Replybrief on all writs petition - the innocence case of Wayne Tompkins

http://www.waynetompkins.us/legal/Filed_12-01-2008_Reply.pdf

IN THE SUPREME COURT OF FLORIDA
WAYNE TOMPKINS,
Petitioner,
v. CASE NO. SC08-2168
BILL McCOLLUM,
Attorney General of the
State of Florida,
and,
WALTER A. McNEIL,
Secretary,
Department of Corrections,
State of Florida,
Respondents.
____________________________________/
REPLY TO RESPONSE TO PETITION SEEKING TO INVOKE THIS COURT'S ALL
WRITS JURISDICTION AND/OR PETITION FOR WRIT
OF HABEAS CORPUS AND OPPOSITION TO MOTION TO DISMISS

A. Motion to Dismiss

In their responsive pleading, Respondents move this Court
for a dismissal of Mr. Tompkins. petition. The position taken
by Respondents is that “[a]n all writs petition cannot be used
to relitigate claims decided adversely to him. Denson v. State,
775 So. 2d 288, 289 (Fla. 2000) („[A]n extraordinary writ
petition cannot be used to litigate or relitigate issues that
were or could have been raised on direct appeal or in prior
postconviction proceedings).” Response at 2. However,
Respondents have misrepresented this Court.s ruling in Denson.


In Denson, a petition for a writ of habeas corpus had been
filed with this Court. The petitioner sought consideration of a
claim previously raised in the circuit court and the Second
District Court of Appeal. The passage quoted here by
Respondents appears in a sentence quoting from this Court.s
previously entered order from which the petitioner had sought a
rehearing. In denying the motion for rehearing, this Court
elaborated on the basis of denying the petition:

Despite Denson's assertions to the contrary,
the orders of the district and circuit
courts clearly demonstrate that the exact
claim Denson raises here has already been
decided against him on the merits and that
Denson has exhausted all appropriate and
timely appellate review. Denson may not seek
additional consideration of this claim
simply by labeling it as fundamental error
since his claim is barred under the concept
of res judicata.


Denson, 775 So. 2d at 290 (emphasis added).
Thus, the basis of this Court.s ruling in Denson was a
straightforward application of the legal principle of res
judicata.

This Court.s ultimate holding rested upon a finding that
the issue that the petitioner sought to present to this Court in
an original petition seeking the issuance of an extraordinary
writ was “the exact claim” previously and finally decided. That
is not the situation here involving Mr. Tompkins. The issue


that Mr. Tompkins has raised in his pending petition is stated
in the petition as:
THIS COURT.S DENIAL OF MR. TOMPKINS. MOTION
TO RELINQUISH AND ITS SUBSEQUENT
DETERMINATION THAT ANY CLAIM THAT MR.
TOMPKINS MAY RAISE AS A RESULT OF THE
DISCLOSURE OF MR. TURCO.S SWORN STATEMENT OF
OCTOBER 28, 2008, DEPRIVED MR. TOMPKINS OF
HIS RIGHT TO DUE PROCESS UNDER THE SIXTH AND
FOURTEENTH AMENDMENT, AS WELL AS HIS RIGHT
OF ACCESS TO THE COURTS TO RAISE AND
LITIGATE HIS NON-FRIVOLOUS CONSTITUTIONAL
CHALLENGES TO HIS CONVICTION AND SENTENCE OF
DEATH.



See Petition at 27.1

1In his conclusion in the pending petition, Mr. Tompkins
explained his requested relief as follows:
For the reasons stated herein, Mr. Tompkins
respectfully requests that this Court grant him the
opportunity to have counsel investigate, prepare, and
present any constitutional challenges to his
conviction and sentence of death which arise from Mr.
Turco.s October 28th sworn statement. This Court
should vacate its ruling concluding that any error was
harmless and permit Mr. Tompkins to pursue Rule 3.851
relief.
Petition at 48.
Thus, it is clear that the issue raised concerned whether
he had been denied his constitutional rights to due process
and/or access to the courts when this Court denied his motion to
relinquish and then issued an opinion addressing a claim that
Mr. Tompkins had not yet raised. By definition, this
constitutional claim could not be raised prior to this Court.s
action in November of 2008.

In no previous pleading or document filed in either the
circuit court or in this Court has Mr. Tompkins argued that this


Court.s denial of the motion to relinquish violated Mr.
Tompkins. right to due process and/or access to the courts.
Anticipating that Mr. Tompkins might point out that Denson
concerned the presentation to this Court of “the exact claim”
already denied on the merits, Respondents makes the false
assertion that “Tompkins argues the same claim in the instant
petition which was raised and decided in this Court.s November
7th decision.” Response at 3. Respondents provide no citation
for the factual assertion because there is none and the
assertion is blatantly false.
Moreover, this Court has frequently considered original
petitions seeking an extraordinary writ that argued
constitutional error in this Court.s consideration of an earlier
appeal by the petitioner. In Johnston v. Moore, 789 So. 2d 262
(Fla. 2001), and Diaz v. Moore, 797 So. 2d 585 (Fla. 2001), this
Court considered, on the merits, claims presented in petitions
for writs of habeas corpus that this Court had erroneously
denied ineffective assistance of counsel claims by applying the
wrong standard of review.

This Court considered habeas petitions challenging this
Court.s direct appeal affirmance of various death sentences
following Hitchcock v. Dugger, 481 U.S. 393, 95 L. Ed. 2d 347,
107 S. Ct. 1821 (1987). See Johnson v. Dugger, 520 So. 2d 565


(Fla. 1988) (treating all-writs petition based on Hitchcock
error as a petition for writ of habeas corpus). It has also
considered the validity of a direct appeal decision affirming
the override of a jury's recommendation of life in light of a
new decision from this Court in another case. See Mills v.
Moore, 786 So. 2d 532 (Fla. 2001) (addressing merits of whether
Keen v. State, 775 So. 2d 263 (Fla. 2000), required
reconsideration of Court's direct appeal affirmance of
override).
This Court has also regularly entertained petitions for
extraordinary relief wherein the petitioner has claimed error in
the direct appeal process due to ineffective assistance of
counsel. Wilson v. Wainwright, 474 So. 2d 1162, 1164-65 (Fla.
1985). In its jurisdiction to issue all writs, including writs
of habeas corpus, this Court has an obligation to protect
Petitioner's right under the Florida Constitution to be free
from cruel or unusual punishment, and it has the power to enter
orders assuring that such protection is forthcoming. Allen v.
State, 636 So. 2d 494, 497 (Fla. 1994)(holding that the Court
was required under Article I, § 17 of the Florida Constitution
to strike down the death penalty for persons under sixteen at
time of crime).


Respondents make no argument for dismissal of the petition
beyond its reliance upon Denson. Since Denson made it clear
that only “the exact claim” previously presented and rejected is
precluded, the fact that the claim presented in the petition was
not previously presented to this Court defeats Respondents.
argument. This Court must hear Mr. Tompkins. petition and
decided whether he has been deprived of his constitutional
rights to due process and/or access to the courts. Indeed, it
would seem to be the quintessential Catch-22 for this Court to
rule that it will not hear Mr. Tompkins. constitutionally-based
complaint that this Court denied him the opportunity to present
his constitutionally-based claims arising from a newly disclosed
sworn statement and be meaningfully heard.
B. Argument Made by Respondents on the Merits

In their argument as to the merits of the pending petition,
Respondents chose to address Mr. Tompkins. actual due process
argument in a single sentence: “Moreover, Petitioner received
all the process Florida law requires when this Court reviewed
the sworn statement of Turco and recognized that even when
viewed in its most favorable light, Petitioner would not be
entitled to relief.” Response at 6.2 No authority is provided by

2Mr. Tompkins has filed this morning, December 1, 2008, his
request for DNA testing pursuant to Rule 3.853. This motion is
filed in light of the newly disclosed sworn statement from


Kenneth Turco which impeaches the State.s evidence regarding the
identity of the human remains found under 1225 E. Osborne Street
in June of 1984.

Respondents for the extraordinary proposition that due process
does not include an opportunity to be heard. See Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).
Respondents failed to address the basic bedrock principle that
due process includes notice and a reasonable opportunity to be
heard. Respondents do not address any of the cases Mr. Tompkins
relied upon in his petition. See Cleveland Bd. of Ed. v.
Loudermill, 470 U.S. 532, 542 (1985); Ford v. Wainwright, 477
U.S. 399, 424 (1986); Teffeteller v. Dugger, 676 So. 2d 369, 371
(Fla. 1996); Huff v. State, 622 So. 2d 982, 983 (Fla. 1993);
Wilson v. Wainwright, 474 So. 2d 1162 (Fla. 1985). No attempt
is made by Respondents to distinguish these cases.

Instead of addressing Mr. Tompkins. constitutional claim
that he was deprived of his rights to due process and/or access
to the courts, Respondents focuses solely upon the Giglio claim
that this Court addressed in its November 7th opinion.
Interestingly, in addressing “the Giglio claim” (Response at 5),
Respondents do not address the opinion in Giglio v. United
States, 405 U.S. 150 (1972). In Giglio, evidence surfaced after
trial that the government had given a promise of immunity to an
important witness. However at the trial, this witness had


testified that he had received no promises in exchange for his
testimony. Giglio, 405 U.S. at 151. There was no evidence that
any other aspect of his testimony had been false. Yet, the
United States Supreme Court ordered a new trial explaining:

Here the Government's case depended almost
entirely on Taliento's testimony; without it
there could have been no indictment and no
evidence to carry the case to the jury.
Taliento's credibility as a witness was
therefore an important issue in the case,
and evidence of any understanding or
agreement as to a future prosecution would
be relevant to his credibility and the jury
was entitled to know of it.


Giglio, 405 U.S. at 154-55.
Without any indication that any of the witness.s testimony was
false beyond his disavowal of any consideration was provided for
his testimony, the United States Supreme Court found that the
false testimony was relevant to the witness.s credibility.
Given the importance of the witness.s testimony, the jury was
entitled to know of the false testimony as it related to his
credibility. Because the jury was not appraised of the false
testimony on the limited issue, the error was not harmless and
warranted a new trial.

Similarly, Respondents do not address Napue v. Illinois,
360 U.S. 264 (1959), a decision on which Giglio relied. In
Napue, the United States Supreme Court noted that the only
falsehood at issue concerned a witness.s testimony that the


prosecutor had not promised any consideration for his testimony.
But, the Court concluded that a new trial was required saying:

It is of no consequence that the falsehood
bore upon the witness' credibility rather
than directly upon defendant's guilt. A lie
is a lie, no matter what its subject, and,
if it is in any way relevant to the case,
the district attorney has the responsibility
and duty to correct what he knows to be
false and elicit the truth. . . . That the
district attorney's silence was not the
result of guile or a desire to prejudice
matters little, for its impact was the same,
preventing, as it did, a trial that could in
any real sense be termed fair."



Napue, 360 U.S. at 269-70.3

3The United States Supreme Court also stated:


Had the jury been apprised of the true facts, however,
it might well have concluded that Hamer had fabricated
testimony in order to curry the favor of the very
representative of the State who was prosecuting the
case in which Hamer was testifying, for Hamer might
have believed that such a representative was in a
position to implement (as he ultimately attempted to
do) any promise of consideration.
Napue, 360 U.S. at 270.

It violates these decisions to argue that because a witness
asserted that he only lied under oath before the jury as to one
particular detail, the jury may have accepted the rest of
testimony as truthful. The proper test is whether it was a
reasonable possibility that the jury, upon hearing that he lied
at the prosecutor.s request as to one detail, may have


determined the witness was not worthy of belief as to any of his
testimony.
Unfortunately, Mr. Tompkins has never been permitted to
present his constitutional claim and argue why he is entitled to
relief. It is that opportunity, the opportunity to be
meaningfully heard, that Mr. Tompkins seeks in this proceeding.
CONCLUSION
For the reasons stated herein, and in his Petition
initiating this proceeding, Mr. Tompkins requests that this
Court grant him the opportunity to have counsel investigate,
prepare, and present any constitutional challenges to his
conviction and sentence of death which arise from Mr. Turco.s
October 28th sworn statement. This Court should vacate its
ruling concluding that any error was harmless and permit Mr.
Tompkins to pursue Rule 3.851 relief.
/s__Martin J. McClain____________
MARTIN J. McCLAIN
Florida Bar No. 0754773
Special Assistant CCRC-South
141 N.E. 30th Street
Wilton Manors, FL 33334
(305) 984-8344
NEAL DUPREE
CCRC-South
101 N.E. Third Avenue
Fort Lauderdale, FL 33301
(954) 713-1284
Counsel for Mr. Tompkins


CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing motion
has been furnished by U.S. Mail, postage prepaid, to Scott
Browne, Assistant Attorney General, Department of Legal Affairs,
3507 Frontage Road, Suite 200, Tampa, FL 33607 on this day,
December 1, 2008.
CERTIFICATE OF FONT COMPLIANCE
I HEREBY CERTIFY that the size and style of type used in
this motion is 12-point Courier New, in compliance with Fla. R.
App. P. 9.100 (1).
/s Martin J. McClain______
Martin J. McClain
Counsel for Mr. Tompkins