petition for rehearing with suggestion … frank, writ writer for petitioner -appellant brimberry,...
TRANSCRIPT
No. 12-15502
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
W. Dexter Harrison Petitioner-Appellant,
versus
United States of America Respondent-Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
PETITION FOR REHEARING WITH SUGGESTION FOR REHEARING EN BANC
W. Dexter Harrison FCC - Low Unit A-4 P.O. Box 1031 Coleman, FL 33521-1031
I
Certificate of Interested Persons And Corporate Disclosure Statement
Appellant W. Dexter Harrison files his Certificate of Interest Persons and
Corporate Disclosure Statement, listing the persons and entities with an interest in this appeal, as required by 11th Circuit Rule 26.1.
Amodeo, Frank, Writ Writer for Petitioner-Appellant
Brimberry, Jerry, Former Attorney for Petitioner-Appellant
Carswell, William J., Former Attorney for Petitioner-Appellant
Cook, Bobby L., Former Attorney for Petitioner-Appellant
Crane, James N., Assistant United States Attorney
Garland, Samuel & Loeb, P.C.
Harrison, W. Dexter, Petitioner-Appellant
The Hononorable Thomas Q. Langstaff, United States Magistrate Judge
The Honorable Hugh Lawson, United States District Court Judge for the Middle District of Georgia
McEwen, Leah E., Assistant United States Attorney
Nicholson, Myra P., Attorney for Petitioner-Appellant
Pino, Laurence P., Attorney for Petitioner-Appellant
Pino Nicholson, PLLC
Samuel, Donald F., Former Attorney for Petitioner-Appellant
South Georgia Law Associates
United States of America
II
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS .............................................................................. I
TABLE OF CONTENTS ................................................................................................................ II
TABLE OF AUTHORITIES .........................................................................................................III
PETITION FOR REHEARING .......................................................................................................1
STATEMENT OF THE ISSUES.....................................................................................................2
COURSE OF THE PROCEEDINGS ..............................................................................................3
REASONS FOR GRANTING THE WRIT .....................................................................................5
I .......................................................................................................................................................6 THE PANEL'S OPINION EXPRESSLY STATED THAT CERTAIN FACTS WERE NOT ESTABLISHED; YET THOSE
FACTS ARE RELIABLY DESCRIBED IN THE DISTRICT COURT'S RECORD. II ......................................................................................................................................................7
WITHOUT NOTICE THE PANEL TRANSFORMED THE CERTIFICATE-OF-APPEALABILITY QUESTION INTO A MEANINGFUL-ACCESS-TO-THE-COURT INQUIRY. BECAUSE OF THE LACK OF NOTICE, THE PARTIED WERE UNABLE TO ASSIST THE COURT WITH AN ANALYSIS OF THE RELEVANT FACTS OR THE DISTRICT COURT RECORD; CONSEQUENTLY THE PANEL OVERLOOKED ESSENTIAL FACTS AND MISAPPLIED LAW.
II (A) .............................................................................................................................................8 THE PANEL'S MISIDENTIFIES THE PROPER STANDARDS FOR DETERMINING A DUE PROCESS VIOLATION IN THE CONTEXT OF CONFLICTED HABEAS COUNSEL.
II (A) 1 ......................................................................................................................................9 The procedural error prevented Mr. Harrison from presenting several cognizable §2255 claim.
II (A) 2 ....................................................................................................................................10 The district court refused to permit the development of factual record, which was required for an effective appellate review of an actual injury claim. Blankenship Error.
II (B) ...........................................................................................................................................10 THE PANEL OVERLOOKED THREE MERITORIOUS TRIAL-ERROR CLAIMS, WHICH CONSTITUTE ACTUAL INJURY AND ENTITLE MR. HARRISON TO RELIEF EVEN UNDER THE PANEL’S CONSTRUCTION OF THE “ACCESS-TO-COURT” VIOLATION.
II (B) 1 ....................................................................................................................................13 Bruton Error: The non-testifying codefendant’s confession that inculpated Mr. Harrison was admitted into trial.
II (B) 2 ....................................................................................................................................14 Blankenship Error: In separate trials, the admissible evidence would have been insufficient to establish a conspiracy, especially without a James hearing.
II (B) 3 ....................................................................................................................................17 Brady Error: During a debriefing, on an unrelated murder charge, the codefendant confessed to participating in the arson and exonerated Mr. Harrison. The government never disclosed the codefendant’s statements.
III ..................................................................................................................................................19 THE PANEL’S DECISION IGNORES THE SUPREME COURT’S GUIDANCE ON THE APPROPRIATE STANDARD DETERMINING PREJUDICE AND CLASHES WITH THIS CIRCUIT’S OWN PRECEDENT ON HOW TO DECIDE PREJUDICE IN THE CONTEXT OF AN ACTUAL CONFLICT.
CONCLUSION .............................................................................................................................21
CERTIFICATE OF SERVICE .....................................................................................................22
III
TABLE OF AUTHORITIES
Case Page BARBOUR V. HALEY, 471 F.3D 1222, 1225 (11TH CIR. 2006) ................................................................................. 1, 11 BELL V. BURSON, 402 U.S. 535, 542 (1971) ............................................................................................................... 9 BRUTON V. UNITED STATES, 391 U.S. 123. 135-36 (1968) ............................................................................................... 13, 15 CAREY V. PIPHUS, 435 U.S. 247, 266 (1978) ............................................................................................................... 9 CHRISTOPHER V. DIST. ATTORNEY’S OFFICE, 592 F.3D 1327 (11TH CIR. 2010)) .................................................................................................. 1 CHRISTOPHER V. HARBURY, 536 U.S. 403, 415 (2002) ................................................................................................... 7, 9, 12 CUNNINHAM V. DIST ATTORNEY'S OFFICE,
592 F.3D 1237, 1271 (11TH CIR. 2010) ........................................................................................ 8 GOLDBERG V. KELLY, 397 U.S. 254, 271 (1970) ............................................................................................................... 9 GRAY V. MARYLAND, 523 U.S. 185 (1998) ...................................................................................................................... 20 GREENLAW V. UNITED STATES, 554 U.S. 237 (2008) ...................................................................................................................... 12 GUYTON V. BUTLER, 490 FED. APPX. 331, 333 (11TH CIR. 2012) ............................................................................. 19 JOHNSON V. BARZACK, 338 F.3D 771, 772 (7TH CIR. 2003) ............................................................................................. 11 LACHANCE V. ERICKSON, 522 U.S. 262, 266 (1998) ............................................................................................................ 10 LAFLER V. COOPER, 132 S. CT. 1376 (2012) ................................................................................................................ 19
IV
TABLE OF AUTHORITIES CONTINUED
Case Page LEWIS V. CASEY, 518 U.S. 343, 349 (1996) ........................................................................................................ 8, 11 LOCKHART V.FRETWELL , 506 U.S. 364, 373 (1996) ............................................................................................................ 19 TIFFORD V. WAINWRIGHT, 558 F.2D 954 (5TH CIR. 1979) ..................................................................................................... 15 UNITED STATES V. BROWNE, 505 F.3D 1229, 1268 (11TH CIR. 2007) ..................................................................................... 14 UNITED STATES V. CHAVEZ, 584 F.3D 1354, 1360 (11TH CIR. 2009) ..................................................................................... 15 UNITED STATES V. COBB, 185 F.3D 1193, 1197 (1999) ....................................................................................................... 15 UNITED STATES V. COSTA, 31 F.3D 1073 (11TH CIR. 1994) ................................................................................................... 20 UNITED STATES V. HARRISON, 246 FED. APPX 640 (11TH CIR. 2007) ........................................................................................... 3 UNITED STATES V. NOVATON, 271 F.3D 968, 1103 (11TH CIR. 2001) ....................................................................................... 16 UNITED STATES V. SCHARTZ, 541 F.3D 1331 (11TH CIR. 2008) ................................................................................................. 20 UNITED STATES V. TAYLOR, 186 F,3D 1332 (11TH CIR. 1999) ................................................................................................. 20 UNITED STATES V. THAYER, 204 F.3D 1352, 1355 (11TH CIR. 2000) ..................................................................................... 15 VASQUEZ V. HILLARY, 474 U.S. 254 (1896) ...................................................................................................................... 19 WILLIAM V. TAYLOR, 529 U.S. 362, 391 (2000) ............................................................................................................ 19 ZAFIRO V. UNITED STATES, 506 U.S. 534, 537-38 (1993) ...................................................................................................... 14
V
TABLE OF AUTHORITIES CONTINUED
Statutes Page 28 U.S.C. §2255, ............................................................................................................................. PASSIM RULES OF CIV. P. 11 (2006) ................................................................................................................... 6 11TH CIR. R. 35-3 (2014) ......................................................................................................................... 1 11TH CIR. R. 40 (2014) ............................................................................................................................. 1
1
IN THE UNITED STATES COURT OF APPEALS
No. 12-15502
W. Dexter Harrison
Petitioner-Appellant,
versus
United States of America Respondent-Appellee.
PETITION FOR REHEARING
On August 15, 2014, the panel affirmed the district court’s denial of Mr.
Harrison’s §2255 motion. The panel, however, did so through an inappropriately
narrow construction of the term “actual injury.” Moreover, the panel’s analytic
method conflicts with the “non-frivolous” standard of review pronounced by the
Supreme Court in Christopher v. Dist. Attorney’s Office for Escambia Cnty, 592
F.3d 1327 (11th Cir. 2010) and Barbour v. Haley, 471 F.3d 1222, 1226 (11th Cir.
2006). A panel decision merits rehearing en banc when that decision relies upon a
rule of law in conflict with both the Supreme Court’s holdings and this circuit’s
prior precedent. 11th Cir. R. 35-3 (2014).
Additionally, the panel expressly relied upon factual premises, which are
refuted or contradicted by the extant district court record, such as when the panel
mistakenly asserted that there is no indication from the record concerning the
exculpatory nature of the codefendant’s proposed testimony. This type of oversight
justifies a panel rehearing. 11th Cir. R. 40 (2014).
2
STATEMENT OF THE ISSUES
1. The panel premised its opinion on a mistake of fact. The panel stated that
Mr. Harrison had not shown what testimony his codefendant would have
testified to, if the trials had been separate. The panel overlooked two
portions of the district court's record that reveals the substance of the
proposed testimony.
2. The panel, without notice, transformed the certificate-of-appealabitlity
question into a question about whether Mr. Harrison had been denied access
to the court. Then, the panel found sua sponte that Mr. Harrison could not
have demonstrated an actual injury. The panel's actions were flawed for two
reasons: (1) first, a more comprehensive review of the record than the panel
conducted reveals at least three aggregations of facts that arise to an actual
injury; and (2) second, the panel's construction of the term "actual injury"
conflicts with this circuit's presidential definition of the term.
3. Mr. Harrison asserts that deprivation of counsel in a post-conviction
proceeding effectively prevented his raising a deprivation of critical-stage
counsel claim. The Supreme Court and this circuit have pronounced that
since prejudiced is presumed, errors of this nature do not require an inquiry
into prejudice. The panel's opinion expressly relies upon the wrong rule of
law. This court should act en banc to correct the panel's misconceptions and
to ensure certainty and uniformity in the law.
3
COURSE OF THE PROCEEDINGS
Indictment, Trial Proceedings and Appeal
Mr. Harrison was indicted with two co-defendants in the Middle District of
Georgia on October 20, 2005 (Doc. 65-2). The indictment charged Mr. Harrison
with one charge of conspiracy to commit arson and mail fraud, one count of mail
fraud, one count of arson, and one count of providing misleading statements. Mr.
Harrison was represented at trial by a retained attorney, Jerry W. Brimberry,
Esquire. On March 8, 2006, a jury found Mr. Harrison guilty as to counts 5, 6, 7
and 13 of the Indictment. (Doc. 223). In May of 2006, Mr. Harrison retained
Donald F. Samuel, Esquire to assist his trial counsel with sentencing. On August 2,
2006 Mr. Harrison was sentenced to 180 months' imprisonment, a $50,000.00 fine,
and restitution in the amount of $466,668.29. (Docs. 342, 507).
Following the sentencing, Mr. Samuel represented Mr. Harrison in the direct
appeal of his conviction and sentence to the United States Court of Appeals for the
Eleventh Circuit, which affirmed the conviction in an unpublished opinion. United
States v. Harrison, 246 Fed. Appx 640 (11th Cir. 2007).
Section §2255 Petition and Proceedings
On May 29, 2009, Mr. Samuel filed a Motion to Vacate, Set Aside, or
Correct Sentence by a person in Federal Custody and Brief in Support of the
Motion to Vacate pursuant to 28 U.S.C. §2255 on behalf of Mr. Harrison seeking
to set aside the conviction based on a violation of Mr. Harrison's constitutional
rights (hereinafter the "Original Petition") (Docs. 498, 499).
Mr. Harrison also filed several pro se motions to amend the Original Petition
wherein he raised the conflict of interest issue with Mr. Samuel (Docs. 548, 566,
4
576, 577). Ultimately, the district court denied Mr. Harrison's efforts to amend the
Original Petition (Docs. 563, 579).
An evidentiary hearing in the habeas proceeding was held on November 9,
2011, at which several witnesses testified. (Doc. 587 and 596). The Magistrate
issued his Report and Recommendation on April 19, 2012. (Doc. 620). On May 8,
2012, Mr. Samuel, filed a Motion to Withdraw due to conflict. (Doc. 639). On May
16, 2012, Mr. Harrison filed a Motion for Leave to File Excess Pages or in the
Alternative, Objections to the Magistrate's Report (Doc. 641), and a Motion to
Amend his Motion for Reconsideration. (Doc. 642). On July 13, 2012, the district
court denied all these motions. (Doc. 648).
On July 27, 2012, Mr. Samuel filed Objections to the Magistrate's Report
and Recommendation in which Mr. Samuel raised the conflict issue and reiterated
Mr. Harrison's desire to proceed pro se. (Doc. 650). On July 30, 2012, Mr.
Harrison filed his Objections to the Magistrate's Report and Recommendation pro
se, once again raising, among other issues, the basis for his conflict with Mr.
Samuel and his desire to represent himself and waive his right to counsel. (Doc.
651).
On August 24, 2012, the district court adopted the Magistrate's Report and
Recommendation, denied Mr. Harrison’s pro se motions and denied the Original
Petition. (Doc. 653). Judgment for the Government was entered on August 27,
2012. (Doc. 654).
On October 18, 2012, Mr. Harrison filed a Motion to Alter the Judgment
under Rule 60(b) (Doc. 661), filed a Notice of Appeal on October 22, 2012 (Doc.
662), and a Motion for Certificate of Appealability ("COA") on November 11,
2012 (Doc. 667). On February 8, 2013, the district court denied Mr. Harrison's
5
Motion to Alter the Judgment under Rule 60(b), but did not address the COA.
(Doc. 671).
On August 28, 2013, this Court remanded the action to the district court and
directed it to rule on the COA. On February 10, 2014, the district court denied Mr.
Harrison's request for a COA. (Doc. 680).
On March 5, 2014, this Court granted Mr. Harrison's COA only as to the
issue of "whether the district court violated Harrison's due process rights by
denying his retained habeas counsel's motion to withdraw, and not allowing
Harrison to proceed pro se." (Doc. 681).
On August 15, 2014, after full briefing, but without oral argument the panel
affirmed the district court’s §2255 order. (Addendum ‘1’). Mr. Harrison, now
finally able to proceed pro se, requested and received an extension of time to
petition for rehearing until November 3, 2014. (Addendum ‘2’).
On November 3rd, the type-written version of this petition was delivered to
the Coleman (Low) prison mailing authorities.
REASONS FOR GRANTING THE WRIT
The panel committed two profound errors in denying Mr. Harrison's appeal.
First, the panel overlooked record facts, which would have reversed the outcome of
the panel's opinion. Second, the panel's reconfiguration of this circuit's definition
of the term "actual injury" constitutes a violation of both due process's "notice and
opportunity" requirement, and a violation of the prior precedent principle.
Additionally, the panel's decision relies on a standard for determining prejudice
that departs from the accepted and usual course of analyzing errors emanating from
conflicted counsel.
6
The panel's errors create a disformity in this circuit's jurisprudence,
effectively sanctioning intentional government misconduct, and perpetuates a
miscarriage of justice. In order that justice is served and to ensure certainty and
uniformity in the law, the panel's opinion should be set aside or rehearing
conducted either by the panel or by this court en banc. Fed. R. App. P. 35; 40
(2012).
I. The panel's opinion expressly stated that certain facts were not established; yet those facts are reliably described in the district court's record.
The panel's states, "Harrison's claims that Harrell would have provided
exculpatory testimony at a separate trial is unsupported by the record...."
(Appellate Opinion, p.8). The panel appears to have overlooked at least two record
references, which establish that Mr. Harrell would have testified and the substance
of that likely testimony:
• On the November 8, 2011, during the evidentiary, a private investigator testified that -after Mr. Harrell's counseled waiver of privilege- Mr. Harrell stated that “Dexter damn sure had not hired him” to commit the arson. (Evd. Hrg. Tr., p.56:18-20) (Addendum ‘3’).
• In the United States response to Martin Harrell's §2255, the two Assistant U.S. Attorneys, who prosecuted Mr. Harrison state, "During his [Martin Harrell's] proffer after the Hobbs Act Plea, Petitioner [Harrell] admitted to the government that he had supplied the diesel fuel for the arson of the occupied motel, but claimed he not himself actually set fire to the motel." (Doc. 503, p.41, n.16).
These statements both are in the record and both were subject to government
cross-examination. 1 Separately and together those statements are material to the
trial and the habeas motion. Mr. Harrell's statement to Dennis Weaver condemned 1 Obviously, Mr. Crane and Ms. McEwen should have tested their own conclusions and their own memory before filing the official response. See Fed. R. Civ. P. 11 (2006). The rough equivalent of adversarial testing for these purposes. -FLA
7
Mr. Harrison from confronting Mr. Harrell (Bruton Error); the government's
deception prevented the jury, the trial judge, and this court from ever hearing Mr.
Harrell's (sworn) contradictory statement. And §2255 counsels' conflict prevented
the habeas court or this appellate court from reviewing the matter from an accurate
and complete factual record.
II. Without notice, the panel transformed the certificate-of-appealability question into a meaningful-access-to-the-court inquiry. Because of the lack of notice, the parties were unable to assist the court with an analysis of the relevant facts or the district court record; consequently the panel overlooked essential facts and misapplied law.
The panel transformed the more general due process claim set forth in the
certificate of appealability into an "access to the courts" question. (Appellate
Opinion, p.7). The decision generates two types of errors worthy of rehearing.
First, the panel misapprehended or overlooked certain meritorious trial-error
claims. Claims which under governing precedent entitled Mr. Harrison to vacatur.
The §2255 court’s decision to require Mr. Harrison to proceed with conflicted
counsel, not to mention the conflict itself, cause Mr. Harrison’s claims to be
unpresented, untimely, and unadjudicated. See Christopher v. Harbury, 536 U.S.
403, 415-16 (2002). In other words, contrary to the panel's conclusion, Mr.
Harrison can demonstrate "actual injury." Second, the panel's construction of the
term "actual injury" was too narrow, and overlooked that this circuit defines actual
injury as preventing the presentation of a claim, preventing otherwise admissible
evidence from proving a claim, etc. Thus, the §2255 court's error injured Mr.
Harrison by preventing him from proving both his habeas claims and his
substantive trial error claims. In other words, Mr. Harrison suffered actual injury
8
when he was denied his statutory rights to an evidentiary hearing and his judicial
right to certain evidentiary presumptions.2
II (A). The panel misidentifies the proper standards for determining a due process violation in the context of conflicted habeas counsel.
The panel misapprehended the rule for determining and actual injury in the
context of habeas court's procedural error that denied the habeas petitioner access
to the court. In this scenario, the Supreme Court identifies an actual injury as an
error that causes a claim to be procedurally defaulted or to be time barred.
Once more, we restate the literal test for a denial-of-access-to-the-court
claim: "It is now beyond a doubt that prisoners have a constitutional right of access
to the courts' [sic] under the Due Process Clause." Cunninham v. Dist Attorney's
Office, 592 F.3d 1237, 1271 (11th Cir. 2010). In order to establish a violation of
that right, "a prisoner must show an actual injury." Id. (Citing Lewis v. Casey, 518
U.S. 343, 349 (1996)).
Here is where the panel goes wrong. The panel makes an unqualified leap to
the underlying trial error, rather than examining injury in the habeas case.
(Appellate Opinion p.4). In Lewis, the Supreme Court expressly stated that an
actual injury occurred solely upon the denial of procedural right to present or prove
a nonfrivolous claim Lewis, 518 U.S. at 348.
Stated differently, the Supreme Court concluded that an injury occurred
whenever a court's procedural mistake prevents presentation of a facially valid
claim regardless of the ultimate merits determination. An unsurprising result in the
light of the Supreme Court's due process jurisprudence, which holds that an error
2 The district court granted Mr. Harrison an evidentiary hearing, but Mr. Samuel’s conflict prevented MR. Harrison from adducing evidence to demonstrate the underlying claim: since that evidence would have demonstrated Mr. Samuel (or his colleagues’) ineffectiveness at trial and on appeal. - FLA
9
that forecloses any opportunity to properly present and have a competent court
adjudicate a claim requires a presumption of prejudice. Cf., e.g., Bell v. Burson,
402 U.S. 535, 542 (1971); Goldberg v. Kelly, 397 U.S. 254, 271 (1970). The
district court's refusal to remove conflicted counsel caused Mr. Harrison to lose his
statutory rights to an evidentiary hearing (vis-a-vis the unpresented claims) and
caused several cognizable grounds for relief to be foreclosed. (Ineffective
Assistance of Trial Counsel, Ineffective Assistance of Appellate Counsel,
Government's Intentional Suppression of Material Evidence, and Violation of the
Right to Confront Witnesses, i.e., Bruton-Error.)
II (A) 1. The district court’s procedural error prevented Mr. Harrison from presenting several cognizable §2255 claims.
In the context of a civil rights action, the Supreme Court articulated that a
violation of due process is itself an actionable injury, even if the harm would have
occurred anyway. Carey v. Piphus, 435 U.S. 247, 266 (1978) (even if the
deprivation was justified or the plaintiff did not suffer “other actual injury” caused
by lack of due process, “the fact remains that they were deprived of their right to
procedural due process”).
In the context of a habeas court preventing a prisoner from presenting a
cognizable claim or proving a valid ground, the same reasoning applies to limit the
threshold inquiry to whether the claim pleaded is facially non-frivolous.
Christopher v. Harbury, 536 U.S. at 415-16. (The underlying claim “must be
described well enough to apply the ‘non-frivolous’ test and to show that the
‘arguable’ nature of the claim is more than hope”). The panel, however, chose to
conduct a merits review, and a review dependent on an incomplete record because
of the very due process violations at the crux of this appeal: (1) counsel’s conflict
of interest and (2) the government’s suppression of the codefendant’s confusion.
10
Thereby, proving by example the very reason the Supreme Court only requires a
‘frivolity’ test, because these types of due process errors prevent the claimant from
adducing evidence to prove the underlying claims. Consequently, making the
reviewable record inherently inadequate for a fair review. In other words, under
these conditions, the only practical action a claimant can take is to allege a claim,
which upon remand, and without the due process violation, can be proven.
In sum, the panel announced and applied the wrong rule of law when it
conducted a merits test of the underlying claim instead of conducting a test for
frivolousness. (Appellate Opinion, p.7). The panel’s earlier opinion should be
vacated and the matter reheard under the correct standards of review.
The panel failed to recognize that the district court's error, requiring
conflicted counsel, caused several non-frivolous claims to be time-barred or
procedurally defaulted. And the panel did not acknowledge that, under the
Supreme Court's construction, the procedural deprivation alone constituted actual
injury.
II (A) 2. The district court refused to permit the development of factual record, which was required for an effective appellate review of an actual injury claim. Blankenship Error.
The district court's procedural error prevented Mr. Harrison from adducing
proof in support of his unpresented claims. A classic violation of due process’ most
fundamental principles: notice and opportunity. See LaChance v. Erickson, 522
U.S. 262, 266 (1998). Nevertheless, the panel decided the merits of the underlying
claim, thereby exacerbating the original due process error. An error that fits
snuggly within the Supreme Court's definition of actual injury.
II (B). The panel overlooked three trial-error claims, which would have fulfilled the panel’s test for an actual injury.
11
The panel appears to apply the orthodox test for a "denial of access to the
courts" claim. We restate the orthodox test in order to ensure clarity in
communication: Individuals, including habeas petitioners, have a constitutional
right to access to courts. Barbour v. Haley, 471 F.3d 1222, 1225 (11th Cir. 2006).
To establish an access violation a petitioner must allege facts sufficient to show
that:
(1) A non-frivolous legal attack on his criminal judgment has been frustrated, and
(2) That he has suffered and actual injury. Lewis v. Casey, 518 U.S. 343, 343-45 (1996). An "actual injury" requires the showing of actual prejudice with respect to the pending litigation, such as inability to meet a filing deadline or to present a claim. Id. at 416.
Furthermore, the petitioner must plead sufficient facts to show that the
underlying claim is not frivolous. See Johnson v. Barzack, 338 F.3d 771, 772 (7th
Cir. 2003).
The panel implicitly and unsurprisingly recognizes that the undisputed
conflict of interest prevented Mr. Harrison from timely presenting cognizable
claims. (Appellate Opinion p.7). The panel, however, chose to extend the
definition of actual injury beyond the antecedent habeas proceeding to earlier
critical stages in the criminal proceedings (Appellate Opinion, p.3-5), and thereby
deny Mr. Harrison's appeal without giving him an opportunity to argue his point.
An opinion that is logically flawed despite having some weak support in court of
appeals jurisprudence.
The crux of Mr. Harrison's appeal is that he was denied an opportunity, not
only to present, but also to prove his §2255 claims. Thus, the panel's determination
that he did not prove the panel-created claim begs the ultimate question: whether
the district court's error kept Mr. Harrison from presenting and proving his claims.
12
Since Mr. Harrison did not have the chance to either present the claims or prove
the claims, the panel's actions were premature. This panel's opinion necessarily
relies on speculation about what these claims would have been and what evidence
is available to prove these claims. 3 Accordingly, at this point in the argument, the
panel's opinion should be vacated or reversed. Cf. Greenlaw v. United States, 554
U.S. 237 (2008) (emphasizing primacy of the party presentation principle).
But to magnify the unfairness in the panel sua sponte creation of Mr.
Harrison's argument, we set forth three of the claims that, but for the district court's
barrier, he would have presented. And included in our description sufficient
allegations to show these claims exceed the "frivolous bar," which controls the
actual injury inquiry. See Christopher v. Harbury, 536 U.S. 403, 415 (2002)
(holding that "right to access" claimants must describe the nonfrivolous nature of
the underlying cause of action). We emphasize that at this stage, Mr. Harrison need
only show that his claims are non-frivolous, not that he would prevail on the
merits. 4
Mr. Harrison substantive trial-error claims are:
1. The District court permitted a Bruton Error; trial counsel either perfected the objection under Rule 1 or effectively failed to perfect the claim: sentencing and appellate counsel failed to raise the Bruton claim either by verdict motion or on direct appeal.
2. The district court failed to sever the trial once the evidence adduced proved the original severance motion's validity; alternatively, trial counsel and appellate counsel failed to seek severance, a new trial, or appellate reversal
3 We note that Mr. Harrison attempted to amend six claims into the motion, not just the one claim examined by the panel. 4 A description sufficient to meet the pleading requirements of Federal Rule of Cibil Procedure 8(c) or the test for overcoming a dismissal under Rule 4 of the Rule Governing §2255 Proceedings. See Christopher, 536 U.S. at 416-17.
13
for failing to sever. Under this circuit's precedent, all three procedures would have been successful, if counsel had initiated them.
3. The government intentionally suppressed an exculpatory confession by the codefendant, which would have entitled Mr. Harrison to a new separate trial.
II (B) 1. Bruton Error: The non-testifying codefendant’s confession that inculpated Mr. Harrison was admitted into the trial.
At trial the government used an out-of-court confession by Martin Harrell to
link Mr. Harrison to the arson conspiracy. Other than that Bruton-type confession,5
the only other indication that Mr. Harrison was even aware of his codefendant’s
arson conspiracy was the hearsay testimony of the codefendant’s abused and
estranged wife. 6 (Appellate Opinion p.2). For different reasons, both clusters of
evidence should not have been admitted against Mr. Harrison; we only mention the
"hearsay" testimony to emphasize the attenuated nature of the evidence linking Mr.
Harrison to arson. Only counsel's mistakes and the court's errors permitted
introduction of the adverse testimony.
Before addressing why these trial errors have not been previously corrected,
we believe it is important to articulate that Mr. Harrison has, throughout the
proceedings maintained his innocence. Notably, two events support that actual
innocence claim. Prior to trial, Mr. Harrison volunteered to take a polygraph
examination, but the polygraph examiner talked the uncounseled Mr. Harrison out
of taking that test. After trial, as part of Mr. Harrell's plea bargaining on an
unrelated murder charge, Mr. Harrell admitted that he sold the diesel fuel to the
5 Bruton v. United States, 391 U.S. 123 (1968). 6 Prejudice should be established by demonstrating that the trial was not fair; correspondingly, any outcome of the unfair proceeding is inherently uncertain and unreliable. A fair trial is one in which evidence, subjected to adversarial testing, is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding. Strickland v. Washington, 446 U.S. 668, 685 (1984); Smith v. White, 815 F.2d 1401, 1404 (11th Cir. 1987).
14
arsonist, and stated unequivocally that Mr. Harrison did not participate in the
arson. (Doc. 503, p.41, n.16) (Addendum ‘3’). Further, Mr. Harrell stated that, if
separate trials had taken place, he would have testified: (1) that Mr. Weaver (the
government's witness) had lied about Mr. Harrell having mentioned Mr. Harrison;
and (2) that Mr. Harrison did not know of the arson or even the conspiracy.
(Addendum ‘4’).
Neither court nor counsel recognized the Bruton Error emerging from the
hearsay. Furthermore, the government suppressed statements that Mr. Harrell made
when the government debriefed him. Statements that not only illuminated the
Bruton Error, but were also exculpatory, and made under penalty of perjury as well
as against Mr. Harrell's penal interest. (Appendix ‘1’).
These errors separately, or in combination, caused the trial to be unfair, if
presented by a post-verdict motion at sentencing, on direct appeal, via a Rule 33
motion, and then as we demonstrate more thoroughly later, Mr. Harrison would
likely have received a new trial. Stated otherwise, the errors permitted the
introduction of inculpatory, non-confrontable evidence, which permitted the trial to
be decided on issues not defined in advance.
II (B) 2. Blankenship Error: In separate trials, the admissible evidence would have been insufficient to establish a conspiracy, especially without a James hearing.
In this circuit, the rule about joint trials is "defendants who are indicted
together are usually tried together." United States v. Browne, 505 F.3d 1229, 1268
(11th Cir. 2007). (Citing inter alia, Zafiro v. United States, 506 U.S. 534, 537-38
(1993)). "But if there is a serious risk that a joint trial with Martin Harrell would
compromise a specific trial right of one of the defendants," then separate trials
should be conducted. Zafiro, 506 U.S. at 509.
15
Mr. Harrison experienced three extremely prejudicial effects from the joint
trial with Martin Harrell: (1) otherwise inadmissible inculpatory (double) hearsay
was admitted against Mr. Harrison as a result of his codefendant's attorney's trial
error; (2) his codefendant's exculpatory testimony became unavailable since the
codefendant invoked his Fifth Amendment privilege to avoid testifying; and (3) the
codefendant's (unconfronted) out-of-court confession incriminated Mr. Harrison.
Each of these events involves specific and compelling prejudice 7 that is,
resulted in the trial's outcome becoming uncertain and unreliable. Id. See United
States v. Chavez, 584 F.3d 1354, 1360 (11th Cir. 2009); Tifford v. Wainwright, 558
F.2d 954 (5th Cir. 1979) ("[A] defendant might suffer prejudice if essential
exculpatory evidence that would be available to a defendant tried alone was
unavailable in a joint trial"); see also United States v. Cobb, 185 F.3d 1193, 1197
(1999).
In separate trials, the government could not have introduced Julie Harrell's
testimony, (replete with hearsay), which serves as the tenuous nexus linking her
husband (the admitted arsonist) to Mr. Harrison. Moreover, as this court's panel
noted, the most damming evidence against Mr. Harrison was the codefendant's out-
of-court and unconfrontable confession that inculpated Mr. Harrison. In separate
trials this Bruton Error would not have occurred. See United States v. Thayer, 204
F.3d 1352, 1355 (11th Cir. 2000) (explaining the Bruton rule) (citing Bruton v.
United States, 391 U.S. 123. 135-36 (1968)). Relatedly, in separate trials the
pendulum would have swung the other way, because Mr. Harrell would have
testified that Mr. Harrison "knew nothing" of either the conspiracy or the arson. An
exculpatory statement falling squarely within this circuit's criteria for mandatory
7 (Appellate Opinion, p.6-7) (Citing Chavez).
16
severance of defendants in order to endure a fair trial. See United States v.
Novaton, 271 F.3d 968, 1103 (11th Cir. 2001).
Little doubt exists that if a jury had heard Mr. Harrell admit that he provided
the arsonist with the diesel fuel and that Dexter Harrison knew nothing about it
(the arson or sale?), then Mr. Harrison had a bona fide need for the testimony.
Obviously, it discredits the alleged out-of-court confession that implicated Mr.
Harrison and the testimony directly exculpates Mr. Harrison.
In sum, if the error had been timely brought to any court's attention, both the
Constitution and circuit precedent would have required vacatur and a new trial.
Leading us to four questions: Why was the severance not sought? Why were
curative jury instructions not requested? Why did counsel not seek a new trial?
And why were the "plain errors" not raised in the initial appeal? Questions that
point us directly to our immediate concern in this stage of the proceedings; why
were the why questions not presented in the §2225 proceeding? Or, more
accurately, when the defendant (pro se) raised the questions, would reasonable
jurists have disagreed with the §2255 court's refusal to consider the claims?
Especially since the pro se defendant's claims identify that the cause of the
earlier defaults was current counsel's undisclosed conflict both in the current
proceeding and in a previous critical stage of the criminal prosecution. (Addendum
‘5’; affidavit of Donald Samuel, Esquire). Significantly, both the magistrate and
the district court judge expressly founded their current decision on conflicted
counsel's failure to have earlier discovered the necessary facts and conflicted
counsel's failure to have presented the claims. (Magistrate’s R&R, Doc. 620).
17
II (B) 3. Brady Error: During a debriefing, on an unrelated murder charge, the codefendant confessed to participating in the arson and exonerated Mr. Harrison. The government never disclosed the codefendant’s statements.
In essence, a complete collapse of due process because counsel’s conflict
and the government’s malicious dereliction of duty prevented the district court and
this court from correcting a flawed trial that sent a sixty-four year old man to
prison for an objectively nonsensical fraud. 8 After the jury verdict, but before
sentencing, the government entered into plea negotiations with Mr. Harrison's
codefendant, Martin Harrell. The plea negotiation involved an unrelated murder
charge. In order to limit the sentence to five years, the government required Mr.
Harrell to fully debrief. In that debriefing, much to the government's dismay, Mr.
Harrell admitted to participating in the arson conspiracy, but insisted Mr. Harrison
was not involved (Doc. 503, p.41, n.16) (Reproduced in Pertinent Part in
Addendum ‘A’).
Contrary to both government's constitutional duty and the attorneys' ethical
duties, the government did not disclose the exonerating confession to either the
court or to Mr. Harrison's counsel. If the government had disclosed the statement,
then Mr. Harrison would have been entitled to a new, separate trial.
Moreover, since Mr. Harrell's confession contradicted the principle evidence
linking Mr. Harrison to the arson conspiracy; that is, Dennis Weaver's testimony of
Mr. Harrell's (purported) other, out of court confession that inculpated Mr.
Harrison. The later sworn statement of Mr. Harrell (made against his own penal 8 I have to pint out the actual loss amount was $466,668, which Mr. Harrison promptly paid after the trial (i.e., he did not need the money). And that the government’s theory of the fraud was stupid; Mr. Harrison was rebuilding the hotel, thus any insurance proceeds he received did not go to satisfying the mortgage, but rather to reconstructing this supposed distressed hotel. In other words, if his concern was the hotel was losing money, then rebuilding the hotel did not solve the problem, thus the arson makes no sense, - FLA [Even if the government wanted to change its theory or motive, a simple economic analysis reveals no possible financial benefit for the hotel owner if the hotel is destroyed and rebuilt].
18
interest in the debriefing) would not only have been material to the jury, but likely
decisive to the case entirely. Not to mention establishing a record that required
severance under this circuit's precedent.
Restated for precision, decisive not just with the jury, but with a variety of
the district court's decisions:
• The necessity for separate trials; the debriefing statement established beyond a reasonable certainty the necessity of separate trials: only in separate proceedings would Mr. Harrell testify for Mr. Harrison. And even if he were unavailable, then the post-verdict confession would be admissible under a variety of hearsay exceptions. But the government's deception and counsel's conflict prevented the jury or the court from assessing the evidence;
• Illuminating the question of whether the government met the burden of proof necessary for a non-James hearing showing of a conspiracy. In the light of the testimony, it is unlikely the rest of the hearsay-testimony used by this court to excuse the district court's James error could have carried that day.
• When the suppressed exonerating statement is juxtaposed against the
witness' possible perjury, and that government likely knew and hid the perjury at trial;
• Even if the government only learned of the conflicting testimony after trial, at bare minimum, the government should have told the district court prior to sentencing. There is far more than a reasonable probability that, in the light of this mitigating information, the district court would not have imposed a sentence twice the high end of the Guidelines.
This court has stated that the government has a duty to be open and
forthright. The government's actions here are the antithesis of that aspiration; for
this court to allow the deception to succeed is unconscionable.
19
III. The panel’s decision ignores the Supreme Court’s guidance on the appropriate standard for determining prejudice in the context of an actual conflict of interest, as well as clashing directly with this circuit’s precedent on the same point of law.
The Supreme Court has repeatedly reiterated that prejudice requirement
focuses not on whether the petitioner can demonstrate an outcome changing result,
but rather whether the ineffective assistance of counsel renders the result unreliable
or the process unfair. Lafler v. Cooper, 132 S. Ct. 1376 (2012); Lockhart v.
Fretwell, 506 U.S. 364, 373 (1996); Vasquez v. Hillary, 474 U.S. 254 (1896);
William v. Taylor, 529 U.S. 362, 391 (2000). Our point is that the presence of Mr.
Samuel’s unrequited conflict-of-interest renders fundamentally unfair all the
proceedings after sentencing (including the hiatus before direct appeal).
Accordingly, even if we could not show actual injury, Mr. Harrison is still entitled
to relief since the panel should have presumed prejudice rather than inquired into
injury.
This circuit effectively articulated this principle when it recognized that the
Supreme Court identified ‘three scenarios in which ineffective assistance of
counsel is presumed to be prejudicial on collateral review: (1) an actual or
constructive denial of counsel altogether; (2) state interference with counsel’s
assistance; and (3) where counsel has an actual conflict of interest.’ Guyton v.
Butler, 490 Fed. Appx. 331, 333 (11th Cir. 2012) (quoting Strickland, 466 U.S. at
691-92).
Donald Samuel had a conflict of interest from his association with trial
counsel Jerry Brimberry after trail and before sentencing. Once engaged Mr.
Samuel should have detected among other trials errors the Bruton violation. Of
20
course, because of his association with co-counsel Mr. Brimberry, 9 Mr. Samuel
could not raise the issue.
Similarly, the arguably preserved severance error was not raised on direct
appeal, nor was the Bruton claim. Once again raising the specter of general
ineffectiveness or conflicted ineffectiveness. And even after the appellate opinion
spotlights the trial flaws, Mr. Samuel does not discuss the errors with his client, nor
present the errors to the appellate court, nor withdraw from his conflicted
representation.
In order that independent counsel could review the record and advise Mr.
Harrison and his alternative course of actions.
Instead, Mr. Samuel talked Mr. Harrison out of seeking certiorari, even
though the appellate court’s failure to grant plain-error relief upon recognition of
the fundamental (Bruton) error. See generally Gray v. Maryland, 523 U.S. 185
(1998) (favoring reversal of a Bruton Error even under the plain-error standard);
United States v. Schartz, 541 F.3d 1331 (11th Cir. 2008); United States v. Taylor,
186 F.3d 1332 (11th Cir. 1999); United States v. Costa, 31 F.3d 1073 (11th
Cir.1994) (Statements by a non-testifying defendant that directly inculpates a co-
defendant gives rise to a constitutional violation).
Most importantly, Mr. Samuel convinced Mr. Harrison to hire Mr. Samuel’s
firm to file the §2255. Advice that cause the nascent conflict to blaze into a raging
inferno. Mr. Samuel should not have advised Mr. Harrison to hire him for the
§2255 motion and should never have accepted the engagement. That act by an
9 I have spoken extensively with Mr. Samuel, and I do not believe he intentionally omitted the claim at sentencing, but his relationship with Mr. Brimberry created a circumstance (the conflict) which caused him to overlook the error. But this is why the error is structural – because the cost of sorting through the truth is too high. In order to gather enough evidence to either find an inadvertent mistake, an intentional omission, or just my relationship-influence-inadequacy inference, would require more resources than repeating the trial.
21
officer of the court effectively deprived Mr. Harrison of his constitutional right to
habeas corpus.
CONCLUSION
Dexter Harrison’s trial was unfair. He stands convicted because the jury
heard a biased 10 witness testify that Mr. Harrison’s putative co-defendants
confessed to the crime and, in that confession, inculpated Mr. Harrison.
During the trial the co-defendant was unavailable for examination. But after
trial, and against his own penal interest, Mr. Harrell made statements to the United
States Attorney’s Office and to a private investigator that (1) casts doubt on the
key witness’s veracity; and (2) exonerates Mr. Harrison. No court has ever heard
those facts or reviewed the related claims. First, because the government hid the
co-defendants exculpatory statements until well after the direct appeal had
concluded. Then, because Mr. Harrison’s habeas attorney’s conflict of interest
prevented the counsel from presenting the grounds that emerge from the co-
defendants statements. And, finally, because the district court refused to allow Mr.
Harrison to present facts or argue the legal points of law, pro se, a decision which
rendered the claims defaulted and untimely.
A tragedy sanctioned by this court’s panel’s departure from the accepted and
usual course of determining “colorable claim” in the context of the “actual injury”
criteria resulting from a due process violation.
This court should vacate the panel’s prior opinion, vacate the district court’s
order, and remand the matter for further proceedings. Proceedings, which should
allow Mr. Harrison an unimpeded opportunity to adduce his evidence (e.g., the
10 The witness not only wanted to curry favor with law enforcement but also appears to have been romantically entangled with the co-defendants wife (Julie Harrell, the other witness who provided hearsay testimony).
22
testimony of the eco-defendant Martin Harrell) and argue his legal points, which
were originally presented in his pro se motion to amend.
Prepared with the assistance of Frank L. Amodeo and respectfully submitted
this 2nd day of November 2014 by:
W. Dexter Harrison Frank L. Amodeo, Writ Writer FCC – Low Unit A-4 P.O. Box 1031 Coleman, Fl 33521-1031
Certificate of Service
A copy of this petition will be sent by first class mail to the United States via
its attorney of record and to each of the attorneys of record via electronic
messaging on or about November 4, 2014 as a courtesy to the former attorneys and
other parties.
W. Dexter Harrison
Verification
Under the penalty of perjury as authorized by 28 U.S.C. §1746, I declare the
allegations and statements contained in this petition for rehearing to be true and
correct to the best of my knowledge this 2nd day of November, 2014.
W. Dexter Harrison