No. 12-15502

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

W. Dexter Harrison Petitioner-Appellant,

versus

United States of America Respondent-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

PETITION FOR REHEARING WITH SUGGESTION FOR REHEARING EN BANC

W. Dexter Harrison FCC - Low Unit A-4 P.O. Box 1031 Coleman, FL 33521-1031

I

Certificate of Interested Persons And Corporate Disclosure Statement

Appellant W. Dexter Harrison files his Certificate of Interest Persons and

Corporate Disclosure Statement, listing the persons and entities with an interest in this appeal, as required by 11th Circuit Rule 26.1.

Amodeo, Frank, Writ Writer for Petitioner-Appellant

Brimberry, Jerry, Former Attorney for Petitioner-Appellant

Carswell, William J., Former Attorney for Petitioner-Appellant

Cook, Bobby L., Former Attorney for Petitioner-Appellant

Crane, James N., Assistant United States Attorney

Garland, Samuel & Loeb, P.C.

Harrison, W. Dexter, Petitioner-Appellant

The Hononorable Thomas Q. Langstaff, United States Magistrate Judge

The Honorable Hugh Lawson, United States District Court Judge for the Middle District of Georgia

McEwen, Leah E., Assistant United States Attorney

Nicholson, Myra P., Attorney for Petitioner-Appellant

Pino, Laurence P., Attorney for Petitioner-Appellant

Pino Nicholson, PLLC

Samuel, Donald F., Former Attorney for Petitioner-Appellant

South Georgia Law Associates

United States of America

II

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS .............................................................................. I

TABLE OF CONTENTS ................................................................................................................ II

TABLE OF AUTHORITIES .........................................................................................................III

PETITION FOR REHEARING .......................................................................................................1

STATEMENT OF THE ISSUES.....................................................................................................2

COURSE OF THE PROCEEDINGS ..............................................................................................3

REASONS FOR GRANTING THE WRIT .....................................................................................5

I .......................................................................................................................................................6 THE PANEL'S OPINION EXPRESSLY STATED THAT CERTAIN FACTS WERE NOT ESTABLISHED; YET THOSE

FACTS ARE RELIABLY DESCRIBED IN THE DISTRICT COURT'S RECORD. II ......................................................................................................................................................7

WITHOUT NOTICE THE PANEL TRANSFORMED THE CERTIFICATE-OF-APPEALABILITY QUESTION INTO A MEANINGFUL-ACCESS-TO-THE-COURT INQUIRY. BECAUSE OF THE LACK OF NOTICE, THE PARTIED WERE UNABLE TO ASSIST THE COURT WITH AN ANALYSIS OF THE RELEVANT FACTS OR THE DISTRICT COURT RECORD; CONSEQUENTLY THE PANEL OVERLOOKED ESSENTIAL FACTS AND MISAPPLIED LAW.

II (A) .............................................................................................................................................8 THE PANEL'S MISIDENTIFIES THE PROPER STANDARDS FOR DETERMINING A DUE PROCESS VIOLATION IN THE CONTEXT OF CONFLICTED HABEAS COUNSEL.

II (A) 1 ......................................................................................................................................9 The procedural error prevented Mr. Harrison from presenting several cognizable §2255 claim.

II (A) 2 ....................................................................................................................................10 The district court refused to permit the development of factual record, which was required for an effective appellate review of an actual injury claim. Blankenship Error.

II (B) ...........................................................................................................................................10 THE PANEL OVERLOOKED THREE MERITORIOUS TRIAL-ERROR CLAIMS, WHICH CONSTITUTE ACTUAL INJURY AND ENTITLE MR. HARRISON TO RELIEF EVEN UNDER THE PANEL’S CONSTRUCTION OF THE “ACCESS-TO-COURT” VIOLATION.

II (B) 1 ....................................................................................................................................13 Bruton Error: The non-testifying codefendant’s confession that inculpated Mr. Harrison was admitted into trial.

II (B) 2 ....................................................................................................................................14 Blankenship Error: In separate trials, the admissible evidence would have been insufficient to establish a conspiracy, especially without a James hearing.

II (B) 3 ....................................................................................................................................17 Brady Error: During a debriefing, on an unrelated murder charge, the codefendant confessed to participating in the arson and exonerated Mr. Harrison. The government never disclosed the codefendant’s statements.

III ..................................................................................................................................................19 THE PANEL’S DECISION IGNORES THE SUPREME COURT’S GUIDANCE ON THE APPROPRIATE STANDARD DETERMINING PREJUDICE AND CLASHES WITH THIS CIRCUIT’S OWN PRECEDENT ON HOW TO DECIDE PREJUDICE IN THE CONTEXT OF AN ACTUAL CONFLICT.

CONCLUSION .............................................................................................................................21

CERTIFICATE OF SERVICE .....................................................................................................22

III

TABLE OF AUTHORITIES

Case Page BARBOUR V. HALEY, 471 F.3D 1222, 1225 (11TH CIR. 2006) ................................................................................. 1, 11 BELL V. BURSON, 402 U.S. 535, 542 (1971) ............................................................................................................... 9 BRUTON V. UNITED STATES, 391 U.S. 123. 135-36 (1968) ............................................................................................... 13, 15 CAREY V. PIPHUS, 435 U.S. 247, 266 (1978) ............................................................................................................... 9 CHRISTOPHER V. DIST. ATTORNEY’S OFFICE, 592 F.3D 1327 (11TH CIR. 2010)) .................................................................................................. 1 CHRISTOPHER V. HARBURY, 536 U.S. 403, 415 (2002) ................................................................................................... 7, 9, 12 CUNNINHAM V. DIST ATTORNEY'S OFFICE,

592 F.3D 1237, 1271 (11TH CIR. 2010) ........................................................................................ 8 GOLDBERG V. KELLY, 397 U.S. 254, 271 (1970) ............................................................................................................... 9 GRAY V. MARYLAND, 523 U.S. 185 (1998) ...................................................................................................................... 20 GREENLAW V. UNITED STATES, 554 U.S. 237 (2008) ...................................................................................................................... 12 GUYTON V. BUTLER, 490 FED. APPX. 331, 333 (11TH CIR. 2012) ............................................................................. 19 JOHNSON V. BARZACK, 338 F.3D 771, 772 (7TH CIR. 2003) ............................................................................................. 11 LACHANCE V. ERICKSON, 522 U.S. 262, 266 (1998) ............................................................................................................ 10 LAFLER V. COOPER, 132 S. CT. 1376 (2012) ................................................................................................................ 19

IV

TABLE OF AUTHORITIES CONTINUED

Case Page LEWIS V. CASEY, 518 U.S. 343, 349 (1996) ........................................................................................................ 8, 11 LOCKHART V.FRETWELL , 506 U.S. 364, 373 (1996) ............................................................................................................ 19 TIFFORD V. WAINWRIGHT, 558 F.2D 954 (5TH CIR. 1979) ..................................................................................................... 15 UNITED STATES V. BROWNE, 505 F.3D 1229, 1268 (11TH CIR. 2007) ..................................................................................... 14 UNITED STATES V. CHAVEZ, 584 F.3D 1354, 1360 (11TH CIR. 2009) ..................................................................................... 15 UNITED STATES V. COBB, 185 F.3D 1193, 1197 (1999) ....................................................................................................... 15 UNITED STATES V. COSTA, 31 F.3D 1073 (11TH CIR. 1994) ................................................................................................... 20 UNITED STATES V. HARRISON, 246 FED. APPX 640 (11TH CIR. 2007) ........................................................................................... 3 UNITED STATES V. NOVATON, 271 F.3D 968, 1103 (11TH CIR. 2001) ....................................................................................... 16 UNITED STATES V. SCHARTZ, 541 F.3D 1331 (11TH CIR. 2008) ................................................................................................. 20 UNITED STATES V. TAYLOR, 186 F,3D 1332 (11TH CIR. 1999) ................................................................................................. 20 UNITED STATES V. THAYER, 204 F.3D 1352, 1355 (11TH CIR. 2000) ..................................................................................... 15 VASQUEZ V. HILLARY, 474 U.S. 254 (1896) ...................................................................................................................... 19 WILLIAM V. TAYLOR, 529 U.S. 362, 391 (2000) ............................................................................................................ 19 ZAFIRO V. UNITED STATES, 506 U.S. 534, 537-38 (1993) ...................................................................................................... 14

V

TABLE OF AUTHORITIES CONTINUED

Statutes Page 28 U.S.C. §2255, ............................................................................................................................. PASSIM RULES OF CIV. P. 11 (2006) ................................................................................................................... 6 11TH CIR. R. 35-3 (2014) ......................................................................................................................... 1 11TH CIR. R. 40 (2014) ............................................................................................................................. 1

1

IN THE UNITED STATES COURT OF APPEALS

No. 12-15502

W. Dexter Harrison

Petitioner-Appellant,

versus

United States of America Respondent-Appellee.

PETITION FOR REHEARING

On August 15, 2014, the panel affirmed the district court’s denial of Mr.

Harrison’s §2255 motion. The panel, however, did so through an inappropriately

narrow construction of the term “actual injury.” Moreover, the panel’s analytic

method conflicts with the “non-frivolous” standard of review pronounced by the

Supreme Court in Christopher v. Dist. Attorney’s Office for Escambia Cnty, 592

F.3d 1327 (11th Cir. 2010) and Barbour v. Haley, 471 F.3d 1222, 1226 (11th Cir.

2006). A panel decision merits rehearing en banc when that decision relies upon a

rule of law in conflict with both the Supreme Court’s holdings and this circuit’s

prior precedent. 11th Cir. R. 35-3 (2014).

Additionally, the panel expressly relied upon factual premises, which are

refuted or contradicted by the extant district court record, such as when the panel

mistakenly asserted that there is no indication from the record concerning the

exculpatory nature of the codefendant’s proposed testimony. This type of oversight

justifies a panel rehearing. 11th Cir. R. 40 (2014).

2

STATEMENT OF THE ISSUES

1. The panel premised its opinion on a mistake of fact. The panel stated that

Mr. Harrison had not shown what testimony his codefendant would have

testified to, if the trials had been separate. The panel overlooked two

portions of the district court's record that reveals the substance of the

proposed testimony.

2. The panel, without notice, transformed the certificate-of-appealabitlity

question into a question about whether Mr. Harrison had been denied access

to the court. Then, the panel found sua sponte that Mr. Harrison could not

have demonstrated an actual injury. The panel's actions were flawed for two

reasons: (1) first, a more comprehensive review of the record than the panel

conducted reveals at least three aggregations of facts that arise to an actual

injury; and (2) second, the panel's construction of the term "actual injury"

conflicts with this circuit's presidential definition of the term.

3. Mr. Harrison asserts that deprivation of counsel in a post-conviction

proceeding effectively prevented his raising a deprivation of critical-stage

counsel claim. The Supreme Court and this circuit have pronounced that

since prejudiced is presumed, errors of this nature do not require an inquiry

into prejudice. The panel's opinion expressly relies upon the wrong rule of

law. This court should act en banc to correct the panel's misconceptions and

to ensure certainty and uniformity in the law.

3

COURSE OF THE PROCEEDINGS

Indictment, Trial Proceedings and Appeal

Mr. Harrison was indicted with two co-defendants in the Middle District of

Georgia on October 20, 2005 (Doc. 65-2). The indictment charged Mr. Harrison

with one charge of conspiracy to commit arson and mail fraud, one count of mail

fraud, one count of arson, and one count of providing misleading statements. Mr.

Harrison was represented at trial by a retained attorney, Jerry W. Brimberry,

Esquire. On March 8, 2006, a jury found Mr. Harrison guilty as to counts 5, 6, 7

and 13 of the Indictment. (Doc. 223). In May of 2006, Mr. Harrison retained

Donald F. Samuel, Esquire to assist his trial counsel with sentencing. On August 2,

2006 Mr. Harrison was sentenced to 180 months' imprisonment, a $50,000.00 fine,

and restitution in the amount of $466,668.29. (Docs. 342, 507).

Following the sentencing, Mr. Samuel represented Mr. Harrison in the direct

appeal of his conviction and sentence to the United States Court of Appeals for the

Eleventh Circuit, which affirmed the conviction in an unpublished opinion. United

States v. Harrison, 246 Fed. Appx 640 (11th Cir. 2007).

Section §2255 Petition and Proceedings

On May 29, 2009, Mr. Samuel filed a Motion to Vacate, Set Aside, or

Correct Sentence by a person in Federal Custody and Brief in Support of the

Motion to Vacate pursuant to 28 U.S.C. §2255 on behalf of Mr. Harrison seeking

to set aside the conviction based on a violation of Mr. Harrison's constitutional

rights (hereinafter the "Original Petition") (Docs. 498, 499).

Mr. Harrison also filed several pro se motions to amend the Original Petition

wherein he raised the conflict of interest issue with Mr. Samuel (Docs. 548, 566,

4

576, 577). Ultimately, the district court denied Mr. Harrison's efforts to amend the

Original Petition (Docs. 563, 579).

An evidentiary hearing in the habeas proceeding was held on November 9,

2011, at which several witnesses testified. (Doc. 587 and 596). The Magistrate

issued his Report and Recommendation on April 19, 2012. (Doc. 620). On May 8,

2012, Mr. Samuel, filed a Motion to Withdraw due to conflict. (Doc. 639). On May

16, 2012, Mr. Harrison filed a Motion for Leave to File Excess Pages or in the

Alternative, Objections to the Magistrate's Report (Doc. 641), and a Motion to

Amend his Motion for Reconsideration. (Doc. 642). On July 13, 2012, the district

court denied all these motions. (Doc. 648).

On July 27, 2012, Mr. Samuel filed Objections to the Magistrate's Report

and Recommendation in which Mr. Samuel raised the conflict issue and reiterated

Mr. Harrison's desire to proceed pro se. (Doc. 650). On July 30, 2012, Mr.

Harrison filed his Objections to the Magistrate's Report and Recommendation pro

se, once again raising, among other issues, the basis for his conflict with Mr.

Samuel and his desire to represent himself and waive his right to counsel. (Doc.

651).

On August 24, 2012, the district court adopted the Magistrate's Report and

Recommendation, denied Mr. Harrison’s pro se motions and denied the Original

Petition. (Doc. 653). Judgment for the Government was entered on August 27,

2012. (Doc. 654).

On October 18, 2012, Mr. Harrison filed a Motion to Alter the Judgment

under Rule 60(b) (Doc. 661), filed a Notice of Appeal on October 22, 2012 (Doc.

662), and a Motion for Certificate of Appealability ("COA") on November 11,

2012 (Doc. 667). On February 8, 2013, the district court denied Mr. Harrison's

5

Motion to Alter the Judgment under Rule 60(b), but did not address the COA.

(Doc. 671).

On August 28, 2013, this Court remanded the action to the district court and

directed it to rule on the COA. On February 10, 2014, the district court denied Mr.

Harrison's request for a COA. (Doc. 680).

On March 5, 2014, this Court granted Mr. Harrison's COA only as to the

issue of "whether the district court violated Harrison's due process rights by

denying his retained habeas counsel's motion to withdraw, and not allowing

Harrison to proceed pro se." (Doc. 681).

On August 15, 2014, after full briefing, but without oral argument the panel

affirmed the district court’s §2255 order. (Addendum ‘1’). Mr. Harrison, now

finally able to proceed pro se, requested and received an extension of time to

petition for rehearing until November 3, 2014. (Addendum ‘2’).

On November 3rd, the type-written version of this petition was delivered to

the Coleman (Low) prison mailing authorities.

REASONS FOR GRANTING THE WRIT

The panel committed two profound errors in denying Mr. Harrison's appeal.

First, the panel overlooked record facts, which would have reversed the outcome of

the panel's opinion. Second, the panel's reconfiguration of this circuit's definition

of the term "actual injury" constitutes a violation of both due process's "notice and

opportunity" requirement, and a violation of the prior precedent principle.

Additionally, the panel's decision relies on a standard for determining prejudice

that departs from the accepted and usual course of analyzing errors emanating from

conflicted counsel.

6

The panel's errors create a disformity in this circuit's jurisprudence,

effectively sanctioning intentional government misconduct, and perpetuates a

miscarriage of justice. In order that justice is served and to ensure certainty and

uniformity in the law, the panel's opinion should be set aside or rehearing

conducted either by the panel or by this court en banc. Fed. R. App. P. 35; 40

(2012).

I. The panel's opinion expressly stated that certain facts were not established; yet those facts are reliably described in the district court's record.

The panel's states, "Harrison's claims that Harrell would have provided

exculpatory testimony at a separate trial is unsupported by the record...."

(Appellate Opinion, p.8). The panel appears to have overlooked at least two record

references, which establish that Mr. Harrell would have testified and the substance

of that likely testimony:

• On the November 8, 2011, during the evidentiary, a private investigator testified that -after Mr. Harrell's counseled waiver of privilege- Mr. Harrell stated that “Dexter damn sure had not hired him” to commit the arson. (Evd. Hrg. Tr., p.56:18-20) (Addendum ‘3’).

• In the United States response to Martin Harrell's §2255, the two Assistant U.S. Attorneys, who prosecuted Mr. Harrison state, "During his [Martin Harrell's] proffer after the Hobbs Act Plea, Petitioner [Harrell] admitted to the government that he had supplied the diesel fuel for the arson of the occupied motel, but claimed he not himself actually set fire to the motel." (Doc. 503, p.41, n.16).

These statements both are in the record and both were subject to government

cross-examination. 1 Separately and together those statements are material to the

trial and the habeas motion. Mr. Harrell's statement to Dennis Weaver condemned 1 Obviously, Mr. Crane and Ms. McEwen should have tested their own conclusions and their own memory before filing the official response. See Fed. R. Civ. P. 11 (2006). The rough equivalent of adversarial testing for these purposes. -FLA

7

Mr. Harrison from confronting Mr. Harrell (Bruton Error); the government's

deception prevented the jury, the trial judge, and this court from ever hearing Mr.

Harrell's (sworn) contradictory statement. And §2255 counsels' conflict prevented

the habeas court or this appellate court from reviewing the matter from an accurate

and complete factual record.

II. Without notice, the panel transformed the certificate-of-appealability question into a meaningful-access-to-the-court inquiry. Because of the lack of notice, the parties were unable to assist the court with an analysis of the relevant facts or the district court record; consequently the panel overlooked essential facts and misapplied law.

The panel transformed the more general due process claim set forth in the

certificate of appealability into an "access to the courts" question. (Appellate

Opinion, p.7). The decision generates two types of errors worthy of rehearing.

First, the panel misapprehended or overlooked certain meritorious trial-error

claims. Claims which under governing precedent entitled Mr. Harrison to vacatur.

The §2255 court’s decision to require Mr. Harrison to proceed with conflicted

counsel, not to mention the conflict itself, cause Mr. Harrison’s claims to be

unpresented, untimely, and unadjudicated. See Christopher v. Harbury, 536 U.S.

403, 415-16 (2002). In other words, contrary to the panel's conclusion, Mr.

Harrison can demonstrate "actual injury." Second, the panel's construction of the

term "actual injury" was too narrow, and overlooked that this circuit defines actual

injury as preventing the presentation of a claim, preventing otherwise admissible

evidence from proving a claim, etc. Thus, the §2255 court's error injured Mr.

Harrison by preventing him from proving both his habeas claims and his

substantive trial error claims. In other words, Mr. Harrison suffered actual injury

8

when he was denied his statutory rights to an evidentiary hearing and his judicial

right to certain evidentiary presumptions.2

II (A). The panel misidentifies the proper standards for determining a due process violation in the context of conflicted habeas counsel.

The panel misapprehended the rule for determining and actual injury in the

context of habeas court's procedural error that denied the habeas petitioner access

to the court. In this scenario, the Supreme Court identifies an actual injury as an

error that causes a claim to be procedurally defaulted or to be time barred.

Once more, we restate the literal test for a denial-of-access-to-the-court

claim: "It is now beyond a doubt that prisoners have a constitutional right of access

to the courts' [sic] under the Due Process Clause." Cunninham v. Dist Attorney's

Office, 592 F.3d 1237, 1271 (11th Cir. 2010). In order to establish a violation of

that right, "a prisoner must show an actual injury." Id. (Citing Lewis v. Casey, 518

U.S. 343, 349 (1996)).

Here is where the panel goes wrong. The panel makes an unqualified leap to

the underlying trial error, rather than examining injury in the habeas case.

(Appellate Opinion p.4). In Lewis, the Supreme Court expressly stated that an

actual injury occurred solely upon the denial of procedural right to present or prove

a nonfrivolous claim Lewis, 518 U.S. at 348.

Stated differently, the Supreme Court concluded that an injury occurred

whenever a court's procedural mistake prevents presentation of a facially valid

claim regardless of the ultimate merits determination. An unsurprising result in the

light of the Supreme Court's due process jurisprudence, which holds that an error

2 The district court granted Mr. Harrison an evidentiary hearing, but Mr. Samuel’s conflict prevented MR. Harrison from adducing evidence to demonstrate the underlying claim: since that evidence would have demonstrated Mr. Samuel (or his colleagues’) ineffectiveness at trial and on appeal. - FLA

9

that forecloses any opportunity to properly present and have a competent court

adjudicate a claim requires a presumption of prejudice. Cf., e.g., Bell v. Burson,

402 U.S. 535, 542 (1971); Goldberg v. Kelly, 397 U.S. 254, 271 (1970). The

district court's refusal to remove conflicted counsel caused Mr. Harrison to lose his

statutory rights to an evidentiary hearing (vis-a-vis the unpresented claims) and

caused several cognizable grounds for relief to be foreclosed. (Ineffective

Assistance of Trial Counsel, Ineffective Assistance of Appellate Counsel,

Government's Intentional Suppression of Material Evidence, and Violation of the

Right to Confront Witnesses, i.e., Bruton-Error.)

II (A) 1. The district court’s procedural error prevented Mr. Harrison from presenting several cognizable §2255 claims.

In the context of a civil rights action, the Supreme Court articulated that a

violation of due process is itself an actionable injury, even if the harm would have

occurred anyway. Carey v. Piphus, 435 U.S. 247, 266 (1978) (even if the

deprivation was justified or the plaintiff did not suffer “other actual injury” caused

by lack of due process, “the fact remains that they were deprived of their right to

procedural due process”).

In the context of a habeas court preventing a prisoner from presenting a

cognizable claim or proving a valid ground, the same reasoning applies to limit the

threshold inquiry to whether the claim pleaded is facially non-frivolous.

Christopher v. Harbury, 536 U.S. at 415-16. (The underlying claim “must be

described well enough to apply the ‘non-frivolous’ test and to show that the

‘arguable’ nature of the claim is more than hope”). The panel, however, chose to

conduct a merits review, and a review dependent on an incomplete record because

of the very due process violations at the crux of this appeal: (1) counsel’s conflict

of interest and (2) the government’s suppression of the codefendant’s confusion.

10

Thereby, proving by example the very reason the Supreme Court only requires a

‘frivolity’ test, because these types of due process errors prevent the claimant from

adducing evidence to prove the underlying claims. Consequently, making the

reviewable record inherently inadequate for a fair review. In other words, under

these conditions, the only practical action a claimant can take is to allege a claim,

which upon remand, and without the due process violation, can be proven.

In sum, the panel announced and applied the wrong rule of law when it

conducted a merits test of the underlying claim instead of conducting a test for

frivolousness. (Appellate Opinion, p.7). The panel’s earlier opinion should be

vacated and the matter reheard under the correct standards of review.

The panel failed to recognize that the district court's error, requiring

conflicted counsel, caused several non-frivolous claims to be time-barred or

procedurally defaulted. And the panel did not acknowledge that, under the

Supreme Court's construction, the procedural deprivation alone constituted actual

injury.

II (A) 2. The district court refused to permit the development of factual record, which was required for an effective appellate review of an actual injury claim. Blankenship Error.

The district court's procedural error prevented Mr. Harrison from adducing

proof in support of his unpresented claims. A classic violation of due process’ most

fundamental principles: notice and opportunity. See LaChance v. Erickson, 522

U.S. 262, 266 (1998). Nevertheless, the panel decided the merits of the underlying

claim, thereby exacerbating the original due process error. An error that fits

snuggly within the Supreme Court's definition of actual injury.

II (B). The panel overlooked three trial-error claims, which would have fulfilled the panel’s test for an actual injury.

11

The panel appears to apply the orthodox test for a "denial of access to the

courts" claim. We restate the orthodox test in order to ensure clarity in

communication: Individuals, including habeas petitioners, have a constitutional

right to access to courts. Barbour v. Haley, 471 F.3d 1222, 1225 (11th Cir. 2006).

To establish an access violation a petitioner must allege facts sufficient to show

that:

(1) A non-frivolous legal attack on his criminal judgment has been frustrated, and

(2) That he has suffered and actual injury. Lewis v. Casey, 518 U.S. 343, 343-45 (1996). An "actual injury" requires the showing of actual prejudice with respect to the pending litigation, such as inability to meet a filing deadline or to present a claim. Id. at 416.

Furthermore, the petitioner must plead sufficient facts to show that the

underlying claim is not frivolous. See Johnson v. Barzack, 338 F.3d 771, 772 (7th

Cir. 2003).

The panel implicitly and unsurprisingly recognizes that the undisputed

conflict of interest prevented Mr. Harrison from timely presenting cognizable

claims. (Appellate Opinion p.7). The panel, however, chose to extend the

definition of actual injury beyond the antecedent habeas proceeding to earlier

critical stages in the criminal proceedings (Appellate Opinion, p.3-5), and thereby

deny Mr. Harrison's appeal without giving him an opportunity to argue his point.

An opinion that is logically flawed despite having some weak support in court of

appeals jurisprudence.

The crux of Mr. Harrison's appeal is that he was denied an opportunity, not

only to present, but also to prove his §2255 claims. Thus, the panel's determination

that he did not prove the panel-created claim begs the ultimate question: whether

the district court's error kept Mr. Harrison from presenting and proving his claims.

12

Since Mr. Harrison did not have the chance to either present the claims or prove

the claims, the panel's actions were premature. This panel's opinion necessarily

relies on speculation about what these claims would have been and what evidence

is available to prove these claims. 3 Accordingly, at this point in the argument, the

panel's opinion should be vacated or reversed. Cf. Greenlaw v. United States, 554

U.S. 237 (2008) (emphasizing primacy of the party presentation principle).

But to magnify the unfairness in the panel sua sponte creation of Mr.

Harrison's argument, we set forth three of the claims that, but for the district court's

barrier, he would have presented. And included in our description sufficient

allegations to show these claims exceed the "frivolous bar," which controls the

actual injury inquiry. See Christopher v. Harbury, 536 U.S. 403, 415 (2002)

(holding that "right to access" claimants must describe the nonfrivolous nature of

the underlying cause of action). We emphasize that at this stage, Mr. Harrison need

only show that his claims are non-frivolous, not that he would prevail on the

merits. 4

Mr. Harrison substantive trial-error claims are:

1. The District court permitted a Bruton Error; trial counsel either perfected the objection under Rule 1 or effectively failed to perfect the claim: sentencing and appellate counsel failed to raise the Bruton claim either by verdict motion or on direct appeal.

2. The district court failed to sever the trial once the evidence adduced proved the original severance motion's validity; alternatively, trial counsel and appellate counsel failed to seek severance, a new trial, or appellate reversal

3 We note that Mr. Harrison attempted to amend six claims into the motion, not just the one claim examined by the panel. 4 A description sufficient to meet the pleading requirements of Federal Rule of Cibil Procedure 8(c) or the test for overcoming a dismissal under Rule 4 of the Rule Governing §2255 Proceedings. See Christopher, 536 U.S. at 416-17.

13

for failing to sever. Under this circuit's precedent, all three procedures would have been successful, if counsel had initiated them.

3. The government intentionally suppressed an exculpatory confession by the codefendant, which would have entitled Mr. Harrison to a new separate trial.

II (B) 1. Bruton Error: The non-testifying codefendant’s confession that inculpated Mr. Harrison was admitted into the trial.

At trial the government used an out-of-court confession by Martin Harrell to

link Mr. Harrison to the arson conspiracy. Other than that Bruton-type confession,5

the only other indication that Mr. Harrison was even aware of his codefendant’s

arson conspiracy was the hearsay testimony of the codefendant’s abused and

estranged wife. 6 (Appellate Opinion p.2). For different reasons, both clusters of

evidence should not have been admitted against Mr. Harrison; we only mention the

"hearsay" testimony to emphasize the attenuated nature of the evidence linking Mr.

Harrison to arson. Only counsel's mistakes and the court's errors permitted

introduction of the adverse testimony.

Before addressing why these trial errors have not been previously corrected,

we believe it is important to articulate that Mr. Harrison has, throughout the

proceedings maintained his innocence. Notably, two events support that actual

innocence claim. Prior to trial, Mr. Harrison volunteered to take a polygraph

examination, but the polygraph examiner talked the uncounseled Mr. Harrison out

of taking that test. After trial, as part of Mr. Harrell's plea bargaining on an

unrelated murder charge, Mr. Harrell admitted that he sold the diesel fuel to the

5 Bruton v. United States, 391 U.S. 123 (1968). 6 Prejudice should be established by demonstrating that the trial was not fair; correspondingly, any outcome of the unfair proceeding is inherently uncertain and unreliable. A fair trial is one in which evidence, subjected to adversarial testing, is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding. Strickland v. Washington, 446 U.S. 668, 685 (1984); Smith v. White, 815 F.2d 1401, 1404 (11th Cir. 1987).

14

arsonist, and stated unequivocally that Mr. Harrison did not participate in the

arson. (Doc. 503, p.41, n.16) (Addendum ‘3’). Further, Mr. Harrell stated that, if

separate trials had taken place, he would have testified: (1) that Mr. Weaver (the

government's witness) had lied about Mr. Harrell having mentioned Mr. Harrison;

and (2) that Mr. Harrison did not know of the arson or even the conspiracy.

(Addendum ‘4’).

Neither court nor counsel recognized the Bruton Error emerging from the

hearsay. Furthermore, the government suppressed statements that Mr. Harrell made

when the government debriefed him. Statements that not only illuminated the

Bruton Error, but were also exculpatory, and made under penalty of perjury as well

as against Mr. Harrell's penal interest. (Appendix ‘1’).

These errors separately, or in combination, caused the trial to be unfair, if

presented by a post-verdict motion at sentencing, on direct appeal, via a Rule 33

motion, and then as we demonstrate more thoroughly later, Mr. Harrison would

likely have received a new trial. Stated otherwise, the errors permitted the

introduction of inculpatory, non-confrontable evidence, which permitted the trial to

be decided on issues not defined in advance.

II (B) 2. Blankenship Error: In separate trials, the admissible evidence would have been insufficient to establish a conspiracy, especially without a James hearing.

In this circuit, the rule about joint trials is "defendants who are indicted

together are usually tried together." United States v. Browne, 505 F.3d 1229, 1268

(11th Cir. 2007). (Citing inter alia, Zafiro v. United States, 506 U.S. 534, 537-38

(1993)). "But if there is a serious risk that a joint trial with Martin Harrell would

compromise a specific trial right of one of the defendants," then separate trials

should be conducted. Zafiro, 506 U.S. at 509.

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Mr. Harrison experienced three extremely prejudicial effects from the joint

trial with Martin Harrell: (1) otherwise inadmissible inculpatory (double) hearsay

was admitted against Mr. Harrison as a result of his codefendant's attorney's trial

error; (2) his codefendant's exculpatory testimony became unavailable since the

codefendant invoked his Fifth Amendment privilege to avoid testifying; and (3) the

codefendant's (unconfronted) out-of-court confession incriminated Mr. Harrison.

Each of these events involves specific and compelling prejudice 7 that is,

resulted in the trial's outcome becoming uncertain and unreliable. Id. See United

States v. Chavez, 584 F.3d 1354, 1360 (11th Cir. 2009); Tifford v. Wainwright, 558

F.2d 954 (5th Cir. 1979) ("[A] defendant might suffer prejudice if essential

exculpatory evidence that would be available to a defendant tried alone was

unavailable in a joint trial"); see also United States v. Cobb, 185 F.3d 1193, 1197

(1999).

In separate trials, the government could not have introduced Julie Harrell's

testimony, (replete with hearsay), which serves as the tenuous nexus linking her

husband (the admitted arsonist) to Mr. Harrison. Moreover, as this court's panel

noted, the most damming evidence against Mr. Harrison was the codefendant's out-

of-court and unconfrontable confession that inculpated Mr. Harrison. In separate

trials this Bruton Error would not have occurred. See United States v. Thayer, 204

F.3d 1352, 1355 (11th Cir. 2000) (explaining the Bruton rule) (citing Bruton v.

United States, 391 U.S. 123. 135-36 (1968)). Relatedly, in separate trials the

pendulum would have swung the other way, because Mr. Harrell would have

testified that Mr. Harrison "knew nothing" of either the conspiracy or the arson. An

exculpatory statement falling squarely within this circuit's criteria for mandatory

7 (Appellate Opinion, p.6-7) (Citing Chavez).

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severance of defendants in order to endure a fair trial. See United States v.

Novaton, 271 F.3d 968, 1103 (11th Cir. 2001).

Little doubt exists that if a jury had heard Mr. Harrell admit that he provided

the arsonist with the diesel fuel and that Dexter Harrison knew nothing about it

(the arson or sale?), then Mr. Harrison had a bona fide need for the testimony.

Obviously, it discredits the alleged out-of-court confession that implicated Mr.

Harrison and the testimony directly exculpates Mr. Harrison.

In sum, if the error had been timely brought to any court's attention, both the

Constitution and circuit precedent would have required vacatur and a new trial.

Leading us to four questions: Why was the severance not sought? Why were

curative jury instructions not requested? Why did counsel not seek a new trial?

And why were the "plain errors" not raised in the initial appeal? Questions that

point us directly to our immediate concern in this stage of the proceedings; why

were the why questions not presented in the §2225 proceeding? Or, more

accurately, when the defendant (pro se) raised the questions, would reasonable

jurists have disagreed with the §2255 court's refusal to consider the claims?

Especially since the pro se defendant's claims identify that the cause of the

earlier defaults was current counsel's undisclosed conflict both in the current

proceeding and in a previous critical stage of the criminal prosecution. (Addendum

‘5’; affidavit of Donald Samuel, Esquire). Significantly, both the magistrate and

the district court judge expressly founded their current decision on conflicted

counsel's failure to have earlier discovered the necessary facts and conflicted

counsel's failure to have presented the claims. (Magistrate’s R&R, Doc. 620).

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II (B) 3. Brady Error: During a debriefing, on an unrelated murder charge, the codefendant confessed to participating in the arson and exonerated Mr. Harrison. The government never disclosed the codefendant’s statements.

In essence, a complete collapse of due process because counsel’s conflict

and the government’s malicious dereliction of duty prevented the district court and

this court from correcting a flawed trial that sent a sixty-four year old man to

prison for an objectively nonsensical fraud. 8 After the jury verdict, but before

sentencing, the government entered into plea negotiations with Mr. Harrison's

codefendant, Martin Harrell. The plea negotiation involved an unrelated murder

charge. In order to limit the sentence to five years, the government required Mr.

Harrell to fully debrief. In that debriefing, much to the government's dismay, Mr.

Harrell admitted to participating in the arson conspiracy, but insisted Mr. Harrison

was not involved (Doc. 503, p.41, n.16) (Reproduced in Pertinent Part in

Addendum ‘A’).

Contrary to both government's constitutional duty and the attorneys' ethical

duties, the government did not disclose the exonerating confession to either the

court or to Mr. Harrison's counsel. If the government had disclosed the statement,

then Mr. Harrison would have been entitled to a new, separate trial.

Moreover, since Mr. Harrell's confession contradicted the principle evidence

linking Mr. Harrison to the arson conspiracy; that is, Dennis Weaver's testimony of

Mr. Harrell's (purported) other, out of court confession that inculpated Mr.

Harrison. The later sworn statement of Mr. Harrell (made against his own penal 8 I have to pint out the actual loss amount was $466,668, which Mr. Harrison promptly paid after the trial (i.e., he did not need the money). And that the government’s theory of the fraud was stupid; Mr. Harrison was rebuilding the hotel, thus any insurance proceeds he received did not go to satisfying the mortgage, but rather to reconstructing this supposed distressed hotel. In other words, if his concern was the hotel was losing money, then rebuilding the hotel did not solve the problem, thus the arson makes no sense, - FLA [Even if the government wanted to change its theory or motive, a simple economic analysis reveals no possible financial benefit for the hotel owner if the hotel is destroyed and rebuilt].

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interest in the debriefing) would not only have been material to the jury, but likely

decisive to the case entirely. Not to mention establishing a record that required

severance under this circuit's precedent.

Restated for precision, decisive not just with the jury, but with a variety of

the district court's decisions:

• The necessity for separate trials; the debriefing statement established beyond a reasonable certainty the necessity of separate trials: only in separate proceedings would Mr. Harrell testify for Mr. Harrison. And even if he were unavailable, then the post-verdict confession would be admissible under a variety of hearsay exceptions. But the government's deception and counsel's conflict prevented the jury or the court from assessing the evidence;

• Illuminating the question of whether the government met the burden of proof necessary for a non-James hearing showing of a conspiracy. In the light of the testimony, it is unlikely the rest of the hearsay-testimony used by this court to excuse the district court's James error could have carried that day.

• When the suppressed exonerating statement is juxtaposed against the

witness' possible perjury, and that government likely knew and hid the perjury at trial;

• Even if the government only learned of the conflicting testimony after trial, at bare minimum, the government should have told the district court prior to sentencing. There is far more than a reasonable probability that, in the light of this mitigating information, the district court would not have imposed a sentence twice the high end of the Guidelines.

This court has stated that the government has a duty to be open and

forthright. The government's actions here are the antithesis of that aspiration; for

this court to allow the deception to succeed is unconscionable.

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III. The panel’s decision ignores the Supreme Court’s guidance on the appropriate standard for determining prejudice in the context of an actual conflict of interest, as well as clashing directly with this circuit’s precedent on the same point of law.

The Supreme Court has repeatedly reiterated that prejudice requirement

focuses not on whether the petitioner can demonstrate an outcome changing result,

but rather whether the ineffective assistance of counsel renders the result unreliable

or the process unfair. Lafler v. Cooper, 132 S. Ct. 1376 (2012); Lockhart v.

Fretwell, 506 U.S. 364, 373 (1996); Vasquez v. Hillary, 474 U.S. 254 (1896);

William v. Taylor, 529 U.S. 362, 391 (2000). Our point is that the presence of Mr.

Samuel’s unrequited conflict-of-interest renders fundamentally unfair all the

proceedings after sentencing (including the hiatus before direct appeal).

Accordingly, even if we could not show actual injury, Mr. Harrison is still entitled

to relief since the panel should have presumed prejudice rather than inquired into

injury.

This circuit effectively articulated this principle when it recognized that the

Supreme Court identified ‘three scenarios in which ineffective assistance of

counsel is presumed to be prejudicial on collateral review: (1) an actual or

constructive denial of counsel altogether; (2) state interference with counsel’s

assistance; and (3) where counsel has an actual conflict of interest.’ Guyton v.

Butler, 490 Fed. Appx. 331, 333 (11th Cir. 2012) (quoting Strickland, 466 U.S. at

691-92).

Donald Samuel had a conflict of interest from his association with trial

counsel Jerry Brimberry after trail and before sentencing. Once engaged Mr.

Samuel should have detected among other trials errors the Bruton violation. Of

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course, because of his association with co-counsel Mr. Brimberry, 9 Mr. Samuel

could not raise the issue.

Similarly, the arguably preserved severance error was not raised on direct

appeal, nor was the Bruton claim. Once again raising the specter of general

ineffectiveness or conflicted ineffectiveness. And even after the appellate opinion

spotlights the trial flaws, Mr. Samuel does not discuss the errors with his client, nor

present the errors to the appellate court, nor withdraw from his conflicted

representation.

In order that independent counsel could review the record and advise Mr.

Harrison and his alternative course of actions.

Instead, Mr. Samuel talked Mr. Harrison out of seeking certiorari, even

though the appellate court’s failure to grant plain-error relief upon recognition of

the fundamental (Bruton) error. See generally Gray v. Maryland, 523 U.S. 185

(1998) (favoring reversal of a Bruton Error even under the plain-error standard);

United States v. Schartz, 541 F.3d 1331 (11th Cir. 2008); United States v. Taylor,

186 F.3d 1332 (11th Cir. 1999); United States v. Costa, 31 F.3d 1073 (11th

Cir.1994) (Statements by a non-testifying defendant that directly inculpates a co-

defendant gives rise to a constitutional violation).

Most importantly, Mr. Samuel convinced Mr. Harrison to hire Mr. Samuel’s

firm to file the §2255. Advice that cause the nascent conflict to blaze into a raging

inferno. Mr. Samuel should not have advised Mr. Harrison to hire him for the

§2255 motion and should never have accepted the engagement. That act by an

9 I have spoken extensively with Mr. Samuel, and I do not believe he intentionally omitted the claim at sentencing, but his relationship with Mr. Brimberry created a circumstance (the conflict) which caused him to overlook the error. But this is why the error is structural – because the cost of sorting through the truth is too high. In order to gather enough evidence to either find an inadvertent mistake, an intentional omission, or just my relationship-influence-inadequacy inference, would require more resources than repeating the trial.

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officer of the court effectively deprived Mr. Harrison of his constitutional right to

habeas corpus.

CONCLUSION

Dexter Harrison’s trial was unfair. He stands convicted because the jury

heard a biased 10 witness testify that Mr. Harrison’s putative co-defendants

confessed to the crime and, in that confession, inculpated Mr. Harrison.

During the trial the co-defendant was unavailable for examination. But after

trial, and against his own penal interest, Mr. Harrell made statements to the United

States Attorney’s Office and to a private investigator that (1) casts doubt on the

key witness’s veracity; and (2) exonerates Mr. Harrison. No court has ever heard

those facts or reviewed the related claims. First, because the government hid the

co-defendants exculpatory statements until well after the direct appeal had

concluded. Then, because Mr. Harrison’s habeas attorney’s conflict of interest

prevented the counsel from presenting the grounds that emerge from the co-

defendants statements. And, finally, because the district court refused to allow Mr.

Harrison to present facts or argue the legal points of law, pro se, a decision which

rendered the claims defaulted and untimely.

A tragedy sanctioned by this court’s panel’s departure from the accepted and

usual course of determining “colorable claim” in the context of the “actual injury”

criteria resulting from a due process violation.

This court should vacate the panel’s prior opinion, vacate the district court’s

order, and remand the matter for further proceedings. Proceedings, which should

allow Mr. Harrison an unimpeded opportunity to adduce his evidence (e.g., the

10 The witness not only wanted to curry favor with law enforcement but also appears to have been romantically entangled with the co-defendants wife (Julie Harrell, the other witness who provided hearsay testimony).

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testimony of the eco-defendant Martin Harrell) and argue his legal points, which

were originally presented in his pro se motion to amend.

Prepared with the assistance of Frank L. Amodeo and respectfully submitted

this 2nd day of November 2014 by:

W. Dexter Harrison Frank L. Amodeo, Writ Writer FCC – Low Unit A-4 P.O. Box 1031 Coleman, Fl 33521-1031

Certificate of Service

A copy of this petition will be sent by first class mail to the United States via

its attorney of record and to each of the attorneys of record via electronic

messaging on or about November 4, 2014 as a courtesy to the former attorneys and

other parties.

W. Dexter Harrison

Verification

Under the penalty of perjury as authorized by 28 U.S.C. §1746, I declare the

allegations and statements contained in this petition for rehearing to be true and

correct to the best of my knowledge this 2nd day of November, 2014.

W. Dexter Harrison