i

Article 1, Sec. 13 of the Florida Constitution provides: "The

writ of habeas corpus shall be grantable of right, freely and

without cost." These claims demonstrate that Mr. King was deprived

of the right to a fair, reliable, and individualized sentencing

proceeding and that the proceedings resulting in his conviction and

death sentence violated fundamental constitutional imperatives.

The proceedings in his case will be cited to as follows:

"R." – record on direct appeal from initial trial court

proceedings;

"R2." – record on direct appeal from resentencing;

"PC-R." – record of post-conviction proceedings.

Mr. King’s petition includes a request that the court stay his

execution (presently scheduled for January 24, 2002). As will be

shown, the issues presented are substantial and warrant a stay. Mr.

King respectfully urges that the Court enter an order staying his

execution, and , thereafter, that the Court grant habeas corpus

relief.

ii

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . i

REQUEST FOR STAY OF EXECUTION . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . .ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . .v

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION TO ENTERTAIN PETITION

AND GRANT HABEAS CORPUS RELIEF . . . . . . . . . . . . . . . . .2

GROUNDS FOR HABEAS CORPUS RELIEF . . . . . . . . . . . . . . . .2

PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . .3

CLAIM I

APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE ON

DIRECT APPEAL THE ERRONEOUS RULING OF THE TRIAL COURT WHICH

ALLOWED A STATE WITNESS TO TESTIFY THAT A STAIN SEEN ON MR.

KING’S CLOTHING WAS HUMAN BLOOD. . . . . . . . . . . . . . 5

CLAIM II

MR. KING’S APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO

RAISE ON DIRECT APPEAL THE TRIAL COURT’S ERROR IN ALLOWING

IRRELEVANT INFORMATION PUT FORTH SOLELY TO BOLSTER THE

CREDIBILITY OF A STATE WITNESS TO BE HEARD BY THE JURY OVER

DEFENSE OBJECTION. . . . . . . . . . . . . . . . . . . . . 8

CLAIM III

APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE ON

DIRECT APPEAL THE TRIAL COURT’S ERRONEOUS RULING WHICH

ALLOWED HEARSAY TESTIMONY TO BE HEARD BY THE JURY REGARDING

WHETHER MR. KING WAS OUTSIDE THE CORRECTIONAL FACILITY ON

THE NIGHT OF THE MURDER OF NATALIE BRADY OVER DEFENSE

OBJECTION. . . . . . . . . . . . . . . . . . . . .10

CLAIM IV

APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE ON

DIRECT APPEAL THE ERRONEOUS RULING OF THE TRIAL COURT

ALLOWING HEARSAY TO BE ADMITTED REGARDING AN OFFICER’S

INTERVIEW WITH NEIGHBORS. . . . . . . . . . . . . . . . . 11

iii

CLAIM V

MR. KING’S CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN THE

PROSECUTOR IMPROPERLY ARGUED FUTURE DANGEROUSNESS DURING

GUILT PHASE CLOSING ARGUMENT. APPELLATE COUNSEL WAS

INEFFECTIVE FOR NOT RAISING THIS ERROR ON DIRECT APPEAL.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CLAIM VI

THE PROSECUTOR COMMITTED FUNDAMENTAL ERROR IN CLOSING

ARGUMENT WHEN HE DENIGRATED DEFENSE COUNSEL.. . . . . . . 14

CLAIM VII

MR. KING’S RIGHTS WERE VIOLATED BY THE STATE’S EX-PARTE

COMMUNICATIONS WITH THE COURT AND THE STATE’S AND COURT’S

UNDISCLOSED CONSIDERATION GIVEN TO STATE WITNESSES IN

EXCHANGE FOR THEIR TESTIMONY. APPELLATE COUNSEL WAS

INEFFECTIVE FOR FAILING TO ADDRESS THIS ISSUE ON DIRECT

APPEAL.. . . . . . . . . . . . . . . . . . . . . . . . . .16

CLAIM VIII

MR. KING’S APPELLATE ATTORNEY WAS INEFFECTIVE FOR FAILING TO

FILE PLEADINGS ENSURING THE PRESERVATION OF THE PHYSICAL

EVIDENCE USED AGAINST MR. KING AT TRIAL. APPELLATE COUNSEL

HAD A DUTY TO ENSURE THE PRESERVATION OF SUCH EVIDENCE FOR

FURTHER REVIEW.. . . . . . . . . . . . . . . . . . . . . .18

CLAIM IX

THE FLORIDA DEATH SENTENCING STATUTE AS APPLIED IS

UNCONSTITUTIONAL UNDER THE FIFTH, SIXTH, EIGHTH, AND

FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND

CORRESPONDING PROVISIONS OF THE FLORIDA CONSTITUTION.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CLAIM X

MR. KING’S INCARCERATION ON DEATH ROW FOR, AT PRESENT,

TWENTY-FIVE YEARS, CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT

IN VIOLATION OF THE EIGHTH AMENDMENT AND DUE PROCESS CLAUSE

OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

CLAIM XI

THE STATE OF FLORIDA’S CLEMENCY PROCESS VIOLATES THE DUE

PROCESS AND EQUAL PROTECTION CLAUSES OF THE UNITED STATES

CONSTITUTION AND THE CONSTITUTION OF THE STATE OF FLORIDA.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

iv

CONCLUSION AND RELIEF SOUGHT . . . . . . . . . . . . . . . . 32

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 32

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . 34

v

Alverez v. State,

Apprendi,

120 S.Ct. 2348, 2355 (2000) . . . . . . . . . . . 20-23, 25

Baggett v. Wainwright,

229 So. 2d 239 (Fla. 1969) . . . . . . . . . . . . . . . . 2

Barclay v. Wainwright,

444 So.2d 956, 959 (Fla. 1984) . . . . . . . . . . . . . . 1

Brady v. Maryland,

373 U.S. 83,

83 S.Ct. 1194 (1963) . . . . . . . . . . . . . . . . . . 17

Briggs v. State,

Brown v. Wainwright,

392 So. 2d 1327 (Fla. 1981) . . . . . . . . . . . . . . . 2

Capital Postconviction Prisoners' Right to Counsel,

48 MD. L. Rev. 455, 499-500 (1989) . . . . . . . . . . . 28

Caraballo v. State,

Catholic Commission for Justice and Peace in Zimbabwe v.

Attorney General,

No. S.C. 73/93 (Zimbabwe 1993) . . . . . . . . . . . . . 28

Coleman v. Balkcom,

451 U.S. 949, 952 (1981) . . . . . . . . . . . . . . . . 26

Commonwealth v. O'Neill,

339 N.E. 2d 676 (Mass. 1975) . . . . . . . . . . . . . . 27

Competency for Execution: Problems in Law and Psychiatry,

14 Fla. St. U. L. Rev. 35, 37-39 (1986) . . . . . . . . 28

Death Row Conditions: Progression Towards Constitutional

Protections,

19 Akron L. Rev. 293 (1985) . . . . . . . . . . . . . . 29

vi

Downs v. Dugger,

514 So. 2d 1069 (Fla. 1987) . . . . . . . . . . . . . . . 2

D’Ambrosio v. State,

Eighty-Eight Men and Two Women,

P. 254 (1962) . . . . . . . . . . . . . . . . . . . . . 29

Execution Delayed, Execution Denied,

5 Crim. L. Forum 180 (1994) . . . . . . . . . . . . . . 28

Facing Death Alone,

37 Amer. L. Rev. 513, 552 and n. 251 (1988) . . . . . . 28

Fitzpatrick v. Wainwright,

490 So.2d 938, 940 (Fla. 1986) . . . . . . . . . . . . . . 1

Floyd v. State,

569 So.2d 1225 (Fla. 1990) . . . . . . . . . . . . . . . . 7

Furman v. Georgia,

408 U.S. 238, 288-289 (1972) . . . . . . . . . . . . . . 26

Gardner v. Florida,

430 U.S. 349, 357 (1976) . . . . . . . . . . . . . . . . 23

Giglio v. United States,

405 U.S. 150,

92 S.Ct. 763 (U.S. 1971) . . . . . . . . . . . . . . . . 17

Grant v. State,

194 So.2d 612 (Fla. 1967) . . . . . . . . . . . . . . . 13

Hall v. State,

Herrera v. Collins,

506 U.S. 390, 113 S.Ct. 853 (1993) . . . . . . . . . 30, 31

Hopkinson v. State,

632 P.2d 79(WY 1981) . . . . . . . . . . . . . . . . . . 27

Hufham v. State,

Inmate Responses to Lengthy Death Row Confinement,

129 Amer. J. Psychiatry 167 (1972) . . . . . . . . . . . 29

1

Jones v. State,

440 So.2d 570 (Fla. 1983) . . . . . . . . . . . . . . . . 7

Jones v. United States,

526 U.S. 227, 243, n.6 (1999) . . . . . . . . . . . . . 20

King v. Dugger,

555 So.2d 355 (Fla. 1990) . . . . . . . . . . . . . . . . 4

King v. Moore,

King v. State,

390 So.2d 315 (Fla. 1980) . . . . . . . . . . . . . . . . 3

King v. State,

407 So.2d 904 (Fla. 1981) . . . . . . . . . . . . . . . . 3

King v. State,

514 So.2d 354 (Fla. 1987) . . . . . . . . . . . . . . . . 4

King v. State,

597 So.2d 780 (Fla. 1992) . . . . . . . . . . . . . . . . 4

King v. Strickland,

King v. Strickland,

Knight v. State,

Knight v. State,

721 So. 2d 287 (Fla. 1998), cert denied,

528 U.S. 990 (1999) . . . . . . . . . . . . . . . . . . 25

514 U.S. 419,

115 S.Ct. 1555 (U.S. 1995) . . . . . . . . . . . . . . . 17

Lackey v. Texas,

514 U.S. 1045,

115 S.Ct. 1421 (1995) . . . . . . . . . . . . . . . . . 26

McClain v. State,

477 S.E.2d 814 (Ga. 1996) . . . . . . . . . . . . . . . 13

1

McGee v. State,

Mental Suffering Under Sentence of Death: A Cruel and Unusual

Punishment,

57 Iowa L. Rev. 814, 830 (1972) . . . . . . . . . . . . 29

Mills v. Moore,

786 So.2d 532 (Fla. 2001) . . . . . . . . . . . . . 20, 23

Mohorn v. State,

People v. Anderson,

493 P. 2d 880,

6 Cal. 3d 628, 649 (Cal. 1972) . . . . . . . . . . . . . 27

People v. Barton,

21 Cal.3d 513 (Cal. 1978) . . . . . . . . . . . . . . . 19

Psychiatric Reflections on the Death Penalty,

45 Amer. J. Orthopsychiatry 689, 694-695 (1975) . . . . 29

Psychiatry on Death Row,

39 J. Clinical Psychiatry 183 (1979) . . . . . . . . . . 29

Reaction to Extreme Stress: Impending Death By Execution,

119 Amer. J. Psychiatry 393 (1962) . . . . . . . . . . . 29

Reflections on the Guillotine in Resistance, Rebellion and Death,

P. 205 (1966) . . . . . . . . . . . . . . . . . . . . . 29

Riley v. Wainwright,

517 So. 2d 656 (Fla. 1987) . . . . . . . . . . . . . . . . 2

Rose v. State,

601 So.2d 1181 (Fla. 1992) . . . . . . . . . . . . . . . 17

Sher Singh v. State of Punjab,

2 SCR 582 (India 1983) . . . . . . . . . . . . . . . . . 27

Simpson v. State,

Smith v. State,

400 So. 2d 956 (Fla. 1981) . . . . . . . . . . . . . . . . 2

1

Soering v. United Kingdom,

11 European Human Rights Reporter 439 (1989) . . . . . . 27

Solesbee v. Balkcom,

339 U.S. 9, 14 (1950) . . . . . . . . . . . . . . . . . 26

State v. Dixon,

283 So.2d 1, 9 (Fla. 1973) . . . . . . . . . . . . . . . 21

State v. Richmond,

886 P.2d 1329 (AZ 1994) . . . . . . . . . . . . . . . . 27

Strickland v. Washington,

466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . 9

Suffolk County District Attorney v. Watson,

411 N.E. 2d 1274, 1289 (Mass. 1980) . . . . . . . . . . 27

Symposium on Death Penalty Issues: Volunteering for Execution,

74 J. Crim. L. 860, 861 & n.10 (1983) . . . . . . . . . 28

Testing the Death Penalty,

34 S. Cal. L. Rev. 268, 272 and n. 15 (1961) . . . . . . 29

The Idiot,

pp. 47-48 (D. Magarshack trans. 1955) . . . . . . . . . 29

The Isolation of Death Row in Facing the Death Penalty

198 (Radelet, ed. 1989) . . . . . . . . . . . . . . . . 28

Under Sentence of Death: The Psychology of Death Row Confinement,

5 Law and Psychology Review 141, 157-60 (1979) . . . . . 29

Vatheeswarren v. State of Tamil Nadu,

2 S.C.R. 348 (India, 1983) . . . . . . . . . . . . . . . 27

Walton v. Arizona,

497 U.S. 639 (1990) . . . . . . . . . . . . . . . . . . 23

Way v. Dugger,

568 So. 2d 1263 (Fla. 1990) . . . . . . . . . . . . . . . 2

Weeks v.State,

761 A.2d 804 (Del. 2000) . . . . . . . . . . . . . . 23, 24

Westley v. State,

1

Wilson v. Wainwright,

474 So. 2d 1163 (Fla. 1985) . . . . . . . . . . . . . . . 2

Wilson v. Wainwright,

474 So.2d 1162, 1164 (Fla. 1985) . . . . . . . . . . . 1, 2

Woodson v. North Carolina,

428 U.S. 280, 305 (1975) . . . . . . . . . . . . . . . . 23

1

Significant errors which occurred at Mr. King’s capital trial

and sentencing were not presented to this Court on direct appeal

due to the ineffective assistance of appellate counsel. The

issues, which appellate counsel neglected, demonstrate that

counsel’s performance was deficient and that the deficiencies

prejudiced Mr. King. "[E]xtant legal principles . . . provided a

clear basis for . . . compelling appellate argument[s]."

Fitzpatrick v. Wainwright, 490 So.2d 938, 940 (Fla. 1986).

Neglecting to raise fundamental issues such as those discussed

herein, "is far below the range of acceptable appellate performance

and must undermine confidence in the fairness and correctness of

the outcome." Wilson v. Wainwright, 474 So.2d 1162, 1164 (Fla.

1985). Individually and "cumulatively," Barclay v. Wainwright, 444

So.2d 956, 959 (Fla. 1984), the claims omitted by appellate counsel

establish that "confidence in the correctness and fairness of the

result has been undermined." Wilson, 474 So.2d at 1165 (emphasis

in original).

Additionally, this petition presents questions that were ruled

on in direct appeal, but should now be revisited in light of

subsequent case law or in order to correct error in the appeal

process that denied Mr. King his constitutional rights. As this

petition will demonstrate, Mr. King is entitled to habeas relief.

2

Fla. Const. art. I, § 13. This Court has original jurisdiction

pursuant to Fla.R.App.P. 9.030(a)(3) and Fla. Const. art. V, §

3(b)(9). The petition presents constitutional issues which

directly concern the judgment of this court during the appellate

process and the legality of Mr. King’s sentence of death.

Jurisdiction in this action lies in this Court for the fundamental

constitutional errors challenged herein arise in the context of a

capital case in which this Court heard and denied Mr. King’s direct

v. Wainwright, 474 So.2d 1162, 1163 (Fla. 1985); Baggett v.

Wainwright, 229 So.2d 239, 243 (Fla. 1969); cf. Brown v.

Wainwright, 392 So.2d 1327 (Fla. 1981). A petition for a writ of

habeas corpus is the proper means for Mr. King to raise the claims

1990); Downs v. Dugger, 514 So.2d 1069 (Fla. 1987); Riley v.

Wainwright, 517 So.2d 656 (Fla. 1987); Wilson v. Wainwright, 474

So.2d 1162 (Fla. 1985).

By his petition for a writ of habeas corpus, Mr. King asserts

that his capital conviction and sentence of death were obtained and

then affirmed during this Court's appellate review process in

violation of his rights as guaranteed by the Fifth, Sixth, Eighth

3

and Fourteenth Amendments to the Constitution of the United States

and the corresponding provisions of the Florida Constitution.

Mr. King was charged by indictment with first-degree murder,

sexual battery, burglary and arson On April 7, 1977. The case was

consolidated during voir dire with another case charging Mr. King

with attempted murder and escape. The consolidated cases were

tried before the Circuit Court Judge John Andrews. Mr. King was

represented by Thomas Cole of the Public Defender’s Office.

The jury found Mr. King guilty on all counts. At the penalty

phase, the jury recommended death. The trial court followed the

recommendation and sentenced Mr. King to death.

On direct appeal, the Florida Supreme Court affirmed the

conviction and sentence of death. King v. State, 390 So.2d 315

(Fla. 1980). Mr. King sought post-conviction relief, but was

denied by the circuit court. On appeal, the Florida Supreme Court

affirmed the denial of post-conviction relief. King v. State, 407

So.2d 904 (Fla. 1981). Mr. King filed a Petition for Writ of

Habeas Corpus in the United States District Court, Middle District

of Florida in 1981. The district court denied relief, however on

appeal, Mr. King’s sentence of death was vacated by the Eleventh

Cir. 1984); previous history, King v. Strickland, 714 F.2d 1481

4

Mr. King was resentenced and death was again imposed. The

Florida supreme Court affirmed the conviction and sentence of

death. King v. State, 514 So.2d 354 (Fla. 1987). A Petition for

Writ of Habeas Corpus was filed by Mr. King, as well as a Motion

for Post-conviction Relief. An evidentiary hearing was conducted

in the circuit court on the Motion for Post-conviction Relief, and

relief was denied. The Florida Supreme Court affirmed the denial

of post-conviction relief. King v. State, 597 So.2d 780 (Fla.

1992). The Florida Supreme Court also denied Mr. King’s Petition

for Writ of Habeas Corpus. King v. Dugger, 555 So.2d 355 (Fla.

1990).

In October of 1992, Mr. King filed a Petition for Writ of

Habeas Corpus in the United States District Court, Middle District

of Florida. The District Court denied relief on May 12, 1998. An

appeal of the denial was filed with the Eleventh Circuit Court of

Appeals in May of 1999. On November 30, 1999, the Eleventh Circuit

1999). During the spring of 1997, Mr. King filed a pro-se Petition

for Writ of Habeas Corpus in the Florida Supreme Court. Mr. King’s

pro-se pleading was denied by the Florida Supreme Court in an

unpublished order filed on March 28, 1997. A subsequent Motion for

Rehearing on said petition was denied in an unpublished order filed

on May 30, 1997.

5

On November 19, 2001, a death warrant was signed scheduling

Mr. King’s execution for January 24, 2002. Mr. King filed a

Successive Motion to Vacate Judgement and Sentence in the circuit

court on December 18, 2001. The Motion to Vacate was denied on

January 1, 2002. Mr. King now files this Petition for Writ of

Habeas Corpus simultaneously with the appeal of the denial of his

Successive Motion to Vacate Judgement and Sentence.

Mr. King’s conviction for the murder of Natalie Brady was

obtained through circumstantial evidence. The evidence against Mr.

King was obtained primarily through the testimony of the victim of

the attempted murder, James McDonough. Mr. McDonough was employed

at a work release center where Mr. King was carrying out the

remainder of a sentence on unrelated charges. Mr. McDonough

testified that Mr. King was missing from his room during a bed

check in the early morning hours. McDonough testified that he

found Mr. King outside of the facility with human blood on the

crotch area of his pants. The testimony, if believed to be true,

would have established that Mr. King had human blood on him and was

outside of the facility at approximately the same time Mrs. Brady

6

was murdered in a house located close to the facility. This

testimony was critical to the conviction of Mr. King.

During the guilt phase of Mr. King’s trial, defense counsel

moved in limine to exclude any testimony on behalf of witness

McDonough concluding that a stain seen on Mr. King’s clothing was

human blood. (R. 1348). The grounds for the motion were that

McDonough was not an expert and should not be allowed to render an

opinion on the substance of the stain he viewed on Mr. King. The

Court did not make a ruling immediately. (R. 1349). McDonough

testified that he grew up in a family funeral business, was a

licenced mortician, had an opportunity to observe blood in the

business, and that the funeral home was involved in approximately

twenty-five hundred embalmings over the course of twenty-two years.

(R. 1353-1354). McDonough was not tendered as an expert. When

the witness appeared about to testify as to his opinion regarding

the blood, defense counsel objected. (R. 1377). The judge

overruled the objection. (R. 1379). McDonough testified that the

crotch of Mr. King’s pants, "was soaked in human blood." (R. 1379).

Section 90.701 Florida Statutes (2001) states:

witness is not testifying as an expert, the

witness’s testimony about what he or she

perceived may be in the form of inference and

opinion when:

(1) The witness cannot readily, and with

equal accuracy and adequacy, communicate what

he or she has perceived to the trier of fact

without testifying in terms of inferences or

opinions and the witness’s use of inferences

7

or opinions will not mislead the trier of fact

tot he prejudice of the objecting party; and

(2) The opinions and inferences do not

require a special knowledge, skill,

experience, or training.

Fla. Stat. ch. 90.701 (2001).

To render an opinion the stain on Mr. King’s clothing was human

blood usurps the province of the jury. Witness McDonough could

have described the stain without making the ultimate conclusion as

to the constitution of such a stain. He did not perform any blood

typing test, nor was any such test performed at a later time.

Thus, to render such a conclusion usurped the province of the jury

and an objection to such testimony should have been sustained.

Edition); Floyd v. State, 569 So.2d 1225 (Fla. 1990); Jones v.

State, 440 So.2d 570 (Fla. 1983). The failure of appellate counsel

to raise this issue on direct appeal demonstrates that counsel’s

performance was deficient and that the deficiencies prejudiced Mr.

King. Without the conclusory opinion that Mr. King’s clothing had

human blood upon it, the jury would not have had sufficient

evidence tying Mr. King to the murder of Mrs. Brady. Thus, Mr.

King would have been acquitted of that crime. The prejudice to Mr.

King by allowing clearly inadmissable opinion testimony is great,

and renders his conviction for the murder of Natalie Brady

erroneous. Such an error violated Mr. King’s constitutional rights

as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments

8

to the United States Constitution and the corresponding rights of

the Florida Constitution.

During the guilt phase of Mr. King’s trial, the State called

witness James McDonough to the stand. (R. 1350). The prosecutor

then began to question the witness about how many children he had,

and what their ages were. (R. 1351). When the defense objected on

relevancy grounds, the prosecutor stated:

"In King’s statement to the deputy, your

Honor, he eluded to the fact this man attacked

him, that puts this witness’s character in

issue. I think it is relevant that the jury

be made aware of his background and

reputation, possibly not reputation, but

certainly his background. They have got to

determine whether or not he is the type of man

who would attack this nice gentleman sitting

over here."

(R. 1351).

The objection was overruled and the prosecutor went on to elicit

the ages of the witness’s children, the fact that one of the

children had just graduated and was on the list for West Point, his

detailed employment history background, his family business, and

his education. (R. 1351-1354). At this point, defense counsel

had not even made an inference that King was attacked by this

9

witness. There was nothing mentioned in opening statement, nor was

there a self-defense claim proffered. Thus, McDonough’s

credibility and character had not been attacked by the defense and

the prosecutor was not rebutting a defense attack.

"The good character of a witness may not be supported unless

it has been impeached by evidence." Mohorn v. State, 462 So.2d 81

to be reversible error to admit testimony of an arresting officer’s

good conduct record and the lack of any disciplinary proceedings

during his twelve years as an officer. Similarly, it constituted

reversible error to allow the blatant bolstering of the State’s

witness by the prosecution. The testimony of witness McDonough

was critical in this circumstantial evidence case. (See Claim I).

By allowing the prosecutor to bolster his character, the judge

committed reversible error. Given that such error was preserved by

objection, it was the duty of appellate counsel to raise such issue

on direct appeal. The failure to raise such an issue on direct

appeal constituted ineffective assistance of appellate counsel.

Appellate counsel’s conduct fell well below that of reasonably

Washington, 466 U.S. 668 (1984). The improper bolstering of the

main state witness created a picture for the jury that the witness

was a good father, hard working, educated and therefore a witness

10

to be believed. Thus, the witness’s testimony was given greater

weight than it should have been, resulting in an unreliable

conviction against Mr. King.

During the guilt phase of the trial, witness Carlos Hudson

testified that he heard James McDonough looking for Mr. King

outside of Hudson’s window at the correctional facility. (R.

1441). The prosecutor asked Hudson, "What did you hear Mr.

McDonough say?" (R. 1441). Defense counsel objected on hearsay

grounds and the objection was overruled. (R. 1441). The prosecutor

repeated the question, "What did you hear him say?" Hudson

answered, "There you are." (R. 1441). This testimony corroborated

McDonough’s testimony that Mr. King was discovered outside of the

facility. Such testimony constituted hearsay under section 90.802

Florida Statutes (2001). The objection was made and the issue

preserved for appeal, however appellate counsel for Mr. King did

not raise this issue on direct appeal. Given that Mr. King’s

conviction was based upon circumstantial evidence, the prejudice to

him by this inadmissable testimony was great. Jurors relied on the

corroborating hearsay to find that Mr. King was outside of the

11

facility, within proximity of the house where the murder of Natalie

Brady occurred. Without such corroboration, the jury would not

have had sufficient reason to believe that Mr. King was outside of

the facility, thus the prejudice to Mr. King was substantial and

the verdict unreliable. Appellate counsel was ineffective for

failing to raise this issue on direct appeal, and his conduct fell

below the acceptable standard of reasonableness required by the

United States Constitution and the Florida Constitution.

During the guilt phase of Mr. King’s trial, Detective Bragdon

testified that Mr. King led them to a garbage can where the clothes

he was wearing on the night of the murder had been deposited. Upon

arrival at the garbage can, the detective found it to be empty

except for some papers. Defense counsel, anticipating that the

detective was about to testify that interviews with the neighbors

were conducted, and the garbage cans had not been emptied, objected

to the testimony on hearsay grounds. (R. 1754). The objection was

overruled. (R. 1754). The detective then testified that

Detective Pandakos, his partner, interviewed neighbors who said the

garbage can had not been emptied. (R. 1755). Such testimony was

clearly inadmissable hearsay under section 90.802, Florida Statutes

12

(2001). Such testimony was allowed in violation of Mr. King’s

right to confront witnesses. No "neighbor’s" names were provided

to defense counsel and by allowing the testimony, the judge

committed reversible error.

The hearsay was objected to and the issue preserved for direct

appeal. However, appellate counsel never addressed the issue in

King’s appeal. Such conduct fell below the threshold of reasonably

effective counsel. The prejudice to Mr. King was simple; the

testimony implied that he was not telling the truth about where he

put his clothes. Thus, the jury was given the impression that Mr.

King was not telling the truth or was lying about what he did with

the clothes. The prejudice to Mr. King was great and violated his

rights as guaranteed by the Constitution of the United States.

During the closing argument of the guilt phase, the prosecutor

made the following statement:

"I would like you to consider this. The judge

will instruct you the maximum penalty as to

each particular crime, the maximum, not the

minimum, is that unless you come back guilty

as charged which required even if he is not

put to death, a twenty-five year minimum

sentence. In other words, for twenty-five

years he couldn’t be paroled, murder one.

Every other crime that we have charged or any

lesser crime of the murder one, like murder

13

two or murder three or manslaughter, all have

provisions for parole and Amos Lee King is

walking back out on the streets or down at

another work release center doing the same

thing he did before."

(R. 1952-1953).

The prosecutor’s statements argued to the jury that if they came

back with a conviction less that first degree murder, Mr. King

would be right back out on the street committing the same crimes.

Such an argument of future dangerousness is irrelevant to the

question of a defendant’s guilt. McClain v. State, 477 S.E.2d 814

(Ga. 1996). In McClain, the court found the argument improper, but

harmless in light of overwhelming evidence of guilt. Id. at 821.

That is not the case here. Given the meager amount of evidence

used to convict Mr. King, such an argument is not harmless. Where

an improper remark to the jury could be said to be so prejudicial

to the rights of the accused that neither rebuke nor retraction

would cure the error, the Supreme Court can review the error even

though no objection was made. Grant v. State, 194 So.2d 612 (Fla.

1967)(reversing conviction and remanding for new trial due to

prosecutor’s comment: "Do you want to give this man less that first

degree murder and the electric chair and have him get out and come

back and kill somebody else, maybe you?"). The error in this case

is analogous to the error in Grant. Thus, this court has the

authority to review such a highly prejudicial remark.

14

Appellate counsel failed to raise the error on direct appeal.

Such an exclusion constituted conduct below a reasonable standard

of effective appellate counsel. The prejudice to Mr. King was

paramount, in that the jury may have convicted him of first degree

murder in order to ensure he was not afforded an opportunity to

commit another crime, not on the basis of the evidence against him.

During closing argument in guilt phase, the prosecutor made the

following statements:

"Now, Mr. Cole [defense counsel] then, in what

I like to term blowing smoke, says..."

(R. 1945).

"It wasn’t any argument but Mr. Cole now is

suddenly pulling that out of the sky to try

and create reasonable doubt."

(R. 1946).

"Mrs. Dubrian said she never saw blood on the

shirt. She said on the pants, just like

McDonough, that is again pulling straws out of

the air."

(R. 1947).

"Mr. Cole also conveniently forgot to tell you

that, remember Shockley’s conversation with

King?"

(R. 1950).

15

Such comments from the prosecutor constituted improper argument by

suggesting that defense counsel was not being truthful and was

deliberately misleading the jury. In Briggs v. State, 455 So.2d

counsel rather than the case was the predominant issue on appeal.

The court agreed with the appellant’s argument regarding a trend of

prosecutors to make arguments against defense counsel. Simpson v.

of the favorite tricks of defense counsel’); Hufham v. State, 400

come up with arguments to thwart common sense of the jurors);

referred to defense as ‘smoke screen’); McGee v. State, 435 So.2d

argument). The court condemned the prosecutor’s actions in each

case, however found the improper comment to be harmless in light of

overwhelming evidence of guilt or procedural bar. Briggs at 521.

The court went on to say that if such arguments continued, the

appellate court would be forced to fashion a special remedy and

reverse convictions so obtained. Id. at 521. Since that time,

several convictions have been reversed in Florida based upon

improper prosecutorial comment against defense counsel. Alverez v.

prosecutor’s comments that defense was nitpicking and trying to

16

DCA 1996)(prosecutor’s comments rose to level of fundamental

constituted fundamental error); D’Ambrosio v. State, 736 So.2d

defendant’s defense as innuendo, speculation and "a sea of

confusion" that defense counsel "prays you get lost in" part of the

argument causing reversal).

In Mr. King’s case, the prosecutor’s denigration of defense

counsel was not harmless and constituted fundamental error.

Appellate counsel’s failure to raise this issue on direct appeal

constituted ineffective assistance of appellate counsel. Given the

circumstantial evidence of this case, such comments prejudiced Mr.

King and violated his fundamental rights under the Sixth, Eighth,

and Fourteenth Amendments to the Constitution of the United States.

Mr. King’s trial was the first in which the media was allowed

to photograph the proceedings. When Mr. King’s counsel was not

present in the courtroom, the state approached the court for an exparte

communication. After the state conferred with the trial

17

court, the trial court spoke with the court bailiff, and the

cameras were removed from the courtroom. In a letter to the

Florida Supreme Court, the trial court stated that certain state

witnesses refused to testify unless the cameras were removed from

the courtroom. In order to appease the state witnesses and ensure

their favorable testimony, the state and the trial court moved, exparte,

to remove the cameras from the court. (See exhibit 13 of Mr.

King’s Successive Motion to Vacate Judgement and Sentence filed on

December 18, 2001).

The state and trial court’s ex-parte communications violated

Mr. King’s fundamental due process rights to a fair trial and his

between the judiciary and single litigants violate constitutional

requirements. In Rose v. State, 601 So.2d 1181 (Fla. 1992), this

Court wrote:

Noting is more dangerous and destructive of

the impartiality of the judiciary than a onesided

communication between a judge and a

single litigant.. . . The other party should

not have to bear the risk of factual

oversights or inadvertent negative impressions

that might easily be corrected by the chance

to present counter arguments...

Id. at 1183. The ex-parte deal with the state witness for their

testimony also violated Mr. King’s due process rights under Giglio

v. United States, 405 U.S. 150, 92 S.Ct. 763 (U.S. 1971); Kyles v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). Since direct appeal

18

counsel was appointed to Mr. King’s case at the time of the filing

of the letter by the circuit court admitting to the conversation

between the prosecutor and the judge, appellate counsel had a duty

to raise the issue on direct appeal. The failure to do so

constituted ineffective assistance of appellate counsel.

The prejudice to Mr. King followed from the testimony of the

state witnesses who were given preferred treatment by the judge.

One of the witnesses in particular, Mr. Charles Hudson would not

have testified had the judge not ordered the media to abstain from

photographing him. His testimony corroborated the testimony of a

key state witness as to the location of Mr. King outside of the

facility near the time of Natalie Brady’s death. (See Claim III).

Thus, the judge’s ensuring of such testimony prejudiced Mr. King in

that his conviction was based upon testimony which would not have

been heard by the jury. Such actions violated Mr. King’s

constitutional rights as guaranteed by the United States

Constitution.

The only piece of physical evidence linking Mr. King to the

murder of Natalie Brady, the type A secretor blood found in vaginal

19

washings taken from the victim, is unavailable for independent

testing. Circuit Court Judge Shaeffer has ruled that the vaginal

washings were destroyed within two years of the trial conducted in

1977. If the circuit court’s findings are correct, the vaginal

washings would have been destroyed during the pendency of Mr.

King’s appeal, while he was represented by appellate counsel.

Appellate counsel was aware that trial counsel had moved for

suppression of such evidence. (R. 592-594). Appellate counsel was

also aware of the importance of such evidence in the conviction of

Mr. King. It was clear that such physical evidence would be the

subject of further review. Counsel did not, however, take any step

to ensure the preservation of such evidence for further review.

The failure of the appellate attorney to move to preserve such

evidence constitutes action beyond the scope of a reasonable

attorney.

It has been held that an appellate attorney is ineffective

when they fail in their duty to obtain a record adequate for

consideration of a defendant’s claims of error. People v. Barton,

21 Cal.3d 513 (Cal. 1978). By failing to ensure the preservation

of the blood evidence, appellate counsel precluded Mr. King of

further review of that evidence. Thus, appellate counsel should

have known that the evidence needed to be preserved for further

proceedings. The inability of the court to now review subsequent

testing upon such evidence has resulted in prejudice to Mr. King,

20

in that such testing would have shown he was not the perpetrator of

the murder of Natalie Brady.

Notwithstanding this Court’s decision in Mills v. Moore, 786

So.2d 532 (Fla. 2001), Mr. King respectfully submits that

considerations of Due Process require that the jury unanimously

find the existence of each statutory aggravating factor before it

may be used to impose the death penalty. Mr. King raises this

argument at this time to ensure the issue is preserved for further

review.

In Jones v. United States, the United States Supreme Court

held, "under the Due Process Clause of the Fifth Amendment and the

notice and jury guarantees of the Sixth Amendment, any fact (other

than prior conviction) that increases the maximum penalty for a

crime must be charged in an indictment, submitted to a jury, and

proven beyond a reasonable doubt." Jones v. United States, 526

U.S. 227, 243, n.6 (1999). Subsequently, in Apprendi v. New

Jersey, the Court held that the Fourteenth Amendment affords

citizens the same protections under state law. Apprendi v. New

Jersey, 530 U.S. 466 120 S.Ct. 2348, 2355 (2000).

21

In Apprendi, the issue was whether a New Jersey hate crime

sentencing enhancement, which increased the punishment beyond the

statutory maximum, operated as an element of an offense so as to

require a jury determination beyond a reasonable doubt. Apprendi,

120 S.Ct. at 2365. "[T]he relevant inquiry here is not one of

form, but of effect-does the required finding expose the defendant

to a greater punishment than that authorized by the jury’s guilty

verdict?" Apprendi, 120 S.Ct. at 2365. Applying this test, it is

clear that aggravators under the Florida death penalty sentencing

scheme are elements of the offense which must be charged in an

indictment, submitted to a jury during guilt phase, and proven

beyond a reasonable doubt by a unanimous verdict.

At the time of Amos King’s penalty phase, section 775.082(1),

Florida Statutes (1977), provided:

A person who has been convicted of a capital

felony shall be punished by life imprisonment

and shall be required to serve no less than 25

years before becoming eligible for parole

unless the proceeding held to determine

sentence according to the procedure set forth

in s. 921.141 results in findings by the court

that such person shall be punished by death,

and in the latter event such person shall be

punished by death.

Fla. Stat. §775.082(1)(1991).

Under this statute, the state must prove at least one aggravating

factor in the separate penalty phase proceeding before a person

convicted of first degree murder is eligible for the death penalty.

State v. Dixon, 283 So.2d 1, 9 (Fla. 1973); Fla. Stat. §775.082

22

(2001); Fla. Stat. §921.141(2)(a), (3)(a) (2001). Thus, Florida

capital defendants are not eligible for the death sentence simply

upon conviction of first degree murder. If a court sentenced a

defendant immediately after conviction, the court could only impose

a life sentence. Fla. Stat. §775.082 (2001). Therefore, under

Florida law, the death sentence is not within the statutory maximum

sentence, as analyzed in Apprendi, because it increased the penalty

for first degree murder beyond the life sentence a defendant is

eligible for based solely upon the jury’s guilty verdict.

In Apprendi, the hate crime sentencing enhancement was applied

after the defendant was found guilty and increased the statutory

maximum penalty by up to ten years. Apprendi, 120 S.Ct. at 2351.

The Apprendi Court clearly dispensed with the fiction that such an

enhancement was not an element which received Sixth Amendment

protections. The Court wrote, "[b]ut it can hardly be said that

the potential doubling of one’s sentence from 10 years to 20 has no

more than a nominal effect. Both in terms of absolute years behind

bars, and because of the severe stigma attached, the differential

here is unquestionably of constitutional significance." Apprendi,

120 S.Ct. at 2365. As in Apprendi, in Amos King’s case, the

aggravators were applied only after he was found guilty. The

aggravators increased the statutory maximum penalty based on the

guilty verdict from life imprisonment to death. Certainly, the

difference between life and death has more than nominal effect and

23

is of constitutional significance. "[T]he penalty of death is

qualitatively different from a sentence of imprisonment, however

long. Death, in its finality, differs more from life imprisonment

than a 100-year prison term differs from one of only a year or

Gardner v. Florida, 430 U.S. 349, 357 (1976).

Although the majority of the Court stated in dicta that

Apprendi did not overrule Walton v. Arizona, 497 U.S. 639 (1990),

the Apprendi court was not addressing a death case in which

constitutional protections are more rigorously applied, and did not

specifically address the Florida sentencing scheme. Apprendi, 120

S.Ct. at 2366. Moreover, the majority dicta did not carry the

2380 (Thomas J., concurring) ("Whether this distinction between

capital crimes and all others, or some other distinction, is

sufficient to put the former outside the rule that I have stated is

a question for another day."); Apprendi, 120 S.Ct. at 2387-88

(O’Connor, J., dissenting) ("If the Court does not intend to

overrule Walton, one would be hard pressed to tell from the opinion

it issues today.") Apprendi, 120 S.Ct. 2388.

This court’s recent decision in Mills v. Moore, 786 So.2d 532,

stated that Apprendi did not apply to capital sentencing schemes.

Mills, at 537. This court cites Weeks v.State, 761 A.2d 804 (Del.

2000), as important authority in reaching its decision:

24

"Importantly, in Weeks v. Delaware, a capital

defendant brought his second habeas petition

on October 27, 2000, alleging an Apprendi

violation and seeking a stay of his execution

which was set for November 17, 2000. The

trial court ruled that Apprendi did not apply

to Weeks’ case. Weeks appealed and the trial

court’s ruling was affirmed. On November 16,

2000, just one day before the scheduled

execution, the United States Supreme Court

denied certiorari. Weeks v. Delaware, ___U.S.

_____, 121 S.Ct. 476, 148 L.Ed.2d 478 (2000).

The Supreme Court’s denial of certiorari

indicated that the Court meant what it said

when it held that Apprendi was not intended to

affect capital sentencing schemes."

Mills, at 537.

This reasoning does not apply to Mr. King due to the substantial

differences between Mr. King’s case the Weeks case. In Weeks, the

defendant waived his right to a trial by jury during the guilt

phase and pled guilty to one count of intentional murder and one

count of felony murder. Weeks v. State, 761 A.2d 804 (Del. 2000).

The plea to two counts of murder involving two different victims

automatically established the existence of two statutory

aggravators. Weeks, at 805. Thus, the determination of the

existence of those aggravators by a jury was waived by the guilty

plea. In Mr. King’s case, there was no guilty plea. Thus, Mr.

King’s argument regarding the appropriateness of the jury’s

unanimous determination of the aggravators is distinguishable from

Weeks.

Because the effect of finding an aggravator exposes the

defendant to a greater punishment than that authorized by the

25

jury’s guilty verdict, the aggravator must be charged in the

indictment, submitted to a jury, and proven beyond a reasonable

doubt. Apprendi, at 2365. This did not occur in Amos King’s case.

Thus, the Florida death penalty scheme is unconstitutional as

applied.

Mr. King was convicted of a crime which occurred May 18, 1977,

and he has been on death row since. As a result of errors by the

State, Mr. King’s sentence and conviction did not become final

until 1987.

Although the Florida Supreme Court rejected the instant

argument under less egregious circumstances in Knight v. State, 721

So. 2d 287 (Fla. 1998), cert denied, 528 U.S. 990 (1999), life on

death row is fundamentally different from life in the general

population of the prison, and the cruel and unusual sentence of

literal life on death row has been caused by unnecessary delays and

errors by the State in failing to properly prosecute Mr. King.

Life on death row is psychologically devastating with the

punishment of incarceration multiplied exponentially by the

psychological torture of waiting for execution. Life on death row

is further punishing in that the inmates are isolated for all but

26

a few hours a week and have significantly fewer rights than inmates

in the general population. In Lackey v. Texas, 514 U.S. 1045, 115

S.Ct. 1421 (1995), subsequent proceeding, Lackey v. Scott, 514 U.S.

1093 (1995), the U.S. Supreme Court ultimately denied Mr. Lackey's

petition for certiorari by the memorandum opinion of Justice

Stevens. Justice Stevens and Justice Breyer conclude a lucid

review of the instant argument by declaring that the issue is

undecided. It is important to note that Lackey addressed a 17-year

delay in execution. Also, Lackey notes that there may be factual

issues to resolve regarding the cause of the delays. Lackey at

1422.

Widespread authority from the U.S., and other jurisdictions,

supports Mr. King’d claims of cruel and unusual punishment for

twenty-five years as his case traveled up and down the court system

for years of delays. See, e.g, Coleman v. Balkcom, 451 U.S. 949,

952 (1981)(Stevens, J. Concurring in the denial of

certiorari)(recognizing that the mental pain suffered by a

condemned prisoner awaiting execution "is a significant form of

punishment that may well be compared to the consequences of the

ultimate step itself [i.e., the actual execution]"); Solesbee v.

Balkcom, 339 U.S. 9, 14 (1950)(Frankfurter, J., dissenting)(in the

history of murder, the onset of insanity while awaiting execution

of a death sentence is not a rare phenomenon."); Furman v. Georgia,

408 U.S. 238, 288-289 (1972)(Brennan, J., concurring)("we know that

27

mental pain is an inseparable part of our practice of punishing

criminals by death, the prospect of pending execution exacts a

frightful toll during the inevitable long wait between the

imposition of sentence and the actual infliction of death.");

People v. Anderson, 493 P. 2d 880, 6 Cal. 3d 628, 649 (Cal. 1972)

("the cruelty of capital punishment lies not only in the execution

itself and the pain incident thereto, but also in the dehumanizing

effects of the lengthy imprisonment prior to the execution during

which the judicial and administrative procedures essential to due

process of law are carried out. Penologists and medical experts

agree that the [protracted] process of carrying out a verdict of

death is often so degrading and brutalizing to the human spirit as

to constitute psychological torture."); Suffolk County District

Attorney v. Watson, 411 N.E. 2d 1274, 1289 (Mass. 1980)(arguing

execution unconstitutional because it will be carried out only

after long delays); Commonwealth v. O'Neill, 339 N.E. 2d 676 (Mass.

1975)(noting anguish in anticipation of execution); State v.

Richmond, 886 P.2d 1329 (AZ 1994); Hopkinson v. State, 632 P.2d

79(WY 1981)(dissent, dehumanizing effect of long imprisonment

pending execution); Soering v. United Kingdom, 11 European Human

Rights Reporter 439 (1989)(extradition to U.S. to face capital

murder charges refused because of time on death row if sentenced to

death); Vatheeswarren v. State of Tamil Nadu, 2 S.C.R. 348 (India,

1983)("dehumanizing character of delay"); Sher Singh v. State of

28

Punjab, 2 SCR 582 (India 1983)(Prolonged delay in the execution an

important consideration in considering whether sentence should be

carried out); Catholic Commission for Justice and Peace in Zimbabwe

v. Attorney General, No. S.C. 73/93 (Zimbabwe 1993) [reported in 14

Human Rights L. J. 323 (1993)].

Similar views have been expressed by legal commentators and

mental health experts. See, e.g., Schabas, Execution Delayed,

Execution Denied, 5 Crim. L. Forum 180 (1994); Lambrix, The

Isolation of Death Row in Facing the Death Penalty 198 (Radelet,

ed. 1989); Millemann, Capital Postconviction Prisoners' Right to

Counsel, 48 MD. L. Rev. 455, 499-500 (1989)("There is little doubt

that the consciousness of impending death can be immobilizing...

this opinion has been widely shared by [jurists], prison wardens,

psychiatrists and psychologists, and writers.")(Citing

authorities); Mello, Facing Death Alone, 37 Amer. L. Rev. 513, 552

and n. 251 (1988)(same)(citing studies); Wood, Competency for

Execution: Problems in Law and Psychiatry, 14 Fla. St. U. L. Rev.

35, 37-39 (1986)("The physical and psychological pressure present

in capital inmates has been widely noted... Courts and commentators

have argued that the extreme psychological stress accompanying

death row confinement is an eighth amendment violation in itself or

is an element in making the death penalty cruel and unusual

punishment.")(citing authorities); Stafer, Symposium on Death

Penalty Issues: Volunteering for Execution, 74 J. Crim. L. 860, 861

29

& n.10 (1983)(citing studies); Holland, Death Row Conditions:

Progression Towards Constitutional Protections, 19 Akron L. Rev.

293 (1985); Johnson, Under Sentence of Death: The Psychology of

Death Row Confinement, 5 Law and Psychology Review 141, 157-60

(1979); Hussain and Tozman, Psychiatry on Death Row, 39 J. Clinical

Psychiatry 183 (1979); West, Psychiatric Reflections on the Death

Penalty, 45 Amer. J. Orthopsychiatry 689, 694-695 (1975); Gallomar

and Partman, Inmate Responses to Lengthy Death Row Confinement, 129

Amer. J. Psychiatry 167 (1972); Bluestone and McGahee, Reaction to

Extreme Stress: Impending Death By Execution, 119 Amer. J.

Psychiatry 393 (1962); Note, Mental Suffering Under Sentence of

Death: A Cruel and Unusual Punishment, 57 Iowa L. Rev. 814, 830

(1972); G. Gottlieb, Testing the Death Penalty, 34 S. Cal. L. Rev.

268, 272 and n. 15 (1961); A. Camus, Reflections on the Guillotine

in Resistance, Rebellion and Death, P. 205 (1966)("As a general

rule, a man is undone waiting for capital punishment well before he

dies."); F. Dostoyevsky, The Idiot, pp. 47-48 (D. Magarshack trans.

1955); Duffy and Hirshberg, Eighty-Eight Men and Two Women, P. 254

(1962) ("One night on death row is too long, the length of time

spent there by [some inmates] constitutes cruelty that defies the

imagination. It has always been a source of wonder to me that they

didn't all go stark, raving mad.")(Quoting former warden of

California's San Quentin Prison).

30

Because of the cruel and unusual nature of serving such a

sentence on death row inflicted on Mr. King by the State, Mr. King

is entitled to have his death sentence commuted.

The Rules of Executive Clemency state when referring to death

penalty cases: "Cases investigated under previous administrations

may be reinvestigated at the Governor’s discretion." State of

Florida Rules of Executive Clemency, Rule 15C (2000). Such an

arbitrary procedure has the effect of granting one person access to

clemency proceedings, while others who are similarly situated have

no access. To compound this problem, there is no set procedure

affording death penalty prisoners counsel to promulgate such claims

even after a warrant has been signed.

The clemency process has been recognized as an integral

component in the protection of those individuals who may have been

falsely accused and convicted but are procedurally precluded from

raising appropriate defenses through statutory bar. Herrera v.

Collins, 506 U.S. 390, 113 S.Ct. 853 (1993). Amos King has

maintained his innocence from the outset, yet at this critical

stage in his proceeding, is not represented by clemency counsel.

His post-conviction counsel, currently Capital Collateral Regional

31

Counsel, is precluded under statute from representing him in a

clemency proceeding. Mr. King’s actual innocence and innocence of

the death penalty claims otherwise barred by statute will not be

effectively prosecuted although others, either through the

arbitrary appointment of clemency counsel or the financial

wherewithal to hire independent counsel, are afforded the

opportunity. As so critically noted by Chief Justice Rehnquist in

Herrera while denying habeas relief, "This is not to say, however,

that petitioner is left without a forum to raise his actual

innocence claim. For under Texas law, petitioner may file a

request for executive clemency...Clemency is deeply rooted in our

Anglo-American tradition of law, and is the historic remedy for

preventing miscarriages of justice where judicial process has been

exhausted," Id at 866. Amos King, neither capable of retaining

private counsel or afforded separate clemency counsel, does not

enjoy this "fail safe" otherwise afforded to others. Florida’s

failure to provide clemency counsel results in an arbitrary,

disparate and detrimental treatment of Amos King in violation of

his due process and equal protection rights as guaranteed by the

United States Constitution and the Constitution of the State of

Florida.

32

For all the reasons discussed herein, Mr. King respectfully

urges this Honorable Court to grant habeas relief.

WE HEREBY CERTIFY that a true copy of the following has been

has been furnished by United States Mail, first class postage

prepaid, to all counsel of record on this _____ day of __________,

2002.

_____________________________

Richard Kiley

Florida Bar No.

Assistant CCRC

_____________________________

April Haughey

Florida Bar No. 0119180

Assistant CCRC

CAPITAL COLLATERAL REGIONAL

COUNSEL-MIDDLE

3801 Corporex Park Drive

Suite 210

Tampa, Florida 33619

813-740-3544

Counsel for Petitioner

Copies furnished to:

Carol M. Dittmar

Assistant Attorney General

Office of the Attorney General

2002 N. Lois Avenue

Tampa, FL 33607

33

C. Marie King

Assistant State Attorney

Office of the State Attorney

P.O. Box 5028

Clearwater, FL 33758-5028

Commission on Capital Cases

ATTN: Mary Jean

402 S. Monroe Street

Tallahassee, FL 32399-1300

Susan Schwartz

Assistant General Counsel

Florida Department of Corrections

2601 Blair Stone Road

Tallahassee, FL 32399-2500

The Honorable Thomas D. Hall

Clerk, Supreme Court of Florida

ATTN: Tanya Carroll

Supreme Court Building

500 S. Duval Street

Tallahassee, FL 32399-1927

United States Court of Appeals for the

Eleventh Circuit

ATTN: Joyce Pope

56 Forsyth Street N.W.

Atlanta, GA 30303

34

We hereby certify that a true copy of the foregoing Petition

for Writ of Habeas Corpus, was generated in a Courier nonproportional,

Richard Kiley

Florida Bar No.

Assistant CCRC

____________________________

April Haughey

Florida Bar No. 0119180

Assistant CCRC

CAPITAL COLLATERAL REGIONAL

COUNSEL-MIDDLE

3801 Corporex Park Drive

Suite 210

Tampa, Florida 33619

813-740-3544

Counsel for Petitioner