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COMES NOW, Appellant ROY CLIFTON SWAFFORD, by and through his undersigned counsel, pursuant to Florida Rule of Appellate Procedure 9.370, and moves this Court to grant rehearing in the above-styled cause. Through counsel, Mr. Swafford states the following grounds in support of his request:

1. On April 18, 2002, this Court rendered its decision affirming the circuit court’s denial of post-conviction relief. This motion for rehearing is timely filed. Fla.R.App.Pro. 9.370(a).

2. In the published opinion denying Mr. Swafford’s appeal, three justices of this Court joined in the per curiam opinion announcing the affirmance of the denial of Rule 3.850 relief. Justice Lewis was shown as "concur[ring] in result only." This Court in rendering its decision overlooked or misapprehended certain matters.

3. At Mr. Swafford’s 1985 trial, the State did not disclose the names of James Michael Walsh, Walter Levi, and Michael Lestz, or any of the police reports concerning the investigation of them in connection with the Brenda Rucker homicide. The names and the police reports were withheld from Mr. Swafford and his counsel until October of 1990, five years after the trial and over eight years after the investigation of these three individuals was launched. The last of the police reports was dated January 31, 1983, and indicated that "[f]urther investigation is to follow." (Def. Exh 5 at 4). When these reports were finally disclosed in October of 1990, the State advised Mr. Swafford, his counsel, and the circuit court that "James Michael Walsh, Walter Levi and Michael Lestz were thoroughly investigated and discarded as suspects." (State’s Response dated 10/22/90 at 17). Thus, the State affirmatively represented to collateral counsel and to the circuit court that these names were dead-end leads. Collateral counsel was given no indication that the witnesses possessed any exculpatory evidence. In fact, to the contrary, collateral counsel was advised that the State had run the lead down, and it had come to a dead end.

4. Only after collateral counsel had, nonetheless, tracked Michael Lestz down, obtained an affidavit and convinced this Court to order an evidentiary hearing, was it revealed in 1997 that the "[f]urther investigation [that was] to follow" never occurred. On February 7, 1997, Captain Burnsed testified that the follow up interview of Levi which the police report said "should" occur never happened. Deputy Burnsed’s 1997 testimony revealed that the State’s representations in 1990 were certainly misleading, if not false.

5. Mr. Swafford’s collateral counsel throughout the history of his post-conviction litigation was counsel provided by the State of Florida pursuant to Fla. Stat. §27.702. In Spalding v. Dugger, 526 So.2d 71, 72 (Fla. 1988), this Court stated:

We recognize that, under section 27.702, each defendant under sentence of death is entitled, as a statutory right, to effective legal representation by the capital collateral representative in all collateral relief proceedings. This statutory right was established to alleviate problems in obtaining counsel to represent Florida’s death-sentenced prisoners in collateral relief proceedings.

Thus, Mr. Swafford was not only provided counsel by the State of Florida, but he was also provided with the right "to effective legal representation" by his collateral counsel. This is unlike the circumstances of Coleman v. Thompson, 501 U.S. 722 (1991), where collateral counsel’s lack of diligence was attributed to the capital defendant and thus precluded consideration of the merits of procedurally barred claims. In Coleman, the State of Virginia "ha[d] no responsibility to ensure that the petitioner was represented by competent counsel." 501 U.S. at 754.

6. In circuit court, Mr. Swafford sought to rely upon the State’s failure to adequately fund CCR and insure that Mr. Swafford received his state-created right to effective collateral counsel. The State objected to the proffered evidence saying, "there is no right to effective post-conviction or collateral counsel." (PC-R4T. 486). The circuit court sustained the State’s objection and refused to consider the evidence.

7. The per curiam plurality opinion issued in support of this Court’s decision affirming the denial of Mr. Swafford’s Rule 3.850 motion indicated that the first two arguments in Mr. Swafford’s Initial Brief "are procedurally barred because this allegation was previously raised in Swafford’s appeal of the denial of his third rule 3.850 motion and found to be without merit." Slip Op. At 21. However, Argument I of Mr. Swafford’s Initial Brief was premised upon the testimony presented on February 7, 1997. This was seven months after this Court’s decision remanding for an evidentiary hearing. Thus, this Court could not have considered the evidence supporting Argument I in its 1996 decision.

8. Argument I was premised upon the testimony of Captain Burnsed regarding the investigation that was to follow, according to a January 31, 1983, police report authored by Captain Burnsed, which included the notation "that once again MR. LEVI should be interviewed." On February 7, 1997, Captain Burnsed revealed that the follow-up investigation and the interview of Walter Levi never occurred. This directly contradicted the State’s representation in October of 1990 following the disclosure of the January 31^st police report. On October 22, 1990, the State asserted, "James Michael Walsh, Walter Levi, and Michael Lestz were thoroughly investigated and discarded as suspects." (Response dated 10/22/90 at 17). The State made this assertion in support of its contention that the January 31, 1983, police report was a dead lead that was not exculpatory in nature and not within the scope of Brady. Thus, the State falsely asserted to this Court that the January 31^st police report was a dead lead and therefore not Brady material. The State withheld the truth from Mr. Swafford until February 7, 1997, twelve years after Mr. Swafford was convicted and sentenced to death.

9. This Court overlooked the basis of Argument I and the fact that it was premised upon a disclosure made by the State in 1997, and thus not considered by this Court in 1996. This Court has already held in another case that "[t]he State cannot fail to furnish relevant information and then argue that the claim need not be heard on its merits because of an asserted procedural default that was caused by the State’s failure to act." Ventura v. State, 673 So.2d 479 (Fla. 1996). Similarly in State v. Parker, 721 So.2d 1147 (Fla. 1998), Mr. Parker, a capital defendant, was permitted to raise a Brady claim ten years after his trial and four years after the denial of his first Rule 3.850 motion, because during a co-defendant’s re-sentencing proceeding testimony revealed for the first time certain exculpatory evidence as to Mr. Parker.

10. The statement in the per curiam plurality opinion is inconsistent with this Court’s well-established jurisprudence. The United States Supreme Court has explained that in order for a procedural bar to be valid, it must be premised upon a "firmly established and regularly followed state practice." James v. Kentucky, 466 U.S. 341, 348 (1984); Ford v. Georgia, 498 U.S. 411, 423-24. The application of a procedural bar premised upon res judicata to preclude the consideration of Argument I of the Initial Brief is invalid. This Court has not regularly and consistently considered evidence of a Brady violation before it has been disclosed to the defense, and therefore, has not subsequently applied a res judicata bar to preclude consideration of the evidence once disclosure occurred.

11. As to Argument II of the Initial Brief, the per curiam plurality opinion’s reliance upon the 1996 per curiam opinion overlooked the fact that two of the four justices who joined the 1996 per curiam opinion also joined Justice Anstead’s concurrence in which he explained his understanding of the holding of the 1996 per curiam: "I also concur in the remand for an evidentiary hearing on the Brady claim and the allegations of newly discovered evidence on this issue." Swafford, 679 So.2d at 741 (Anstead, J., specially concurring).

12. The per curiam plurality opinion also overlooked the implications of Strickler v. Greene, 119 S.Ct. 1936, 1948 (1999), when it focused upon the following passage in the 1996 opinion:

We reject Swafford’s Brady claim because, as we recognized in Swafford’s first motion for postconviction relief, the State was not required to provide to defense counsel every piece of information regarding other suspects. Swafford, 569 So.2d at 1267. The introduction of Lestz’s statement does not alter that conclusion. However, Lestz’s statement places Walsh at the Shingle Shack with a .38 caliber handgun at or near the time that the murder weapon was discovered in that locale. We find this evidence, when viewed in conjunction with the evidence alleged in Swafford’s prior 3.850 motion and the conflicting evidence presented in Swafford’s original trial with regard to exactly where within the bar the gun was found, is sufficient to warrant an evidentiary hearing on the issue of whether the statement is of such a nature that it would probably produce an acquittal on retrial.

Swafford, 679 So.2d at 739(emphasis added). To the extent that the plurality opinion has concluded that the 1996 opinion found that Mr. Swafford’s Brady claim had no merit, such a determination is erroneous under Strickler. There, the Supreme Court explained:

Thus the term " Brady violation" is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence – that is, to any suppression of so-called " Brady material" – although, strictly speaking, there is never a real " Brady violation" unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.

Strickler, 119 S.Ct. 1948. Thus, whether Brady has been violated requires consideration of all of the evidence that the non-disclosure would have led defense counsel to uncover. Resolution of a Brady claim does not turn on whether a prosecutor is obligated to disclose "every piece of information regarding other suspects." The obligation to disclose is dependent upon whether the "piece of information regarding other suspects" is exculpatory, and if so whether the non-disclosure undermines confidence in the outcome of the trial. As the Strickler Court said,

Rather, the question is whether "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict."

Strickler, 119 S.Ct. at 1952. If the 1996 per curiam decided Mr. Swafford’s Brady claim without considering what Lestz had to say, that decision was clearly in error under Strickler. The per curiam plurality opinion overlooked the holding in Strickler.

13. As to Argument III of the Initial Brief, the per curiam plurality opinion stated:

We find that this claim was not preserved for appellate review because counsel did not lodge a contemporaneous objection during the proceeding below. Even if this claim were preserved, we find no abuse of discretion by the circuit court.

Slip Op. At 22. First, the per curiam plurality opinion overlooked the record in this case when it stated "counsel did not lodge a contemporaneous objection." The issue raised by Mr. Swafford concerned the exclusion of evidence that Mr. Swafford sought to present and have considered by the circuit court. Section 90.104(1) of the Evidence Code provides:

(1) A court may predicate error, set aside or reverse a judgment, or grant a new trial on the basis of admitted or excluded evidence when a substantial right of the party is adversely affected and:

(a) When the ruling is one admitting evidence, a timely objection or motion to strike appears on the record, stating the specific ground of objection if the specific ground was not apparent from the context; or

(b) When the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which the questions were asked.

Since the issue raised by Mr. Swafford concerned the exclusion of evidence, the Evidence Code does not require the party seeking the admission of evidence to object after the court has sustained an objection from the opposing party. See Ehrhardt, Florida Evidence § 104.3 (1998).

14. Mr. Swafford did proffer the evidence that he sought to have the judge consider. That was all that was required under the Evidence Code to preserve error regarding the circuit court’s refusal to admit the evidence for appellate review. The per curiam plurality opinion overlooked the record and the Evidence Code when indicating that the exclusion of the evidence was not preserved because of a failure to lodge a contemporaneous objection.

15. As to the per curiam plurality opinion’s statement that it found "no abuse of discretion by the circuit court," the plurality overlooked a capital defendant’s due process right to present relevant evidence in support of his claim. Here, Mr. Swafford had been given the statutory right to effective representation in collateral proceedings. Spalding v. Dugger, 526 So.2d at 72. Yet, Mr. Swafford was precluded from presenting the reports mandated by this Court discussing CCR’s ability to provide the effective representation that was required by the law. In circuit court, the State’s argument against consideration of these reports was that "there is no right to effective post-conviction or collateral counsel." (PC-R4T. 486). Certainly, there is no indication from the circuit court that it accepted that Mr. Swafford had a right to effective assistance of collateral counsel and that the agency obligated to provide the representation was inadequately staffed and underfunded.

16. Recently, this Court discussed the reports that Mr. Swafford sought to present to the circuit court, explaining the history behind the preparation of the reports and discussing their conclusions:

In October 1990, this Court created the Supreme Court Committee on Postconviction Relief Proceedings to consider a number of matters, including how to provide proper representation and timely resolution for all postconviction relief matters pending in this Court. In March 1991, the Committee recommended that postconviction counsel be designated in each case within thirty days of mandate issuing from this Court or certiorari being denied by the United States Supreme Court and that until additional funding and staff could be provided to the office of the Capital Collateral Representative (CCR), the Court seek pro bono assistance from the Volunteer Lawyers Resource Center (VLRC) and members of the Florida Bar. In 1994, the Court adopted new Florida Rule of Criminal Procedure 3.851, which reduced to one year the time period for filing postconviction motions in capital cases. In the commentary to the rule, the Court reasoned that the reduction of the time period for filing a motion for a capital prisoner as distinguished from a noncapital prisoner was justified because "[a] capital prisoner will have counsel immediately available to represent him or her in a postconviction relief proceeding, while counsel is not provided or constitutionally required for noncapital defendants to whom the two-year period applies." In re Rule of Criminal Procedure 3.851, 626 So.2d 198, 199 (Fla. 1993). At the request of Governor Lawton Chiles, the Supreme Court Committee on Postconviction Relief Proceedings was reconstituted in 1994 and charged with reviewing the effectiveness of rule 3.851, evaluating how the Committee’s recommendations had been implemented, and improving administrative coordination with the federal courts.

After CCR filed an emergency motion to toll the one-year deadline in rule 3.851, the Court appointed former Attorney General Robert Shevin to study the problems created by CCR’s failure or inability to provide necessary counsel for death row inmates. After the Shevin report was issued in February 1996 addressing this problem, the Governor and the legislative leadership appointed a committee headed by former Justice Parker Lee McDonald to study postconviction representation and recommend reforms to the Legislature. Pursuant to this committee’s recommendation, the Legislature divided CCR into three regional offices, known as Capital Collateral Regional Counsel (CCRC), effective July 1997.

Allen v. Butterworth, 756 So.2d 52, 57-58 (Fla. 2000)(emphasis added). Clearly, the fact that these reports (which were acknowledged in Allen as commissioned by this Court) were deemed worthy of this Court’s consideration in resolving Allen establishes that they should have been considered by the circuit court below. The plurality per curiam opinion overlooked Allen.

17. The circuit court should have considered the content of the proffered reports in deciding Mr. Swafford’s diligence. These reports demonstrate that any lack of diligence should be attributed to the actions of state officials and not Mr. Swafford. As explained by the United States Supreme Court in Coleman v. Thompson, where the State of Virginia "ha[d] no responsibility to ensure that the petitioner was represented by competent counsel," volunteer counsel’s lack of diligence could properly be attributed to a capital defendant. 501 U.S. at 754. However, here the State of Florida did have that responsibility. The plurality per curiam opinion overlooked this in finding that the circuit court did not abuse its discretion in refusing to consider the proffered reports.

18. In affirming the circuit court’s conclusion "that the defendant did not file his untimely and successive motion for post-conviction relief within two years of the time when Lestz’ statement could have been discovered through the exercise of due diligence," the plurality per curiam opinion relied upon the decision in Melendez v. State, 718 So.2d 746 (Fla. 1998). In doing so, the plurality per curiam opinion overlooked the subsequent history of that case. Even though this Court affirmed the denial of post-conviction relief in 1998, a transcript of another individual’s confession to participating in the murder that had been in trial counsel’s possession, but that collateral counsel had failed to discover, surfaced in 2000. The discovery of that transcript led to an order granting Mr. Melendez a new trial. Attachment A. Subsequently, the State dropped all charges against Mr. Melendez and he was freed from death row after seventeen years. Attachment B.

19. The per curiam plurality opinion also relied upon the following passage from Steinhorst v. State, 695 So.2d 1245, 1248 (Fla. 1997): "[w]hen the evidence adequately supports two conflicting theories, this Court’s duty is to review the record in the light most favorable to the prevailing theory." Apparently, the plurality agrees that the record contains evidence that would indicate that collateral counsel was diligent. However, the plurality does not articulate what the standard for diligence is, let alone review whether the circuit court properly understood and applied the standard. As a result, the plurality opinion provides the circuit court with standardless discretion in determining whether to uphold Mr. Swafford’s death sentence.

20. The United States Supreme Court, when presented with a case that involved a finding by a lower court that collateral counsel had not been diligent, made it clear that the issue of diligence was a question of law:

The Court of Appeals held state habeas counsel was not diligent because petitioner’s investigator on federal habeas discovered the relationships upon interviewing two jurors who referred in passing to Stinnett as "Bonnie Meinhard." See Brief for Petitioner at 35. The investigator later confirmed Stinnett’s prior marriage to Meinhard by checking Cumberland County’s public records. See 189 F.3d, at 426 ("The documents supporting [petitioner’s] Sixth Amendment claims have been a matter of public record since Stinnett’s divorce became final in 1979. Indeed, because [petitioner’s] federal habeas counsel locate those documents, there is little reason to think that his state habeas counsel could not have done so as well"). We should be surprised, to say the least, if a district court familiar with the standards of trial practice were to hold that in all cases diligent counsel must check public records containing personal information pertaining to each and every juror. Because of Stinnett and Woodson’s silence, there was no basis for an investigation into Stinnett’s marriage history.

Williams v. Taylor, 529 U.S. 420, 443 (2000). The Supreme Court concluded that the Court of Appeals had erred and that state habeas counsel had "made a reasonable effort to discover the claims."

The question is not whether the facts could have been discovered but instead whether the prisoner was diligent in his efforts. The purpose of the fault component of "failed" is to ensure the prisoner undertakes his own diligent search for evidence. Diligence for purposes of the opening clause depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend, as the Commonwealth would have it, upon whether those efforts could have been successful.

Williams v. Taylor, 529 U.S. at 436 (emphasis added). The analysis conducted by the circuit court here is precisely the analysis condemned by the United States Supreme Court in Williams. The plurality overlooked Williams.

22. Recently, Justice Blackmun, joined by Justices Stevens and Souter, wrote:

I think it is crystal clear that the execution of an innocent person is ‘at odds with contemporary standards of fairness and decency.’ Spaziano v. Florida>, 468 U.S. 447, 465 (1984). In deed, it is at odds with any standard of decency that I can imagine.

Herrera v. Collins, 506 U.S. 390, 431 (1993)(Blackmun, J., dissenting).

23. Justice O’Connor, joined by Justice Kennedy, stated:

I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution. Regardless of the verbal formula employed – ‘contrary to contemporary standards of decency,’[citation] ‘shocking to the conscience,’ [citation] or offensive to a ‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental’ [citation] – the execution of a legally and factually innocent person would be a constitutionally intolerable event.

Herrera, 506 U.S. at 419 (O’Connor, J., concurring).

24. Chief Justice Rehnquist authored the opinion of the Court in Herrera. After writing that innocence, in and of itself, was not a cognizable claim, the Chief Justice said:

This is not to say that our habeas jurisprudence casts a blind eye toward innocence. In a series of cases culminating with Sawyer v. Whitley, 505 U.S. 333 (1992), decided last Term, we have held that a petitioner otherwise subject to defenses of abusive or successive use of the writ may have his federal constitutional claim considered on the merits if he makes a proper showing of actual innocence.

Herrera v. Collins, 506 U.S. at 404.

25. However, the per curiam plurality in Mr. Swafford’s case does cast a blind eye to innocence. Countenancing the execution of a man who probably would have been acquitted in light of evidence not presented at his capital trial violates the Eighth Amendment. In Arbelaez v. Butterworth, 738 So.2d 326, 326-27 (Fla. 1999), this Court held, "we have a constitutional responsibility to ensure the death penalty is administered in a fair, consistent and reliable manner, as well as having an administrative responsibility to work to minimize the delays inherent in the postconviction process." The per curiam plurality opinion is inconsistent with Arbelaez.

26. There is no question that the State interviewed Walsh, Lestz and Levi in 1982, the last interview occurring on January 25, 1983. However, their names and the police reports regarding them and their connection to the Rucker homicide was not disclosed to Mr. Swafford’s counsel until October of 1990. At that time, the State maintained that three were thoroughly investigated and discarded as suspects. Not until 1997 did the State disclosed that follow up investigation did not occur. This was over fourteen years after a police report indicated that follow up investigation would occur.

27. In September of 1990, Mr. Swafford’s execution was scheduled for November of 1990. At that time, the State of Florida gave Mr. Swafford an attorney who was charged with providing him with effective representation. The attorney sought and obtained public records which included the names of Walsh, Lestz and Levi. Mr. Swafford’s attorney was advised by the State that three names were dead-leads who possessed no exculpatory information. Before the scheduled execution, the attorney had no time to investigate further; he simply tried to get a stay of the execution. The stay came from the Eleventh Circuit Court of Appeals one and a half hours before Mr. Swafford’s scheduled execution.

28. After the stay, the State-provided attorney resigned and new counsel was provided Mr. Swafford by the State of Florida. The new attorney was also charged with providing effective representation to Mr. Swafford. The new attorney tried to track down Lestz and Levi using the standard search device of the CCR office. Not until after Lestz declared bankruptcy in December of 1993 was the state-provided counsel able to locate Lestz and learn what he had to say.

29. The per curiam plurality opinion excuses the State’s untimely non-disclosure of Lestz’ name (five years after the trial) because the State-provided counsel was one year and six months too late in locating Lestz.

30. The per curiam plurality opinion ignores the fact that collateral counsel was provided by the State of Florida and obligated under Florida law to provide Mr. Swafford with effective representation. When Mr. Swafford accepted the attorneys provided by the State, he had been promised by this Court that the attorneys would provide effective representation. Yet, the per curiam plurality opinion concludes that collateral counsel was not diligent and charges the lack of diligence to Mr. Swafford, instead of the State who provided counsel and funded the investigation.

31. Through it all, an innocent Mr. Swafford has sat on death row for a crime that he probably would have been acquitted of had the jury known of the evidence that is now available. According to the per curiam plurality opinion, he is to remain there until he is executed. Surely, the Eighth Amendment does not countenance such a result.

WHEREFORE, undersigned counsel respectfully requests this Court grant a rehearing and reconsider the decision of April 22, 2002.

I HEREBY CERTIFY that a true and correct copy of the foregoing Motion has been furnished by United States Mail, first class postage prepaid, to all counsel of record, this 2nd day of May, 2002.

Respectfully submitted,

MARTIN J. MCCLAIN

Florida Bar No. 0754773

Special Assistant CCRC-South

9701 Shore Rd. Apt. 1-D

Brooklyn, NY 11209

CCRC South

101 NE 3d Ave.; Suite 400

Ft. Lauderdale, FL 33301

(954) 713-1284

Counsel for Mr. Swafford

Copies furnished to:

Judy Taylor Rush

Asst. Attorney General

444 Seabreeze Blvd., 5th Floor

Daytona Beach, FL 32118