 1989

after serving five years. Waters testified that he met Potenzo

in jail. Potenzo started talking about the bar murders.

Eventually, Potenzo gave one consistent version of the

murders. Potenzo stated that he took Cammarano's gun to the

bar without Cammarano's knowledge. While Cammarano

was in another part of the bar, he shot both victims and took

the bar's money. He went to Cammarano and told him what

he did. Cammarano did not believe him until he saw the

victims. Potenzo urged Cammarano out of the bar. (App.P

50-61). Potenzo said that Cammarano was just a kid who did

not know what Potenzo was going to do. Potenzo said he

would pay the price for the crimes and Cammarano would go

free. (App.P 62). Months later, Waters and Potenzo were in

another institution. Potenzo stated that he was going to

testify against Cammarano. (App.P 65). Waters confronted

Potenzo. Potenzo broke down and cried and said that he was

going to die in the electric chair. (App.P 66-67). Waters said

that would not happen because Potenzo had already been

sentenced. But Potenzo was terrified. At this point, Waters

wrote his letter to Chaplain Matsche. (App.P 67). Waters

was not contacted by anyone prior to Cammarano's trial.

(App.P 68).

The judge also excluded the testimony of Leonard

Mazzara. Mazzara's testimonial proffer was as follows.

Mazzara is an inmate serving life sentences. He met Potenzo

at a prison in Avon Park, Florida in 1988. Potenzo told

Mazzara that he used Cammarano to gain access to the bar.

Potenzo said he shot the manager in the bar office while

Cammarano was in a bathroom. When Cammarano left the

bathroom, Potenzo entered the bathroom where he shot the

App. 59

other victim. Potenzo said that Cammarano had "no

knowledge whatsoever." When Mazzara later met

Cammarano, he told him what Potenzo said. Mazzara

executed an affidavit in 1990 which the trial court excluded

from evidence. (App.P. 97-102; Exhibit E).

At the close of the hearing, the prosecution moved

for summary denial of the second 3.850 motion. The judge

orally granted the motion. (App.P 130-32). On December 16,

1992, the trial court entered a written order denying the

second 3.850 motion without reasons. (App.P 180-81).

On appeal, Cammarano argued that he established

due diligence and that the trial court erred in refusing to

admit into evidence the affidavits of Potenzo as statements

against penal interest, citing Chambers v. Mississippi, 410

U.S. 284 (1973) (holding that a mechanistic application of

the hearsay rule which prevents the introduction into

evidence of statements against penal interest violates the Due

Process Clause of the Fourteenth Amendment to the

Constitution of the United States of America) and Baker v.

State, 336 So. 2d 364 (Fla. 1976), the leading case in Florida

adopting Chamber as the law of the State of Florida. (App.Q

17). The appellate court affirmed without an opinion.

Cammarano v. State, 632 So. 2d 1044 (Fla.Sth DCA 1994).

(App.T).

The Petition for Writ of Habeas Corpus

Cammarano filed his petition for writ of habeas

corpus with the United States District Court for the Middle

District of Florida. (R1-1-27). The petition raised the

following grounds pertinent to this appeal: Cammarano was

denied his sixth amendment right to conflict-free counsel

when, prior to and during his trial, his counsel was the

subject of a criminal investigation by the same prosecutor;

Cammarano was denied his sixth amendment right to

effective assistance of counsel when he failed to investigate

or present critical witnesses; the denial of his motion to

App. 60°

—

suppress statements violated Edwards v. Arizona; and the

exclusion of Potenzo's affidavits at the second 3.850 motion

hearing violated Chambers. The district judge denied the

petition without an evidentiary hearing by written order

entered September 2, 1998. (R2-60).

Cammarano timely appealed. (R2-62). Cammarano's

appellate counsel filed with the district court a motion to

supplement the record with the tape recordings of his

statements which were admitted into evidence at

Cammarano's trial. The district judge denied the motion on

the ground that the tapes were not before the court at the

time judgment was entered.

STATEMENT OF THE STANDARDS OF REVIEW

The constitutional question of the admissibility of a

confession is a mixed question of law and fact subject to

plenary federal review. Miller v. Fenton, 474 U.S. 104, 112,

106 S.Ct. 445, 88 L.Ed.2d 405 (1985). Questions involving

ineffective assistance of counsel and conflicts of interest are

mixed determinations of law and fact subject to plenary

federal review and are not entitled to a presumption of

correctness under 28 U.S.C. § 2254(d). Freund vy.

Butterworth, 165 F.3d 839 (11th Cir.1999) (en banc). The

question whether a state prisoner in a federal habeas

proceeding has exhausted state remedies is a mixed question

of law and fact subject to de novo review. Fox v. Kelso, 911

F.2d 563, 568 (11th Cir.1990). The standard of review for

state evidentiary ruling in federal habeas corpus proceedings

is whether the ruling infused the proceeding with such

unfairness as to deny due process of law. Lisenba v.

California, 314 U.S. 219, 228, 62 S.Ct. 280, 286, 86 L.Ed.

166 (1941); Felker v. Turpin, 83 F.3d 1303 (11th Cir.1996).

App. 61

SUMMARY OF THE ARGUMENTS

I.

Prior to, during, and after Cammarano's trial, his

counsel was under investigation by the prosecutor for crimes

arising out of the case. Counsel was accused of offering a

bribe to a state witness in exchange for testimony favorable

to Cammarano. The resulting conflict of interest denied

Cammarano his sixth amendment right to effective assistance

of counsel. The district court found that the issue had not

been exhausted in the state courts. The district court erred.

The record reveals that Cammarano fairly presented the issue

to the state courts.

Il.

Cammarano's trial counsel was also ineffective for

not having interviewed or presented witnesses at the trial

who would have testified that Potenzo admitted he was

falsely implicating Cammarano.

Il.

Following his arrest, Cammarano was taken to an

interrogation room at a police station. When advised of his

Miranda rights, Cammarano told the interrogating officer the

name of his attorney and asked whether that attorney could

be present. The officer said "yes", left the room, and told

another officer that Cammarano desired counsel. The

officers continued to interrogate Cammarano rather than

honor his request for counsel. In the state courts, Cammarano

unsuccessfully challenged the admissibility of the statements

under Miranda and its progeny.

The district court, without an evidentiary hearing,

ruled that the admission of the challenged statements

constituted harmless error. The district court erred. The

App. 62

admission of the challenged statements was highly

prejudicial to Cammarano. The undisputed evidence

established that the two murders at issue were committed by

Dennis Potenzo, who testified against Cammarano to avoid

the death penalty. Potenzo's credibility was challenged and

after the trial he recanted his testimony. Cammarano testified

that he had no knowledge that Potenzo intended either to

commit the murders or rob the bar where the murders were

committed. The prosecution's theory against Cammarano

was that he was guilty of felony murder because he knew

Potenzo was going to rob the bar. The only evidence of

Cammarano's guilty knowledge, other than Potenzo's

testimony, came from the challenged statements. Thus, the

harmless error doctrine could not apply. At the very least,

Cammarano should have been afforded an evidentiary

hearing.

IV.

Cammarano was denied due process of law when, in

a post-conviction proceeding, the state judge excluded

evidence that Potenzo admitted under oath in affidavits and

to others that he committed perjury when he implicated

Cammarano.

App. 63

I.

THE DISTRICT COURT ERRED IN RULING THAT

CAMMARANO FAILED TO PRESENT TO THE

STATE COURTS HIS FEDERAL CLAIM THAT HE

WAS DENIED HIS SIXTH AMENDMENT RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL GECAUSE

HIS TRIAL COUNSEL LABORED UNDER A

CONFLICT OF INTEREST.

A.

After Daniel Sydow was listed by the prosecutor as a

trial witness against Cammarano, Sydow was interviewed by

Cammarano's trial counsel, William Sheaffer, and his

investigator, Douglas Pollock. Sydow claimed that Sheaffer

and Pollock offered him a bribe in exchange for favorable

testimony on behalf of Cammarano. As a result, the

prosecutor launched a criminal investigation of Sheaffer and

moved to disqualify him from representing Cammarano.

(App.A 2434-35). The prosecutor argued that Sheaffer

should be disqualified pursuant to the Code of Professional

Responsibility because he could be called as a witness to

impeach Sydow.

At a hearing on the motion to disqualify, the

prosecutor stated that he no longer intended to call Sheaffer

as a witness but that Sheaffer should still be removed as

Cammarano's counsel. The trial court denied the motion to

disqualify on the basis that the prosecution was not going to

call Sheaffer as a witness. At no time during the hearing (or

any time thereafter) was Cammarano advised by the judge or

anyone else that the State Attorney's investigation of his

counsel for bribery of a witness and/or suborning perjury

raised an issue of ineffective assistance of counsel due to

conflict of interest. Nor did Cammarano ever waive his right

App. 64 |

to conflict-free counsel. The investigation of Sheaffer

continued even after Cammarano's trial during which time

the State Attorney's Office considered presenting the matter

to a grand jury.

In post-conviction proceedings in the state trial and

appellate courts, Cammarano unsuccessfully claimed that

Sheaffer failed to provide effective assistance of counsel as

ensured by the Sixth Amendment. Cammarano raised the

claim again in his federal petition for writ of habeas corpus.

The district court ruled that Cammarano failed to present to

the state courts any claim that his trial counsel labored under

a conflict of interest in violation of the sixth amendment. The

district court found that although Cammarano "referenced

the conflict of interest claim", he did so as part of his

argument that his trial counsel was ineffective for failing to

investigate the case or call witnesses at the trial. (R2-60-17).

The district court opined that as a prerequisite to federal

habeas review, a sixth amendment conflict of interest claim

must have first been presented to the state courts “as a

separate issue". The only authority cited by the district judge

for this proposition was an unpublished decision of the Ninth

Circuit, Bergman v. Duncan, 86 F.3d 1161 (9th Cir.1996).

(R2-60-16-17).

B.

On the issue of exhaustion, the district court's

analysis and conclusion were erroneous. A petitioner may

fairly present the substance of a federal constitutional claim

to the state court without citing "book and verse on the

federal constitution." Picard v. Connor, 404 U.S. 270, 278,

92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971). A petitioner has

satisfied the exhaustion requirement if the legal basis of the

claim made in state court was the "substantial equivalent" of

that of the habeas claim. Jd., 404 U.S. at 278, 92 S.Ct. at 513.

The petitioner need not "[label] his original claims as

‘federal’ constitutional ones", Osborne, 720 F.2d at 1239, or

App. 65

have cited to the state courts the Constitution of even federal

cases. Snowden v. Singletary, 135 F.3d 732, 735 n.2 (11th

Cir.1998); Blankenship v. Estelle, 545 F.2d 510, 514-15 (5th

Cir.1977), cert. denied, 444 U.S. 856, 100 S.Ct. 115, 62

L.Ed.2d 75 (1979). "[C]ourts should exercise flexibility in

determining whether defendants have met this requirement."

Cummings v. Dugger, 862 F.2d 1504, 1507 (i 1th Cir.1989).

The right to conflict-free counsel is an essential

component of the sixth amendment right to effective

assistance of counsel. Glasser, supra. In fact, this court has

stated the following: "Part of effective assistance of counsel

is the avoidance of conflicts of interest." Hamilton v. Ford,

969 F.2d 1006, 1011 (iIth Cir.1992). Accordingly, in

Zamora v. Wainwright, 610 F.Supp. 159 (S.D.Fla. 1985) the

court held that while the petitioner did not specifically refer

to "conflict of interest", the Florida courts were given a fair

opportunity to rule on the petitioner's claim that his counsel

labored under a conflict of interest in that he was more

interested in publicity for himself than in petitioner's defense.

The district judge should have followed these precedents

rather than an unpublished decision of the Ninth Circuit.*

In any event, Cammarano did fairly present the

conflict of interest claim to the state courts when his post-

conviction counsel argued the following:

Mr. Sheaffer was under investigation himself

for possible bribery of a witness. Mr. Sheaffer

was told that he should get out of the case by

the very prosecutor in this case. He may not

have been functioning well at all.

KK

[Sheaffer] was ... under the ... trauma of the

investigation. [H]e was very concerned about

his entire relationship with witnesses.

App. 66

(App.G 171; 175).

Cammarano's post-conviction counsel also presented

the following argument to the state court:

[T]he reason[] this case is so singular is that

Mr. Sheaffer was himself under investigation

during the most critical period of the case,

immediately before ... trial and ... Mr.

Sheaffer was required under his own

assumption of what had to be done to hire a

lawyer, Jeff Weiner from Miami to say that

[he] was not embroiled in his own defense, to

say on the witness stand, "I wasn't really

concerned about it," I think 1is- really

something that we cannot accept and I would

ask Your Honor, as the trier of fact of this

hearing, to take into consideration whether it

was considered de minimis, so to speak, by

this lawyer.

(App.G 307-08).

In addition, in arguing why Sheaffer failed to

investigate and recognize the significance of the letter from

Waters to Chaplain Matsche, Cammarano's post-conviction

counsel further presented the conflict of interest claim to the

state court as follows:

[Sheaffer] conceded that he ... had been under

investigation and fortunately for him it did not

result in an indictment. The very time he

[Sheaffer] was representing my client who

was then his client, he was certainly, very,

very distracted, Your Honor.

kK

App. 67

Mr. Sheaffer, I submit to you, Your Honor,

unfortunately fell down on the job here, but

not because of some strategic judgment which

would be perfectly okay under the cases, [but]

because of the fact he did not and could not

represent the defendant the way he should

have been.

(App.G 406; 411).

Cammarano appealed to the Fifth District Court of

Appeal. Cammarano argued in his brief that the prosecutor's

criminal investigation of Sheaffer "undoubtedly affected

[Sheaffer's] ability to function effectively during the course

of preparing [Cammarano's] case." (App.H 20). Cammarano

further argued in his brief as follows:

It is clear from the record that just prior to the

information pertaining to Hinton Waters

coming to Sheaffer's attention, Sheaffer was

forced to defend himself against allegations of

criminal impropriety made by Assistant State

Attorney, Ray Sharpe. Sharpe initiated a

proceeding aimed at having Sheaffer removed

as [Cammarano's] counsel. The allegation was

that Sheaffer and his investigator had offered

money to a witness in return for favorable

testimony. Sheaffer defended himself with

help from the National Association of

Criminal Defense Lawyers. This action

against Sheaffer created an atmosphere in

which any person would have had difficulty

performing. At a minimum, it certainly had a

chilling effect on Sheaffer's initiative to

interview another potential witness, namely,

Hinton Waters.

App. 68 .

(App.H 20-21). The appellate court affirmed without

opinion. Cammarano v. State, 548 So. 2d 671 (Fla.Sth DCA

1989). (App. K). The Supreme Court of Florida dismissed

review. Cammarano v. State, 551 So. 2d 460 (Fla.1989).

The rule in this circuit is that "preciseness of words is

not necessary in presenting the issue so long as the state

court has an adequate opportunity to consider a party's

objection." Osborne v. Wainwright, 720 F.2d 1237, 1239

(11th Cir.1983). This Court has also held that "[w]hen a

federal habeas petitioner presents what amounts to 'a mere

variation in the same claim rather than a different legal

theory....' Wilks v. Israel, 627 F.2d 32, 38 (7th Cir.1980),

cert. denied, 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811

(1981), he has presented the state courts with the substance

of his claims and thus has properly exhausted them." Watson

v. Dugger, 945 F.2d 367, 372 (11th Cir.1991). In Morgan v.

Zant, 743 F.2d 775 (11th Cir.1984), the petitioner for the

first time in his brief to this court argued that his counsel

failed to inform him that duress is not a defense to murder in

Georgia and that this failure caused him to refuse a plea

bargain offered by the state. This court noted that the claim

was "arguably cognizable as a variation on the

ineffectiveness theme urged by the petitioner throughout the

course of the litigation." /d. at 780. Similarly here, the

above-quoted presentations of the conflict claims and the

clear theme of the litigation sufficiently apprised the state

court of the conflict of interest issue.

C.

The Sixth Amendment right to effective assistance of

counsel includes the right to counsel who is not "burdened

by an actual conflict of interest." Strickland v. Washington,

466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674

(1984). Ordinarily, to establish ineffectiveness of counsel, a

petitioner must prove (1) that his attorney's representation

fell below an objective standard of reasonableness and (2)

App. 69

that he was prejudiced. Id. at 687, 104 S.Ct. 2064. Prejudice

is established where the petitioner demonstrates "a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome." Jd. at 694, 104

S.Ct. at 2068.

A different standard is applied when the attorney's

representation of multiple clients has created an actual

conflict of interest. In such a case, prejudice is presumed and

the petitioner need only show that the actual conflict

adversely affected the performance of counsel. Cuyler v.

Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64

L.Ed.2d 333 (1980). As the Supreme Court recognized: "[I]t

is difficult to measure the precise effect on the defense of

representation corrupted by conflicting interests." Strickland,

466 U.S. at 692, 104 S.Ct. at 2067. The reason for the lesser

standard is that when counsel represents two clients with

opposing interests, both clients cannot be served adequately.

Cuyler, supra. The presumption of prejudice also applies

when an accused is represented by counsel who, at the same

time, is being investigated by the prosecution. United States

v. McLain, 823 F.2d 1457 (11th Cir.1987). The rationale for

the application of the presumption is the same, i.e., counsel

is simultaneously laboring under competing and inconsistent

interests because he must serve as the prosecutor's adversary

for the benefit of the client while at the same time curry

favor with the prosecutor in the hope of obtaining a

favorable resolution of the pending investigation against

him. See also United States v. Grieg, 967 F.2d 1018 (Sth

Cir.1992); Mannhalt v. Reed, 847 F.2d 576 (9th Cir.1988);

Government of Virgin Islands v. Zepp, 748 F.2d 125, 136 (3d

Cir.1984); United S:ates v. Cancilla, 725 F.2d 867 (2d

Cir.1984); United States v. White, 706 F.2d 506 (Sth

Cir.1983); United States v. Fulton, 5 F.3d 605 (2d Cir.1993).

When a trial court is sufficiently apprised of even the

possibility of a conflict of interest, the court has an

App. 70

obligation to conduct an inquiry of the accused. Wood v.

Georgia, 450 U.S. 261, 272-73, 101 S.Ct. 1097, 1103-04, 67

L.Ed.2d 220 (1981); Cuyler, 446 U.S. at 347, 100 S.Ct. at

1717-18; Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct.

1173, 1178-79, 55 L.Ed.2d 426 (1978). When a possible

conflict has been entirely ignored, reversal is automatic.

Cuyler, 446 U.S. at 347, 100 S.Ct. at 1717-18; Holoway, 435

US. at 488, 98 S.Ct. at 1180-81; Hamilton v. Ford, 969 F.2d

1006, 1011-12 (11th Cir.1992), cert. denied, 507 U.S. 1000,

113 S.Ct. 1625, 123 L.Ed.2d 183 (1993).

D.

As noted, in order to obtain relief, Cammarano need

not show prejudice but need only show that Sheaffer's

performance was adversely affected by the criminal

investigation into the allegations against him. Such adverse

affect has been found where, during his client's case, counsel

"must have been plagued by the fear of sanctions" or the

"uncertainty of whether he would be indicted for obstruction

of justice." Grieg, 967 F.2d at 1024. Adverse affect is also

demonstrated by lapses in representation, such as counsel's

failure to question the defendant on direct about the

allegations, Mannhalt v. Reed, 847 F.2d at 581, or "the

failure of defense counsel to cross-examine a prosecution

witness whose testimony is material or the failure to resist

the presentation of arguably inadmissible evidence..." United

States v. Tatum, 943 F.2d 370, 376 (4th Cir.1991).

"Likewise, a failure to act on behalf of a client before trial

has representational significance." Jd.

Here, the record reflects both Sheaffer's serious

concern about the consequences of the allegations as well as

lapses in Sheaffer's representation of Cammarano. With

regard to the former, Sheaffer sought and obtained counsel to

represent him in the face of Sydow's accusations and the

investigation by the prosecutor. In a motion filed through his

counsel, Sheaffer characterized Sydow's allegations as

App. 71

"serious" and noted that Sheaffer was "advised that the

circumstances regarding his representation of Mr.

Cammarano will be presented to a local grand jury." (App.A

2509). Sheaffer's motion further stated that the prosecutor's

investigation was "publicly intimidating and discrediting."

Id. Indeed, in a post-conviction hearing, Sheaffer testified: "I

was concerned about the effect of the investigation on two

fronts, one my immediate representation of Joe Cammarano,

and two, my future career as a criminal defense attorney in

Orange County." "You might as well take my license if you

take my reputation." (Jd. at 256). These facts alone

demonstrate adverse affect under Grieg, supra.

"Adverse affect" is also established where: (1)

counsel failed to pursue a viable defense strategy or tactic

that conflict-ffee counsel might have undertaken; (2) the

strategy or tactic was reasonable under the facts; (3) there is

some link between the actual conflict of interest and the

alternative strategy. Freund, 165 F.3d at 860. One of the

chief evils resulting from an attorney's conflict of interest is

what counsel refrains from doing to defend his client.

Holloway v. Arkansas, 435 U.S. 475, 490, 98 S.Ct. 1173,

1181, 55 L.Ed.2d 426 (1978).

Sheaffer's lapses in representation meet the above

tests for adverse affect. The record reveals the following

lapses: Sheaffer failed to interview a key defense witness,

Hinton Waters, who would have directly impeached

Potenzo; Sheaffer had Cammarano give a statement to the

prosecution which was used against Cammarano at his trial’:

in his direct examination of Cammarano, Sheaffer never

asked him to explain to the jury what happened at the bar;

and Sheaffer failed to object to the prosecutor's egregiously

improper closing argument.'°

The proper standard for analysis of the conflict of

interest issue is not whether defense counsel's actions or

inactions constituted reasonable trial strategy. Rather, the

correct standard is whether some plausible strategy or tactic

might have been pursued, but was not, due to the conflict of

App. 72 -

interest. Perillo, 79 F.3d at 450. "We must remember that

under Cuyler the issue is not what was the best strategy, but

whether there was a plausible defense strategy that might

have been pursued but was not, because of the conflict of

interest. It is difficult to believe that impeaching the star state

witness would not be a plausible defense strategy." Jd. at

451. Similarly here, it is difficult to believe that: Sheaffer's

failure to interview Waters and thereafter present his

testimony (along with that of the other available witnesses on

the issue of Potenzo's recantations) would be a plausible

defense strategy; after calling Cammarano to the witness

stand, Sheaffer's failure to ask Cammarano what happened at

the bar would be a plausible defense strategy; or Sheaffer's

failure to object and move for a mistrial when the prosecutor

asked the jury to find Cammarano guilty because Sheaffer

was privately retained by Cammarano whereas Potenzo

could not afford private counsel would be a plausible defense

strategy. By antagonizing and/or defeating the prosecutor in

the representation of Cammarano, Sheaffer could not be

helping his own cause. Sheaffer's actions and inactions were

attributable to his divided loyalty between himself and

Cammarano. Thus, Cammarano sufficiently demonstrated

that Sheaffer's performance was adversely affected by the

prosecutor's investigation. Additionally, Cammarano's Sixth

Amendment rights were also violated because the state trial

judge failed to conduct an inquiry when he was placed on

notice of the possibility of conflict. That failure warrants

automatic reversal. See Wood, supra; Cuyler, supra;

Hamilton, supra.

E. Evidentiary Hearing

At the very least, the cause should be remanded for

an evidentiary hearing on the issue. Cave v. Singletary, 971

F.2d at 1516; Burden v. Zant, 871 F.2d 956 (11th Cir.1989)

See also Huynh v. King, 95 F.3d 1052 (11th Cir.1996).

App. 73

Il.

THE DISTRICT COURT ERRED IN RULING THAT

CAMMARANO WAS NOT DENIED HIS SIXTH

AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE

OF TRIAL COUNSEL WHERE COUNSEL FAILED

TO INTERVIEW AND PRESENT WITNESSES WHO

WOULD HAVE TESTIFIED THAT THE

PROSECUTION'S STAR WITNESS CONFESSED TO

THEM THAT HE WAS FALSELY IMPLICATING

CAMMARANO.

A.

Prior to Cammarano's trial, Chaplain Dan Matsche of

the Orange County Jail met with Sheaffer and showed him a

letter from Hinton Waters who related that he was told by

Potenzo that Cammarano knew nothing of Potenzo's plan to

rob the bar and that Potenzo said he would do whatever was

necessary to save himself from the electric chair. Sheaffer

took the letter but appeared to the Chaplain to be

disinterested. Waters was never contacted by Sheaffer

concerning the contents of the letter and Sheaffer did not call

Waters as a witness at trial. (App.G 450).

At a hearing on Cammarano's motion for post-

conviction relief in which Cammarano claimed that Sheaffer

was ineffective for failing to have interviewed and presented

Waters as a defense witness, Sheaffer attempted to justify his

conduct by claiming he acted upon information received by

two other attorneys whom he declined to name. After being

ordered to name the attorneys, Sheaffer gave two names.

However, those attorneys testified at a rehearing and directly

impeached Sheaffer. (See Statement of Facts at 18-19).

The state judge denied Cammarano's motion for post-

conviction relief and the issue was presented to the district

court in the federal habeas corpus petition. The district court

ruled that Cammarano had not "presented any evidence that

App. 74 |

Waters’ testimony would have been more persuasive than

Caripy's testimony" and therefore failed to show prejudice.

(R2-60-19).

B.

"[Cjounsel has a duty to make _ reasonable

investigations or to make a reasonable decision that makes

particular investigations unnecessary". Strickland, 466 U.S.

at 691, 104 S.Ct. at 2052. Where defense counsel fails to

conduct a reasonable investigation, the failure to present the

evidence not investigated is "not a result of a tactical

choice." Blanco v. Singletary, 943 F.2d 1477, 1500 (11th

Cir.1991). Accord, United States v. Gray, 878 F.2d 702, 711

(3d Cir.1989); Hoots v. Allsbrook, 785 F.2d 1214, 1220 (4th

Cir.1986); Birt v. Montgomery, 709 F.2d 690, 701 (7th

Cir.1983), cert. denied, 469 U.S. 874, 105 S.Ct. 232, 83

L.Ed.2d 161 (1984). See also Hart v. Gomez, 174 F.3d 1067

(9th Cir.1999); Evans v. Lewis, 855 F.2d 631 (9th Cir.1988).

Not all "strategic" or "tactical" decisions by counsel are

immune from scrutiny for ineffectiveness under the sixth

amendment. A tactical decision can be "objectively

unreasonable". See, e.g., Huynh v. King, 95 F.3d 1052 (11th

Cir.1996) (defense counsel's tactical decision to delay filing

of potentially meritorious suppression motion in order to

later obtain more favorable federal habeas review was

objectively unreasonable).

C.

The district court erred in ruling that Cammarano had

not "presented any evidence that Waters’ testimony would

have been more persuasive than Caripy's testimony" and

therefore failed to show prejudice. Of course, Cammarano

could not have presented evidence to the district judge

without an evidentiary hearing which Cammarano was

denied. If the district judge was referring to the state court

App. 75

proceedings, that record conclusively refutes the district

court's conclusion by demonstrating palpable prejudice.

Caripy's testimony was conclusory and not believable. He

merely testified at the trial that he shared a holding cell with

Potenzo shortly after Potenzo's arrest, that Potenzo told him

that he committed the shooting, and that Cammarano had

- nothing to do "with the whole thing." (App.A 1155). Indeed,

..in-his closing argument to the jury, the prosecutor easily

dismissed Caripy's testimony as not credible. The state

record also utterly belies Sheaffer's testimony that Caripy's

testimony more closely detailed Cammarano's account. By

comparison, Waters’ account was both detailed and credible.

And Sheaffer was additionally ineffective for not

investigating or presenting the several other witnesses whom

he acknowledged were available to corroborate Waters.

Thus, Cammarano presented more than sufficient facts to

prove that Sheaffer's failure to interview and present Waters

ar and the other witnesses constituted objectively unreasonable

omissions which prejudiced Cammarano upon the key issue

in the case, namely, the credibility of Potenzo.

D. Evidentiary Hearing

Alternatively, an evidentiary hearing should be

ordered because the allegations of ineffectiveness, if true,

warrant relief. Cave v. Singletary, supra. Additionally, the

district court found no prejudice on the ground that

Cammarano had "not presented any evidence that Waters'

testimony would have been more persuasive than Caripy's..."

(R2-60-19). That conclusion should not have been reached

without first affording Cammarano the opportunity to present

such evidence.

III.

THE DISTRICT JUDGE ERRED IN RULING THAT

THE STATE COURT'S FAILURE TO SUPPRESS

CAMMARANO'S STATEMENTS, EVEN IF

VIOLATIVE OF MIRANDA AND ITS PROGENY,

CONSTITUTED HARMLESS ERROR.

A. Facts

See pages 3-6 of this brief.

B. Law

If a suspect knowingly and voluntarily waives his

Miranda rights, law enforcement officers may continue

questioning until and unless the suspect clearly requests

counsel. Davis v. United States, 512 U.S. 452, 114 S.Ct.

2350, 129 L.Ed.2d 362 (1994). Once the right to counsel has

been invoked, "the interrogation must cease until an attorney

is present." Miranda, 384 U.S. at 474, 86 S.Ct. at 1627. In

Edwards v. Arizona, the Supreme Court interpreted the Fifth

and Fourteenth Amendments as requiring that all questioning

must cease during a custodial interrogation when an accused

asserts his right to counsel." Parker v. Singletary, 974 F.2d

1562, 1572 (11th Cir.1992). See also Minnick v. Mississippi,

498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990);

Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100

L.Ed.2d 704 (1988). The Edwards ruling established a "rigid

prophylactic rule." Smith v. Illinois, 469 U.S. 91, 95, 105

S.Ct. 490, 492, 83 L.Ed.2d 488 (1984) (per curiam) (citing

Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 2568,

61 L.Ed.2d 197 (1979)).

A suspect invokes the right to counsel when he

makes "some statement that can reasonably be construed to

be an expression of a desire for the assistance of an attorney

in dealing with custodial interrogation by the police." McNeil

App. 77

v. Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204, 2209, 115

L.Ed.2d 158 (1991). "When an accused has invoked his right

to have counsel present during custodial interrogation, a

valid waiver of that right cannot be established by showing

only that he responded to police-initiated interrogation after

being again advised of his rights. Edwards, 451 U.S. at 484-

87, 101 S.Ct. at 1884-86. If the request for counsel is

equivocal, the police should, but are not required to, clarify

the meaning of the request. Coleman v. Singletary, 30 F.3d

1420 (11th Cir.1994). See also Kyger v. Carlton, 146 F.3d

374 (6th Cir. 1998). |

C. Application of Law to Facts

In' response to the advisement of Miranda rights,

Cammarano specifically invoked the name of his counsel

and asked if that attorney could be present. The police

officers were required to cease interrogation under Miranda

and Edwards because Cammarano made a "statement that

can reasonably be construed to be expression of a desire for

the assistance of any attorney in dealing with custodial

interrogation by the police", McNeil v. Wisconsin, 501 U.S.

at 178, 111 S.Ct. at 2209. Cammarano's request was not

equivocal as far as the officers were concerned. Indeed,

Investigator Mundy testified that Gauntlett told him that

Cammarano "wished an attorney." (App.A 1684). Thus, the

officers themselves understood Cammarano's inquiry as an

expression of his desire for his counsel's presence. Under

such circumstances, Cammarano's Fifth Amendment rights

under Edwards and Miranda were violated. ''

D. Harmless Error

The district judge ruled that even if Cammarano's

statements were erroneously admitted in violation of

Edwards, the error was harmless. The district judge reasoned

that Cammarano's guilt was established by the testimony of

App. 78

Potenzo, witnesses who placed Cammarano at the scene,

Cammarano carrying a bag of money from the bar, and

Cammarano's first statement to the police at the scene which

was not challenged. The district judge further reasoned that

all of Cammarano's statements were admissible to impeach

his testimony despite any Edwards violations. (R2-60-23).

Where the prosecution claims in a habeas proceeding

that an Edwards violation was harmless, it bears the burden

of proving that the admission of the statement did not have a

“substantial or injurious effect or influence in determining

the jury's verdict."". Craig v. Singletary, 127 F.3d 1030, 1040

(11th Cir.1997) (quoting Brecht v. Abahamson, 507 U.S.

619, 637, 113 S.Ct. 1710, 1721-22, 123 L.Ed.2d 353 (1993)).

"Because confessions carry ‘extreme probative weight," the

admission of an unlawfuli ~ained confession rarely is

‘harmless error.' In fact, we have ruled the admission of an

unlawful confession harmless only in limited instances, such

as where there was in evidence at least one other lawful

confession by the defendant." Jd. (quoting United States v.

Hernandez, 574 F.2d 1362, 1372 (Sth Cir.1978)). In cases

where the admission of an unlawful confession was

harmless, the prosecution produced "direct, uncontradicted,

physical evidence of guilt -- such as that the defendant was

found holding the drugs he was charged with possessing."

Christopher, 824 F.2d 846 n.24.

The harmless error doctrine was erroneously applied

for two reasons. First, the State of Florida failed to provide a

record sufficient to apply the doctrine. In its response to

Cammarano's petition for writ of habeas corpus in the district

court, the State contended that it brought forward the entire

state record. (R1-41). That was not the case. The State failed

to provide the district court with Cammarano's statements.

Without the statements themselves, the State could not have

shown, and the district court should not have found, that

their admission into evidence was harmless.

Second, the references to the statements in the

testimony of the interrogating officers not only refute any

App. 79

claim of harmlessness, but conclusively establish that the

admission into evidence of the statements was highly

prejudicial. The sole factual dispute at the trial, according to

the prosecutor in his closing statement to the jurors, was

whether Cammarano knew that Potenzo was going to

commit a robbery. The prosecutor told the jurors the

following: if Cammarano had such knowledge, the verdict

should be guilty of felony murder; but if Cammarano did not

know Potenzo was going to commit a robbery, the jurors

should vote not guilty.

Cammarano did not dispute his presence at the bar

and neither of his two unchallenged statements contained an

admission of either participation in any crime or knowledge

that Potenzo intended to commit any crime at the bar. The

fatal flaw in the district court's analysis is obvious. The

initial unchallenged statement, unlike the ~ subsequent

challenged statements, contains no admission of guilty

knowledge. The other unchallenged statement was made

when Cammarano's counsel accompanied him to the office

of the prosecutor. That statement was also devoid of any

admission of knowledge. Thus, the district court erred in

finding harmless error based upon the testimony of any

witnesses who placed Cammarano at the scene or the

admission of Cammarano's first statement.

As for Potenzo's testimony, his credibility was

assailed. He testified against Cammarano to save himself

from the electric chair and to get assigned to a low security

prison. Additionally, after the trial, Potenzo recanted his

testimony that Cammarano had prior knowledge of the

robbery.

The only other evidence on the critical issue of guilty

knowledge was Cammarano's first statement given after the

Edwards violation. Investigator Mundy testified that

Cammarano confessed that he knew that Potenzo was going

to commit a robbery. The jurors could have found Potenzo

not credible but nevertheless found Cammarano guilty of

felony murder by crediting the statement that should have

* App. 80 .

been suppressed. Thus, the most credible evidence of guilty

knowledge was Cammarano's challenged statement. The

erroneous admission of such a statement cannot be

considered harmless. See Owen, 849 F.2d at 540.

The district judge also reasoned that any statements

admitted in violation of Edwards were admissible to

impeach Cammarano, citing Harris v. New York, 401 U.S.

222 (1971). (R2-60-23). That presupposes that Cammarano

would have testified if his statements had been suppressed.

There is no basis in the record for such speculation. In fact,

_ Cammarano's decision to testify was likely influenced by the

denial of his motion to suppress statements so that he could

counter or explain them. Had the statements been

suppressed, there would have been little or no need for him

to have testified because the only evidence of guilty

knowledge would have been the penny ¢ of Potenzo who

was far from a trustworthy witness.

E. Evidentiary Hearing

At the very least, the district judge should have

conducted an evidentiary hearing on the issues surrounding

the admissibility of Cammarano's statements because the

facts alleged, if proven, would require relief. Cave v.

Singletary, supra. Cammarano's allegations of Miranda

violations, if proven, would establish a right to relief. An

evidentiary hearing is also warranted due to unresolved

factual issues. The district judge found that an Edwards

violation would constitute harmless error but did so without

the benefit of any of Cammarano's statements. An

evidentiary hearing is required for the production and

analysis of Cammarano's statements. Additionally, the

district judge found that there was a factual dispute not

resolved by the state court and which the district judge

declined to resolve in view of its application of the harmless

error doctrine. The district judge viewed the testimony of

Gauntlett and Cammarano as in conflict over whether

App. 81

Cammarano's counsel request was unequivocal or equivocal.

(R2-60). Assuming, arguendo, that there is a conflict, the -

need to resolve such a factual dispute provides yet another

ground for an evidentiary hearing. Therefore, as an

alternative ground for relief, Cammarano requests reversal

and remand for an evidentiary hearing.

IV.

THE DISTRICT COURT ERRED IN RULING THAT

CAMMARANO'S DUE PROCESS RIGHTS WERE

NOT VIOLATED WHERE, AT A POST-CONVICTION

PROCEEDING, THE STATE COURT EXCLUDED

EVIDENCE THAT THE PROSECUTION'S STAR

WITNESS CONFESSED THAT HIS TESTIMONY

IMPLICATING CAMMARANO WAS PERJURIOUS.

A. Facts

See pages 19-24 of this brief.

B. Exhaustion of State Remedies

In accordance with cases such as Hutchins v.

Wainwright, 715 F.2d 512 (11th Cir.1983), cert. denied, 465

U.S. 1071, 104 S.Ct. 1427, 79 L.Ed.2d 751 (1984), Watson

v. Dugger, 945 F.2d 367 (11th Cir.1991), and Osborne v.

Wainwright, 720 F.2d 1237 (11th Cir.1983), Cammarano

sufficiently presented this federal issue to the state courts.

On appeal, Cammarano specifically cited Chambers and

Baker and presented claims identical to substance to the

federal claim. Cammarano exhausted the federal claim just

as the petitioner exhausted her federal claim in Cummings,

supra Therefore, the district court's finding on exhaustion

should be reversed.

App. 82

B. The Merits

In denying the post-conviction motion, the state

judge ruled, in pertinent part, that "the evidence sought to be

brought before the court ... is evidence that not only could

have been discovered prior to trial by the exercise of due

diligence, but in fact was discovered and considered, and that

evidence is that Mr. Potenzo is not a truthful person." (App.P

131). The judge also found that Potenzo was available and

did not have a Fifth Amendment privilege not to testify

because he waived the privilege by testifying at

Cammarano's trial. (App.P 132).

The state judge's ruling is not entitled to a

presumption of correctness under 28 U.S.C. § 2254(d) for

two reasons. First, the ruling finds no support in the record or

the law. The state judge clearly misperceived the issue when

he equated Potenzo's recantation with evidence of

impeachment. Potenzo's recantation was neither discovered

nor considered prior to the post-conviction proceeding. The

judge also erred in finding that Potenzo waived his Fifth

Amendment privilege by having testified years earlier at

Cammarano's trial. That waiver rule applies where the

witness has testified in a single proceeding. See Mitchell v.

United States, _ U.S. ___, 119 S.Ct. 1307, 1311-12, 143

L.Ed.2d 424 (1999). Additionally, when Potenzo recanted

under oath, he confessed to a criminal felony violation under

Florida law, namely, perjury by contradictory statements.

See § 837.021, Florida Statutes. Thus, his invocation of the

privilege was valid.

Second, because the hearing afforded Cammarano

was only a "paper hearing and was not conducted by the

original trial judge", the findings of the state judge are not

entitled to a presumption of correctness on this ground as

well. Perillo, 79 F.3d at 445-47.

When a state trial court's evidentiary rulings result in

fundamental unfairness, the petitioner is entitled to habeas

relief for violation of his right to due process of law. Boykins

App. 83

v. Wainwright, 737 F.2d 1539, 1544 (11th Cir.1984) and

cases cited. A denial of fundamental fairness takes place

when erroneously excluded " ‘is material in the sense of a

crucial, critical, highly significant factor.' " Snowden, 135

F.3d at 737 (quoting Osborne, 720 F.2d at 1238)). See also

Boykins, 737 F.2d at 1544. Here, Cammarano was denied

fundamental fairness when, during Cammarano's post-

conviction bid for a new trial, the state trial judge excluded

from evidence Potenzo's sworn statements that he committed

perjury at Cammarano's trial when he testified that

Cammarano had prior knowledge about the robbery. There

can be no question but that Potenzo's sworn statements met

the above test of materiality because whether Cammarano

had knowledge of Potenzo's intent to commit the underlying

felony in the felony murder accusation was the "crucial,

critical, highly significant factor" at his trial. See also

Gonzales v. Lytle, 167 F.3d 1318 (10th Cir.1999); Rivera v.

Director, Department of Corrections, State of Illinois, 915

F.2d 280 (7th Cir.1990).

Potenzo's invocation on paper of his privilege against

self-incrimination did not provide a basis for excluding his

recantation. To the contrary, under the identical provisions of

both the Florida and federal rules of evidence, it is precisely

where the declarant is unavailable that his statement against

penal interest is admissible. Fed.R.Evid. 804(b)(3); §

90.804(2)(c), Florida Statutes.'* Nor could Potenzo's

invocation of his Fifth Amendment privilege, in and of itself,

warrant a finding of unreliability of his recantation. To the

contrary, viewing all of the relevant evidence, any

unreliability inherent in the invocation (a questionable

proposition at best) is easily outweighed by the evidence of

reliability, namely, Potenzo's corroborating _ pretrial

admissions to Waters (and others), the availability of Waters

and Mazzara, the detailed proffers of their testimony that

Potenzo admitted the perjury to them, and the fact that

Potenzo admitted under oath that his testimony implicating

Cammarano was false.

App. 84

Alternatively, the issue should be the subject of an

evidentiary hearing. The determination of the reliability of

Potenzo's recantation(s) is the type of issue recognized to

require evidentiary development. See Davis v. Zant, 36 F.3d

1358, 1544 (11th Cir.1994) (reliability of excluded

confession could warrant evidentiary hearing). And an

evidentiary hearing is required because the allegations, if

true, would warrant federal habeas corpus relief. Cave,

supra.

CONCLUSION

Based upon the foregoing, the appellant respectfully

requests reversal of the judgment of the district court and

remand with directions to enter judgment for the appellant.

Alternatively, the appellant respectfully request reversal and

remand with directions to conduct an evidentiary hearing.

Respectfully submitted,

LAW OFFICES OF

PAUL MORRIS, P.A.

999 Ponce de Leon Blvd.

Suite 550

Coral Gables, FL 33134-3037

(305) 446-2020

/s/ Paul Morris

PAUL MORRIS

Counsel for Appellant

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing

brief containing 14,349 words was mailed to Rebecca Wall,

Assistant Attorney General, 444 Seabreeze Blvd., 5th Floor,

App. 85

Daytona Beach, FL 32118, this 13” day of September,

1999.

/s/ Paul Morris

PAUL MORRIS

ENDNOTES

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

694 (1966).

. There is no transcript of the tape recording in the record.

Nor is there a transcript of this tape recording in the record.

' Sheaffer had Cammarano give a statement to the prosecutor on

December 19, 1984. The prosecutor played a tape recording of the

statement for the jury during the state's case in chief. (App.A 1027-29,

State's Exhibit 56). There is no transcript of the statement in the record.

¥ At the trial, Caripy had testified that he shared a holding cell

with Potenzo shortly after Potenzo's arrest. (App.A 1152-54). Caripy

testified that Potenzo told him that he had committed the shooting and

that Cammarano had nothing to do "with the whole thing." (App.A

1155).

: The prosecutor's closing argument was as follows: "Is there any

justice in people with a lot of money getting off; people with couit

appointed lawyers getting convicted? I don't think so." (App.A 1470).

; At the trial, Sheaffer presented Doctor George Lindenfeld, a

clinical psychologist. Lindenfeld testified that he hypnotized Cammarano

on four occasions and asked him to recall the events at the bar.

Lindenfeld concluded that the four statements were consistent with each

other. The trial judge ruled that the statements were inadmissible hearsay. —

(App.A 1354-72; 1395-96).

. In addition to lacking precedential value, the Ninth Circuit

decision is distinguishable on the ground that its affirmance of the

dismissal of the petitioner's habeas corpus action was without prejudice.

As noted, prior to the trial, Sheaffer accompanied Cammarano

to the Office of the State Attorney where Cammarano gave a statement

and subjected himself to interrogation by the prosecutor and police

officers. Sheaffer placed no conditions upon the meeting. In other words,

there was no understanding that the statement was being offered during

plea negotiations, which would have rendered it inadmissible under well-

settled law Florida law, see Richardson v. State, 706 So. 2d 1349

(Fla.1998); Florida Rule of Criminal Procedure 3.172(h) (formerly

3.172(d)), or that the statement would otherwise not be used against

Cammarano.

- See n.6 for the prosecutor's argument. Such prosecutorial

comment upon a defendant's decision to retain counsel is improper. See

United States v. Kallin, 50 F.3d 689, 693 (9th Cir.1995); United States v.

Daoud, 741 F.2d 478 480-81 (1st Cir.1984); Bruno v. Rushen, 721 F.2d

1193, 1194-95 (9th Cir.1983);United States v. McDonald, 620 F.2d 559,

562-63 (Sth Cir.1980). This level of prosecutorial misconduct, in and of

itself, can render a petitioner's trial fundamentally unfair. See Davis v.

Zant, 36 F.3d 1538 (11th Cir. 1994).

“ The fact that Cammarano thereafter did answer questions is of

no moment. See Smith, 469 U.S. at 100, 105 S.Ct. at 495. Accord, Owen -

v. Alabama, 849 F.2d 536 (11th Cir. 1988).

” Moreover, had the state's intention been to expose all of the

facts rather than hide behind Potenzo's invocation, the state could have

subpoenaed Potenzo to testify and by operation of Florida statutory law,

he would have been immunized and could not have claimed a privilege

not to testify. See §914.04, Florida Statutes.

App. 87