RUDOLPH HOLTON, Defendant in the above-captioned action, submits this amendment to his Fla. R. Crim. P. 3.850 motion and respectfully moves this court for an order, pursuant to Fla. R. Crim. P. 3.850, to vacate and set aside the judgments of conviction and sentences, imposed upon him by this court. In support thereof, Mr. Holton, through counsel, respectfully submits as follows:

I. On July 20, 1992, Mr. Holton filed a Rule 3.850 motion to vacate judgment of conviction and sentence, including the sentence of death imposed upon him by this court. On January 11, 1993, Mr. Holton filed an amended Rule 3.850 motion. On April 15, 1998, Mr. Holton filed a single issue amendment to his previous Rule 3.850 motions. This issue contained a newly discovered evidence claim that was required to be brought within a year of the disclosure of evidence. On July 1, 1998, Mr. Holton amended his Rule 3.850 motion.

2. All allegations presented in his previous Rule 3.850 motions are incorporated herein by specific reference, and no matter presented in the Rule 3.850 motion is waived or abandoned by submission of this amendment.

3. Counsel in good faith represents at the outset of this pleading that Mr. Holton's pleading is incomplete. Investigation into Mr. Holton's case is continuing. Mr. Holton continues to uncover evidence that will exonerate him. Mr. Holton therefore requests leave to supplement his claims with additional facts as they become available, to add claims, and to provide memoranda of law in support of his claims for relief.

4. Mr. Holton also continues to request the court to conduct an evidentiary hearing on his claims. Mr. Holton's claims involve issues requiring full and fair Rule 3.850 evidentiary resolution. See, e.g., Heiney v. Dugger, 558 So. 2d 398 (Fla. 1990); Mason v. State, 489 So. 2d 734 (Fla. 1986). A Rule 3.850 litigant is entitled to an evidentiary hearing unless "the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief." Fla. R. Crim. P. 3.850; Mordenti v. State, 711 So. 2d 30 (1998); Lemon v. State, 498 So. 2d 923 (Fla. 1986). Under this standard, the allegations in Mr. Holton's Rule 3.850 motion clearly require an evidentiary hearing.

PROCEDURAL HISTORY

1. The Circuit Court of the Thirteenth Judicial Circuit, Hillsborough County, entered the judgments of conviction and sentence under consideration.

2. Mr. Holton was charged by indictment dated July 9, 1986, with one count of first degree murder and related offenses. He pleaded not guilty (R. 862).

3. Mr. Holton was tried by a jury December 1-5, 1986. The jury rendered a verdict of guilty (R. 862).

4. After a penalty phase, the jury, by a vote of seven (7) to five (5), recommended a death sentence for the first degree murder conviction (R. 784).

5. On December 5, 1986, the trial court ore tenus imposed a sentence of death on the count of first degree murder and a sentence of thirty (30) years imprisonment on the count of arson (R. 859-61). The sentencing order, however, was not entered until February 12, 1987 (R. 976-78).

6. On direct appeal, the Florida Supreme Court affirmed Mr. Holton's convictions and sentences, after clarification on partial grant of rehearing. Holton v. State, 573 So. 2d 284 (Fla. 1990). The United States Supreme Court denied certiorari on June 3, 1991. Holton v. State, 111 S. Ct. 2275 (1991).

7. Mr. Holton filed his initial post-conviction motion on July 20, 1992, before his two-year date, in order to compel public records production. Thereafter, Mr. Holton filed an amended motion for post conviction relief on January 11, 1993. Because Mr. Holton had not received many public records, he requested leave to amend.

8. On April 15, 1998, Mr. Holton filed a Rule 3.850 motion regarding the newly discovered evidence of FBI crime lab analysts' tampering and false testimony in capital cases.

9. On July 1, 1998, Mr. Holton filed his second amended Rule 3.850 motion. This motion included claims of ineffective assistance of counsel, Brady, prosecutorial misconduct and newly discovered evidence. Mr. Holton alleged facts in support of his claim of actual innocence.

10. In early December, 1998, this Court held a Huff hearing on Mr. Holton's second amended motion for postconviction relief.

11. On December 22, 1998, Mr. Holton filed a Motion to Inspect, Examine and Test Evidence. Specifically, Mr. Holton sought to inspect and test, through mitochondrial DNA analysis, the three (3) hairs found on the victim's mouth at the scene of the crime.

12. On January 29, 1999, this Court granted Mr. Holton an evidentiary hearing on several issues, including ineffective assistance of counsel and newly discovered evidence.

13. On February 1, 1999, undersigned, after resigning her employ with the Capital Collateral Counsel - Middle Region (CCC-MR), filed a motion to remove CCC-MR and appoint substitute counsel.

14. On February 16, 1999, the State filed a motion for rehearing regarding the scope of the evidentiary hearing.

15. On March 2, 1999, this Court granted undersigned's motion to remove CCC-MR and appointed undersigned as counsel for Mr. Holton.

16. CCC-MR filed a notice of appeal of this Court's order regrading substitution of counsel on March 10, 1999.

17. On March 26, 1999, Mr. Holton, through undersigned counsel filed a response to the State's motion for rehearing on the scope of the hearing.

18. After undersigned accepted a position with the Capital Collateral Counsel for the Northern Region (CCC-NR), on May 17, 1999, Mr. Holton filed a motion to transfer representation to CCC-NR.

19. On June 3, 1999, the Florida Supreme Court relinquished jurisdiction to this Court in order to determine the representation issue.

20. Thereafter, on June 9, 1999, this Court transferred representation to CCC-NR. 21. The Florida Supreme Court dismissed CCC-MR's appeal on June 30, 1999.

22. On September 1, 1999, Mr. Holton filed a memorandum in support of his motion to Inspect, Examine and Test Evidence.

23. After a hearing, this Court granted Mr. Holton's motion to test evidence on December 6, 1999. That same day, this Court also denied the State's motion for rehearing regarding the scope of the evidentiary hearing.

24. However, on January, 20, 2000, after a hearing, and over Mr. Holton's objection, this Court ore tenus reversed it's decision regarding testing, in part. Specifically, this Court agreed with the State that the Florida Department of Law Enforcement (FDLE), test the evidence.

25. On January 27, 2000, Mr. Holton filed a motion for rehearing. After the State met with Mr. Holton's independent expert and learned that FDLE did not have the capabilities to conduct mitochondrial DNA testing, the State agreed to undersigned's expert conducting the testing.

26. On April 24, 2000, this Court entered an Order regarding the procedure for testing the evidence.

27. On August 3, 2000, the State and Mr. Holton entered a Joint Stipulation on penalty phase relief in which the following was stipulated: "[c]ounsel for the State withdraws it's Response to Defendant Holton's Rule 3.850 motion, regarding the penalty phase issues. The State concedes error which requires a new penalty phase. Specifically, the State acknowledges error as to Claim X of Defendant Holton's Rule 3.850 motion." The parties also agreed that because of the concession of error an evidentiary hearing was unnecessary as to several of the penalty phase issues.

28. On November 28, 2000, this Court held a hearing and ordered Mr. Holton to file an amended Rule 3.850 motion on or before January 8, 2001. Also, this Court scheduled an evidentiary hearing for April 18 - 20, 2001. This amended motion follows.

GROUNDS FOR POST-CONVICTION RELIEF

By his motion for Fla. R. Crim. P. 3.850 relief and its amendments, Mr. Holton asserts that his convictions and sentences were obtained in violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the Florida Constitution for each of the reasons set forth below.

Mr. Holton is innocent of the crime for which he was convicted and sentenced to death. The execution of an innocent person is "the quintessential miscarriage of justice." Schlup, 115 S. Ct. at 866. As Justice O'Connor has explained:

Herrera v. Collins, 113 S. Ct. 853, 870 (1993)(O'Connor, J., concurring)(citations omitted).

Even in the context of noncapital cases, the Court has recognized that "a prisoner retains a powerful and legitimate interest in obtaining his release from custody if he is innocent of the charge for which he was incarcerated." Kuhlmann v. Wilson, 477 U.S. 436, 452 (1986). See also, Schlup, 115 S. Ct. at 866 (recognizing that "concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system"). In Kuhlmann, the Court established that successive habeas petitions may be brought in the rare cases when a petitioner makes a "colorable showing of factual innocence" Id. at 454. See also, Murray v. Carrier, 477 U.S. 478, 495-96 (1986)(noting that the cause and prejudice standard must sometimes yield to provide adequate protection to victims of a fundamental miscarriage of justice); Smith v. Murray, 477 U.S. 478 (1986)(reaffirming the priority of an individual's interest in presenting evidence of actual innocence over the State's interest in finality). In these three cases, the Court shifted the focus of habeas review from the preservation of constitutional rights to a fact-based inquiry into the petitioner's guilt or innocence. In doing so, the Court struck a balance between the States's interest in finality and the prisoner's interest in challenging the basic injustice of his sentence. The Court noted the necessity of creating an exception to finality in cases of actual innocence because of "the overriding importance of th[e] greater individual interest in presenting an innocence claim. Schlup, 115 S. Ct. at 866. See also, Stone v. Powell, 428 U.S. 465, 491 n.3 (1976)(noting that the miscarriage of justice exception to a showing of cause for procedural default serves as an "additional safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty."). This recognition of the individual's "overriding" interest in cases of actual innocence emphasizes that when a prisoner is factually innocent his interest outweighs that of the State simply because the State has no finality interest in the imposition of a sentence, whether incarceration or execution, which would be fundamentally unjust.

In recognition of the grave injustice that occurs when an innocent person is imprisoned or executed, the Court allows more lenient treatment of habeas petitions when petitioners bring actual innocence claims. The Court tied the miscarriage of justice exception that allows petitioners to overcome a procedural bar to claims of actual innocence in order to keep the exception narrow and rare. In doing so, the Court felt that it had properly "accommodate[d] both the systematic interests in finality, comity, and conservation of judicial resources, and the overriding individual interest in doing justice in the 'extraordinary case'" Schlup, 115 S. Ct. at 864 (quoting Carrier, 477 U.S. at 496). In Carrier, the Court established that petitioners asserting actual innocence do not have to satisfy that cause and prejudice requirements to avoid the procedural default rule:

477 U.S. at 496. The Court had previously expressed its confidence that innocent prisoners would always satisfy the cause and prejudice requirement, Engle v. Isaac, 456 U.S. 107, 135 (1982), but in Carrier, the Court recognized that the injustice of imprisoning or executing an innocent person outweighs any interests served by this requirement. In Engle, the Court left room for this exception by noting that "[t]he terms 'cause' and 'actual prejudice' are not rigid concepts; they take their meaning from principles of comity and finality ... In appropriate cases, those principles must yield to the imperative of correcting a fundamentally unjust incarceration." 456 U.S. at 135. This exception to procedural default has become known as the actual innocence "gateway" through which a petitioner passes to allow presentation of otherwise barred constitutional claims. See Herrera, 113 S. Ct. at 862. The Court explained in Schlup that if the petitioner presents evidence of innocence that undermines confidence in the outcome of his trial, he passes through the "gateway" and can present his underlying constitutional claims. 115 S. Ct. at 861.

The Supreme Court has distinguished between claims of actual innocence and those alleging innocence of the penalty imposed. In Sawyer v. Whitley, 505 U.S. 333 (1992), the Court adopted a more stringent standard of proof for claims alleging innocence of the death penalty. In such cases, the petitioner must demonstrate "by clear and convincing evidence that but for constitutional error, no reasonable juror would find him eligible for the death penalty." Id. at 348. However, in Schlup, the Court retained the lower standard established in Carrier for claims of actual innocence. 115 S. Ct. at 866. The Court noted that the lower standard, requiring a petitioner to show that a constitutional violation "probably resulted in the conviction of one who is actually innocent," Carrier, 477 U.S. at 496, is more appropriate in situations of actual innocence because of "the paramount importance of avoiding the injustice of executing one who is actually innocent." 115 S. Ct. at 866.

In Kuhlmann, the Supreme Court described the burden on prisoners alleging actual innocence:

477 U.S. at 454 n. 17 (quoting Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 160 (1970)). In other words, the prisoner must show that there would probably be reasonable doubt about his guilt, Herrera, 113 S. Ct. at 882, or that a constitutional violation has "probably resulted" in a mistaken conviction, Carrier, 477 U.S. at 496. The Court in Schlup explained that such cases require a petitioner "to support his allegation with new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -- that was not presented at trial." 115 S. Ct. at 865. As demonstrated in Claims I, III, IV and V, Mr. Holton can meet this standard.

As the Florida Supreme Court recently reiterated, Mr. Holton's conviction involved circumstantial evidence. Blackwood v. State, ___ So. 2d ___ (Fla. Dec. 21, 2000), slip op. at 11. During the pendency of Mr. Holton's case in postconviction he has uncovered evidence to completely refute the State's circumstantial case against him and evidence that proves his innocence.

The State presented evidence placing Mr. Holton near the scene of the crime with the victim. Both of the witnesses who identified Mr. Holton as being present near the scene of the crime lied to the police, the prosecution and the judge and jury. Witnesses were available to refute these lies but were never called to testify. One of these witnesses was even listed in a police report as a witness, yet defense counsel failed to interview him.

Dan Simmons knew that Carrie Nelson lied to the police about seeing Mr. Holton enter the abandoned house on the night of the murder. Mr. Simmons knew this because, as Ms. Nelson admitted to the police, Mr. Simmons was present with her on her back porch on the night of the crime. Mr. Simmons confronted Ms. Nelson about her untruth and she told him that she needed to stop Mr. Holton from burglarizing her home -- the murder charge was the way to accomplish her goal. Mr. Simmons even went so far as to tell the police that Ms. Nelson was lying, but these statements were omitted from the police reports.

At trial, Mr. Holton presented an alibi defense. On the night the crime occurred, Mr. Holton was at Red Clemmons' rooming house, asleep. Mr. Clemmons had no reason to lie about Mr. Holton's presence; he did not know Mr. Holton very well. The prosecution was unable to refute Mr. Clemmons's testimony.

As to physical evidence, the prosecution presented testimony that there were scratches on Mr. Holton's chest which were between twenty-four (24) and thirty-six (36) hours old and evidenced a struggle between the victim and Mr. Holton. Also, the prosecution presented testimony from an FBI agent that a comparison of hairs found on the victim's mouth and from Mr. Holton did not exclude Mr. Holton as being the source of the hairs found on the victim. This evidence corroborated the prosecution's theory that the crime occurred during a sex-for-drugs exchange.

However, the medical examiner's testimony was misleading. The scratches on Mr. Holton's chest were much older than what the medical examiner testified. In fact, the scratch marks were several years old. Furthermore, mitochondrial DNA analysis proves that the hairs found on the victim's mouth exclude Mr. Holton as being the source of those hairs, thus damaging the prosecution's theory of the crime.

At the time of the trial a jail house snitch came forward and offered testimony that Mr. Holton told him that Mr. Holton committed the crime. The assistant state attorney who prosecuted Mr. Holton characterized the jail house informant's testimony as the most important evidence in the case. The assistant state attorney stated:

(emphasis added). Mr. Holton did not confess to anyone, including the jail house informant. In fact, the jail house informant lied at Mr. Holton's trial. While Mr. Holton was incarcerated pre-trial, the jail house informant: 1) figured out that Mr. Holton was in jail on murder charges; 2) learned as much about Mr. Holton's case as he could; 3) contacted the state attorney; 4) told the state that Mr. Holton confessed to him. This testimony was untruthful. Furthermore, the state told the jail house informant that he would be rewarded for his testimony.

The evidence which "led to Mr. Holton's conviction" was untruthful. The state rewarded this untruthful testimony. The jail house informant was facing a minimum sentence of nine (9) to twelve (12) years in prison on his pending burglary and grand theft charges. The judge who sentenced the informant commented "[t]he defendant's background totally justifies him being sentenced to life imprisonment without the right to parole." Yet, the informant received five (5) years of probation on each count, the first two (2) years were to be served on community control, the first three-hundred and sixty-four (364) days of which were to be served in specified residency in the Hillsborough County Jail. What Mr. Holton's trier of fact did not know about the evidence that led to the conviction of Mr. Holton was that in exchange for false testimony the informant was out of jail within approximately one (1) month of his sentencing.

At the trial, the defense attempted to present to the jury evidence of an alternative suspect in the murder of Katrina Graddy. Pamela Woods, the last person, other than Ms. Graddy's killer, to see Ms. Graddy alive knew that Ms. Graddy had been raped by David Pearson, a.k.a. Pine. Ms. Woods testified in her deposition regarding her knowledge of the rape. Despite the fact that Ms. Woods was subpoenaed to testify in the defense's case, she did not appear. The trial attorney requested a continuance so that Ms. Woods could be brought to the courthouse. Judge Coe refused to continue the trial. Rather, he allowed portions of Ms. Woods's deposition be read to the jury, however, nothing about the rape or Pine was mentioned.

The jury never knew about Pine's threat to Ms. Graddy that he "would get her." Furthermore, evidence is available that David Pearson confessed to the murder and sexual battery of Katrina Graddy.

Rudolph Holton is an innocent man who has spent over fourteen (14) years in prison for a crime he did not commit. There is no doubt that there is a fair probability that the evidence produced at trial and the evidence produced since his trial that the trier of fact would not have entertained a reasonable doubt of his guilt. Kuhlmann v. Wilson, 477 U.S. 436, 454 n. 17 (1986). Relief is proper.

This claim is evidenced by the following:

1. All other allegations and factual matters contained elsewhere in this motion are fully incorporated herein by specific reference.

2. The United States Supreme Court has explained:

3. Mr. Holton was denied a reliable adversarial testing. The jury never heard the considerable and compelling evidence that was exculpatory as to Mr. Holton. Either the prosecutor failed to disclose this significant and material evidence, or defense counsel failed to investigate and present this evidence. It cannot be disputed that the jury did not hear the evidence in question. In order "to ensure that a miscarriage of justice [did] not occur," Bagley, 473 U.S. at 675, it was essential for the jury to hear the evidence. State v. Gunsby. Whether the State suppressed the evidence, defense counsel unreasonably failed to present the evidence, or the evidence is newly discovered, confidence is undermined in the outcome because the jury did not hear the evidence.

4. Counsel's highest duty is the duty to investigate and prepare. Where, as here, counsel unreasonably fails to investigate and prepare, the defendant is denied a fair adversarial testing process and the proceedings' results are rendered unreliable. See, e.g., Kimmelman v. Morrison, 477 U.S. 365, 384-88 (1986) (failure to request discovery based on mistaken belief state obliged to hand over evidence); Henderson v. Sargent, 926 F.2d 706 (8th Cir. 1991)(failure to conduct pretrial investigation was deficient performance); Chambers v. Armontrout, 907 F.2d 825, (8th Cir. 1990)(en banc) (failure to interview potential self-defense witness was ineffective assistance); Nixon v. Newsome, 888 F.2d 112 (11th Cir. 1989)(failure to have obtained transcript witness's testimony at co-defendant's trial was ineffective assistance); Code v. Montgomery, 799 F.2d 1481, 1483 (11th Cir. 1986) (failure to interview potential alibi witnesses).

5. Even if counsel provides effective assistance at trial in some areas, the defendant is entitled to relief if counsel renders ineffective assistance in his or her performance in other portions of the trial. Washington v. Watkins, 655 F.2d 1346, 1355, rehearing denied with opinion, 662 F.2d 1116 (5th Cir. 1981), cert. denied, 456 U.S. 949 (1982). See also Kimmelman v. Morrison, 106 S. Ct. 2574 (1986). Even a single error by counsel may be sufficient to warrant relief. Nelson v. Estelle, 626 F.2d 903, 906 (5th Cir. 1981)(counsel may be held to be ineffective due to a single error where the basis of the error is of constitutional dimension); Nero v. Blackburn, 597 F.2d at 994 ("sometimes a single error is so substantial that it alone causes the attorney's assistance to fall below the Sixth Amendment standard"); Strickland v. Washington; Kimmelman v. Morrison.

6. The Eighth Amendment recognizes the need for increased scrutiny in the review of capital verdicts and sentences. Beck v. Alabama, 477 U.S. 625 (1980). The United States Supreme Court noted, in the context of ineffective assistance of counsel, that the correct focus is on the fundamental fairness of the proceeding:

Strickland v. Washington, 466 U.S. 668, 696 (1984) (emphasis added). The evidence presented in this claim demonstrates that the result of Mr. Holton's trial is unreliable.

7. Trial counsel failed to adequately cross-examine state witnesses, make objections, present evidence and properly investigate Mr. Holton's case. Mr. Holton's conviction was the result of trial counsel's ineffective assistance.

8. As the State began to present its case, defense counsel's lack of preparation became evident. Counsel had either failed to interview or depose several crucial state witnesses. Furthermore, when they testified defense counsel either was unprepared to cross-examine them or unreasonably forfeited that opportunity.

9. Counsel failed to adequately cross examine Carrie Nelson. Ms. Nelson testified at the trial that she saw Mr. Holton enter the house where Ms. Graddy's body was found at approximately 11:00 p.m., on June 22, 1986 (R. 593). Ms. Nelson also testified that she remained on her porch until 12:00 a.m. and went to bed at 12:30 a.m. (R. 594). She testified that she never saw him come out of the house (R. 594).

10. Trial counsel feebly attempted to show Ms. Nelson's bias toward Mr. Holton:

(R. 594-95). In addition to accusing Mr. Holton of burglarizing her house several times, Ms. Nelson had come forward in at least two (2) other cases to say that she had witnessed Mr. Holton burglarizing her neighbors.

11. Ms. Nelson was clearly biased against Mr. Holton. The jury should have heard that she had accused him of committing several crimes in the past, many of which Mr. Holton was neither arrested nor convicted. The jury should have heard this testimony so that they could determine what, if any, credibility to ascribe to Ms. Nelson.

12. Another inconsistency with which trial counsel failed to confront Ms. Nelson, included Ms. Nelson's description of Mr. Holton, on the night of the crime. At trial, Ms. Nelson testified that Mr. Holton was wearing a white tee shirt with red writing (R. 600). However, in her deposition she testified only that Mr. Holton was wearing "[a] blue pair of pants, a white T-shirt with writing on the front of it" (Nelson Deposition at 10). Ms. Nelson was initially interviewed by a Tampa Police detective and she provided him with the same description that she reiterated in her deposition. It wasn't until trial that she testified that the tee shirt had red writing on it. Trial counsel did not confront Ms. Nelson with this inconsistency.

13. Mr. Birkins testified at the trial that Mr. Holton confessed to him while they were both incarcerated at the county jail. Had trial counsel properly investigated Mr. Birkins, she would have learned that he consistently attempted to receive favorable treatment on pending criminal charges by providing information to the police.

14. In 1978, after being arrested and charged with first degree murder, Mr. Birkins wrote a letter to the parole board. In that letter he explained: "(2) Is because my life will be in jeopardy, for if you look at my record that Mr. Thomas McCall did own me. It will explain to you all about my assistance in helping the Tampa Police Department to cut down own (sic) the crime here".

15. Furthermore, in 1984, Mr. Birkins was arrested and charged with sexual battery. During his interview with the police, Mr. Birkins "told the officers that he worked for the police as a C.I."

16. Had Mr. Holton's trial attorney investigated Mr. Birkins, she would have found that he consistently attempted to serve as a police "snitch" so that he could receive favorable treatment on pending charges. The jury should have heard about Mr. Birkins' willingness to be a police informant. Only after hearing about Mr. Birkins prior attempts to make deals by "snitching" could the jury properly evaluate his testimony. Counsel was ineffective for not investigating and then using this evidence to illustrate Mr. Birkins' lack of credibility.

17. The state called Mr. Schenck to testify at the trial in order to establish Mr. Holton's presence at the scene of the crime. Mr. Schenck testified that he dropped off a hitchhiker in front of the vacant house (R. 331-32). Mr. Schenck also testified that the hitchhiker was carrying a black shaving bag (R. 327). The prosecutor attempted to link the black shaving bag to Mr. Holton through another state witness, Johnny Newsome (R. 352).

18. Trial counsel was ineffective in failing to attack Mr. Schenck's identification and Mr. Newsome's testimony placing Mr. Holton at the scene.

19. Mr. Schenck testified at trial that he could not positively identify Mr. Holton as the hitchhiker he picked up and spent the evening with, the night before the murder (R. 344). However, he did testify that Mr. Holton resembled the hitchhiker (R. 328). He remembered the hitchhiker's hair was not neat and he had shaving bumps (R. 346).

20. During his deposition, Mr. Schenck stated that he had trouble remembering faces of black people unless the individual had a distinguishing characteristic:

(Schenck deposition, p.20). The only unusual characteristic Mr. Schenck could remember about the hitchhiker was that he had shaving bumps.

21. Had trial counsel investigated Mr. Holton's case, she would have learned that Mr. Holton did have an outstanding physical characteristic, but she never confronted Mr. Schenck about it. Mr. Holton wore dentures; he wore top and bottom partial plates. Several days before Mr. Holton was arrested for this crime, the plate of his top partial had broken and could not be worn. Therefore, Mr. Holton was missing several upper, front teeth. This was clearly evident when he smiled or spoke. Had Mr. Holton been the hitchhiker, Mr. Schenck would have seen and should have remembered this physical characteristic.

22. Instead, Mr. Schenck testified in his deposition and at trial that he thought that the hitchhiker had a gold tooth (R. 338). Mr. Holton has never had a gold tooth. If Mr. Schenck remembered that the hitchhiker had a gold tooth, then he would have certainly remembered if the hitchhiker was missing several of his upper, front teeth. In fact, Mr. Schenck specifically remembers that the man he picked up and eventually dropped off in front of the house where the body was found, did not have any missing teeth that he could see. Therefore, Mr. Holton could not have been the hitchhiker that Mr. Schenck picked up, or the owner of the shaving bag.

23. Defense counsel's failure to adequately challenge Mr. Schenck's identification was deficient performance. Had defense counsel presented the evidence that Mr. Holton was missing several of his front teeth at time of the crime and that Mr. Schenck did not remember this outstanding physical characteristic, it would have seriously reduced the weight of Mr. Schenck's already weak identification.

24. Mr. Newsome testified at Mr. Holton's trial that he had seen Mr. Holton with the victim at approximately 11:00 p.m. the night before the murder (R. 351). Mr. Newsome testified that Mr. Holton and the victim were standing in the gangway of the house where the victim's body was found (R. 351). Mr. Newsome also testified that he saw Mr. Holton holding the black shaving kit that was found the next day in Mr. Schenck's car (R. 352).

25. Trial counsel failed to confront Mr. Newsome or argue that it would have been impossible for Mr. Holton to have been in the possession of the shaving bag at 11:00 p.m., when Mr. Newsome claims to have seen Mr. Holton. Even the state conceded that the bag "was locked up in Schenck's car when he went to sleep before this crime was committed" (R. 708).

26. Mr. Newsome was testifying falsely. Had Ms. Morgan brought out this impossibility, it would have seriously reduced Mr. Newsome's credibility. Trial counsel was ineffective for failing to raise this flaw in Mr. Newsome's testimony.

27. Counsel also failed to investigate and present evidence that would have rebutted the state's case and exonerated Mr. Holton.

28. Counsel did not properly investigate Mr. Holton's case. Ms. Nelson indicated that on the night before murder, she was sitting on her porch when she saw Mr. Holton enter the vacant house (R. 593). During her deposition, Ms. Nelson indicated that Mr. Simmons had been with her when she saw Mr. Holton pass by (Nelson Deposition at 12-13).

29. Had defense counsel contacted and interviewed Mr. Simmons, she would have learned that Ms. Nelson was lying. Ms. Morgan would also have learned that Mr. Holton never entered the vacant house. He did pass by Ms. Nelson's porch, however, he continued on down the block and entered a different house. Ms. Morgan would also have been able to present testimony that Ms. Nelson admitted that she was lying in order to stop Mr. Holton from burglarizing her house, again.

30. Most importantly, Ms. Morgan would have discovered that Mr. Simmons had attempted to inform a police officer about his knowledge of Ms. Nelson's false report. No one made a report and this information was never turned over to Ms. Morgan, in violation of Brady v. Maryland, 373 U.S. 83 (1963).

31. Mr. Holton's counsel was deficient for not investigating and presenting this evidence to the jury. Had she done so, it would have certainly negated Ms. Nelson's testimony.

32. Mr. Newsome testified at Mr. Holton's trial that he had seen Mr. Holton with the victim at approximately 11:00 p.m. the night before the murder (R. 351). Mr. Newsome testified that Mr. Holton and the victim were standing in the gangway of the house where the victim's body was found (R. 351). Mr. Newsome also testified that he saw Mr. Holton holding the black shaving kit that was found the next day in Mr. Schenck's car (R. 352).

33. Had Ms. Morgan investigated her case, she would have learned that Mr. Newsome could not have seen Mr. Holton in the late evening hours of June 22, 1986. In fact, Mr. Newsome was a few blocks away in an abandoned house on Estelle street with a female friend. Mr. Newsome smoked crack and drank gin and the couple had sex a few times throughout the night. During the night Mr. Newsome never left the house. It was impossible for him to have seen Mr. Holton and Ms. Graddy together on the night of the crime. After daybreak Mr. Newsome and his companion separated. Trial counsel should have found this witness and presented her testimony to the jury. This testimony would have discredited Mr. Newsome. Trial counsel's failure to adequately investigate and present this witness was deficient performance.

34. The state presented testimony and argued that Mr. Holton had obtained several scratches on the night of the murder (R. 284-85). The medical examiner testified that the scratches were consistent with a recent trauma (R. 284). The state argued that these scratches were inflicted by the victim during a struggle with Mr. Holton (R. 718).

35. Had trial counsel properly investigated Mr. Holton's case, she would have been able to rebut this testimony and argument. Several witnesses, who were available at the time of the trial, would have testified that what the state characterized as "fresh scratches" were in fact scars from a previous altercation with Mr. Holton's wife. These witnesses would have testified that on Mr. Holton's wedding night he and his wife argued and she became intensely violent. She shattered a ceramic ashtray over his head and deeply scratched him on his chest, face and arms. As a result of this assault, Mr. Holton was taken to the emergency room of Tampa General Hospital.

36. Furthermore, expert testimony was available to rebut the medical examiner's testimony. After reviewing the photos of Mr. Holton and the medical examiner's testimony an imminently qualified expert has concluded that the scars on Mr. Holton's chest were much older than the twenty-four (24) or thirty-six (36) hours testified to by the medical examiner. The prosecution misled the jury about the age of the scars. Trial counsel failed to rebut this testimony.

37. The Assistant State Attorney argued:

(R. 718). The state's argument and the medical examiner's testimony regarding the scratches could have been rebutted by several witnesses, including medical experts and those who knew Mr. Holton and were present when his wife attacked him and inflicted those wounds that later became deep scars. Defense counsel was ineffective for not presenting this evidence.

38. On August 12, 1986, Mr. Clemmons was interviewed by defense counsel. The statement was recorded, transcribed and sworn to, by Mr. Clemmons. Mr. Clemmons stated:

39. Mr. Clemmons' testimony indicates that the Tampa Police Department may have tampered with evidence. This statement was crucial because it was one of the few pieces of physical evidence that linked Mr. Holton to the crime scene. Detective Durkin testified that he found the cigarette pack in the room where the victim was found (R. 379).

40. Despite the importance of Mr. Clemmons' statement, trial counsel failed to address this matter with Mr. Clemmons when he testified, even though she had his sworn statement. This testimony was crucial to the defense's case. Trial counsel inferred, during the state's case, that the detectives and officers involved in the investigation had not issued reports on evidence that appeared to be exculpatory. See footnote 6. Mr. Clemmons' statement would have corroborated Mr. Holton's defense and also reduced the credibility of the detectives' testimony. Trial counsel was ineffective for not introducing this testimony.

41. At trial, defense counsel attempted to present an alternative suspect to the jury. It was well known in the community that Katrina Graddy, the victim, told people that Pine raped her. One individual that Ms. Graddy told about the rape was Pamela Woods. Ms. Woods testified in her deposition regarding her knowledge of the rape. Despite the fact that Ms. Woods was subpoenaed to testify in the defense's case, she did not appear. The trial attorney requested a continuance so that Ms. Woods could be brought to the courthouse. Judge Coe refused to continue the trial. Rather, he allowed portions of Ms. Woods's deposition be read to the jury, however, nothing about the rape or Pine was mentioned.

42. However, in addition to Ms. Woods several other individuals in the community knew about Pine's alleged rape of Ms. Graddy and subsequent threats that he would "get her". Trial counsel failed to adequately investigate Mr. Pearson.

43. Donald Smith approached an officer standing at the perimeter of the crime scene on the morning of the murder. Mr. Smith asked: "Who choked Anita? Who got choked?" The officer at the scene was suspicious and requested Mr. Smith produce identification. Mr. Smith left the crime scene but returned with identification.

44. Mr. Smith knew that the victim had been "choked" because David Pearson had already confessed the crime to him. Mr. Pearson admitted to Mr. Smith that Ms. Graddy had previously taken drugs from him and he was upset with the victim for accusing him of rape. Had trial counsel spoken to Mr. Smith and investigated how he had the information he did, only hours after the police responded to the crime scene, she would have learned about Mr. Pearson's confession. This evidence would have been entirely consistent with her theory at trial -- that Mr. Holton was innocent and someone else committed the murder.

45. Trial counsel's failure to adequately investigate her case severely prejudiced Mr. Holton.

46. Defense counsel failed to make appropriate pre-trial motions and that would have prevented improper evidence and argument from being presented during Mr. Holton's trial.

47. For example, counsel should have moved to suppress the package of Kool cigarettes that was found at the scene. This evidence was irrelevant, yet the state characterized it as physical evidence linking Mr. Holton to the murder (R. 379). 48. Mr. Holton never denied that he had been in the vacant house before the murder. He told the police that he had been in the house to use drugs.

49. Furthermore, as Detective Durkin testified, there was no way to secure the crime scene between the morning when the body was found and four days later when the detectives recovered the Kool cigarette pack (R. 391).

50. In addition, Soldon Clemmons, a defense witness, provided a taped statement to Ms. Morgan. In that statement, he told Ms. Morgan that when the police searched Mr. Holton's room on the morning of June 26, 1986, a cigarette pack was lying in the ashtray. After the police left, the cigarette pack was gone.

51. Counsel should have filed a motion to suppress. Had she done so, Judge Coe would have had to suppress the evidence.

52. Counsel also failed to make appropriate objections. Counsel failed to object to testimony by Karen Graddy which constituted unlawful victim impact evidence (R. 245). This was deficient performance. During the state's case in chief, the assistant state attorney called the victim's sister to identify a picture of the victim:

(R. 245). The prosecutor also elicited similar victim impact testimony from the victim's mother (R. 525).

53. Defense counsel inadequately objected to this line of testimony. Moreover, had counsel known the case law she would have been able to adequately litigate and preserve these issues. Defense counsel's failure to adequately object and move for a mistrial was unreasonable.

54. Defense counsel was also deficient for not adequately objecting to the Assistant State Attorney's improper comments to the jury. Mr. Episcopo argued non-statutory aggravators (R. 716) and bolstered state witnesses' (R. 721). See Claim V.

55. In addition, the prosecutor misinformed the jury about the law. He informed the jury that his case was not circumstantial:

(R. 711).

56. Ms. Nelson and Mr. Newsome were circumstantial witnesses. They both placed Mr. Holton near the scene of the crime, however they did not see him commit the crime. The prosecutor's characterization of these witnesses was misleading. Defense counsel was unreasonable for failing to object to these improper comments.

57. It was unreasonable for defense counsel to fail to know basic law. Her failure allowed the jury to hear a great deal of improper, prejudicial testimony. Counsel was deficient and Mr. Holton was denied an adversarial testing.

58. As a result of these and other instances of improper conduct on the part of the State and ineffective assistance of counsel, Mr. Holton's conviction and sentence were rendered unreliable.

59. The prosecutor is required to disclose to the defense evidence "that is both favorable to the accused and `material either to guilt or punishment'". United States v. Bagley, 473 U.S. 667, 674 (1985), quoting Brady v. Maryland, 373 U.S. 83, 87 (1963). Defense counsel is obligated "to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process." Strickland, 466 U.S. at 685. Where either or both fail in their obligations, a new trial is required if confidence is undermined in the outcome. Smith v. Wainwright, 799 F.2d 1442 (11th Cir. 1986).

60. "At the heart of effective representation is the independent duty to investigate and prepare." Goodwin v. Balkom, 684 F. 2d 794, 805 (11th Cir. 1982); accord Porter v. Wainwright, 805 F. 2d 930, 933 (11th Cir. 1986). Moreover, to be effective, counsel must present "an intelligent and knowledgeable defense. Cunningham v. Zant, 928 F. 2d at 1016. 61. This Court can also take into consideration that all of the errors that occurred at Mr. Holton's trial, cumulatively, establish that Mr. Holton did not receive the fundamentally fair trial to which he was entitled under the Eighth and Fourteenth Amendments. See Young v. State, 739 So. 2d 553 (Fla. 1999); State v. Gunsby, 670 So. 2d 920 (Fla. 1996); Derden v. McNeel, 938 F.2d 605 (5th Cir. 1991); Blanco v. Singletary. The sheer number and types of errors involved in his trial, whether due to the State's clear Brady violations or to counsel's prejudicially deficient performance, when considered as a whole, resulted in the unreliable conviction and sentence that he received. Gunsby. See also Kyles v. Whitley, 115 S. Ct. 1555 (1995).

62. No adversarial testing occurred at the guilt phase of Mr. Holton's capital trial. Rule 3.850 relief is appropriate. Mr. Holton is entitled to a hearing on the issues raised

In reliance upon the August 3, 2000, Joint Stipulation this claim is moot in light of the State's concession of penalty phase error and agreement that Mr. Holton is entitled to a new penalty phase to be tried before a jury. By agreement of the parties, the new penalty phase is held in abeyance until the guilt phase claims have been resolved in state court.

This claim is evidenced by the following:

1. All other allegations and factual matters contained elsewhere in this motion are fully incorporated herein by specific reference.

2. Mr. Holton is innocent of the offense for which he was convicted and sentenced to death. Newly discovered evidence proves Mr. Holton's innocence.

3. At trial, the prosecution presented evidence that three (3) hairs were recovered from the victim at the medical examiner's office. The state presented an FBI agent to testify that the hairs were consistent with Mr. Holton's. He testified that the hairs were transitional body hairs with negroid characteristics. Mr. Holton was included in the class of individuals who could have deposited the hairs.

4. This testimony supported the State's theory at trial -- that Mr. Holton had killed Ms. Graddy in a sex-for-drugs exchange that had gone bad. The state argued that the hairs on the victim's mouth were consistent with some sexual contact.

5. Newly discovered evidence consisting of mitochondrial DNA testing disproves this testimony. In fact, Mr. Holton is now excluded from being the source of the hair. After testing, an expert has determined that "Rudolph Holton is clearly excluded as a possible contributor of the questioned hair."

6. This evidence undermines the State's theory of the case and completely removes evidence which the State argued linked Mr. Holton to the crime.

7. In addition to the other newly discovered evidence exonerating Mr. Holton as the man who murdered Katrina Graddy is consistent with the record in this case to date. At the time of the trial there were several indications that a man referred to as "Pine," (aka David Pearson), committed the murder. Even members of the victim's family have expressed belief that Mr. Holton was not involved in this crime and that "Pine" murdered Ms. Graddy.

8. The defense witness, who was with the victim at the time the crime was allegedly committed, Pamela Woods, did not testify at trial. Although she had been subpoenaed (R. 487), Woods did not appear until the jury was in guilt/innocence deliberations (R. 783). Woods was critical to the jury because during guilt phase deliberations, they asked for one thing -- a copy of the judge's summary of Woods' prior testimony (R. 744).

9. The trial court had refused to grant a defense motion for continuance until Ms. Woods arrived (R. 536). Instead the court summarized Woods' prior deposition testimony for the jury (R. 587-90). Defense counsel objected to this summarization (R. 536) and also moved for a mistrial (R. 783).

10. In her deposition Ms. Woods testified:

(Woods Deposition at 18-20). Ms. Woods also testified in her deposition that she had heard that "Pine" had raped Ms. Graddy, only a week before the murder (Woods Deposition at 20). The circumstances of that rape were very similar to the circumstances surrounding the murder.

11. Woods' testimony constitutes newly discovered evidence that was improperly and prejudicially withheld from the jury. As such, it is the subject of a Rule 3.850 motion. See Richardson v. State, 546 So. 2d 1037 (Fla. 1989). This evidence is of such a nature that a new trial is warranted. Jones v. State, 591 So. 2d 911 (Fla. 1991). Relief is proper.

12. Mr. Holton urges this Court to recognize the importance Woods' evidence would have had on the outcome of the trial. This evidence unquestionably established that the jury would probably have acquitted had it actually heard and seen Ms. Woods testify.

13. In addition, postconviction counsel has uncovered further evidence that negates many of the states' witnesses' testimony. For instance, Mr. Schenck, a witness at the trial, specifically remembers that the man he picked up and eventually dropped off in front of the house where the body was found, did not have any missing teeth that he could see. Several witnesses will testify that, at the time of the crime, Mr. Holton had broken his dentures and was missing several upper, front teeth. Because Mr. Schenck knows that the man he dropped off in front of the vacant house was not missing any teeth, it could not have been Mr. Holton. This newly discovered evidence also suggests that Mr. Newsome, a key state witness perjured himself.

14. Mr. Newsome identified the black shaving bag that was recovered from Mr. Schenck's car and belonged to the unidentified hitchhiker. He testified that the bag belonged to Mr. Holton (R. 352).

15. Another newly discovered witness will testify that Mr. Newsome perjured himself. This witness was with Mr. Newsome the night of the crime and therefore, it would have been impossible to see Mr. Holton and the victim at the vacant house.

16. This witness along with others also corroborates the fact that Ms. Nelson perjured herself at Mr. Holton's trial. Ms. Nelson was another state witness that placed Mr. Holton at the scene. These witnesses will testify that Ms. Nelson repeatedly confessed to lying about see Mr. Holton enter the vacant house because she wanted to stop him from burglarizing her house.

17. At the trial, the prosecutor presented testimony and argued that Mr. Holton was scratched from a struggle with the victim (R. 718).

18. Several newly discovered witnesses would testify that the scratches that the state characterized as "fresh scratches," during the trial, were in fact scars from a previous altercation with Mr. Holton's wife. These witnesses will testify that on Mr. Holton's wedding night he and his wife argued and she became intensely violent. She shattered a ceramic ashtray over his head and deeply scratched him on his chest, face and arms. As a result of this assault, Mr. Holton was taken to the emergency room of Tampa General Hospital.

19. The importance of these witnesses cannot be underestimated. There were no eyewitnesses presented at the trial and no others have since been found. The only evidence supporting the State's case against Mr. Holton was a jail house snitch and three (3) witnesses that placed Mr. Holton at or near the scene.

20. Because the files and records do not conclusively establish that Mr. Holton is entitled to no relief, this Court must grant an evidentiary hearing. Thereafter, this Court should grant a new trial. The Supreme Court has recognized that "[t]he quintessential miscarriage of justice is the execution of a person who is entirely innocent." Schlup, 115 S.Ct. at 866. Mr. Holton is innocent, and this Court must grant the appropriate relief to prevent "the quintessential miscarriage of justice."

21. Mr. Holton also pleads that he has discovered newly discovered evidence that undermines his conviction and sentence in regards to the probe into the FBI laboratory.

22. As a result of a lengthy and detailed investigation into three sections of the FBI Crime Laboratory in Washington, D.C (the Explosives Unit, the Materials Analysis Unit, and the Chemistry-Toxicology Unit), on April 15, 1997, United States Department of Justice's Office of Inspector General issued a report entitled "The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases" [hereinafter OIG Report].

23. One of the sections of the FBI Laboratory investigated by the OIG, the Chemistry-Toxicology Unit (CTU), participated in the testing of evidence relied on by the State at Mr. Holton's trial. In fact, one of those FBI lab analysts testified at Mr. Holton's trial. Mr. Holton has recently become aware of the connection between the scrutiny and criticism of the FBI lab and his own case and he has sought access to any and all information in the federal government's possession by making a Freedom of Information Act request.

24. Mr. Holton must have the opportunity to determine whether the FBI lab analyst involved in his trial testified falsely and had no basis for rendering his opinions.

25. In light of the foregoing, Mr. Holton requests leave to amend this claim.

This claim is evidenced by the following:

1. All other allegations and factual matters contained elsewhere in this motion are fully incorporated herein by specific reference.

2. The prosecutors' acts of misconduct both individually, and cumulatively, deprived Mr. Holton of his rights under the Sixth, Eighth, and Fourteenth Amendments.

3. Defense counsel rendered prejudicially deficient performance in failing to object to the prosecutor's inflammatory and prejudicial closing argument. The prosecutor exceeded the boundaries of proper argument. During his closing argument the prosecutor discussed Mr. Birkins' motive for coming forward in this case: "Maybe he could have come in and not been such a honest witness now, but he's still telling the truth because, ladies and gentlemen, this is a horrible crime that even a fellow black inmate will not tolerate" (R. 716). This comment is clearly improper. Mr. Episcopo essentially attempted to bolster Mr. Birkins' credibility by relying on the fact that he and Mr. Holton were both "black".

4. Mr. Episcopo made another improper comment about race when he referred to Detective Black's testimony. Mr. Episcopo argued: "That struck Detective Black as so ridiculous that he still would have arrested him after he talked to his brother for the third time" (R. 716). Clearly this interjection of race was improper.

5. In reference to the credibility of Mr. Birkins', the prosecutor also argued:

(R. 707). However, during Mr. Birkins' sentencing hearing, Mr. Episcopo informed the judge:

Mr. Episcopo misinformed the jury by telling them that Mr. Birkins possible sentence was much lower that what it actually was (R. 707). He then relied on that to bolster Mr. Birkins' credibility.

6. Furthermore, the jury was led to believe that Mr. Birkins was not receiving much of a favor, since he was going to be sentenced to three (3) years and this was only a half a month lower than his scoresheet required. Mr. Episcopo argued:

(R. 706). The prosecutor failed to mention that Mr. Birkins was going to receive a significantly reduced sentence because of his testimony. Rather than serve nine (9) to twelve (12) years, Mr. Birkins was going to serve three (3). In actuality, Mr. Birkins had to serve less than a year in jail, despite the fact that he met the criteria to be qualified as a habitual offender. This information prejudiced Mr. Holton. Had defense counsel known of the actual computation of time, she could have better impeached Mr. Birkins. Either the prosecutor failed to provide trial counsel with the correct information or trial counsel was ineffective for not using the available information.

7. The assistant state attorney also misinformed the jury about the definition of circumstantial evidence. He informed the jury that his case was not circumstantial:

(R. 711).

8. Ms. Nelson and Mr. Newsome were circumstantial witnesses. They both placed Mr. Holton near the scene of the crime, however they did not see him commit the crime. The prosecutor's characterization of these witnesses was misleading. Defense counsel was ineffective for failing to object to this argument.

9. Furthermore, the prosecutor argued an alleged lack of remorse as an aggravator that defense counsel never objected to by stating:

(R. 721). Lack of remorse is not an aggravating factor that can be considered under Florida Law. Defense counsel ineffectively failed to object to the introduction and consideration of non-statutory aggravators. Kimmelman v. Morrison, 477 U.S. 363 (1986).

10. Throughout the trial the prosecutor elicited improper victim impact testimony. In his closing argument, the assistant state attorney told the jury:

(R. 773-74). This evidence is impermissible under Florida law. See Taylor v. State, 583 So. 2d 323 (Fla. 1991); Jones v. State, 569 So. 2d 1234 (Fla. 1990); Welty v. State, 402 So. 2d 1159 (Fla. 1981). See also Grossman v. State, 525 So. 2d 833 (Fla. 1988).

11. Mr. Holton's jury returned a death recommendation. Mr. Holton's sentence of death violates the eighth and fourteenth amendments. See Elledge v. State, 346 So. 2d 998, 1002-03 (Fla. 1977); Barclay v. Florida, 463 U.S. 939, 955 (Fla. 1983). Defense counsel ineffectively failed to object to the introduction and consideration of non-statutory aggravators. Kimmelman v. Morrison, 477 U.S. 363 (1986). Mr. Holton was prejudiced by counsel's deficient performance. Relief is proper. See Garcia v. State, 622 So. 2d 1325 (Fla. 1993).

12. Further, Mr. Episcopo's closing argument, in both the guilt and penalty phases, "improperly appeal[ed] to the jury's passions and prejudices." Cunningham v. Zant, 928 F.2d 1006, 1020 (11th Cir. 1991). Such remarks prejudicially affect the substantial rights of the defendant when they "so infect the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 647 (1974). The Florida courts have held that "a prosecutor's concern 'in a criminal prosecution is not that it shall win a case, but that justice shall be done.' While a prosecutor 'may strike hard blows, he is not at liberty to strike foul ones.'" Rosso, 505 So. 2d at 614. The Florida Supreme Court has called such improper prosecutorial commentary "troublesome," Bertolotti v. State, 476 So. 2d 130, 132 (Fla. 1985), and when improper conduct by the prosecutor "permeates" a case, as it did here, relief is proper. Nowitzke v. State, 572 So. 2d 1346 (Fla. 1990).

13. The State was guilty of further misconduct. Carl Schenck was a key State witness during Mr. Holton's trial (R. 324-33).

14. Just before Mr. Schenck testified, the prosecutor showed him a picture of the victim -- naked with the bottle inserted in her rectum. The prosecutor also informed Mr. Schenck that he had a lot of evidence against Mr. Holton, including physical evidence.

15. Mr. Schenck was a state witness who had picked up a hitchhiker and dropped him off in front of the house where the murder occurred (R. 331-32). The state attempted to prove that Mr. Holton was the hitchhiker (R. 352). Mr. Schenck's identification was weak, at best. See Claim II.

16. Clearly, the prosecutor was attempting to influence Mr. Schenck's testimony, so that he would strengthen his identification of Mr. Holton, by showing him this gruesome photograph and misrepresenting the evidence against Mr. Holton to suggest that there was no doubt that Mr. Holton committed the crime.

17. Clearly the prosecutor's misconduct prejudiced Mr. Holton both at his guilt and penalty phases.

18. The Florida Supreme Court has held that when improper conduct by a prosecutor "permeates" a case, as it has here, relief is proper. Nowitzke v. State, 572 So.2d 1346 (Fla. 1990).

This claim is evidenced by the following:

1. All other allegations and factual matters made elsewhere in this motion are incorporated herein by specific reference.

2. Mr. Simmons was with Carrie Nelson on the night that she claims to have seen Mr. Holton enter the vacant house where the victim was found (Nelson Deposition at 12-13). The following morning, when the body was found, Mr. Simmons again spoke to Ms. Nelson. Ms. Nelson explained that she had spoken to the police and reported that Mr. Holton had entered the vacant house and had not left when she retired for the evening. She also confessed to Mr. Simmons that she was angry with Mr. Holton for repeatedly burglarizing her house and wanted to get even with him.

3. Mr. Simmons immediately reported this information to an officer at the crime scene. He also informed the officer that he had been with Ms. Nelson on the previous evening. He informed the Tampa Police Department officer that Mr. Holton did pass by, but he did not enter the house where the body was found. However, no report was filed and the state did not disclose this witness statement to the defense.

4. This information was related to police before the trial. However, this crucial information was never divulged to Mr. Holton's trial counsel. This information would have allowed defense counsel the ability to rebut a state witness and severely damage her credibility.

5. The evidence linking Mr. Holton to the murder of the victim was far from strong. There can be little dispute that evidence concerning the credibility of one of the state witnesses who would have been critically important to a full and fair jury resolution at Mr. Holton's trial. The jury, however, learned nothing about it. It is clear that the State knew about it and the investigating detectives and/or police officers who investigated the case certainly knew about it. This evidence was never disclosed to the defense. If defense counsel had a duty to investigate beyond reliance on discovery demands and motions and depositions, ineffective assistance has been shown because that was not done -- the defense relied on what the State disclosed. See Smith v. Wainwright, 741 F.2d 1248 (11th Cir. 1984), subsequent history, 799 F.2d 1442 (11th Cir. 1986). The fact remains, however, that this information was not disclosed to the defense. This violated Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. This deprived Mr. Holton of a fair trial.

6. Brady requires disclosure of evidence which impeaches the State's case or which may exculpate the accused "where the evidence is material to either guilt or punishment." The evidence here at issue certainly meets that test. This was a circumstantial case. The State's failure to disclose information concerning impeachment of a state witness rendered this trial fundamentally unfair. Brady v. Maryland, 373 U.S. 83 (1963); United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375 (1985).

7. Given the nature of the State's presentation at the trial, there can be little question that confidence in the results of the guilt-innocence and sentencing determinations has been undermined. Rudolph Holton is innocent actually and factually.

8. The State also failed to disclose impeachment evidence regarding the key investigating officers' grand jury testimony. United States v. Brumel-Alvarez, 991 F.2d 1452 (9th Cir. 1992).

9. During the trial, Detective Kevin Durkin testified that, three (3) days after the crime, he found a package of Kool cigarettes in the room adjacent to the room where the victim was found (R. 379). Officer Stark, a latent fingerprint specialist for the Tampa Police Department testified that he tested that cigarette pack and he found Mr. Holton's fingerprints matched a latent print found on the Kool pack (R. 405). However, non-record evidence suggests that this was not the evidence that was presented to the grand jury.

10. Detective Durkin was one of the witnesses whose testimony was presented to the grand jury that indicted Mr. Holton. It appears that, Detective Durkin testified that a pack of Benson and Hedges cigarettes was found at the scene, approximately two (2) feet from the body. Non-record evidence indicates that Detective Durkin testified that it was on this pack of cigarettes that the examiner was able to match one of Mr. Holton's fingerprints.

11. Defense counsel was never made aware of this inconsistent statement and therefore was not afforded the opportunity to use it to impeach Detective Durkin. This inconsistent statement should have been disclosed. Detective Durkin did not testify truthfully, either before the grand jury or at the trial. The fact that the jury never learned of this inconsistency undermines confidence in the outcome of the trial and sentencing.

12. Furthermore, at the trial, the medical examiner, Dr. Peter Lardizabal testified that he tested the victim's body for evidence of drugs and that the test was negative (R. 277). In addition, the prosecutor's theory of the case was that Mr. Holton had agreed to exchange drugs for sex with Ms. Graddy. Ms. Graddy would not have sex with him before she received the drugs, so he killed her (R. 719-20). In his closing argument he stated:

(R. 720). Both Dr. Lardizabal and the prosecutor misled the jury. In fact, Ms. Graddy's blood sample was not in optimal testing condition and therefore the results of the tests were not completely accurate. This information was withheld from Mr. Holton.

13. The medical examiner's investigator, Jack Hall, was told that the results were inaccurate. A memo regarding this evidence has been found:

No one ever provided the defense with this information. Had trial counsel had this information she could have impeached the medical examiner. Furthermore, the defense could have countered the prosecutor's theory of the case and shown that it was faulty.

14. Additionally, the key state witness against Mr. Holton received a deal in exchange for his testimony against Mr. Holton. The prosecution never disclosed the deal to defense counsel. Mr. Birkins was promised he would be rewarded for his testimony. He was.

15. At trial, Mr. Birkins testified that Mr. Holton confessed to him while they were incarcerated at the Hillsborough County Jail. Mr. Birkins testified that he was not receiving any benefit for his testimony. This testimony allowed the prosecutor to argue that Mr. Birkins's had no improper motive for coming forward and testifying and that he was a credible witness. During his closing argument the prosecutor told the jury: "Maybe he could have come in and not been such a honest witness now, but he's still telling the truth because, ladies and gentlemen, this is a horrible crime that even a fellow black inmate will not tolerate" (R. 716).

16. In reference to the credibility of Mr. Birkins', the prosecutor argued:

(R. 707).

17. However, in reality, Mr. Birkins was a "horrible criminal" facing nine (9) to twelve (12) years on a grand theft charge. During Mr. Birkins's sentencing hearing, Mr. Episcopo informed the judge:

The prosecutor misinformed the jury by telling them that Mr. Birkins possible sentence was much lower that what it actually was (R. 707). In fact, the prosecutor had made a deal with Mr. Birkins to assist him in receiving a lower sentence in exchange for testimony against Mr. Holton. The benefit for the state was two-fold: fabricated testimony about a confession and an unblemished witness.

18. The prosecutor failed to produce the presentence investigation report prepared before Mr. Holton's trial. The report is dated September 26, 1986, over two months before Mr. Holton's trial. As the prosecutor stated, the report makes clear that Mr. Birkins faced a lengthy prison sentence, well over the three and a half to four and a half years that Mr. Birkins testified he was facing. The presentence investigation report constituted Brady material. The report was prepared at the behest of the state before Mr. Holton's trial and it contained material, exculpatory information.

19. Mr. Birkins received a significantly reduced sentence because of his false testimony. Rather than serve nine (9) to twelve (12) years, Mr. Birkins was going to serve three (3). In actuality, Mr. Birkins was sentenced to five (5) years of probation after the prosecutor in Mr. Holton's case convinced the judge sentencing Mr. Birkins to depart from the three (3) year sentence. Mr. Birkins spent less than a year in jail, (he was on the street with in a month or so after being sentenced), despite the fact that he met the criteria to be qualified as a habitual offender and at a minimum faced a nine (9) to twelve (12) year sentence on his charges. This information was never revealed to Mr. Holton's jury and prejudiced Mr. Holton. The prosecutor allowed Mr. Birkins to testify falsely in violation of Giglio v. United States, 405 U.S. 150 (1972).

20. The prosecutor withheld the details of the deal he had made with Mr. Birkins and then allowed Mr. Birkins to testify that he was only receiving a six (6) month benefit for his testimony. As the prosecutor recognized, Mr. Holton's conviction and death sentence were largely based upon Mr. Birkins's testimony and credibility.

21. The truth of a witness' testimony and a witness' motive for testifying are material questions of fact for the jury, thus, the improper withholding of information regarding a witness' credibility is just as violative of the dictates of Brady v. Maryland as the withholding of information regarding a defendant's innocence. Bagley, 473 U.S. 667; Ouimette v. Moran, 942 F.2d 1 (1st Cir. 1991). Impeachment evidence of an important State witness is material evidence that must be disclosed by the prosecution. United States v. Arnold, 117 F.3d 1308 (11th Cir. 1997); Jean v. Rice, 945 F.2d 82 (4th Cir. 1991). As a result of the State's misconduct in this case, Mr. Holton was precluded from effectively cross-examining key State witnesses and from effectively presenting a defense, and the jury was deprived of relevant evidence with which to evaluate the State's witness' credibility.

22. Materiality is established and reversal is required once the reviewing court concludes that there exists "a reasonable probability that had the [withheld] evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 680 (1985). A reasonable probability is one that undermines confidence in the outcome. Such a probability undeniably exists here. Mr. Holton is entitled to a full and fair hearing on this issue.

23. A criminal defendant is entitled to a fair trial. As the United States Supreme Court has explained:

24. Here, Mr. Holton was denied a reliable adversarial testing. The jury never heard the considerable and compelling evidence that was obviously exculpatory as to Mr. Holton. In order "to ensure that a miscarriage of justice [did] not occur," Bagley, 473 U.S. at 675, it was essential for the jury to hear the evidence. An evidentiary hearing and relief are proper.

This claim is evidenced by the following:

1. All other allegations and factual matters contained elsewhere in this motion are fully incorporated herein by specific reference.

2. At trial, Ms. Morgan attempted to present the testimony of Annie Ballenger, Mr. Holton's sister.

(R. 410-13). The court improperly excluded evidence that the state made relevant in it's case in chief. Dr. Lardizibal testified that the marks on Mr. Holton's chest were 24 - 36 hours old (R. 285). Ms. Ballenger could have rebutted this testimony because she knew that the marks on Mr. Holton's chest were much older than a day or two; they were scars that he had had for several years prior to this incident.

3. This testimony was important because the state argued that Mr. Holton sustained the "scratches" during the struggle with the victim (R. 718).

4. The trial court also curtailed Mr. Holton's right to put on evidence, when he would not read certain portions of Ms. Woods' testimony to the jury. Ms. Woods was properly served for trial (R. 487). When Ms. Woods did not appear to testify, Ms. Morgan informed the court that Ms. Woods was an essential defense witness. Judge Coe told Ms. Morgan to send her investigator to look for Ms. Woods:

(R. 491-91). Judge Coe refused to assist the defense in bringing in a critical witness.

5. When Ms. Woods did not appear before the jury left to deliberate, defense counsel requested that her deposition be admitted as evidence (R. 531). Judge Coe would not admit several portions of the deposition. For instance, in her deposition, Ms. Woods testified:

(Woods Deposition at 5-6). Although Judge Coe informed the jury that Ms. Woods testified that Katrina entered the car of a black man, who was not Mr. Holton, around 12:30 a.m., Judge Coe would not allow the jury to hear about Ms. Woods' previous experience with that man. In her deposition, Ms. Woods testified:

(Woods Deposition at 9-11). Ms. Woods continued to describe her encounter with the man with whom she last saw Katrina:

(Woods Deposition at 16-17). The jury heard none of this crucial testimony.

6. Further, Judge Coe would not allow the jury to hear Ms. Woods' testimony regarding a rape she and Katrina had witnessed at the vacant house:

(Woods Deposition at 18-20).

7. All of this evidence was important because it suggested that there were other reasonable possibilities about what happened Ms. Graddy. The trial court did not allow this testimony to be admitted.

8. This error was particularly egregious in light of the fact that the jury, during deliberations, asked the court for a copy of Ms. Woods' statement. Obviously, they wanted to see her complete testimony.

9. The trial court's curtailment of Mr. Holton's right to present witnesses constituted a denial of his rights under the Sixth Amendment to the United States Constitution.

10. Presentation of defense witnesses constitutes a vital component of the Sixth and Fourteenth Amendments for the criminal defendant. Engle v. State, 438 So. 2d 803 (Fla. 1983). The trial court prevented the defense from presenting testimony of key witnesses whose testimony would have seriously undermined the State's theory of Mr. Holton's guilt. The Due Process Clause of the Fourteenth Amendment to the United States Constitution guarantees that Mr. Holton should have been give a fundamentally fair trial. The exclusion of evidence vital to his defense has denied Mr. Holton this Fourteenth Amendment guarantee. Lisbena v. California, 314 U.S. 219 (1941).

11. A defendant's rights to present a defense is a fundamental safeguard "essential to a fair trial in a criminal prosecution." Pointer v. Texas, 380 U.S. 400, 404 (1965).

12. In Mr. Holton's case, the opportunity to present witnesses and rebut the state's case was clearly essential to the defense. Had defense counsel been permitted to present this testimony, the result may "have pushed the jury over the edge into the region of reasonable doubt," Barkauskas v. Lane, 878 F.2d 1031 (7th Cir. 1989), and clearly could have made the difference between conviction and acquittal. Pennsylvania v. Ritchie, 107 S.Ct. 989, 998 (1987).

13. Mr. Holton's defense was also prejudiced when Judge Coe denied the defense's motion for a one (1) week continuance. Ms. Morgan attached an exhibit to her motion that clearly explained the reasons for her request for a continuance.

14. Defense counsel had good reason to request a continuance. Had counsel been able to pursue her investigation, she may have been able to uncover more evidence to exonerate her client. The trial court erred when it denied the motion and in doing so denied Mr. Holton a fair trial.

15. On this claim alone, or in conjunction with his other claims, Mr. Holton is entitled to relief consistent with this motion. This claim, taken together with others, evidences a cumulative failure of adversarial testing. At a minimum, an evidentiary hearing is required, because the files and records do not conclusively demonstrate that Mr. Holton is not entitled to relief.

This claim is evidenced by the following:

1. All other allegations and factual matters contained elsewhere in this motion are fully incorporated herein by specific reference.

2. Although trial counsel was well aware of Mr. Holton's drug addiction, she did not seek expert mental health assistance with his defense. This failure constitutes ineffective assistance and greatly prejudiced Mr. Holton's defense at all phases of his trial.

3. A criminal defendant is entitled to expert psychiatric assistance when the State makes his or her mental state relevant to the proceeding. Ake v. Oklahoma, 105 S. Ct. 1087 (1985). What is required is an "adequate psychiatric evaluation of [the defendant's] state of mind." Blake v. Kemp, 758 F.2d 523, 529 (11th Cir. 1985). In this regard, there exists a "particularly critical interrelation between expert psychiatric assistance and minimally effective representation of counsel." United States v. Fessel, 531 F.2d 1278, 1279 (5th Cir. 1979). When mental health is at issue, counsel has a duty to conduct proper investigation into his or her client's mental health background, see O'Callaghan v. State, 461 So. 2d 1354 (Fla. 1984), and to assure that the client is not denied a professional and professionally conducted mental health evaluation. See Fessel; Cowley v. Stricklin, 929 F.2d 640 (11th Cir. 1991); Mason v. State, 489 So. 2d 734 (Fla. 1986); Mauldin v. Wainwright, 723 F.2d 799 (11th Cir. 1984).

4. The mental health expert must also protect the client's rights, and the expert violates these rights when he or she fails to provide adequate assistance. State v. Sireci, 502 So. 2d 1221, 1224 (Fla. 1987); Mason v. State. The expert also has the responsibility to obtain and properly evaluate and consider the client's mental health background. Mason, 489 So. 2d at 736-37. The United States Supreme Court has recognized the pivotal role that the mental health expert plays in criminal cases:

Ake, 105 S. Ct. at 1095 (citation omitted).

5. Generally accepted mental health principles require that an accurate medical and social history be obtained "because it is often only from the details in the history" that organic disease or major mental illness may be differentiated from a personality disorder. R. Strub & F. Black, Organic Brain Syndrome, 42 (1981). This historical data must be obtained not only from the patient but from sources independent of the patient. Patients are frequently unreliable sources of their own history, particularly when they have suffered from head injury, drug addiction, and/or alcoholism. Consequently, a patient's knowledge may be distorted by knowledge obtained from family and their own organic or mental disturbance, and a patient's self-report is thus suspect:

Bonnie & Slobogin, The Role of Mental Health Professionals in the Criminal Process: The Case of Informed Speculation, 66 Va. L. Rev. 727 (1980) (cited in Mason, 489 So. 2d at 737).

6. A qualified mental health expert serves to assist the defense "consistent with the adversarial nature of the fact-finding process." Smith v. McCormick, 914 F.2d 1153, 1157 (9th Cir. 1990). Under Florida law, an indigent defendant is entitled to an appointed mental health expert to assist in the preparation of a defense. Garron v. Bergstrom, 453 So. 2d 405 (Fla. 1984); Hall v. Haddock, 573 So. 2d 149 (Fla. 1 DCA 1991). Had counsel sought the assistance of an expert, expert testimony detailing the extensive mental health mitigation could have been presented to the jury. Collateral counsel has obtained such an evaluation. As a result, mental health testimony is available to establish that Mr. Holton's intoxication and mental health functioning impaired his judgment, reasoning ability, and decision making functioning in such a fashion as to create guilt and penalty phase defenses. Counsel's performance was deficient and Rule 3.850 relief is required.

In reliance upon the August 3, 2000, Joint Stipulation this claim is moot in light of the State's concession of penalty phase error and agreement that Mr. Holton is entitled to a new penalty phase to be tried before a jury. By agreement of the parties, the new penalty phase is held in abeyance until the guilt phase claims have been resolved in state court.

In reliance upon the August 3, 2000, Joint Stipulation this claim is moot in light of the State's concession of penalty phase error and agreement that Mr. Holton is entitled to a new penalty phase to be tried before a jury. By agreement of the parties, the new penalty phase is held in abeyance until the guilt phase claims have been resolved in state court.

In reliance upon the August 3, 2000, Joint Stipulation this claim is moot in light of the State's concession of penalty phase error and agreement that Mr. Holton is entitled to a new penalty phase to be tried before a jury. By agreement of the parties, the new penalty phase is held in abeyance until the guilt phase claims have been resolved in state court.

This claim is evidenced by the following:

1. All other allegations and factual matters contained elsewhere in this motion are fully incorporated herein by specific reference.

2. The circuit court is required to certify the record on appeal in capital cases, Fla. Stat. Ann. sec. 921.141(4), Fla. Const. art. 5, sec. 3(b)(1), and when errors or omissions appear, re-examination of the complete record in the lower tribunal is required. Delap v. State, 350 So. 2d 462 (Fla. 1977). Portions of the record, including opening statements by trial counsel, are missing from the record. In addition, Mr. Holton asserts that his former counsel rendered ineffective assistance in failing to assure that a proper record was provided to the court. An evidentiary hearing, a reconstruction and recertification of a proper record, and Rule 3.850 relief are appropriate.

This claim is evidenced by the following:

1. All other allegations and factual matters contained elsewhere in this motion are fully incorporated herein by specific reference.

2. In an attempt to bolster his case, the prosecutor focused the jury's attention on the victim's two-year old child (R. 245, 525, 756). When the victim's mother testified, the prosecutor asked her:

(R. 525). Also, during the penalty phase, the prosecutor again elicited victim impact testimony from Mr. Holton's uncle:

(R. 756).

3. Trial counsel strenuously objected, and repeatedly moved for a mistrial (R. 756, 783). This evidence is impermissible under Florida law. See Taylor v. State, 583 So. 2d 323 (Fla. 1991); Jones v. State, 569 So. 2d 1234 (Fla. 1990); Welty v. State, 402 So. 2d 1159 (Fla. 1981). See also Grossman v. State, 525 So. 2d 833 (Fla. 1988). Relief is proper.

In reliance upon the August 3, 2000, Joint Stipulation this claim is moot in light of the State's concession of penalty phase error and agreement that Mr. Holton is entitled to a new penalty phase to be tried before a jury. By agreement of the parties, the new penalty phase is held in abeyance until the guilt phase claims have been resolved in state court.

In reliance upon the August 3, 2000, Joint Stipulation this claim is moot in light of the State's concession of penalty phase error and agreement that Mr. Holton is entitled to a new penalty phase to be tried before a jury. By agreement of the parties, the new penalty phase is held in abeyance until the guilt phase claims have been resolved in state court.

In reliance upon the August 3, 2000, Joint Stipulation this claim is moot in light of the State's concession of penalty phase error and agreement that Mr. Holton is entitled to a new penalty phase to be tried before a jury. By agreement of the parties, the new penalty phase is held in abeyance until the guilt phase claims have been resolved in state court.

In reliance upon the August 3, 2000, Joint Stipulation this claim is moot in light of the State's concession of penalty phase error and agreement that Mr. Holton is entitled to a new penalty phase to be tried before a jury. By agreement of the parties, the new penalty phase is held in abeyance until the guilt phase claims have been resolved in state court.

In reliance upon the August 3, 2000, Joint Stipulation this claim is moot in light of the State's concession of penalty phase error and agreement that Mr. Holton is entitled to a new penalty phase to be tried before a jury. By agreement of the parties, the new penalty phase is held in abeyance until the guilt phase claims have been resolved in state court.

In reliance upon the August 3, 2000, Joint Stipulation this claim is moot in light of the State's concession of penalty phase error and agreement that Mr. Holton is entitled to a new penalty phase to be tried before a jury. By agreement of the parties, the new penalty phase is held in abeyance until the guilt phase claims have been resolved in state court.

In reliance upon the August 3, 2000, Joint Stipulation this claim is moot in light of the State's concession of penalty phase error and agreement that Mr. Holton is entitled to a new penalty phase to be tried before a jury. By agreement of the parties, the new penalty phase is held in abeyance until the guilt phase claims have been resolved in state court.

This claim is evidenced by the following:

1. All other allegations and factual matters contained elsewhere in this motion are fully incorporated herein by specific reference.

2. Under the Eighth and Fourteenth Amendments Mr. Holton is entitled to a fair trial. His inability to fully explore possible misconduct and biases of the jury prevent him from fully showing the unfairness of his trial. Misconduct may have occurred that Mr. Holton can only discover through juror interviews Cf. Turner v. Louisiana, 379 U.S. 466 (1965); Russ v. State, 95 So. 2d 594 (Fla. 1957).

3. To the extent it precludes undersigned counsel from investigating and presenting claims that can only be discovered through interviews with jurors, Rule 4-3.5(d)(4), Rules Regulating the Florida Bar, is unconstitutional. Mr. Holton should have the ability to interview the jurors in this case, but since he is on death row he must rely upon counsel provided by the State of Florida. Yet, the attorneys provided to him are prohibited from contacting the jurors in his case. The State's action in providing Mr. Holton with counsel who cannot fully investigate well-recognized claims for relief is a denial of due process, equal protection and access to the courts of this state under article I, section 21 of the Florida Constitution, the fundamental right of access to courts guaranteed by the United States Constitution and the Eighth Amendment. See Bounds v. Smith, 430 U.S. 817, 828 (1977).

4. Should this Court uphold Rule 4-3.5(d)(4), an individual who is not restricted by the rule from contacting jurors should be appointed to assist Mr. Holton. There are social scientists conducting this research who could assist Mr. Holton. Someone acting on behalf of Mr. Holton must be permitted to interview the jurors who acted as co-sentencers in his case. Mr. Holton may have constitutional claims for relief that can only be discovered through juror interviews. However, Mr. Holton is incarcerated on death row and is unable to conduct such interviews. He has been provided counsel who are members of the Florida Bar. Rule 4-3.5(d)(4), Rules Regulating the Florida Bar, precludes counsel from contacting jurors and conducting an investigation into constitutional claims that would be discovered through interviews.

6. The process by which a jury renders a death sentence is also subject to the scrutiny demanded by the Due Process Clause of the Fourteenth Amendment. Gardner v. Florida, 97 S. Ct. 1197, 1204 (1977). Due process requires not only formalistic procedural fairness, but vindication of the defendant's "legitimate interest in the character of the procedure which leads to the imposition of sentence." Id., at 1205, citing Witherspoon v. Illinois, 88 S. Ct. 1770, 1776-1778 (1968); see also, Morgan v. Illinois, 112 S. Ct. 2222 (1992).

7. Likewise, the strictures of due process govern postconviction challenges to a capital conviction or sentence. Huff v. State, 622 So. 2d 982 (Fla. 1993). The essence of due process is the opportunity to be heard. See Id.; Ford v. Wainwright, 105 S. Ct. 2595 (1986). The opportunity to have one's claims to postconviction relief considered fully by a fair and impartial tribunal is also the essence of a prisoner's right of access to the courts. See Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640 (1941); Johnson v. Avery, 393 U.S. 483, 89 S. Ct. 747 (1969); Cornett v. Donovan, 51 F.3d 894, 899 (9th Cir. 1993).

8. Mr. Holton seeks to conduct interviews with jurors to determine whether or to what extent the extralegal influences found prevalent in the studies described here may have prejudiced his penalty proceedings. Mr. Holton's status as prisoner means that he is unable to conduct these interviews himself. He has been provided legal assistance in the form of undersigned counsel who are unable to conduct juror interviews or have them conducted due to Rule 4-3.5(d)(4) although Mr. Holton could communicate with jurors himself. If Mr. Holton is denied this opportunity to investigate and present a claim of juror misconduct, his rights to due process and access to the courts will be denied; the reliability and integrity of his capital sentence will be left in question.

9. The importance of counsel in assuring that capital postconviction proceedings comply with due process is well-recognized by the courts. See Spalding v. Dugger, 526 So. 2d 71 (Fla. 1988); Porter v. Singletary, 14 F.3d 554 (11th Cir. 1994); Zeigler v. Wainwright, 805 F.2d 1422, 1426 (11th Cir. 1986). See Evitts v. Lucey, 469 U.S. 387, 393, 105 S. Ct. 830, 834 (1985). Florida provides for such postconviction review, and the Florida Supreme Court has recognized that principles of due process govern Florida capital postconviction proceedings. See, e.g., Huff v. State, 622 So. 2d 982 (Fla. 1993) (holding that trial court violated postconviction petitioner's due process rights by signing State's proposed order denying motion to vacate murder convictions and death sentence without affording petitioner opportunity to raise objections or submit alternative order). See also Rose v. State, 601 So. 2d 1181 (Fla. 1992).

10. In light of recently discovered evidence that the deliberations of Florida capital juries frequently and to a shocking degree consider factors extrinsic to the verdict and engage in overt prejudicial acts, Mr. Holton must be permitted to interview the jurors who contributed to his death sentence in order to assess the extent to which Mr. Holton may have been prejudiced. See Powell v. Allstate Insurance Co., 652 So. 2d 354 (Fla. 1995). Certainly, juror misconduct during the guilt phase of Mr. Holton's trial would warrant a new trial. Burton v. Johnson, 948 F.2d 1150 (10th Cir. 1991). While juror misconduct during the guilt phase raises serious Sixth Amendment problems, misconduct during penalty phase proceedings comes under greater scrutiny due to the Eighth and Fourteenth Amendment restrictions on capital sentencing. See Gardner v. Florida, 97 S. Ct. 1197, 1204 (1977).

11. Mr. Holton's trial and jury were beset with influences which studies of Florida capital sentencing juries would find significantly prejudicial. The prosecutor violated the rules in Hitchcock, and Caldwell v. Mississippi by telling the jury they had little responsibility in determining the sentence. Mitigating evidence went undiscovered due to counsel's failure to investigate. Whether these matters or any other matters improperly influenced the jury is subject to speculation because an adequate inquiry and investigation have not occurred.

12. Juror misconduct gives rise to constitutional challenges to convictions and sentences. The interest in finality shared by the State and the jurors must give way to "the opportunity of a death-sentenced defendant to have a claim of newly discovered evidence reviewed by a court to determine its merits where the claim is properly brought." Swafford v. State, 679 So. 2d 736, 740 (Fla. 1996) (Harding, J., concurring).

13. Essential to due process is the notion that a litigant must be able to present claims. See Huff, 622 So. 2d at 983. The opportunity to have one's claims to postconviction relief fully considered by a fair and impartial tribunal is also the essence of a prisoner's right of access to the courts. See Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640 (1941); Johnson v. Avery, 393 U.S. 483, 89 S. Ct. 747 (1969); Cornett v. Donovan, 51 F.3d 894, 899 (9th Cir. 1993); see also, Ford v. Wainwright, 105 S. Ct. 2595 (1986). Rule 4-3.5(d)(4), Rule Regulating Florida Bar, is a barrier to the investigation and presentation of legitimate claims for postconviction relief. Access to courts doctrine forbids encumbrances on the exercise of a prisoner's access to the courts in order "to 'prevent effectively foreclosed access.'" Bounds v. Smith, 97 S.Ct. 1491, 1495 (1977), quoting Burns v. Ohio, 79 S.Ct. 1164, 1168 (1959).

14. Mr. Holton will be denied due process of law and access to the courts if counsel are not permitted to interview jurors in preparation for postconviction proceedings.

In reliance upon the August 3, 2000, Joint Stipulation this claim is moot in light of the State's concession of penalty phase error and agreement that Mr. Holton is entitled to a new penalty phase to be tried before a jury. By agreement of the parties, the new penalty phase is held in abeyance until the guilt phase claims have been resolved in state court.

This claim is evidenced by the following:

1. All other allegations and factual matters contained elsewhere in this motion and in prior motions are fully incorporated herein by specific reference.

2. Mr. Holton contends that he did not receive the fundamentally fair trial to which he was entitled under the Eighth and Fourteenth Amendments. See Heath v. Jones, 941 F.2d 1126 (11th Cir. 1991); Derden v. McNeel, 938 F.2d 605 (5th Cir. 1991). It is Mr. Holton's contention that the process itself failed him. It failed because the sheer number and types of errors involved in his trial, when considered as a whole, virtually dictated the sentence that he would receive. State v. Gunsby, 670 So. 2d 920 (Fla. 1996).

3. Mr. Holton pleads the errors in his case in the alternative.

4. The United States Supreme Court recently recognized that, though a Brady violation may be comprised of individual instances of nondisclosure, proper constitutional analysis requires consideration of the cumulative effect of the individual nondisclosures. Kyles v. Whitley, 115 S.Ct. 1555 (1995). The reason for this as explained by the United States Supreme Court is in order to insure that the criminal defendant receives "a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles, 115 S. Ct. at 1566. 5. In Kyles v. Whitley, the Supreme Court explained the appropriate standard of review of a Brady claim:

Kyles, 115 S.C.t at 1567.

Kyles, 115 S. Ct. at 1569.

Kyles, 115 S. Ct. at 1573 n. 19 (citations omitted).

6. Moreover, the Florida Supreme Court in Jones v. State, 709 So. 2d 512 (Fla. 1998), and reaffirmed in Lightbourne, made it clear that the cumulative analysis discussed in Gunsby is in fact the legally required analysis where a Brady claim, an ineffective assistance claim, and/or a newly discovered evidence claim are presented in a 3.850 motion. In Gunsby, the Florida Supreme Court ordered a new trial in Rule 3.850 proceedings because of the cumulative effects of Brady violations, ineffective assistance of counsel, and/or newly discovered evidence of innocence using the following analysis:

State v. Gunsby, 670 So. 2d 920, 923-24 (Fla. 1996)(emphasis added). See Young v. State, 739 So. 2d 553 (Fla. 1999). This means Mr. Holton's claims requires cumulative consideration of all of his claims that Mr. Holton did not receive an adequate adversarial testing because his jury did not hear favorable and exculpatory evidence. If considering the claims cumulatively results in a loss of confidence in the reliability of the outcome, relief is warranted. Young v. State; Kyles v. Whitley.

7. Mr. Holton has presented a Brady claim, an ineffective assistance claim, and a newly discovered evidence of innocence claim. This is nearly identical to the situation in Lightbourne.

8. The flaws in the system which convicted Mr. Holton are many. They have been pointed out throughout not only this pleading, but also in Mr. Holton's direct appeal; and while there are means for addressing each individual error, the fact remains that addressing these errors on an individual basis will not afford adequate safeguards against an improperly imposed death sentence -- safeguards which are required by the Constitution. These errors cannot be harmless. The results of the trial and sentencing are not reliable. Rule 3.850 relief must issue.

CONCLUSION AND RELIEF SOUGHT

Mr. Holton prays for the following relief, based upon his prima facie allegations demonstrating violation of his constitutional rights:

1. An evidentiary hearing be scheduled so as to allow him to present support for his claims, and that such a hearing be conducted at a reasonable time;

2. He be allowed to proceed in forma pauperis;

3. He be provided necessary funds with which to obtain expert witness and investigative services in order to properly present his claims, and without which no full and fair hearing can be conducted;

4. He be provided subpoena power for the production of witnesses, and full and fair pre-hearing discovery;

5. He be allowed an additional sixty (60) days from the date of full disclosure of public records to amend this motion;

6. He be allowed leave to supplement this motion should new claims, facts, or legal precedent become available to counsel; and on the basis of the reasons presented herein,

7. His convictions and sentences be vacated.

I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished by United States Mail, first class postage prepaid, to all counsel of record on January 8, 2001.

Assistant CCC-NR

CAPITAL COLLATERAL COUNSEL -

NORTHERN REGION

Post Office Drawer 5498

Tallahassee, FL 32314-5498

(850) 488-7200

Attorney for Mr. Holton

copies to:

The Honorable Daniel L. Perry

Hillsborough County Courthouse

Courthouse Annex 124

800 E. Kennedy Blvd.

Tampa, Florida 33602

Jack Gutman

Assistant State Attorney

Office of the State Attorney

Hillsborough County Courthouse

Fourth Floor

800 E. Kennedy Blvd.

Tampa, Florida 33602

Candance Sabella

Assistant Attorney General

Office of the Attorney General

Westwood Building, Seventh Floor

2002 North Lois Ave.

Tampa. Florida 33607