QUESTIONS PRESENTED--CAPITAL CASE

1. Whether the materiality of evidence withheld by the State should be considered in a cumulative fashion with the prejudice from trial counsel's failure to present exculpatory evidence to the jury, in order to determine whether there was an adequate adversarial testing and whether confidence in the outcome of a capital trial is undermined to the extent that a new trial or sentencing is warranted?

2. Whether, when assessing violations of Brady v. Maryland, 373 U.S. 83 (1963), the conclusion that "there is no reasonable probability that availability of such evidence, either separately or collectively, would have changed the outcome of the trial" is in accordance with Brady and its progeny such as Kyles v. Whitley, 514 U.S. 419 (1995), and Strickler v. Greene, 527 U.S. 263 (1999); if so, should Petitioner's case be remanded to the Eleventh Circuit Court of Appeals for further consideration in light of Strickler?

2. Whether, when assessing violations of Brady v. Maryland, 373 U.S. 83 (1963), the conclusion that an undisclosed inconsistent statement does not trigger the State's disclosure obligation because the statement was merely impeaching and not exculpatory, is in accordance with Brady and Strickler v. Greene, 527 U.S. 263 (1999); if so, should Petitioner's case be remanded to the Eleventh Circuit Court of Appeals for further consideration in light of Strickler?

3. Whether, under Mooney v. Holohan, 294 U.S. 103 (1959), Giglio v. United States, 405 U.S. 150 (1972), and Gray v. Netherland, 518 U.S. 152 (1996), due process was violated in Petitioner's case when the prosecution vouched for the credibility of witnesses and belittled the defense theory of the case, yet withheld evidence about the credibility of those witnesses, and prevented the jury from hearing the evidence supporting the defense theory of the case?

4. Whether, in light of Williams (Michael) v. Taylor, 120 S.Ct. 1479 (2000) the Eleventh Circuit Court of Appeals erred in deferring to the federal district court's application of Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), in finding that Petitioner had not established "cause and prejudice" to warrant an evidentiary hearing in federal court; if so, should Petitioner's case be remanded to the Eleventh Circuit Court of Appeals for further consideration in light of Williams (Michael) v. Taylor, 120 S.Ct. 1479 (2000)?

5. Whether, in light of Williams (Terry) v. Taylor, 120 S.Ct. 1495 (2000), the Eleventh Circuit Court of Appeals utilized the proper test in determining that, under Strickland v. Washington, 466 U.S. 668 (1984), Petitioner was not prejudiced by trial counsel's deficient performance at the penalty phase of his capital trial; if so, should Petitioner's case be remanded to the Eleventh Circuit Court of Appeals for further consideration in light of Williams (Terry) v. Taylor, 120 S.Ct. 1495 (2000)?

TABLE OF CONTENTS

PAGE

PROCEDURAL HISTORY 2

INTRODUCTORY STATEMENT 3

1. Undisclosed Memoranda regarding Kathy Stevens. 17

A. WILLIAMS (MICHAEL) V. TAYLOR, 120 S.Ct. 1495 (2000), ESTABLISHES THAT PETITIONER SHOULD HAVE BEEN GRANTED A FEDERAL HEARING. 27

The decision of the United States Court of Appeals for the Eleventh Circuit in this cause appears as Tompkins v. Moore, 193 F.3d 1327 (11th Cir. 1999), and is attached as Attachment A of the appendix to this petition. The order denying panel and en banc rehearing is attached as Attachment B to this petition.

Petitioner invokes this Court's jurisdiction to grant the Petition for a Writ of Certiorari to the Eleventh Circuit Court of Appeals on the basis of 28 U.S.C. Section 1254(1). The Eleventh Circuit entered its opinion on October 29, 1999. The court issued an order denying panel and en banc rehearing on January 14, 2000. Justice Kennedy granted Petitioner an extension of time up to and including June 12, 2000, to file his petition (Attachment C).

The Fifth Amendment to the Constitution of the United States provides in relevant part:

The Sixth Amendment to the Constitution of the United States provides in relevant part:

The Eighth Amendment to the Constitution of the United States provides in relevant part:

The Fourteenth Amendment to the Constitution of the United States provides in relevant part:

Fla. Stat. section 921.141 (Florida's capital sentencing statute) sets

forth Florida's capital sentencing scheme, and is also relevant to the

questions presented by this petition.

PROCEDURAL HISTORY

Mr. Tompkins was indicted for first-degree murder and pled not guilty. Trial commenced September 16, 1983, and a jury found him guilty (R. 401). Following a penalty phase, the jury recommended the death penalty, and the judge followed the jury's recommendation (R. 678-81). The conviction and sentence were affirmed. Tompkins v. State, 502 So.2d 415 (Fla.), cert. denied, 483 U.S. 1033 (1987). After a

death warrant was signed, a postconviction motion pursuant to Fla. R. Crim. P. 3.850 was filed and an evidentiary hearing was conducted under warrant. After the lower court denied relief, the Florida Supreme Court stayed the execution and later affirmed. Tompkins v. Dugger, 549 So.2d 1370 (Fla. 1989). After a second death warrant, a

federal habeas petition was filed, and the district court stayed the execution. An amended petition was subsequently filed and denied. The Eleventh Circuit affirmed the denial of habeas relief. Tompkins v. Moore, 193 F.3d 1327 (11th Cir. 1999).

INTRODUCTORY STATEMENT

Despite compelling evidence that Petitioner is innocent, no court reviewing this case has yet to consider whether the cumulative effect of all the evidence not heard by the jury -- whether because it was suppressed by the State or because it was unreasonably not presented by trial counsel -- undermines confidence in the outcome of the guilt and/or penalty phases of Petitioner's capital trial. Petitioner has presented numerous instances of constitutional error--i.e., Brady violations and prejudice resulting from ineffective assistance of counsel-- which, singularly and cumulatively, demonstrate that no adversarial testing occurred in this case. For example, individuals reported seeing the victim alive hours, days, and months after the State alleged that she was killed by Mr. Tompkins. The State's star eyewitness gave inconsistent statements to the prosecutor which were never disclosed to defense counsel. Unbeknownst to the jury, the jailhouse snitch used by the State--who only "came forward" after the first snitch committed suicide--was permitted to withdraw his guilty plea to an escape charge which was later dropped by the State just weeks after Mr. Tompkins' trial. Not a shred of physical evidence links Wayne Tompkins to the murder. The Eleventh Circuit did not even address these issues despite affirming the conviction and sentence of death in this case. The federal district court determined that this information "would [not] have changed the outcome of trial" (App. 15 at 27), or that the witnesses were not "reliable." Yet no court--state or federal--has ever heard these witnesses testify. Petitioner asks this Court to accept certiorari review to assess the cumulative effect of the errors alleged in this petition. The disposition of these issues by the federal courts is completely contrary to fundamental principles enunciated by this Court. Due process requires that such an analysis be undertaken to avoid the execution of an innocent person.

I. The Trial.

The root of the State's case, as established by a Bill of Particulars, was that Mr. Tompkins killed Lisa DeCarr "between 8:30 a.m and 5:00 p.m. on March 24, 1983 (R. 397-98). Although presenting 8 witnesses at trial, the State's position was that "the key testimony" will come from 3 witnesses: Barbara DeCarr (the victim's mother); Kathy Stevens (the victim's best friend); and Kenneth Turco (the jailhouse snitch). The State asserted that "[t]hose three will provide the overwhelming evidence" that Mr. Tompkins killed Lisa DeCarr on the morning of March 24, 1983 (R. 108). The State acknowledged that its case was entirely "circumstantial," save for alleged "direct evidence" of a statement allegedly elicited by snitch Turco (R. 117).

The State's theory, as outlined in its opening statement, was as follows: Wayne Tompkins and Barbara DeCarr were boyfriend and girlfriend, Wayne having moved in with DeCarr, along with her three children, including 15-year old Lisa (R. 107-08). On the morning of March 24, 1983, Barbara went to Wayne's mother's house to help her move; before she left the house between 8:30 and 9:00 A.M., she checked in on Lisa, who was in bed and was wearing a pink bathrobe (R. 110). After dropping Barbara's son Jamie off at school, Wayne came by his mother's house to assist, along with Barbara, with the packing (R. 110-11). At some point, at Barbara's request, Wayne went back to his house to get some newspapers to help with the packing (R. 111). After he came back to his mother's house, Wayne told Barbara that Lisa was on the couch watching TV (Id.). However, at 3:00 p.m. that day, Wayne told Barbara that Lisa had run away (Id.). Barbara went home, did not find Lisa, and contacted the police; she questioned Wayne, who told her that the last time he saw Lisa was when she was going out the back door to the store wearing a pair of blue jeans and a burgundy colored blouse (R. 111-12). Barbara and her sons eventually moved out of the house a month later, and Lisa remained missing for over one year (R. 112), until a body identified as Lisa's was found under the house in a shallow grave wrapped in a bathrobe with a ligature mark around her neck and some jewelry (R. 113). The medical examiner later identified the body as being Lisa DeCarr.

Barbara DeCarr testified at trial that she was separated from her husband Harold, who had moved to New York (R. 199). She first met Wayne in May, 1981, when she was living with her daughter, Susan, Susan's boyfriend Greg, and her other children Lisa, William, and Jamie (Id.). Wayne moved in with the family in September, 1981, and they dated about 3 years (R. 200-01). At one point, they lived in the Shady Lane Trailer Park, and would have been there during Halloween, 1982 (R. 201). By January, 1983, they had moved to the East Osborne house (R. 202).

On March 24, 1983, Barbara awoke at around 7 a.m. when Wayne woke her up and told her that Lisa had a headache and wanted to stay home from school (R. 204). Barbara finally got up around 8 a.m., by which time Wayne had left to take Jamie to school (R. 205). Before she left to go to Wayne's mother's house, Barbara looked in on Lisa, who was in bed in a pink bathrobe, which had a sash; she couldn't tell if Lisa had anything on under the robe (R. 206). Lisa also had jewelry in the form of cross pierced earrings and a little diamond ring which she always wore (R. 207). The jewelry was given to her by her boyfriend (Id.).

Barbara left the house at 9:00 a.m. and confirmed that Lisa was home, alone and alive (R. 208). When she got to Wayne's mother's, Wayne was there with other people (Id.). Barbara stayed there until 3:00 that afternoon (R. 209). At some point she sent Wayne home to get newspapers to use as packing material; she did not know how long Wayne was gone, and he returned with newspapers (R. 209-10). When he returned, he told her that Lisa was sitting on the couch watching TV (R. 210). At some point after returning with the newspapers, Wayne left again with his stepfather (Id.).

Barbara further testified that at 3:00 that afternoon Wayne told her that Lisa "was gone, she had run away" (R. 211). He said that the last time he saw her she was at the back door of the house "on her way to the store" (Id.). He also said that Lisa was wearing a "maroon blouse, a pair of jeans that he had never seen before, and her pocketbook" (R. 212). Barbara then contacted the police from Wayne's mother's house (Id.). Prior to calling the police, however, Barbara went back home, but did not see Lisa; she discovered Lisa's pocketbook and robe missing, but her wallet was there as was a maroon blouse in the dirty clothes (R. 213). About a month later, she moved out of the house and into Wayne's mother's house (R. 214).

On cross-examination, Barbara testified that shortly after March 23, 1983, she had a discussion with Kathy Stevens, who was known to her as Kathy Sample (R. 217). Barbara acknowledged that after the day Lisa disappeared, she had been informed by several people that Lisa had been seen elsewhere in the community (R. 219). Lisa had also been suspended from school (Id.). It was not until June, 1984, when she told the police of her suspicions that Wayne killed Lisa (R. 226). She did not become suspicious or tell the police anything when Wayne gave her an incorrect description of Lisa's clothes in March, 1983 (Id.). In the period between March, 1982, to June, 1984, Barbara had three other boyfriends in addition to Wayne Tompkins (R. 227), including Gary Francis; she denied that she moved out of the trailer park because Gary had harmed Lisa (Id.). It was also true that a man named Bob McElvin, a neighbor, had propositioned Lisa, that he would do "certain things for her for sexual favors" (Id.).

Barbara acknowledged calling Wayne on the phone while he was incarcerated pending trial in order to solicit a confession from him, but Wayne never admitted any involvement (R. 229). She also testified that on March 24, 1983, Wayne left his mother's house "[t]wice that I know of," but did not remember if he appeared to be mussed up or dirty when he returned (R. 230).

Barbara denied that her ex-husband sexually abused Lisa (Id.). In May, 1984, Barbara was in a psychiatric ward, but denied telling anyone there that her husband had sexually abused Lisa (R. 231). She also denied being in a fight in a bar when someone blamed her for Lisa's death, it was more of an "argument" than a fight (R. 231-32).

Following Wayne's arrest, Barbara sent him letters with copies of photographs of skeletal remains, as well as detailing how nice Lisa's funeral was, although she initially denied it until she was shown the letters (R. 234). She also denied the correctness of the police's determination that she practiced witchcraft, and that if Barbara's stepdaughter told the police that, she was incorrect (Id).

Barbara also denied telling the police in June, 1984, to specifically check the yard and under the house, but then stated that "I don't remember saying it" (R. 235-36). After March, 1984, Barbara went on vacation and gave permission for Wayne to stay with her children (Id.). Lisa never complained that Wayne had made any sexual advances, but did complain about other people like Bob McKelvin (R. 236-37). Barbara also found out that after 1983, Wayne had gone to bed with another woman but denied that she was angry that her boyfriend was having an affair (R. 237). Finally, Barbara denied that Lisa's boyfriend harmed Lisa, and that the ring he gave Lisa was a "preengagement" ring (R. 237-38).

The next "key witness" was Kathy Stevens, who testified that she was never known as Kathy Sample (R. 242). On March 24, 1983, Stevens went to Lisa's house; on the previous day, both girls had been suspended from school, and Stevens went to Lisa's because "Lisa and me had made plans to run away because Lisa could not face her mother" (R. 249). Stevens arrived between 6 and 6:20 a.m. (Id.). After receiving no response to her knocking at the front door, Stevens went to Lisa's window and "she dragged me through the window and she said, `Kathy, I'm not going to run away. I talked about everything with my mother and we are going to deal with it'" (R. 250). After talking for a few more minutes, Stevens left (Id.). Stevens, however, forgot her purse and went back at some point around 9:00 a.m; it could have been after 9:00 a.m. (R. 251). No one went with her when she went back to the house; someone named Kim "went the third time" (Id.). When she went back to get her purse, there was a "loud crash" and when Stevens opened the front door, she saw Lisa and Wayne "struggling on the couch" (R. 252). Wayne was on top of her "trying to take her clothes off and that's about it" (R. 252). Lisa "asked me to call the police" and she believed that Wayne yelled "get out" (R. 252-53). She also saw "a man sitting in the corner chair" maybe four or five feet away "just sitting there watching it like nothing was going on" (Id.). Stevens had never seen the man before (Id.). Lisa was wearing a pink robe and "I believe she still had her rings on that morning" but no earrings (R. 253-54). Stevens left, did not call the police, and instead "went up to the store" and ran into Lisa's boyfriend (R. 254). She advised the boyfriend that she wanted to call the police, but she did not because "it was a little bit of being scared and not knowing what to expect" and Lisa's boyfriend "just walked away like it was nothing" (Id.). She then went to school because she did not want to get involved (R. 255).

Stevens and another girlfriend went back to Lisa's house at some point later, but it was the friend who knocked at the door, not Stevens, and her friend may have spoken with Wayne Tompkins (R. 255). Around lunchtime to 1:00, Stevens went back to the house because she still had not gotten her purse; she knocked at the door and Wayne answered (R. 256). She asked if Lisa was there, and he said no, that she had left with her mother (Id.).

About 2 weeks later, Stevens had a discussion with Barbara DeCarr, who had come to Stevens' house to ask her if she had seen Lisa (R. 257). Stevens told her that Lisa "had left for New York" (Id.). Barbara asked if Stevens expected to hear from her, and Stevens replied "Yes, she will call me when she gets there" (Id.). Stevens testified at trial that this was a lie but that she believed at the time that Lisa may have run away (R. 258). Until the body was discovered the following year, Stevens thought Lisa had run away, and it was then that she decided to come forward (Id.).

On cross-examination, Stevens said that each time she went to Lisa's house that day, Wayne was there, and confirmed that the first time was between 6 and 6:30, and she did not know if Barbara was home at the time (R. 259). She reaffirmed that Lisa did not have her earrings on that day (R. 260). She saw Lisa's boyfriend at the corner store after she left Lisa's house at 6 or 6:30, and he was drunk (R. 260). She denied that Barbara had other boyfriends besides Wayne, but acknowledged that in her deposition she said otherwise (R. 261-62). Stevens did not come forward until after the body was found because she "realized that something more was involved than just her disappearing" and told prosecutor Benito her story after he called her (R. 263). She initially told Benito that she knew nothing about what happened to Lisa that day, and that this conversation was in mid-March 1985. She then recounted that, after "talking to her pillow" one night, she decided to call Benito again and tell him her story (R. 264). Stevens denied telling different versions of the events to different people, but acknowledged lying to Barbara DeCarr and initially to Benito (R. 265). She reaffirmed that she did not call the police after seeing the struggle between Lisa and Wayne, and it did not make her suspicious "because I figured, you know, she would eventually get it under control, and it just didn't dawn on me" (R. 266).

Detective K.E. Burke testified at trial that he interviewed Barbara DeCarr 3 times -- May 28, 1984, and around June 5, 1984, when DeCarr was in the hospital (R. 277-78). Burke also interviewed Mr. Tompkins on June 12, 1984 (R. 278), who said the last time he saw Lisa was in the afternoon of March 24, 1983, wearing a maroon blouse and blue jeans and going out the back door to the store (R. 284). Wayne never said that Lisa ran away the day she disappeared (Id.).

On cross-examination, Burke acknowledged speaking to numerous witnesses in addition to Barbara and Wayne (R. 285). Burke was not sure if he spoke with a Wendy Chancey (R. 286), nor was he sure if he spoke with a Bob McKelvin; he also did not recall the name of a black man who was a neighbor of the DeCarrs and whether he spoke with him (R. 287). Burke was aware of someone having made sexual advances toward Lisa DeCarr, and "[i]f it was Bob McKelvin who lived next door, yes, I was aware of some information regarding that" (Id.). Burke never followed up on that investigation (id.), and McKelvin was never interviewed by the police (R. 288).

Burke testified that the height from the floor of the DeCarr house to the ground was about 36 inches, but then admitted that during his deposition he said it was 16 inches at the greatest point between the floor and the ground, and that his deposition testimony "was correct" (R. 288). Someone looking from neighboring houses could see the yard area of the DeCarr house (R. 289).

According to Burke, the investigation revealed that Barbara had been arguing with Wayne in 1983 and 1984 about his having other girlfriends or affairs (id.), and that Lisa had a record as a run-away (R. 293). He denied that Barbara told the police to specifically look under the house, but she did say to check the yard (R. 297). Furthermore, Burke acknowledged setting up a tape recorded phone call between Barbara and Wayne, and that Wayne made no admissions (R. 298).

The final "key witness" for the State was Kenneth Turco, who was serving a 30 year sentence for burglary and grand theft (R. 301-02). Turco also had been previously convicted of grand theft, forgery, and burglary (R. 302). He was presently charged with an escape, to which he pled guilty (R. 303), and was awaiting sentencing (R. 304). While in the jail, he made contact with Wayne Tompkins after he "was placed in the cell with him" (R. 305). He and Wayne were eventually put in another cell together where they continued talking about the case, according to Turco (R. 306-07). Around the first part of June, Turco was talking to Wayne about his own case and then asked him what had happened to Lisa DeCarr (R. 308). Turco then clarified that "I didn't ask. He volunteered the information, you know" (Id.). Wayne told him that after Barbara had sent him home to get newspapers, he went home, saw Lisa on the couch and "asked her for a shot of pussy" and she said no (R. 309). Then, Wayne told Turco, Lisa said "I stayed home from school. I don't feel good" and then Wayne tried to force himself on Lisa and she kicked him and he strangled her (Id.). Wayne did not tell Turco what he strangled Lisa with (Id.). Then, Wayne said that he panicked because "he didn't know what to do with the body because Barbara would be coming back to the house, so he buried the body under the house" (R. 310). He also said he buried some clothing "to make it look like she ran away," specifically it was a pair of jeans, a sweatshirt or blouse, "and he did say a pocketbook for sure" (R. 310). Wayne also said that he had had sex with Lisa in the past and that "sometimes she would and sometimes she wouldn't" (R. 311). After receiving this information, Turco contacted prosecutor Benito, who visited him personally, and promised only "my safety in the jail and that you would tell the judge at my sentencing hearing that I cooperated and I came forward and testified in a murder trial" (R. 311).

On cross-examination, Turco did not know whether Wayne had copies of his depositions and police reports in the cell they shared together, that "I never messed with his papers" and only saw a coroner's report "after I had talked to Mr. Benito on a Saturday evening" (R. 312). Turco had pled guilty to the escape charge, but did not know if his sentencing had been postponed until after his testimony in the Tompkins trial (R. 314). Turco said that he was not hopeful that his testimony would help him on the escape sentence because he would still be doing time anyway (R. 315), although it crossed his mind that his testimony would help him (Id.).

Turco acknowledged that there was a confidential informant system in prison and he had been part of that for the last 4 or 5 years, and that he was "trustworthy" (R. 317). Even though he was an informant, going through another prisoner's papers "is something you don't do, not in the prison system or in society or any place else" (Id.). Turco was the State's final witness, and the defense presented no testimony.

II. The Postconviction Evidence.

At the time of trial, evidence existed that Lisa DeCarr was alive after the date and time specified, but the jury never heard it through a combination of counsel's deficient performance and the prosecution's suppression of material exculpatory information. Some of the evidence was never evaluated by the jury because the trial judge erroneously precluded the defense from eliciting it. Regardless of where the breakdown in the adversarial process occurred, it is clear that the sum of the evidence unknown to the jury "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles v. Whitley, 514 U.S. 419 (1995).

a. Information Withheld by the State.

As noted above, the State's theory based upon the testimony of Stevens was that Mr. Tompkins killed Lisa shortly after 9:00 a.m. on March 24, 1983. The jury was instructed that the "exact time, date and place" of the killing had to be established beyond a reasonable doubt (R. 397-98). Stevens was the key witness offered by the State to establish under the Bill of Particulars that Lisa was murdered between 8:30 AM and 5:00 PM on March 24, 1983. Stevens was the key witness who provided testimony of an "eyewitness" nature in that she provided details of what she allegedly saw happen to Lisa DeCarr at the hands of Wayne Tompkins. Stevens was the key witness who provided the support for the "during the course of a sexual battery" aggravating circumstance found by the trial judge.

What was not known to defense counsel was that significant impeachment evidence existed which would have thoroughly discredited Stevens. Approximately two years after Lisa's disappearance, prosecutor Michael Benito had two (2) conversations with Stevens, which he memorialized into written memoranda. According to the first memo (App. 8), Stevens talked to Benito on March 7, 1985, and said she spoke to Lisa on March 23, 1983, the day before her disappearance, and Lisa said she was going to run away from home. Stevens said she had no further contact with the victim after that date and that her original statement to Barbara DeCarr that Lisa had contacted her and that she was all right and in New York was false.

The first memo also provided significant impeachment evidence regarding an alleged assault between Lisa and Wayne occurring on Halloween night of 1982. According to the memo, Stevens said that after Lisa hit Wayne, Wayne told Lisa "if you ever hit me again, I will kill you" (App. 8) (emphasis added). At trial, however, Stevens left out that "if you ever hit me again" statement and just testified that Wayne told Lisa "I'm going to kill you" (R. 247). Because this information was never disclosed to the defense, the State was free to argue to the jury that Mr. Tompkins had been planning Lisa's murder for five months.

A second memo memorializing another conversation between Benito and Stevens, never disclosed to the defense, provided:

(App. 2). Mr. Tompkins was never allowed to question Stevens or cross-examine her on these statements because he was not allowed to call her as a witness at the state court evidentiary hearing due to a state objection.

This statement was significantly different from Steven's trial testimony, where he stated that she went to the house at around 9:00 a.m., not at 8:00 a.m. This change dovetailed with Barbara DeCarr's trial testimony that she left the home at 9:00 a.m. and Lisa was alive and alone at that time; the change in the time was also significant because 8:00 a.m. was not within the time set out in the Bill of Particulars. At trial, Stevens also testified that there was a third person, another man, present and watching while Mr. Tompkins was purportedly attacking Lisa. Stevens made no such claim in her March 13th conversation with Benito. At trial, Stevens claimed that Lisa "asked me to call the police" (R252-53), yet Stevens never mentions this important fact in her statement to Benito. In her statement to Benito, Stevens claimed that Lisa asked her to "come back around 11:00 or 12:00 that she was going off somewhere with her mother," yet she never mentioned this at trial, and the prosecution was then able to argue to the jury that Mr. Tompkins was lying when he told the police that Lisa was going out with her mother when he last saw her (R. 354-55).

The State also failed to reveal to the defense that after providing the information memorialized in the second memorandum, the prosecutor did a favor for Kathy Stevens. According to Benito's testimony, he "arranged a visit with [Stevens] and her boyfriend in the jail because she didn't have proper ID, and I did make it easy for her to get in there. I brought her over to visit her boyfriend" (Testimony of prosecutor Benito) (EH 20). Despite knowing that he had provided Stevens with this benefit, the prosecutor nonetheless argued to the jury that Stevens had no motive to lie (R. 346, 348).

2. Undisclosed records from victim's school.

Additional exculpatory material in the form of school records regarding Lisa DeCarr and Kathy Stevens were also undisclosed (App. 4). One of these records reveals the following notation "4/21 - students said child called from N.Y. Is pregnant." (App. 3). This document is significant because it (1) corroborated Kathy Stevens' original statement to the prosecutor that Lisa had run away to New York because she was pregnant (App. 8); and (2) provided independent corroborating evidence that Lisa was alive significantly after the date and time set forth in the Bill of Particulars. This evidence is also significant as it would have led to additional investigation and other discoverable evidence, for example, the students that actually spoke with Lisa in New York.

3. Undisclosed records from Missing Children's Center. Still more exculpatory material was kept from the defense. The police and the state attorney had in their files a copy of the Missing Children's Help Center's file on the victim (App. 9). According to a notation in that file, Detective Gullo wrote that Barbara DeCarr was wrong when she claimed that she had told the police all along that Mr. Tompkins was the last person to see the victim alive: "Det. Gullo insisted that she did not tell him this" (App. 9) (emphasis in original). Gullo could have been called at trial to demonstrate Barbara DeCarr's bias; without Gullo's statement, the prosecutor was able to argue in closing that Barbara DeCarr "knew who had last seen Lisa alive" (R. 351).

4. Undisclosed deal with Kenneth Turco.

Prosecutor Benito never disclosed to the defense that he would subsequently permit Turco to withdraw his guilty plea to an escape charge within two weeks after Turco's testimony even though Turco had already pled guilty to those charges. At trial, Benito emphasized to the jury that Turco "can be believed" because he is "a man who has got to go back to jail now and run the risk, while he serves a thirty-year sentence being known as a snitch in the prison population" (R. 357) (emphasis added). Benito also told the jury the fact that Turco had already pled guilty to the escape and was pending sentencing at the time of Mr. Tompkins' trial. This left the jury with the impression that Turco would surely serve more than thirty years. In fact, two weeks after Mr. Tompkins' trial, Benito told Turco's sentencing judge:

The jury was never apprised of this significant deal, which clearly would have affected Turco's credibility.

b. Information Known But Not Presented by the Defense.

Considerable information that Lisa DeCarr was alive later in the day of March 24, 1983, and even that she was alive as much as a month or more later, was available to fully apprise the jury of the facts of this case. There was also evidence corroborating Mr. Tompkins' statement that he saw Lisa in the afternoon of March 24, 1983, wearing a maroon blouse and jeans. This evidence was readily available to defense counsel but was never presented; some of this evidence was erroneously kept from the jury due to rulings of the trial court.

Evidence existed indicating that Lisa was alive later in the day on March 24, 1983, and that she was wearing the clothes Mr. Tompkins had said she was wearing that afternoon. Evidence also existed indicating that the victim was alive as much as a month after the day on which the State contended she was murdered. Defense counsel first attempted to elicit this evidence during the cross-examination of Barbara DeCarr to impeach the State's efforts to persuade the jury through her testimony that Mr. Tompkins was the last person to see Lisa alive, as well demonstrate bias against her former boyfriend. The defense inquiries, however, were cut off and the State's objections were sustained based on hearsay. See R. 217-221. Furthermore, during the cross-examination of the lead detective regarding the scope of his investigation, the defense was again limited from eliciting evidence which impeached the detective and supported the defense theory. See R. 285-287; 294-295.

The proffered evidence was not only valid impeachment but also was clearly exculpatory and corroborated by substantial additional evidence which buttressed the trustworthiness of the evidence. A police report filed at the time of Lisa's disappearance stated that it was Wendy Chancey who last saw Lisa at approximately 3:00 p.m. on March 24, 1983:

(App. 10).

Another police report dated April 26, 1983, stated that Lisa had run away to New York because she was pregnant:

(App. 11).

Yet another report, dated June 22, 1983, again by Barbara DeCarr, indicated that "the only information that they had was a neighbor said that they had seen LISA getting into a green car, somewhere in the area of 15th and Osborne (R. 517).

Finally, another police report by Detective Gullo dated September 2, 1983, stated that Lisa had been sighted 6 months after she was allegedly murdered by Wayne Tompkins:

(App. 12).

Despite trial counsel's awareness of these reports, the jury heard none of the specific exculpatory evidence that Lisa DeCarr has been sighted by numerous people on numerous occasions hours, days, and months after the State maintained she was killed by Wayne Tompkins.

Although Petitioner was afforded an evidentiary hearing in state court, he was unable to secure the attendance of a critical witness, Wendy Chancey. On March 30, 1989, Mr. Tompkins was apprised that a death warrant had been signed, and that as a result he had 30 days to file his motion under Fla. R. Crim. P. 3.850. Counsel had only 30 days to fully investigate and prepare the motion, which was filed on May 1, 1989. The evidentiary hearing, which began on May 19, 1989, was ordered on a week's notice while the death warrant was still pending. At the hearing, counsel explained that due to the severe time constraints, Chancey could not be located, and requested leave to amend or present her testimony when she was located. The trial judge denied the request, noting that "the only troublesome part from their standpoint is Wendy Chancey, and there is no reason to think we will find her tomorrow or six months or two years from now" (EH 470-73). Counsel did not stop looking for Chancey, and while Petitioner's case was on appeal, filed a motion in the Florida Supreme Court dated September 12, 1989, entitled "Motion to Remand for Hearing on Additional Evidence" (App. 13); counsel attached an affidavit detailing the efforts made to find Chancey, and that she had in fact been located after a diligent search. The Florida Supreme Court denied the motion (App. 14).

Petitioner was also precluded from presenting the testimony of Kathy Stevens, who had been duly subpoenaed. Stevens was not allowed to testify because the State objected to avoid "this poor girl to have to go through this again if she doesn't have to" (EH 7). After Petitioner's counsel explained the need to call Stevens, the judge stated "I don't see where it's necessary for her to testify for that" (EH 9). The court then told the attorneys to talk with Stevens to "make[] a record of what would be her testimony" (EH 11). The parties spoke to Stevens and reported back to the court (EH 20-23), which ruled: "I will note the defense objection. I am not allowing this witness to be called" (EH 23) (emphasis added).

In his federal habeas petition, Petitioner asserted his right to a federal evidentiary hearing because the state court hearing was not full and fair, and that he clearly had established "cause" for not presenting the testimony of Stevens and Chancy. The Eleventh Circuit held that the district court properly denied a hearing due to the failure to satisfy "cause" under Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). Tompkins, 193 F.3d at 1332. Petitioner submits that certiorari review is warranted as to the Eleventh Circuit's misapplication of Keeney, particularly in light of the recent decision in Williams (Michael) v. Taylor, 120 S.Ct. 1479 (2000).

In Williams, this Court, in addressing the evidentiary hearing provisions of the AEDPA, see 28 U.S.C.  2254 (e)(2), noted that the AEDPA standard for "diligence" was essentially the same standard as enunciated in Keeney. Id. at 1489. Under both the opening clause of  2254 (e)(2) and Keeney, "[t]he question is not whether the facts could have been discovered but instead whether the prisoner was diligent in his efforts. . . . Diligence for purposes of the opening clause depends on whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend, as the Commonwealth would have it, upon whether those efforts could have been successful." Id. at 1490.

Petitioner satisfied cause and prejudice under Keeney and Williams. He "made a reasonable attempt" to secure the presence and testimony of both Chancy and Stevens, but was precluded from doing so by the state action. See Murray v. Carrier, 477 U.S. 478, 488 (1986) ("cause" exists if "the prisoner can show that some objective factor external to the defense impeded counsel's efforts" to present a claim). Conversely, Mr. Tompkins asserts that the state court hearing was neither full nor fair, as he was not permitted to call either Stevens or Chancey. See Shillinger v. Haworth, 70 F.3d 1132 (10th Cir. 1995). As to "prejudice," the Eleventh Circuit's opinion explicitly found that trial counsel was not ineffective for failing to present Chancy at trial because trial counsel "believed she would not make a good witness." Tompkins, 193 F.3d at 1334. The court made this finding, however, without ever affording the Petitioner an opportunity to present Chancy's testimony so that a court could evaluate her reliability. It violates due process and fundamental fairness to preclude a habeas petitioner from presenting testimony while also denying relief because a witness was purportedly "not a good witness." Moreover, the Eleventh Circuit denied Mr. Tompkins' confrontation clause claim because "[t]here is no evidence in the record that at the time of the trial Wendy Chancey remembered anything about the events of the day in question, or that she even remembered Lisa DeCarr." Tompkins, 193 F. 3d at 1334. This finding, too, was made without ever permitting Mr. Tompkins the opportunity to prove otherwise. Certiorari review is warranted; in the alternative, this case should be remanded for a proper analysis under Keeney and Williams.

B. CONFIDENCE IN THE OUTCOME OF PETITIONER'S CAPITAL CASE IS UNDERMINED BY THE CUMULATIVE EFFECTS OF THE STATE'S WITHHOLDING OF EVIDENCE, TRIAL COUNSEL'S PREJUDICIALLY DEFICIENT PERFORMANCE, THE TRIAL COURT'S ERRONEOUS PRECLUSION OF RELEVANT CROSS-EXAMINATION, AND THE PROSECUTION'S FALSE AND/OR MISLEADING ARGUMENTS.

This Court's "duty to administer justice occasionally requires busy judges to engage in a detailed review of the particular facts of a case, even though our labors may not provide posterity with a newly minted rule of law." Kyles v. Whitley, 514 U.S. 419, 455 (1995) (Stevens, J., concurring). Mr. Tompkins finds himself in the position of seeking this Court's intervention to review the cumulative effect of significant constitutional error which permeated his capital trial. While Mr. Tompkins had hoped for and was entitled to meaningful appellate review by the Eleventh Circuit of his constitutional claims, Mr. Tompkins finds himself in this position due to the failure of the Eleventh Circuit and the federal district court to apply the proper law to this case or to even discuss the claims at issue. Because the "materiality" analysis of Brady v. Maryland, 373 U.S. 83 (1963), is the same as the "prejudice" analysis under Strickland v. Washington, 466 U.S. 668 (1984), Mr. Tompkins submits that just as Brady evidence must be considered "collectively, not item-by-item," Kyles, 514 U.S. at 436, cumulative consideration of prejudice and materiality must occur in cases where the combination of evidence suppression and deficient performance is alleged in order to determine whether, in the absence of all the evidence,, Mr. Tompkins "received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Id. at 434. The cumulative analysis must also entail the probability that false and/or misleading argument by the prosecution could have affected the outcome.

Mr. Tompkins alleged the withholding of various statements made by the State's key witness, Kathy Stevens, in violation of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. Stevens' testimony alone, in the words of the prosecutor himself, convicted Wayne Tompkins (R. 349). It is beyond question that Stevens testimony "presented a gripping story" for the State. Strickler, 527 U.S. at 307 (Souter, J., concurring in part and dissenting in part). The suppressed memoranda provide significant impeachment of Stevens' testimony.

The first suppressed memo provided significant impeachment evidence regarding an alleged assault between Lisa and Wayne occurring on Halloween night of 1982. In the suppressed statement, Stevens said that after Lisa hit Wayne, Wayne told Lisa "if you ever hit me again, I will kill you" (App. 8) (emphasis added), yet at trial, Stevens left out that "if you ever hit me again" statement and just testified that Wayne told Lisa "I'm going to kill you" (R. 247). Because this statement was suppressed, the State was free to argue to the jury that Mr. Tompkins had been planning Lisa's murder for five months (R. 347). The second memo provided even more powerful impeachment. At trial, Stevens stated that she went to the house at around 9:00 a.m., not at 8:00 a.m. This change dovetailed with Barbara DeCarr's trial testimony that she left the home at 9:00 a.m. and Lisa was alive and alone at that time. The change in the time was also significant because 8:00 a.m. was not within the time set out in the Bill of Particulars. At trial, Stevens also testified that there was a third person, another man, present and watching while Mr. Tompkins was purportedly attacking Lisa. Stevens made no such claim in her March 13th conversation with Benito. At trial, Stevens claimed that Lisa "asked me to call the police" (R252-53), yet Stevens never mentions this important fact in her statement to Benito. Stevens never testified at trial that Lisa asked Kathy to come back later around 11:00 or 12:00 because she was going somewhere with her mother, which was inconsistent with the testimony of Barbara DeCarr, who testified that Lisa was supposed to be in school but was sick so she stayed home (R. 204). "[T]he evolution over time of a given eyewitness' description can be fatal to its reliability." Kyles, 514 U.S. at 444. "[T]he effective impeachment of one eyewitness can call for a new trial even though the attack does not extend directly to others." Id. at 445.

The State also failed to reveal that after providing the information memorialized in the second memorandum, the prosecutor "arranged a visit with [Stevens] and her boyfriend in the jail because she didn't have proper ID, and I did make it easy for her to get in there. I brought her over to visit her boyfriend" (Testimony of prosecutor Benito) (EH 20). Despite knowing that he had provided Stevens with this benefit, the prosecutor nonetheless argued to the jury that Stevens had no motive to lie (R. 346, 348). The withheld benefit to snitch Turco was also not disclosed, thus leaving the prosecutor free to argue to the jury that Turco "can be believed" because he is "a man who has got to go back to jail now and run the risk, while he serves a thirty-year sentence being known as a snitch in the prison population" (R. 357).

A prosecutor has a duty to disclose favorable treatment given to a witness. Napue v. Illinois, 360 U.S. 264 (1959); Giglio v. United States, 405 U.S. 150 (1972). See also United States v. Williams, 81 F.3d 1434, 1438 (7th Cir. 1996) (government's failure to disclose favors such as allowing witness "contact visits" with family members "could have been used to impeach the witness' credibility. The government's failure to disclose these things was a violation of Brady v. Maryland"). Because the prosecutor "intentionally painted for the jury a distorted picture of the realities of this case in order to secure a conviction," due process was violated. Davis v. Zant, 36 F.3d 1538, 1551 (11th Cir. 1994). The prosecution's use of misleading argument, and vouching for the credibility of its witnesses, knowing of the existence of impeachment evidence, i.e. inconsistent statements and personal benefits, was a violation of due process. Giglio. See also Mooney v. Holohan, 294 U.S. 103 (1935); Gray v. Netherland, 518 U.S. 152 (1996).

The cumulative effect of the suppressed information and the false and/or misleading argument undermine confidence in the result in this case; however, the materiality of the suppressed information in this case is compounded by the prejudice that accrued to Mr. Tompkins due to trial counsel's unreasonably deficient performance. For example, Wendy Chancey was never called to testify regarding her sighting of Lisa DeCarr on the afternoon of March 24, 1983, hours after the State alleged she was murdered by Mr. Tompkins. Nor was she called regarding the fact that when she saw Lisa, Lisa was wearing the identical clothing that Mr. Tompkins told the police that Lisa was wearing the last time he saw her. The Eleventh Circuit did address this claim, concluding, however, upholding trial counsel's alleged strategic decision not to call her because "she would not make a good witness." Tompkins, 193 F.3d at 1334. The Court noted that, at the state court evidentiary hearing, Mr. Tompkins "tried unsuccessfully to show that Wendy Chancey would have been a useful witness for the defense," id, yet Mr. Tompkins was never afforded the chance to call Chancey at an evidentiary hearing, state or federal, in order to do just that. In light of the clear importance of Chancey's police statement, trial counsel's strategy was clearly unreasonable. Williams v. Taylor, 120 S.Ct. 1495, 1514 (2000). Confidence is undermined by the jury's failure to hear Chancey's statement, in addition to the significant information that was withheld by the prosecution. Id. at 1515 (error for a reviewing court to fail to evaluate the "totality" of the evidence adduced at trial and in the postconviction proceedings in order to assess whether confidence was undermined in the result). See also id. at 1516 (trial judge was correct in evaluating "the entire postconviction record, viewed as a whole and cumulative of mitigation evidence presented originally" in order to conclude that prejudice was established). In this case, the Eleventh Circuit failed to even address many of the claims for relief, much less evaluate the cumulative effect of the constitutional errors permeating this case and undermining confidence in the jury's verdict. The trial court's exclusion of relevant exculpatory evidence which trial counsel attempted to elicit, in violation of Davis v. Alaska, 415 U.S. 308 (1974), and Chambers v. Mississippi, 419 U.S. 284 (1973), must also be evaluated in order to determine whether a just result obtained in Mr. Tompkins' case. Certiorari review is warranted; in the alternative, a remand to the court of appeals is warranted so that these claims can be fully addressed.

C. THE ELEVENTH CIRCUITS DISPOSITION OF THE PREJUDICE ANALYSIS UNDER STRICKLAND V. WASHINGTON WAS ERRONEOUS AS A MATTER OF LAW.

Mr. Tompkins asserted that he received ineffective assistance of counsel at the penalty phase of his capital trial due to counsels failure to adequately investigate potential mitigation. Following the state court evidentiary hearing, the trial court found as a matter of fact that trial counsels performance was deficient. The Florida Supreme Court agreed that counsels performance was deficient, but found no prejudice because the unpresented mitigation would not have affected the penalty in light of the crime and the nature of the aggravating circumstances. Tompkins v. Dugger, 549 So. 2d 1370, 1373 (Fla. 1989). The federal habeas court did not address deficient performance, nor did the Eleventh Circuit, which only found no prejudice. Tompkins v. Moore, 193 F.3d at 1336.

Petitioner submits that the Eleventh Circuits prejudice analysis was erroneous under the dictates of the Sixth Amendment as recently set forth in Williams (Terry) v. Taylor, 120 S.Ct. 1495 (2000). In fact, his case presents an even more compelling demonstration of prejudice under Strickland v. Washington, 466 U.S. 668 (1984). Although the Eleventh Circuit paid lip-service to the principle that it was required to look at the mitigating circumstance evidence that was not presented, along with that which was, and consider the totality of it against the aggravating circumstances that were found, Tompkins, 193 F.3d at 1336, the court then engaged in a wholly improper prejudice analysis. It is patently clear from the tenor of the opinion that the true basis for its conclusion that Mr. Tompkins failed to establish prejudice was that the panel personally questioned the validity of the mitigation, not whether the unpresented mitigation, along with the evidence that was presented, might well have influenced the jurys appraisal of [Mr. Tompkins] moral culpability. Williams, 120 S.Ct. at 1515.

In Mr. Tompkins case, no factfinder ever made any findings with respect to the mitigation that was not presented due to counsels deficient performance. In fact, during the state court evidentiary hearing, the State conceded the "credibility regarding the background, foster care, and so forth" (EH 318), yet the Eleventh Circuit dismissed both the family member mitigation and the testimony of Mr. Tompkins mental health expert as, essentially, lacking in credibility. As to the mental health expert, the panel made no pretense at objectivity, concluding, without ever laying eyes on her, that she was palpably biased. Tompkins, 193 F.3d at 1339. Appellate courts do not sit to reweigh evidence [and] assess the credibility of witnesses . . . . Banks v. Reynolds, 54 F.3d 1508, 1521 (10th Cir. 1995). The issue is not whether, in the view of the Eleventh Circuit panel, the quality of the mitigation undermined confidence in the outcome. Rather, the issue is whether the unpresented mitigation may alter the jurys selection of the penalty . . . if competent counsel had presented and explained the significance of all the available evidence. Williams, 120 S.Ct. at 1516. That the Eleventh Circuit judges believed that Dr. Fleming was palpably biased is irrelevant, as this could not possibly have affected the jurys appraisal of [Dr. Flemings] credibility at the time of [Mr. Tompkinss] trial[]. Kyles v. Whitley, 514 U.S. 419, 449 (1995). Certiorari review is warranted, and Mr. Tompkins death sentence should be vacated; in the alternative, certiorari should be granted and the judgment of the Eleventh Circuit vacated with directions to conduct a proper prejudice analysis.

D. CONCLUSION.

Based on the foregoing, Petitioner submits that certiorari review is warranted to review the decision of the Eleventh Circuit Court of Appeals in this cause, and that Petitioner's unconstitutional conviction and death sentence be vacated.

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by United States Mail, first class postage prepaid, to all counsel of record on June 12, 2000.

TODD G. SCHER

Florida Bar No. 0899641

Litigation Director

101 NE 3d Avenue, Suite 400

Ft. Lauderdale, FL 33301

(954) 713-1284

Attorney for Petitioner

Copies furnished to:

Robert Landry, Esq.

Department of Legal Affairs

Westwood Building, 7th Floor

2002 North Lois Avenue

Tampa, FL 33607