Case No. 09-53

IN THE UNITED STATES SUPREME COURT

WILLIAM HAROLD KELLEY,Petitione~’,

STATE OF FLORIDA,Respondent.

ON PETITION FOR A WRIT OF CERTIORARITO THE SUPREME COURT OF FLORIDA

RESPONDEN’FS BRIEF IN OPPOSITION

BILL McCOLLUMAttorney General

Tallahassee, Florida

CAROL M. DITTMAR*Senior Assistant Attorney General

Florida Bar No. 0503843*Counsel of Record

Office of the Attorney GeneralConcourse Center 4

3507 E. Frontage Road, Suite 200Tampa, Florida 33607

Telephone: (813) 287-7910Facsimile: (813) 281-5501

COUNSEL FOR RESPONDENT

QUESTION PRESENTED FOR REVIEW

[Capital Case]

[Restated]

Whether this Court should exercise its certiorarijurisdiction to review the denial of a claim underBrady v. Maryland, 373 U.S. 83 (1963), where theruling does not conflict with any other court opinionor address any unsettled question of federal law?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ..................i

TABLE OF AUTHORITIES ......................................iii

STATEMENT OF THE CASE AND FACTS ..............1

REASONS FOR DENYING THE WRIT ..................15

THE FLORIDA SUPREME COURT’SCORRECT, FACT-SPECIFIC DENIAL OFRELIEF UNDER BRADY V. MARYLANDDOES NOT WARRANT EXERCISE OF THISCOURT’S CERTIORARI JURISDICTION

CONCLUSION ..........................................................22

APPENDIX .......................................................A1-A46

ii

TABLE OF AUTHORITIES

State Cases

Kelley v. Crosby,874 So. 2d 1192 (Fla. 2004) ...................................11

Kelley v. Dugger,597 So. 2d 262 (Fla. 1992) .......................................9

Kelley v. State,3 So. 3d 970 (Fla. 2009) ...................................14, 16

Kelley v. State,486 So. 2d 578 (Fla.),cert. denied, 479 U.S. 871 (1986) .....................1, 5, 7

Kelley v. State,569 So. 2d 754 (Fla. 1990) ...................................8, 9

Kelley v. State,974 So. 2d 1047 (Fla. 2007) ...................................13

Mordenti v. State,894 So. 2d 161 (Fla. 2004) .....................................19

Federal Cases

Brady v. Maryland,373 U.S. 83 (1963) ..........................................passim

Ellsworth v. Warden,333 F.3d 1 (1st Cir. 2003) ......................................18

Hoke v. Netherland,92 F.3d 1350 (4th Cir. 1996) ..................................18

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Kelley v. Crosbv,545 U.S. 1149 (2005) ..........................................1, 11

Kelley v. Florida,479 U.S. 871 (1986) ..................................................1

Kelley v. Secretary of the Department of Corrections,377 F.3d 1317 (llth Cir. 2004) .............................. 10

Kelley v. Singletary,238 F. Supp. 2d 1325 (S.D. Fla. 2002) ...................10

Kyles v. Whitley,514 U.S. 419 (1995) ..........................................15, 17

Ring v. Arizona,536 U.S. 584 (2002) ................................................11

Strickler v. Greene,527 U.S. 263 (1999) ................................................16

United States v. Baglev,473 U.S. 667 (1985) ..........................................15, 16

Wood v. Bartholomew,516 U.S. 1 (1995) ..............................................15, 18

Other Authorities

Sup. Ct. R. 10 .............................................................21

iv

STATEMENT OF THE CASE AND FACTS

This petition seeks review of an opinion of theFlorida Supreme Court denying relief requestedpursuant to Brady v. Maryland, 373 U.S. 83 (1963).Petitioner, William Kelley, is currently incarceratedon Florida’s death row, sentenced in 1984 followinghis conviction for first degree murder in the 1966death of wealthy citrus farmer Charles Von Maxcy.Kelley v. State, 486 So. 2d 578, 579-80 (Fla.), .cert.denied, 479 U.S. 871 (1986). This Court has deniedcertiorari review of this case on two prior occasions:following his direct appeal, when Kelley challengedthe Florida Supreme Court’s opinion that his dueprocess rights were violated when the Statedestroyed evidence prior to trial, Kelley v. Florida,479 U.S. 871 (1986); and again following theEleventh Circuit Court of Appeals opinion reversingthe granting of habeas corpus relief by the UnitedStates District Court for the Southern District ofFlorida, Kelley v. Crosby, 545 U.S. 1149 (2005).

Respondent disagrees with the Statement of theCase included in the certiorari petition as filed,which outlines both the procedural history and thefactual background of Kelley’s prosecution for theMaxcy murder. Among this recitation are severalimproper inferences and a few critical omissions,resulting in a Statement biased in Kelley’s favor. Forexample, the Statement suggests that Kelley’s trialattorneys were not aware that there was evidencecollected from the crime scenes, tested by the FloridaSheriffs Bureau (FSB) in 1966 and 1967, thenreturned to the submitting agency, the HighlandsCounty Sheriffs Office (HCSO). However, it is

undisputed that Kelley’s attorneys had a copy of atranscript from Sweet’s trial, which described theevidence that had been collected, outlined the chainof custody for the evidence that was submitted to theFSB and then returned to the HCSO, and identifiedthe specific items of evidence which were admittedagainst John Sweet at his trial. In addition, this is amatter of routine procedure in Florida investigations,and at least Kelley’s local attorney, an experiencedcriminal defense attorney, would have been familiarwith this procedure. Furthermore, one of thewitnesses at the postconviction evidentiary hearingtestified that the evidence in this case had beenreturned from the lab after testing to the localsheriffs office.

Also, in the initial state court postconvictionproceedings, Kelley’s trial attorneys testified thatthey had investigated the destruction of all of theevidence prior to trial, and had learned that the Statehad not only destroyed the evidence which had beenadmitted at Sweet’s trial, but had also destroyed theevidence which had been collected from the crimescenes but not admitted against Sweet (which thepetition refers to as "non-Sweet crime evidence").Both of Kelley’s trial attorneys are now deceased.

Kelley’s Statement of the Case is also written in aconfusing manner which, rather than simply statingthe facts, offers questionable conclusions and focusesmore on what was not asserted in prior litigation.Kelley attempts to portray the State in a bad light,by accusing the State of failing to make argumentspreviously which the State would have no reason tomake. For example, Kelley asserts that, inresponding to the claim of evidence destruction in

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Kelley’s direct appeal, the State "did not adviseKelley or the court that the non’Sweet crime sceneevidence had not actually been destroyed pursuant tothe 1976 court order because it had instead remainedin the possession of the submitted authorities"(Petition, p. 6). However, there is no basis to believethat any of this evidence still existed after the 1976destruction order. Kelley now claims that this "non-Sweet" evidence existed after 1976 and through thetime of his 1984 trial, which is the basis of his claimthat the trial court’s instruction to the jury that therewas no additional evidence to be considered waserroneous. There is, however, absolutely no evidenceto support his new personal belief that this evidenceexisted after the Sweet evidence was destroyed in1976.

Kelley also takes great liberties with offering factsas to his knowledge about the evidence in his case.For example, he asserts that he filed his 2007 Bradyclaim for postconviction relief "having finally beentold by the State for the first time that much of thecrime scene evidence had not been included withinthe materials permitted to be destroyed in 1976under the court order" (Petition, p. 10-11) (emphasisin original). Apparently Kelley feels that he was"told" the evidence still existed after 1976 by thedisclosure of these "evidence disposition forms,"which offered no clue as to whether the evidenceexisted after 1976 but merely memorialized that theevidence was returned from FSB to HCSO in 1966and 1967. Although the State provided the forms,the State has not "told" Kelley or otherwise taken theposition that this non-Sweet evidence still existedafter 1976.

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For these reasons, Respondent does not agree tothe Statement of the Case recited in the Petition, andoffers the following factual background, beginningwith the facts as noted by the Florida Supreme Courtin Kelley’s direct appeal:

Appellant’s conviction represented theresolution of a highly unusual case, raisingsome unusual issues. Appellant was indictedin December of 1981 for the Maxcy murder,committed in October of 1966. An explanationof this delay in prosecution requires anexamination of the figures involved and theevidence adduced at appellant’s trial.

John Sweet, involved in an illicit love affairwith Irene, the victim’s wife, planned themurder so that he and she could live togetheron Maxcy’s inheritance. Towards this end,Sweet contacted a Walter Bennett inMassachusetts and made the necessaryarrangements. A price was set, and in earlyOctober of 1966 appellant Kelley and one VonEtter carried out the sinister task.

Because prosecutors found the evidenceinsufficient to proceed against appellant andVon Etter, and because Irene Maxcy receivedimmunity in return for her testimony in thecase, only Sweet was originally tried. His firsttrial resulted in a mistrial, and the convictionresulting from his second trial was reversed onappeal. Sweet v. State, 235 So.2d 40 (Fla. 2dDCA), cert. denied, 239 So.2d 267 (Fla. 1970).

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At that point, the state felt unable toproceed against Sweet due to the lapse of timeand the loss of certain witnesses’ testimony.Thus, the case lay dormant for over ten years.This standstill was broken only after Sweet, in1981, became involved in a criminal situationhe found threatening and approached lawenforcement authorities in order to seek someprotection by receiving immunity in return forhis testimony as to a wide variety of crimes.

It was this testimony upon whichappellant’s indictment and prosecution in thiscase were centrally based. Sweet testified asto the details of the planning and execution ofthe murder, as well as to a purportedconversation with appellant several years afterthe murder in which appellant allegedly said"Boy, [Maxcy] was a powerful guy. I stabbedhim three or four times and he kept comingafter us, so I had to shoot him in the head."The other central testimonial evidencepresented in appellant’s trial below was that ofone Abe Namia, a private detective originallyhired after the murder by Sweet’s defensecounsel. Namia testified as to some purportedstatements of Sweet’s made in 1967incriminating appellant. The statements wereadmitted to rebut an inference of recentfabrication established by the rigorous cross-examination of Sweet as to his extensiveimmunity and possible motives to fabricate.

Kelle~, 486 So. 2d at 579-580.

Following the reversal of Sweet’s conviction, theState’s inability to proceed against him resulted inhis discharge on speedy trial grounds in 1971. In1976, the State of Florida petitioned the court andobtained permission to destroy the physical evidencewhich had been admitted during Sweet’s trials.Sweet ultimately returned to Massachusetts and, in1981, approached authorities there regardingcriminal activity taking place in that state. WithSweet’s cooperation, Florida officials obtained anindictment against Kelley for Maxcy’s murder inDecember 1981. At that time, Kelley was "on therun" from the law and sought as a fugitive. Kelleywas apprehended in Tampa, Florida, on June 16,1983.

The principal witness against Kelley was JohnSweet, who identified Kelley as one of two men thatSweet had hired to kill Maxcy. According to Sweet,the hit men stayed at a hotel in Daytona, and methim at a shopping center in Sebring on the day of themurder. Sweet drove the men to Maxcy’s home intheir car and dropped them off, telling them the frontdoor was unlocked and Maxcy would be home shortly.He returned their car to the shopping center parkinglot, picked up his own car, and drove around for awhile until he saw Maxcy’s car parked at theshopping center, signaling the mission had beenaccomplished. A great deal of evidence waspresented to corroborate Sweet’s testimony as toMaxcy’s murder, including bank records, phonerecords, car rental and hotel records.

A deputy testified that fingerprints were liftedfrom the crime scene and from Maxcy’s car, but that,to his knowledge, the prints were never identified.

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Several crime scene photographs were admitted,showing a great deal of blood in the Maxcy house.Investigator Murdock testified, however, that noblood was found in Maxcy’s abandoned car, a pointemphasized in the defense closing argument.

The jury convicted Kelley and, following a penaltyphase, recommended that the death sentence beimposed. Judge Bentley followed the jury’srecommendation and imposed a sentence of death onApril 2, 1984.

On appeal, Kelley challenged the trial court’srefusal to dismiss the case based on the delay andloss of evidence. In a supplemental brief, Kelleyasserted the destroyed evidence included, "hairsamples, fingernail scrapings, blood samples andscrapings, carpet sections, a brake pedal and floormat from the victim’s car, the victim’s clothing, ablood stained sheet alleged to have covered thevictim, bullets, and other items." The FloridaSupreme Court denied relief and affirmed theconviction and sentence imposed. Kelle~:, 486 So. 2dat 582, 586.

State postconviction proceedings were initiatedwhen Kelley filed a motion to vacate on November20, 1987. The motion alleged that crime sceneevidence, in addition to that evidence known to havebeen destroyed pursuant to court order from Sweet’strial, had been destroyed. This claim was rejected asprocedurally barred. Another claim, asserting thatKelley’s trial attorneys provided ineffectiveassistance of counsel byfailing to adequatelyinvestigate the destructionof the evidence, waslitigated at an evidentiaryhearing in July, 1988.

Kelley alleged that counsel were deficient regardingthe destruction of evidence admitted at Sweet’strials, as well as other evidence collected during theinvestigation.

The motion to vacate offered sworn affidavits fromboth of Kelley’s trial attorneys, specifically stating:"In preparing for the trial of William Kelley, itbecame clear at some point that evidence from theSweet trial as well as the fruits of the policeinvestigation in the case had been destroyed." Theseaffidavits were admitted as substantive evidenceduring the postconviction hearing.

The postconviction motion was denied, a rulingwhich was affirmed on appeal. Kelley v. State, 569So. 2d 754 (Fla. 1990). Judge Bentley’s extensivefactual findings were adopted and incorporated intothe appellate opinion, which addressed thedestruction of crime scene evidence claim as follows:

Kelley first argues that the state’sdestruction of material evidence prior to histrial deprived him of his constitutional rights.In the prior appeal, this Court explained thatbecause the case involving Maxcy’s death hadbeen closed for many years, the state obtainedan order permitting the destruction ofevidence. Several years later, the stateinitiated the prosecution of Kelley when newevidence came to light. This Court concludedthat the state had not been negligent incausing the destruction of evidence and furtherheld that the destruction of the evidence inquestion did not prejudice Kelley’s case.

Kelley now argues that certain crime sceneevidence was destroyed which was notencompassed within this Court’s earlier ruling.However, it appears that many of the itemscharacterized as "additional evidence" werediscussed in a supplemental brief in Kelley’soriginal appeal. Thus, while our opinion didnot specifically discuss such additionalevidence, it is clear that the issue was decidedadversely to Kelley. Further, in affidavitssubmitted in support of the motion forpostconviction relief, Kelley’s trial counseladmitted knowing that the fruits of the policeinvestigation had been destroyed. The statewas not at fault in the destruction of theevidence. Kelle~:, 486 So.2d at 581. Thedestruction of evidence in this case did notdeprive Kelley of due process of law. SeeArizona v. Youngblood, 488 U.S. 51, 109 S.Ct.333, 102 L.Ed.2d 281 (1988) (unless defendantshows bad faith on the part of the police,failure to preserve potentially useful evidencedoes not constitute a denial of due process).

Kelley, 569 So. 2d at 756. The Florida SupremeCourt also denied a petition for writ of habeas corpus,which alleged that Kelley’s appellate attorneys hadrendered ineffective assistance in his direct appeal.Kelley v. Dugger, 597 So. 2d 262 (Fla. 1992).

Kelley then filed a federal petition for writ ofhabeas corpus in the United States District Court,Southern District of Florida, asserting six issues,including a challenge to the destruction of all of thephysical evidence - that admitted at Sweet’s trial aswell as other fruits of the police investigation. The

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district court issued an Order granting habeas reliefpursuant to Brady v. Maryland, 373 U.S. 83 (1963),on September 19, 2001, followed by an Order ofDecember 30, 2001, finding that Kelley’s trialattorneys provided ineffective assistance of counsel.Kelley v. Singletary, 238 F. Supp. 2d 1325 (S.D. Fla.2002). The Dec. 30 Order also denied Kelley’s claimon the destruction of evidence. Id., at 1329-31.

On appeal, the Eleventh Circuit rendered anextensive opinion reversing the grant of habeasrelief, and reinstating Kelley’s conviction andsentence. Kelley v. Secretary of the Department ofCorrections, 377 F.3d 1317 (11th Cir. 2004). TheEleventh Circuit characterized the district court as"naive," [377 F.3d at 1340], flawed by a "hastyassumption," [377 F.3d at 1341], and "odd," [377 F.3dat 1347, n.30], finding it "obvious" that the districtcourt was confused on the facts [377 F.3d at 1359],finding the district court’s conclusion on one issue"strains credulity," "is preposterous," and contrary tothe record before the district court [377 F.3d at 1359].The Eleventh Circuit concluded that the districtcourt committed clear error on a number of levels: byconducting a second evidentiary hearing in federalcourt; by granting relief on a procedurally barredclaim which had never been exhausted in state court(and expressing "serious skepticism" as to whetherrelief could have been granted on the merits, even ifthe claim had been properly exhausted, see 377 F.3dat 1351); and by granting relief on a Brad~ claimwhich should have been rejected on its merits, as ithad been in state court. Kelle_v, 377 F.3d at 1340,1343, 1354, 1369. Kelley sought certiorari review inthis Court, which was denied on June 27, 2005.

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Kelley v. Crosby, 545 U.S. 1149 (2005).

Kelley filed a successive state habeas petition inthe Florida Supreme Court in October, 2003,presenting a claim for relief pursuant to Ring v.Arizona, 536 U.S. 584 (2002). The petition wasdenied on May 4, 2004. Kelley v. Crosb.v, 874 So. 2d1192 (Fla. 2004).

Thereafter, Kelley filed a motion seekingpostconviction DNA testing on twenty-nine items ofevidence which had been collected during theinvestigation, but not admitted at Sweet’s trial. Thecircuit court denied the motion following anevidentiary hearing, specifically finding that theevidence sought to be tested no longer existed. TheFlorida Supreme Court’s opinion affirming the denialof Kelley’s DNA motion set forth the testimonypresented at the evidentiary hearing:

At the evidentiary hearing on June 6, 2006,ten witnesses testified. The first nine testifiedregarding their efforts to locate the evidenceKelley was seeking. These witnesses, afterdiligent searches, were unable to locate any ofthe requested items. First, Tina Barber,records custodian for the Highlands CountySheriffs Office, was unable to find anyevidence in her office relating to Kelley’s case.She found only a letter stating that olderreceipts were turned over to the attorneys inBartow. Cecilia High, supervisor of propertyand evidence at the Highlands CountySheriffs Office, searched the property storagefacility but could not find anything. Dr. MartaCoburn, chief medical examiner for Collier

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County, found nothing. Sheli Wilson, theDistrict 10 medical examiner’s office manager,and her staff searched but found nothingrelated to Von Maxcy’s death. SuzanneLivingston, forensic services director for theFlorida Department of Law Enforcement(FDLE), found four disposition forms in thecase files indicating that the evidence had beenreturned to the submitting agency, theHighlands County Sheriffs Office, but foundnone of the requested evidence. JudyBachman, Director of Criminal Court Servicesfor the Highlands County Clerk of Courts,found evidence relating to Kelley’s case,including a sealed envelope containing posterboards, photos, hotel receipts, and paperevidence introduced as exhibits in Kelley’s firsttrial. She also found an order releasing someevidence in a related case, but she found noneof the items requested. John King, specialagent supervisor for the FDLE Sebring office,searched inventory and files but foundnothing. Terry Wolfe, Tenth Judicial CircuitState Attorney investigator, searched both theSebring and Bartow evidence lockers andfound nothing. Sebring Assistant StateAttorney Steve Houchin retrieved the boxes ofcase files for this case from the Sebring fileroom and delivered them to Wolfe to deliver toAssistant State Attorney Victoria Avalon, whorepresented the State in this proceeding.Houchin confirmed that there were no otherfiles from this case in the file room. He notedthat the state attorney does not keep items of

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evidence; items that are not admitted at trialare retained by the local investigating agency.

The final witness was Dr. Martin Tracey,professor of biological studies at FloridaInternational University. He testified asKelley’s expert witness in the area ofpopulation genetics. Dr. Tracey discussed theability of DNA testing to identify an individualto nearly a one hundred percent degree ofcertainty.

Kelley v. State, 974 So. 2d 1047, 1048-50 (Fla. 2007).

Suzanne Livingston testified at the hearing that,in investigating the request for DNA testing, shelocated the case files and found disposition formsindicating that the evidence had been returned to thesubmitting agency, the Highlands County SheriffsOffice. She noted that the Florida Sheriffs Bureauwas the predecessor to FDLE and that the policy in1966, as it still is today, was to not retain anyevidence but return everything to the submittingagency once their lab analysis was complete.

While the DNA appeal was pending in the FloridaSupreme Court, Kelley’s attorneys filed a successivepostconviction motion which claimed that the FSBdisposition forms had been withheld from the defensein violation of Brady v. Maryland, 373 U.S. 83 (1963).The court summarily denied the successive motion,finding it "unlikely" that Kelley’s trial attorneys werenot aware of the information on the evidencedisposition forms (Pet. App. 8a-9a), and finding thatthe information on the forms was "not exculpatory orimpeaching in any way," (Pet. App. 9a). Mostsignificant for Kelley’s current petition, the court also

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observed that "there is no reasonable probability thatthere would have been a different result at trial if theevidence disposition forms had been available fortrial preparation or if the forms had been introducedat trial," noting "there is no reasonable probabilitythat the forms would have led to the discovery of theactual crime scene evidence, which was destroyedprior to trial" (Pet. App. 9a).

On appeal, the Florida Supreme Court affirmedthis ruling, specifically reiterating "the recorddemonstrates that the evidence disposition forms atissue are neither favorable nor material" (Pet. App.17a); Kelley v. State, 3 So. 3d 970, 973 (Fla. 2009).The court held that there was no reasonableprobability of a different result had the forms beendisclosed, and that the court’s confidence in theoutcome was not undermined (Pet. App. 17a-18a). Inaddition, the court noted its findings from the earlierDNA appeal, that evidence had been destroyed in1976 and could not be located, despite a diligentsearch, concluding, "we do not see how evidencedisposition forms indicating that certain evidencewas returned to local officials in 1966 and 1967would have enabled Kelley to discover evidence thatwas destroyed by court order in 1976 and could notbe located despite a diligent search" (Pet. App. 18a).The court also denied another state habeas petition,which disputed the court’s prior findings that thisevidence had been destroyed before Kelley’s trial,finding the claim presented to be procedurally barred(Pet. App. 18a-19a).

This petition seeks review of that opinion.

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REASONS FOR DENYING THE WRIT

THE FLORIDA SUPREME COURT’SCORRECT, FACT-SPECIFIC DENIAL OFRELIEF UNDER BRADY V. MARYLANDDOES NOT WARRANT EXERCISE OF THISCOURT’S CERTIORARI JURISDICTION

Kelley asserts that this Court must exercisecertiorari review in this case to resolve a split amongcircuit courts as to whether Brady v. Maryland, 373U.S. 83 (1963), requires the suppressed evidence tobe material and exculpatory or whether a Bradyviolation occurs when the evidence is not material orexculpatory but the defendant speculates, withoutany substantiation, that the suppressed informationcould lead to material, exculpatory evidence. Reviewmust be denied for a number of reasons; as will beseen: (1) the opinion below did not conflict with anyopinions from this Court; (2) the court below did notconsider or analyze Kelley’s current claims regardingcircuit conflicts and the alleged circuit conflicts citedare not implicated in this case; and (3) the courtbelow properly denied Kelley’s fact-specific claim.

Kelley asserts initially that the Florida SupremeCourt’s denial of relief conflicts with Brady itself,with Kyles v. Whitley, 514 U.S. 419 (1995), withUnited States v. Baglev, 473 U.S. 667, 682 (1985),and with Wood v. Bartholomew, 516 U.S. 1 (1995), byapplying a "narrow" construction of the Bradymateriality standard; according to Kelley, the FloridaSupreme Court rejected his claim of materialitybased only on the finding that the forms themselveswere not exculpatory or material, and refused to

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consider or analyze Kelley’s claim that the forms mayhave led to the discovery of the original crime sceneevidence, including hair and fingernail scrapings.Kelley concludes that the court below erred inapplying _~_a__~_: "the court should have determined(i) whether the evidence forms would have ledKelley’s counsel to locate the non-Sweet trialevidence identified by the forms and (ii) what theeffect of that evidence would have been on the jury"(Petition, pp. 18-19).

The first flaw in Kelley’s plea for review is thatthe Florida Supreme Court did exactly what Kelleyclaims it should have done. The Court specificallyconsidered whether the evidence disposition formscould have led to the discovery of any crime sceneevidence and held, "we do not see how evidencedisposition forms indicating that certain evidencewas returned to local officials in 1966 and 1967would have enabled Kelley to discover evidence thatwas destroyed by court order in 1976 and could notbe located despite a diligent search." Kelle_v, 3 So. 3dat 973; Pet. App. 18a. Clearly, as the opinionexpressly indicates, the Florida court did not limit itsanalysis to the value of the forms themselves, butconsidered the effect that disclosure of the formsmight have had on preparation of the defense.

There is no language in the opinion below whichsupports Kelley’s claim that the court limitedconsideration of the alleged Brads: forms to a"narrow" view of whether those particular documentsalone could change the outcome of the trialproceedings. The court cited the correct standard,quoting Bagley and Strickler v. Greene, 527 U.S. 263(1999). The court specifically observed that its

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confidence in the outcome had not been undermined,and that there was no reasonable probability of adifferent result, had the forms been disclosed prior totrial.

To the extent that Kelley asserts that the decisionbelow conflicts with _K_yles because the FloridaSupreme Court did not expressly consider thecumulative effect of other alleged Brady violationsasserted in prior proceedings, no conflict existsbecause Kelley never requested that such an analysisbe conducted. See Initial Brief of Appellant, Kelley v.State, Case No. SC08-608 (Resp. App. 1). Inaddition, no such analysis is necessary since thecourt found that the information was notexculpatory, and the trial court had found it was"unlikely" that Kelley’s trial attorneys did not knowthis information prior to trial. No conflict with Bradvor any other case from this Court can be discerned inthe opinion below.

In asserting that certiorari review is necessary,Kelley submits that there is conflict between thefederal circuits as to whether Bradv is satisfied witha "narrow" review considering only the actualdocuments or materials that were not disclosed, orwhether it requires a "broader" review which alsoconsiders the impact which disclosure of thedocuments or materials might have had on thedefendant’s ability to prepare for trial. He cites casesfrom the Second, Sixth, Seventh and Ninth Circuits,which "unambiguously take a broader view of themateriality inquiry" and, according to Kelley, therebyconflict with the opinion rendered below (Petition, p.19). However, as explained above, the FloridaSupreme Court alsotook the broader view,

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specifically finding that the evidence forms could nothave led to the discovery of crime scene evidence,since that evidence had been destroyed in 1976.Kelley does not cite any other cases which he claimstake the impermissible narrow view, so if there isindeed conflict on this point, it is not demonstratedby Kelley’s petition; the decision below does notconflict with any of the cases noted in the petition onthis point.

Kelley also asserts that there is a related conflict,"that a ruling in this case would almost certainlyresolve" regarding whether a viable Brad~ claim canbe brought if the evidence alleged to have beenwithheld is itself inadmissible (Petition, p. 20).While the First Circuit appears to have recognized

such a conflict in Ellsworth v. Warden, 333 F.ad 1, 5(lst Cir. 2003) (en banc), again any possible conflictis not implicated on the facts of this case.1 Kelleysuggests that the Florida Supreme Court determinedthat the evidence disposition forms in this case were

not admissible, and therefore concluded, without

1 Kelley and the Ellsworth court identify a Fourth Circuit case,

Hoke v. Netherland, 92 F.ad 1350 (4th Cir. 1996), as a casewhich holds that Brady is not implicated by the failure todisclose evidence which is inadmissible. Hoke reversed adistrict court’s decision to grant habeas relief under Brad~; thecourt commented, in a footnote, that if the undisclosedstatements were inadmissible, they may be "immaterial" underBrady, citing Wood v. Bartholomew. Id., at 1356. However, forpurposes of its opinion, the court assumed that the statementswould be admissible and it did not reject Brads on that basis.Whether Hoke or any other case conflicts with Wood is notrelevant to Kelley’s petition, since the Florida Supreme Courtbelow did not offer any misunderstanding of Wood or any othercase.

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further analysis, that they could not be deemed to beexculpatory or material. While admissibility is oftena factor strongly associated with materiality, theFlorida Supreme Court did not make any finding asto the admissibility of these forms in denying relief.The trial court had, in fact, concluded that there wasno reasonable probability of a different result "if theevidence disposition forms had been available fortrial preparation or if the forms had been introducedat trial" (Pet. App. 9a). Moreover, it is clear fromother cases that the Florida Supreme Court does notfeel constrained to limit Brady’s application to onlyadmissible evidence. See Mordenti v. State, 894 So.2d 161, 173 (Fla. 2004) (granting a new trial underBrad_v where State failed to disclose information;"even if inadmissible it was, at a minimum, at leastrelevant information that would have led the defenseto discover evidence for the impeachment of Gail;"concluding that, by withholding information, "theState precluded Mordenti from defending himselffully and fairly").

Since neither of the Florida state courtscharacterized the evidence forms in this case asinadmissible or limited the consideration ofmateriality to the question of admissibility, any splitamong the circuit courts as to whether a Brad~v claimmay be premised on the failure to disclose documentswhich are not themselves admissible is notimplicated in this case. To the extent that such asplit exists, it would clearly not be resolved in a casewhere the challenged legal principle was not evennoted or applied.

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Despite Kelley’s attempt to portray it differently,the Florida Supreme Court rejected Bradx in thiscase after due consideration of all potentialimplications. The court below did not conclude thatthe evidence disposition forms were inadmissible andtherefore no possible Brad_v claim could be brought; itinstead analyzed the "withheld" documents at facevalue, and considered whether the forms could haveled to the discovery of any other evidence, findingthat they could not. Although Kelley now disputesthe state courts’ finding that even the non-Sweetevidence was destroyed years before his trial, he hasno evidence contrary to this finding, which is clearlysupported by the extensive record.

Finally, certiorari review should be denied in thiscase because the Florida Supreme Court applied thecorrect standard and reached the correct result.Even presuming that the hair, fingernail scrapings,and bloody carpet sample were still available to befound and used in his trial, no different outcome ispossible, let alone probable. Kelley asserts that thejury would have rejected John Sweet’s testimony ifthe defense could establish that the scene was verybloody while the car driven from the victim’s homeafter the murder had no blood, but the jury was wellaware that these were the facts; the defense madethis same argument, supported by the testimony,during the trial. In addition, Kelley puts much onthe court’s instruction to the jury that there was no"more" or "clearer" evidence, but he has failed todemonstrate that any such evidence existed in 1984.

2O

Rule 10 of the Rules of the Supreme Court of theUnited States identifies the relevant considerationsin determining the propriety of certiorari review:review is to be granted only for compelling reasons,such as when a decision conflicts with anotheropinion on an important legal principle or addressesan unsettled question of federal law. Kelley hasclearly failed to demonstrate that any suchcompelling reasons exist for the granting of certiorarireview in this case. Therefore, this Court must denyhis pending petition for writ of certiorari.

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CONCLUSION

Based on the foregoing, Respondent respectfullyrequests that this Court deny the petition for writ ofcertiorari.

Respectfully submitted,

BILL McCOLLUMATTORNEY GENERAL

CAROL M. DITTMAR*Senior Assistant Attorney GeneralFlorida Bar No. 0503843*Counsel of Record3507 East Frontage Road, Suite 200Tampa, Florida 33607-7013Telephone: 813-287-7910Facsimile: 813-281-5501

COUNSEL FOR RESPONDENT

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