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UNITED STATES COURT OF APPEALS FOR


THE ELEVENTH CIRCUIT

JEFFREY ABRAMOWSKI,
Petitioner/Appellant,

CASE NO: 15-13923

v.
JULIE JONES, et al.,
Respondents/Appellees.
______________________________/
MOTION FOR CERTIFICATE OF APPEALABILITY
COMES NOW, Petitioner/Appellant JEFFREY ABRAMOWSKI (Mr. ABRAMOWSKI), a
Florida inmate, through counsel, requests this Court to issue a Certificate of Appealability (COA)
authorizing Mr. ABRAMOWSKI to raise the following issues in a full appeal of the denial of his 28
U.S.C. 2254 petition alleging ineffective assistance of counsel:

(1) Whether Petitioner was denied due process of law under the Fifth,
Sixth and Fourteenth Amendment when the Trial Court denied Petitioners
Motion for Judgment of Acquittal;
(2) Whether Petitioner was denied due process of law under the Fifth,
Sixth and Fourteenth Amendment when newly discovered evidence
demonstrated that his Trial Counselwas ineffective at trial as she suffered
from bi-polar disorder and was not taking her medication at the time of the
trial, affecting her judgment thus greatly impeding her ability to represent
the Petitioner at trial;
(3) Whether Petitioner was denied due process of law under the Fifth,
Sixth and Fourteenth Amendment when Trial Counsel failed to depose the
States DNA expert;
4. Whether Petitioner was denied due process of law under the Fifth,
Sixth and Fourteenth Amendment, when she conceded the States
objection to allowing the Jury to rehear the transcripts of the States
DNA expert during deliberations after the Jury had requested to do
so;

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5. Whether Petitioner was denied due process of law under the Fifth, Sixth
and Fourteenth Amendment when Trial Counsel failed to properly retain
and prepare the Defense DNA expert for trial;
6. Whether Petitioner was denied due process of law under the Fifth, Sixth
and Fourteenth Amendment when she failed to demand a Richardson
hearing to determine if a Brady violation occurred when the State provided
additional discovery from the States DNA expert moments before the DNA
expert testified at trial;
7. Whether Petitioner was denied due process of law under the Fifth,
Sixth and Fourteenth Amendment when she failed to properly
investigate and or file pretrial motions to exclude expert opinions
regarding the victims fingernail clippings;
8. Whether Petitioner was denied due process of law under the Fifth,
Sixth and Fourteenth Amendment when Trial Counsel failed to
retain an independent forensic pathologist to determine the victims
time of death, and to offer such testimony at trial;
9. Whether Petitioner was denied due process of law under the Fifth,
Sixth and Fourteenth Amendment when Trial Counsel failed to
depose and or subpoena important defense witnesses made known
to her including Janet Oberman, Cathy Eberhart and George Ellis;
10.
Whether Petitioner was denied due process of law under the
Fifth, Sixth and Fourteenth Amendment when Trial Counsel failed
to investigate and or present the Petitioners alibi to the Jury at trial;
11. Whether Petitioner was denied due process of law under the Fifth,
Sixth and Fourteenth Amendment when his Trial Counsel failed to
get statements allegedly made by the Petitioner excluded from trial,
those statements being that he threatened to kill and rob the
decedent.
In support thereof, Mr. ABRAMOWSKI would show as follows:
I.

Facts and Procedural History

Petitioner is alleged to have killed the victim in his home after a physical altercation. The victim
died as a result of blunt force trauma. Petitioner, an innocent man who clearly had ineffective assistance
at trial, after two mistrials was then sentenced to life in prison. Less than a week before the victims death,

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Bruce Foley had a similar altercation with the victim and in fact beat the victim with his fists, struck him
with blunt force objects and threatened to kill the victim, which was not made known to the Jury.
Prior to trial, the State of Florid offered Petitioner eight (8) years in prison for this crime, most of
which he served but Petitioner was zealously dissuaded by his Trial Counsel as she was delusional and
lacked sound judgment. It is undisputed that years after his conviction and life sentence was imposed,
Petitioner learned that his Trial Counsel, who had only been his attorney for ten (10) days at the time the
Jury Trial commenced, had only tried two (2) felony cases, had tried no murder cases, had tried no cases
involving DNA, was manic and suffering from extreme un-medicated bi-polar disease and lacked clear
judgment. On December 8, 2011, Petitioners Trial Counsel informed him and provided an Affidavit
which states that when she convinced the Petitioner to allow her to represent him she was operating under
a manic psychotic delusion that she was a genius who would definitely win his trial, despite the fact she
had no time to prepare and no experience with such cases. Petitioners Trial Counsel concealed all of the
above facts from him and she further stated that because of this condition that she was unable to provide
effective assistance of counsel, and during the jury trial repeatedly told him that he had nothing to worry
about and that he would be found not guilty. Immediately before the Jury Trial commenced and before
Jury selection, the State, realizing that there was no way that Petitioners Trial Counsel could possibly be
prepared for trial informed the trial court that the defense needed a continuance so the she could have
time to properly prepare for trial, which the defense asked for, but tragically and with no justification
was denied by the trial court.
Procedurally, on or about August 28th, 2002, the State of Florida charged Petitioner by
Information with Second Degree murder for allegedly killing Cortney Crandall, (a male) by striking and
hitting him with blunt force objects. The Defendant was arrested and has been held in custody since
August 17, 2002. Petitioner began his first Jury Trial on December 12, 2005, which ended in a mistrial
on December 16, 2005. Petitioner began his second Jury Trial on or about June 19, 2006, which was
then continued over defense objection on June 20 2006. After two mistrials, a jury found Petitioner
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guilty as charged. The state court sentenced Petitioner to life in prison. (App. C at 38). Petitioner
appealed, and the Fifth District Court of Appeals of Florida (Fifth DCA) affirmed per curiam on
December 31, 2007. (App. I).
On October 1, 2008, Petitioner filed a 113-page motion for post-conviction relief pursuant to Rule
3.850 of the Florida Rules of Criminal Procedure. (App. K). Petitioner filed two supplements to the Rule
3.850 motion for post-conviction relief on January 29, and March 16, 2009. (App. L; App. M). On April
28, 2009, the state court dismissed the Rule 3.850 motion and supplements without prejudice because
they were excessively verbose and thus abusive. (App. N). The state court instructed Petitioner that he
could file an amended Rule 3.850 motion, which should not exceed fifty-pages in length and should be
in 12-point font or larger. Id.
On May 28, 2009, Petitioner filed another Rule 3.850 motion. (App. O). Petitioner filed a
supplement to the motion. (App. P). The state court dismissed the Rule 3.850 motion and supplement
without prejudice on July 14, 2009, because the motion was in 10-point font and the motion and the
supplement exceeded the fifty-page limitation imposed by the court. (App. Q).
On July 29, 2009, Petitioner filed a Rule 3.850 motion. (App. R). The state court denied the
motion. (App. S). Petitioner appealed, and the Fifth District per curiam affirmed. (App. X). Mandate
issued on October 8, 2010. (App. BB). On November 30, 2010, Petitioner filed a second Rule 3.850
motion, alleging a claim of newly discovered evidence. (App. CC). The state court denied the motion.
(App. DD). Petitioner appealed, and the Fifth District affirmed per curiam. (App. JJ). Mandate issued
on December 9, 2011. (App. MM). While his second Rule 3.850 motion was pending, Petitioner filed a
state petition for writ of habeas corpus on June 16, 2011. (App. NN). The Fifth District denied the
petition on September 7, 2011. (App. RR).
On January 3, 2012, Petitioner filed a federal habeas petition. See Case No. 6:12cv-3-Orl-36KRS,
Doc. No. 1. The district court dismissed the petition without prejudice on October 17, 2012, because
Petitioner had a post-conviction motion pending in the state court. Id. at Doc. No. 20. Petitioner
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appealed, but the Eleventh Circuit Court of Appeals dismissed the appeal for want of prosecution. Id. at
Doc. No. 27.
On April 12, 2012, Petitioner, through counsel, filed a third Rule 3.850 motion, alleging a claim
of newly discovered evidence. (App. SS). The state court denied the motion as successive and time
barred. (App. TT). Petitioner appealed, and the Fifth District affirmed per curiam. (App. ZZ). Mandate
issued on June 7, 2013. (App. AAA). Petitioner initiated the instant action on June 27, 2013, pursuant
to the mailbox rule. (Doc. No. 1.)
In this case, the Trial Court ultimately ruled that the Petitioner was time barred because the initial
3.850 Motion filed on or about October 1, 2008 was not properly filed because it was in violation of the
page limitations, but the page limitations were not added to the Florida Rules of Criminal Procedure until
October 1st, 2012, which were clearly not in effect of Petitioners filing of his first 3.850 Motion on
October 1st, 2008. Petitioner argues that in this case the Trial Court erred in dismissing his Writ of
Habeas Corpus Petition With Prejudice as time barred on or about August 4, 2015 because clearly the
Petitioner had properly filed a 3.850 Motion prior to March 30th 2009, and that the Florida Trial Court
erred when it dismissed the October 1, 2008, 3.850 (Fla Rule Crim. Procedure) due to page limitations,
because the page limitations did not exist at the time of the filing, and due to the fact that the Petitioners
initial 3.850 Motion contained 39 grounds and was only 113 pages long, which equates to roughly 3
pages per point.

The final result of this vast and lengthy procedural history is that the District Court

denied the habeas petition and denied a Certificate of Appealability on August 4th ,2015, leading to this
Appeal.
II.

Standards of Review

To obtain a COA, an appellant must show that the issues involved deserve encouragement to
proceed further because reasonable jurists could debate whether relief should have been granted.
Reasonable jurists could disagree whether the state Court of Appeals issued an adjudication on the
merits entitled to the deferential standard of review to 28 U.S.C. 2254(d). Reasonable jurists could
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further debate whether the state Court of Appeals relied on an adjudication that resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding under Section 2254(d)(2). Taking the record before the Court of Appeals,
reasonable jurists could debate whether denying Mr. ABRAMOWSKIs ineffectiveness claim as time
barred resulted in a decision that unreasonably applied Supreme Court precedent.
A.

Certificate of Appealability
A COA should issue whenever the applicant makes a substantial showing of the denial of a

constitutional right. 28 U.S.C. 2253(2). The applicant must show that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to proceed further.
Gonzalez v. Secy, Dept of Corr., 366 F.3d 1253, 1267 (2004) (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000) (further citation omitted)). Because the question is the debatability of the underlying
constitutional claim, not the resolution of that debate, the inquiry neither requires nor permits full
consideration of the factual and legal merits of the claims. Id. (citation omitted).
Here, there are numerous issues which are fairly debatable, and one that is not fairly debatable.
The unchallenged facts that are not fairly debatable is that Petitioner was convicted and sentenced to life
in prison after two (2) mistrials, one of which occurred because of police misconduct and then
unbeknownst Petitioner he was represented at trial by an Attorney who was in the throes of a Mani BiPolar Episode, was un medicated and was completely delusional about her abilities to try the case, the
gravity of the situation, the fact that a mans life and freedom were on the line, and that if she lost the
Petitioner would be sentenced to life in prison, stated more simply, that is dying in a Florida State Prison
because his Trial Counsel failed to properly appraise Petitioner of the situation. Petitioner rejected a 8
year plea deal immediately prior to trial, even though he had served almost that amount of time because
he was convinced by his delusional unmedicated Trial Counsel that he could not lose the trial and that
his freedom was only days away. Instead, he will die in a Florida State Prison, never knowing freedom
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again, unless this tragedy of justice is righted. It is unconscionable that Petitioner has never received an
evidentiary hearing from any Florida State of Federal Court for the facts raised in ground (2) of his
Petition for Writ of Habeas Corpus.
B.

Petitioner is Not Time Barred From Filing Petition for Writ of Habeas
1.
28 U.S.C. 244(d)(1)(A)
In its Order denying Petitioners Writ of Habeas, the Trial Court found that (p)ursuant to 28

U.S.C. ' 2244: (d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus
by a person in custody pursuant to the judgment of a State court. The limitation period shall run from
the latest of (A) the date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review; (B) the date on which the impediment to filing an
application created by State action in violation of the Constitution or laws of the United States is removed,
if the applicant was prevented from filing by such State action; (C) the date on which the constitutional
right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by
the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on
which the facts supporting the claim or claims presented could have been discovered through the exercise
of due diligence.(2) The time during which a properly filed application for State postconviction or other
collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward
any period of limitation under this section. (See Order denying Petition for Writ). 28 U.S.C. ' 2244(d).
Furthermore, the Trial Court in its Order denying Petitioners Writ of habeas found that the
Eleventh Circuit Court of Appeals has held that cases may have a multiple trigger date under
2244(d)(1) such that the statute of limitations in AEDPA applies on a claim-by-claim basis. Thompson
v. Fla. Dept of Corr., No. 14-10532, 2015 WL 1404354, *8 (11th Cir. Mar. 30, 2015) (citing Zack v.
Tucker, 704 F.3d 917, 926 (11th Cir. 2013)). In so ruling, the Zack Court noted that the Supreme Court
of the United States has stated in dicta that 2244(d)(1) provides one means of calculating the
limitation with regard to the application as a whole, 2244(d)(1)(A) (date of final judgment), but three
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other[] [means] that require claim-by-claim consideration, 2244(d)(1)(B) (governmental interference);


2244(d)(1)(C) (new right made retroactive); 2244(d)(1)(D) (new factual predicate). Zack, 704 F.3d
at 923 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 416 n. 6, (2005)).
The Trial Court then addressed the individual claims, and what it considered to be the proper
analysis for each claim. The trial Court concluded that since the the Fifth DCA entered its order of
affirmance on direct appeal from Petitioners conviction on December 31, 2007. Petitioner then had
ninety days, or through March 30, 2008, to petition the Supreme Court of the United States for writ of
certiorari. See Sup. Ct. R. 13.4 Thus, under 2244(d)(1)(A), the judgment of conviction became final
on March 30, 2008, and Petitioner had through March 30, 2009, absent any tolling, to file a federal habeas
corpus petition. See Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002) (holding that the one-year period
of limitation does not begin to run until the ninety-day period for filing a petition for certiorari with the
United States Supreme Court has expired). Pursuant to 2244(d)(2), the one year is tolled during the
pendency of properly filed state post-conviction proceedings.
Petitioner contends that his October 1, 2008 Rule 3.850 Motion was properly filed and thus tolled
the One Year period to file a Writ of Habeas Corpus as the State Trial Court dismissed the October 1,
2008 3.850 Motion without prejudice, and the Petitioner timely filed an Amended Motion or Motion for
rehearing on or about May 7, 2009 which was dismissed by the Trial Court on May 21, 2009, with the
Petitioner filing another 3.850 Motion on or about May 28, 2009, which was ultimately dismissed on
July 14, 2009. Clearly, the Petitioner filed a 3.850 Motion within the One Year Time Frame discussed
by the Trial Court above, and Petitioner was illegally and unconstitutionally dismissed for violating a
page limitation that did not become part of the Rule of Criminal Procedure in Florida until 2012. Clearly,
the Petitioners due process rights have been violated and clearly he has been diligent in professing his
innocence and trying to gain freedom as a wrongfully convicted man, who may die in prison if this
terrible injustice is not rectified. The tolling periods are as follows: March 30, 2008-October 1-2008=185
days; May 21, 2009-May 28, 2009=7 days; July 14, 2009-July 29, 2009=15 days; October 8, 20108

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November 30, 2010=53 days; December 9, 2011-January 3, 2012=25 days; December 9, 2011-April 12,
2012; June 7, 2013-June 27, 2013=20 days. Furthermore, these time limitations only apply to the issues
raised in grounds 1, 3, 4, 5, 6, 7, 8, 9,10, 11, (all originating from the 3.850 Motion filed on October 1,
2008) and not the second (2nd) ground which the denial of the 3.850 Motion based on Newly Discovered
Evidence filed on April 12, 2012 with a mandate affirming the denial issued on June 7th, 2013. Based on
the tolling numbers outlined above, clearly this Petition was timely filed.
In this case the State Trial Court dismissed Petitioners October 1, 2008, 3.850 motion for failing
to comply with the page limitations, but those page limitations did not go into effect until 2012. Effective
July 1, 2011, the Florida Legislature revised some of Rule 3.850. The additional language currently
found in Rule 3.850(d) provides:(m)otions shall be typewritten or handwritten in legible printed
lettering, in blue or black ink, double-spaced, with margins no less than one inch on white 8 1/2by11
inch paper. No motion, including any memorandum of law, shall exceed 50 pages without leave of the
court upon a showing of good cause.
Here, Petitioners initial 3.850 Motion filed on October 1st, 2008 complied with the rules as
written, and State Trial Courts dismissal of the same for being overly verbose violates Petitioners
procedural due process rights as he was pro -se and fighting for his life as an innocent man, anyone would
be verbose in such a dire situation.
2.

Equitable Tolling

Petitioner is entitled to equitable tolling as clearly shown in the record he is diligently pursuing
his rights and extraordinary circumstances exist which prevented him from timely filing the Petition for
Writ. (Doc. No. 20 at 6-8). The Supreme Court of the United States has held that AEDPAs one-year
statutory limitations period set forth in 2244(d) is subject to equitable tolling in appropriate cases.
Holland v. Florida, 560 U.S. 631, 645 (2010). Equitable tolling is appropriate when a petitioner
demonstrates: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing. Id. at 649 (quoting Pace v. DiGuglielmo,
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544 U.S. 408, 418 (2005)). The diligence required for equitable tolling purposes is reasonable
diligence,. . . not maximum feasible diligence. . . . Id. at 653 (internal quotations and citations
omitted). To show extraordinary circumstances, a petitioner must show a causal connection between
the alleged extraordinary circumstances and the late filing of the petition. San Martin v. McNeil, 633
F.3d 1257, 1267 (11th Cir. 2011) (citing Lawrence v. Florida, 421 F.3d 1221, 1226-27 (11th Cir. 2005)).
The Eleventh Circuit Court of Appeals has held that attorney negligence, however gross or egregious,
does not qualify as an extraordinary circumstance for purposes of equitable tolling; abandonment of
the attorney-client relationship . . . is required. Cadet v. Fla. Dept of Corr., 742 F.3d 473, 481-82 (11th
Cir. 2014). As explained by the Eleventh Circuit:
It is well settled that [t]he burden of proving circumstances that justify the application of the
equitable tolling doctrine rests squarely on the petitioner. San Martin, 633 F.3d at 1268. A petitioner
must plead or proffer enough facts that, if true, would justify an evidentiary hearing on the issue.
Hutchinson v. Florida, 677 F.3d 1097, 1099 (11th Cir. 2012). And the allegations supporting equitable
tolling must be specific and not conclusory. Id. In light of the petitioners burden, district courts are
not required to mine the record, prospecting for facts that the habeas petitioner overlooked and could
have, but did not, bring to the surface. Chavez, 647 F.3d at 1061. Lugo v. Secy, Fl. Dept of Corr.,
750 F.3d 1198 (11th Cir. 2014).
In support of his argument for equitable tolling the unchallenged facts prove that Petitioners
trial attorney was suffering bi-polar mania at the time of Petitioners Jury trial; she took the case only
seventeen days before trial and was not prepared for trial which was evident to even the State Attorney
who made the fact known to the trial judge; had never tried a murder trial; had only tried two (2) felony
cases; failed to call important defense witnesses; failed to develop Petitioners alibi; failed to understand
or learn about DNA evidence prior to trial; failed to secure experts for trial and failed to disclose her
medical condition until three (3) years after his conviction. (Doc. No. 20 at 7). Furthermore, Petitioners
Trial Counsel failed to develop other suspects, specifically Bruce Foley who seen beating the victim days
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before his murder with blunt force objects including a golf club, and specifically threatened to kill this
victim, which was not brought out during Petitioners Jury Trial. Clearly, these are extraordinary
circumstance that prevented Petitioner from timely filing the instant petition because many of the facts
were unknown and unknowable to him prior to them being disclosed by his trial attorney.
Furthermore, Petitioner is entitled to equitable tolling because his first Habeas Petition was timely
and he sought a stay of the proceeding. (Doc. No. 20 at 7-8). Petitioner did not appeal the district courts
dismissal of his prior case as he believed those issues were not yet ripe as he had matters pending in State
Court and believed that he was timely and his time for filing a Petition for Writ of Habeas was properly
tolled and stayed pending resolution of the State case.
C.

Actual Innocence

Petitioner is actually innocent of the offense, and as such is relieved from the burdens imposed
by ' 2244(d). See McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). A petitioner asserting actual
innocence to avoid a procedural bar must show that his conviction probably resulted from a
constitutional violation. Arthur v. Allen, 452 F.3d 1234, 1245 (11th Cir. 2006) (quoting Schlup v. Delo,
513 U.S. 298, 327 (1995)). To be credible, such a claim requires petitioner to support his allegations of
constitutional error with new reliable evidence whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence that was not presented at trial. Because such evidence
is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.
Schlup, 513 U.S. at 324. A petitioner asserting actual innocence to overcome the statute of limitations
must show that it is more likely than not that no reasonable juror would have convicted him in the light
of the new evidence. McQuiggin, 133 S. Ct. at 1935 (quoting Schlup, 513 U.S. at 327). Actual
innocence means factual innocence, not mere legal insufficiency. Bousley v. United States, 523U .S.
614, 615 (1998).
Petitioner asserts that he is actually innocent, and that his conviction after two mistrials is a
miscarriage of justice on all levels. First, the victim of this case was involved in an altercation with Bruce
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Foley just days before the murder where Bruce Foley told the victim that he would kill him. Furthermore,
Bruce Foley beat the victim repeatedly with his fists and other blunt instruments, and it was only after
the police were called and third parties intervened that Bruce Foley stopped attacking the victim.
Furthermore, Bruce Foley fled the state of Florida shortly after the murder of the decedent, and his DNA
and other physical evidence from Bruce Foley was found at the murder scene. The DNA evidence is
also not properly analyzed in that the victim shares a single loci with Petitioner, and as such there are
only matches at two loci of the DNA profile found on the victim. Furthermore, the record is clear that
the Brevard County Sheriffs engaged in misconduct, which included getting a jail house snitch to lie on
the stand, resulting in the first mistrial. Furthermore, Bruce Foley, who threatened to kill the victim days
before this incident, which was witnessed by several individuals and contained in police report provided
by the State of Florida, fled the State the day of or the day after the victims other blunt force objects
which was the method and manner that Bruce Foley used to attack the victim just days before his murder
including beating him with a golf club. It wasnt until third parties intervened and that police were called
that the fight broke up. Clearly, not only the circumstances surrounding the conviction of Petitioner is
bizarre are best, that is two mistrials and then a third being represented by an inexperienced Attorney in
the throes of severe illness, there are a lot of facts and other suspects which were not explored, developed
or discussed at Petitioners Jury Trial
D.

28 U.S.C. 2244(d)(1)(D)

Petitioner further argues that the petition is timely under 2244(d)(1)(D) because his second
ground for relief is premised on newly discovered evidence. (Doc. No. 20 at 5-6). As noted supra, the
statute of limitations in AEDPA applies on a claim-by-claim basis. Thompson, 2015 WL 1404354 at
*8 (citing Zack, 704 F.3d at 926).
Under 2244(d)(1)(D), the time for raising a claim runs from the date on which the facts
supporting the claim or claims presented could have been discovered through the exercise of due
diligence. The Eleventh Circuit has held that [t]he limitations period under ' 2244(d)(1)(D) begins
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when the factual predicate of a claim could have been discovered using due diligence, not when it was
actually discovered. Melson v. Allen, 548 F. 3d 993, 999 (11th Cir. 2008). Due diligence means the
petitioner must show some good reason why he or she was unable to discover the facts at an earlier
date. Id. (quoting In re Boshears, 110 F. 3d 1538, 1540 (11th Cir. 1997)). Merely alleging that an
applicant did not actually know the facts underlying his or her claim does not pass the test. Id.
(quoting In re Boshears, 110 F. 3d at 1540). Instead, the inquiry focuses on whether a reasonable
investigation . . . would have uncovered the petition timely. facts the applicant alleges are newly
discovered. Id. (quoting In re Boshears, 110 F. 3d at 1540).
In ground two, Petitioner asserts that on December 8, 2011, he discovered Siemers suffered from
bi-polar disorder, was not taking her medication at the time of trial, in her delusion she believed that she
was a genius who could not lose the case under any circumstances, and was in a manic episode at the
time of trial. (Doc. No. 1 at 15-16.) Petitioner contends that Siemers failed to disclose prior to trial her
mental condition or that she had never defended a murder case or a case in which DNA would be
introduced. Id. According to Petitioner, as a result of Siemers mental illness, she began representing
him only seventeen days before the trial started and was unprepared and believed that her genius would
allow her to win despite her lack of preparation. Id. at 16. Petitioner maintains that he was prejudiced
because Siemers was in a manic bi-polar state that was not being treated or medicated, and as a result
was delusional in her abilities to win the trial and the gravity of the situation and as such she did not read
the States discovery, depose any witnesses, introduce his alibi defense, call an independent medical
examiner, or request a continuance. Id. Furthermore, Petitioners Trial Counsel failed to make the Jury
aware that other suspects such as Foley existed, nor did she make them aware of the aforementioned
incident days before the victims death where Bruce Foley beat the victim and threatened to murder him.
In support of his newly discovered evidence claim, Petitioner relies on Siemers affidavit attesting that
she suffers from bipolar disorder, was not taking her medication, was in a psychotic and manic delusion
when she convinced Petitioner to allow her to represent him ten days before trial, that there was no way
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he would lose, instilled a false sense of security about her abilities and his chances of winning at trial,
and had never tried a murder case or a case involving DNA prior to Petitioners case. (Doc. No. 3 at 2425).
The facts underlying ground two could not have been discovered with the exercise of due
diligence by October 1, 2008, the date Petitioner filed his initial Rule 3.850 motion. The Trial Court
seems to ignore the fact that Petitioner was pro se, and incarcerated in a Florida State Prison, and had
absolutely no way of discovering the facts upon which this ground is based which is protected medical
information under Federal HIPPA Laws. Under no circumstances could Petitioner have discovered that
Siemers suffered from bipolar disorder, was unmedicated, in a manic state which caused her to have a
false sense of security about her abilities and the chances of winning at trial which led to her failure to
depose witnesses, request a continuance, and present an alibi witness. Furthermore, Petitioner has been
incarcerated since 2002, and by no means would have been able to discover by October 1, 2008, that
Siemers suffered from a mental illness that was not medicated at the time of trial and that she had not
tried a murder or DNA case prior to Petitioners trial. Clearly, the Trial Court is aware that HIPPA laws
protect the private health information of Petitioners trial counsel, and but for her admission, none would
be the wiser. Petitioner has established that he exercised due diligence in discovering the facts underlying
ground two.
Furthermore, the Affidavit provided by Petitioners Trial Counsel clearly states that she was
operating in a delusional state and convinced the Petitioner to allow her to represent him, misled her
credentials, and convinced Petitioner that she was ready for trial and that there was no way that he would
lose. Shockingly, NO State or Federal Court has ever afforded Petitioner an evidentiary hearing on this
issue which is based solely on the mental health of Petitioners Trial Counsel, and has not been previously
addressed by a Florida State Court.

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Procedural Default

Petitioner exercised due diligence in discovering the facts supporting ground two on December
8, 2011, and thus ground two is timely and the claim is not procedurally barred from review. Petitioner
raised this claim in his third Rule 3.850 motion. The state court denied the motion as untimely and
successive and refused to give Petitioner an evidentiary hearing or otherwise afford Petitioner his due
process rights guaranteed by the United States Constitution.
One procedural requirement set forth in the AEDPA precludes federal courts, absent exceptional
circumstances, from granting habeas relief unless the petitioner has exhausted all means of available
relief under state law. 28 U.S.C. ' 2254(b); Sullivan v. Boerckel, 526 U.S. 838, 842-43 (1999); Picard v.
Connor, 404 U.S. 270, 275 (1971). Specifically, the AEDPA provides, in pertinent part: (a)n application
for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that (A) the applicant has exhausted the remedies available in the
courts of the State; or (i)there is an absence of available State corrective process; or (ii)circumstances
exist that

render such process ineffective to protect the rights of the applicant. 28 U.S.C. '

2254(b)(1). Thus, a federal court must dismiss those claims or portions of claims that have been denied
on adequate and independent procedural grounds under state law. Coleman v. Thompson, 501 U.S. 722,
750 (1991), holding modified by Martinez v. Ryan, 132 S. Ct. 1309 (2012).
Procedural default will be excused in two narrow circumstances. First, a petitioner may obtain
federal review of a procedurally defaulted claim if he can show both cause for the default and actual
prejudice resulting from the default. To establish cause for procedural default, a petitioner must
demonstrate that some objective factor external to the defense impeded the effort to raise the claim
properly in the state court. Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). Finally, to show
prejudice so as to warrant review of a procedurally defaulted claim, a petitioner must show that there
is at least a reasonable probability that the result of the proceeding would have been different. Henderson
v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003) (citations omitted).
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The second exception, known as the fundamental miscarriage of justice, only occurs in an
extraordinary case, in which a constitutional violation has probably resulted in the conviction of one
who is actually innocent. Murray v. Carrier, 477 U.S. 478, 496 (1986). Actual innocence means factual
innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). To meet this
standard, a petitioner must show that it is more likely than not that no reasonable juror would have
convicted him of the underlying offense. Schlup v. Delo, 513 U.S. 298, 327 (1995). In addition, [t]o
be credible, a claim of actual innocence must be based on [new] reliable evidence not presented at trial.
Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U .S. at 324). In the instant
case, Petitioner has established either cause or prejudice or actual innocence to overcome the alleged
procedural default.
F.

Merits
Because the Petition is timely, and not procedurally barred, Petitioner prays this Honorable Court

will consider the following claims as they have merit, and as a result of these deficiencies, Petitioner,
who is an innocent man may die in a Florida State Prison if this injustice is not corrected.
In ground one, Petitioner contends that the trial court erred by denying his motion for judgment
of acquittal. The standard of review in a federal habeas corpus proceeding when the claim is one of
sufficiency of the evidence was articulated in Jackson v. Virginia, 443 U.S. 307 (1979). When
considering a claim of insufficient evidence, the relevant question is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Johnson v. Alabama, 256
F.3d 1156, 1172 (11th Cir. 2001). Federal courts may not reweigh the evidence. Jackson, 443 U.S. at
319. It is the duty of the trier of fact to resolve conflicts in the testimony, weigh the evidence, and draw
reasonable inferences from the facts. Id. The evidence presented at trial was not sufficient to lead to a
conviction and the Trial Court should have granted the Motion for Judgment of Acquittal.

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Clearly, the Trial Court erred by admitting testimony that Petitioner said he was going to kill the
victim which was so unfairly prejudicial and admitted in violation of Florida State Law that the Petitioner
could and did not receive a fair trial because of this constitutional violation that occurred when this
evidence was improperly admitted.
In grounds three through ten alleging ineffective assistance of trial counsel, Petitioner has clearly
established deficient performance and prejudice which has led to Petitioner receiving a life sentence
when is in fact an innocent man. The Supreme Court of the United States in Strickland v. Washington,
466 U.S. 668 (1984), established a two-part test for determining whether a convicted person is entitled
to relief on the ground that his counsel rendered ineffective assistance: (1) whether counsels performance
was deficient and fell below an objective standard of reasonableness; and (2) whether the deficient
performance prejudiced the defense. Id. at 687-88. A court must adhere to a strong presumption that
counsels conduct falls within the wide range of reasonable professional assistance. Id. at 689-90. Thus,
a court deciding an actual ineffectiveness claim must judge the reasonableness of counsels challenged
conduct on the facts of the particular case, viewed as of the time of counsels conduct. Id. at 690; Gates
v. Zant, 863 F.2d 1492, 1497 (11th Cir.1989).
In grounds three and five respectively, Petitioner contends that counsel rendered ineffective
assistance by failing to investigate and depose the States DNA expert and the defenses DNA expert.
The state court determined that Petitioner failed to demonstrate prejudice as to ground three. (App. S at
38.) The record reflects that defense counsel failed to thoroughly cross-examined the States DNA expert
and failed to attack his findings. Had Petitioners Trial Counsel properly prepared for Trial or retained
an expert to advise her or to conduct additional testing the Jury would not have heard the improper
opinion that there was only a 1 in 72 million chance that the DNA would have 3 matching LOCI because
the victim and Petitioner share at least one loci.
Defense counsel elicited testimony from the defenses DNA expert that she did not find
Petitioners DNA under the victims fingernails, but failed to develop other suspects, including Bruce
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Foley who was seen by independent witnesses days before the victims murder beating him with blunt
force objects, fists and threatening to murder him.
Petitioner was unable due to the deficiencies of his Trial Counsel to present evidence in either the
state court or this Court to refute the testimony of the States DNA expert because she failed to depose
the States expert, review the States experts reports and otherwise properly prepare a defense based upon
the States DNA evidence which prejudiced Petitioner.
Furthermore, Petitioner was prejudice by his Trial Counsels failure to object to the States
request to deny the jury the transcripts of the testimony of the DNA experts or a read-back of their
testimony (ground four), failure to object and request a Brady/Richardson hearing when the prosecutor
provided DNA documents to the defense prior to the testimony of the States DNA expert (ground six),
failure to investigate and file pre-trial motions to exclude all reports and testimony regarding the victims
fingernail clippings based on a break in the chain of custody (ground seven), and failure to obtain an
independent forensic pathologist to determine the victims time of death (ground eight). All of this
evidence was not properly challenged, researched and again, Petitioners Trial Counsel failed to develop
other suspects, and how this evidence could clearly point to other suspects, not limited to Bruce Foley.
The state court denied these claims. (App. S at 17, 20, 24-27, 3941.) As noted previously,
defense counsel thoroughly cross-examined the States DNA expert. Furthermore, ample testimony was
presented regarding the chain of custody of the fingernail clippings, and no reasonable probability exists
that the evidence would have been excluded had counsel objected to its admission on this basis.
Moreover, there is no evidence that an independent forensic pathologist would have been able to
determine the victims time of death, nor has Petitioner shown a reasonable probability exists that he
would have been acquitted had such evidence been presented.
Petitioner has also demonstrated that a reasonable probability exists that the outcome of the trial
would have been different had counsel requested a read-back of the DNA experts testimony when the
jury requested the transcript of this testimony. Petitioner also has demonstrated either deficient
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Page: 19 of 20

performance or prejudice based on counsels failure to depose and call Janet Ogorman, Cathy Eberhart,
and George Ellis as witnesses (ground nine) or failure to investigate and present an alibi defense (ground
ten). Based on the purported testimony that these individuals would have given if called as witnesses, a
reasonable probability exists that the outcome of the trial would have been different had they been called.
Finally, Petitioner has shown that prejudice resulted because counsel suffered from bi-polar
disorder and was not taking her medication at the time of trial. Because of her bipolar delusion she
convinced Petitioner to reject an eight (8) year plea offer when he had already served almost that amount
of time. Trial Counsel also failed to instill in Petitioner that he would receive a life sentence if he lost
at trial, furthermore Trial Counsel failed to develop other suspects and Petitioners alibi because she had
a false sense of security of her abilities because of her untreated bi-polar mania. I implore this Honorable
Court to find one Appellate Judge or District Court Judge who would agree to be represented by a manic
bi-polar unmedicated delusional Attorney at Murder Trial while facing lie in prison when that counsel
had only ten days to prepare for trial. Clearly, this is a functional denial of counsel.

A showing of

prejudice is not required if the petitioner proves actual or functional denial of counsel. United States
v. Prater, Nos. 1:01cr18, 1:03cr75, 2010 WL 1837716, at *4 (W.D. Va. May 7, 2010) (quoting United
States v. Cronic, 466 U.S. 648, 659 (1984)). This exception may arise in three types of circumstances:
(1) where the accused is denied the presence of counsel at a critical stage of the criminal proceedings,
id.; (2) where counsel entirely fails to subject the prosecutions case to meaningful adversarial testing,
id.; or (3) where counsel is called upon to render assistance under circumstances where competent
counsel very likely could not. Id. (quoting Cronic, 466 U.S. at 659 and Bell v. Cone, 535 U.S. 685,
69596 (2002)). Petitioner has established that he was actually or functionally denied counsel such that
prejudice is presumed pursuant to Cronic.

Shockingly, no State or Federal Court has ever given

Petitioner an evidentiary hearing in regards to this claim which clearly should shock the conscience.

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Certificate of Appealability
This Court should grant an application for certificate of appealability because the Petitioner has

made a substantial showing of the denial of his constitutional rights. 28 U.S.C. ' 2253(c)(2). To make
such a showing the petitioner must demonstrate that reasonable jurists would find the district courts
assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000); see also Lamarca v. Secy Dept of Corr., 568 F.3d 929, 934 (11th Cir. 2009). When a district
court dismisses a federal habeas petition on procedural grounds without reaching the underlying
constitutional claim, a certificate of appealability should issue only when a petitioner shows that jurists
of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling. Id.; Lamarca, 568 F.3d at 934. However, a prisoner need not show that the appeal
will succeed. Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).
Petitioner has demonstrated that reasonable jurists would find the district courts assessment of
the constitutional claims debatable or wrong. Moreover, Petitioner has shown that jurists of reason would
find this Courts procedural rulings debatable. Petitioner has made a substantial showing of the denial
of a constitutional rights.

Thus, the Court should grant Petitioner Motion for A Certificate of

Appealability.
WHEREFORE, Petitioner prays this Honorable Court issue a Certificate of Appealability so that
he may appeal these extraordinary issues to this Honorable Court.
I HEREBY CERTIFY that a correct copy of the foregoing was furnished to Respondents by email
pdf through pacer by on this 17th Day of February, 2016.

______Paul E. Bross____
Paul E. BROSS, Esquire
Florida Bar No.: 0410837
50 N. Grove Street
Merritt Island, Florida 32953
Telephone: (321) 456-5914
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