FLORIDA PRISON LEGAL

·ers ectives
ISSN# 1091-8094

Taylor the Terrible
by Thomas C. O'Bryant

I

n May of this year, fires burned _out of .control·
throughout several parts of Florida. Areas of the State
were ordered to be evacuated. State and local government
agencies began making preparations. The .Florida
Department of Corrections was no exception. Prison
officials determined that one of the dorms at Mayo
Correctional Institution was to be cleared out in order to
make room, if necessary, for prisoners from the Columbia
County Jail. Some of the prisoners in C-dorm at Mayo
were moved to available beds ~Isewhere on the
compound; others, approximately 115 of us, were
temporarily transferred to Taylor CI Annex.
,
From 1996 through, 2006, 1 was housed at various
institutions throughout' the Florida panhandle. I was
convinced that Holmes CI was the worst institution in the
State of Florida. When I- arrived in Region II I began
hearing negative things about Taylor CI. From what I
heard, it sounded as ifTaylor and Holmes were very much
alike. I was about to find out first hand.
When we were transferred we were told by Mayo
officials that we could not, take anything. with us except
personal hygiene items. That was probably a good thing.
We did not have much property for the in-take officers !it
Taylor to search. Therefore, it was ~at much less time we
had to spend in the visiting park with staff going through
the in-take process.

JULY/AUG 2

-Initiany 'we· were-tiikeo'iQ-Taylor CI Main Unit Upon
arrival, we were told the nonnal spiel one hears eveIy time
one is transferred, '~You're not- at (fill in name of prior
institution) anymore." White going through the in-take
process at Taylor, ;though, it was apparent that things at
Taylor were differen. from most other .blstitutions. It
startedto'feel as ifI were entering the Twilight Zone.
To be identU'ied during the in-take by one of several
female classification officers~ we had to stand up, place
, our hands behind our backs, look down at the floor, and
walk arou....d several rows of chairs fo where the
classification officers were sitting at tables. There were
strict orders shouted from the guards to not look up from
the floor when speaking to the classification officers. The
guards' giving this asinine order declared, "We don't want
you looking at any of the women here." Of course. out of
habit, a couple of prisoners were unfortunate enough to
look up when answering the classification officers'
questions. One was yelled and cursed at; the other was
immediately .placed in handcuffs and taken to
confinement Effectively, we were humiliated, and
"hooded" from the start.
From the first moments at Taylor one thing became
obvious: unprofessionalism was rampant among the staff.
This first impreSsion waS reinforced by personal
observations during'·the week we spent there, as well as
fr~I11.~~~~~n~_~,~~!~~~!!~n(~ had with several prisoners
there ·~at I knew from other··'jiiSffiUuons:-cursing ai
prisoners, threatening them, and a constant barrage of
verbal abuse and harassment by staff. It is a daily

FAMIUl!SADVOCAThS PIUSONIlRS

ON

I

THE
INSIDE

7···

The Great Unobtainable Writ, AEDPA
:
3
Post Conviction Comer
24
Higher Sentences for Crack Cocaine to be Reviewed
27 .
Lawsuit, FDOC's Faith-based Contract
:
27 .
Notable Cases.:
"
·
~ ..............•..29
News in Brief................•.. ~ ......•••...•.•....•...•...............................•".• ~.37.
~

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Florida Prison Legal Perspectives
occurrence at Taylor CI.
I was told by Taylor prisoners that we actually had it
easy during the in-take process. Normally, according to
those prisoners, the guards like to actually slap a few
prisoners for looking up from the floor while being
processed in. I was also informed that ifwe had came with
all of our property that; it was more likely than not. almost
everyone would have had property confiscated. Whether
the prpperty was authorized and legitimately belonged to a
prisoner is irrelevant to Taylor staff. If the guards felt like
taking something, they would simply take it. No receipt or
confiscation slip given as required by FDOC rules. Simple
as that.
Speaking to prisoners unfortunate enough to be housed
at Taylor, I learned that physical abuse of prisoners. as
well as widespread verbal abuse, was not uncommon. Nor
is blatant retaliation. File a grievance, expeCt to go to
confinement. Get placed in handcuffs, do not be surprised
if you get hit by one or more guards on the way to
confinement. According to some that I spoke with, a few
months before we were transferred there several guards
beat and kicked a prisoner on the sidewalk in the middle
of the compound, while the prisoner-surprise, surprisewaS already handcuffed behind his back. From my
personal observations of the attitudes and behavior of the
guards there, I have absolutely no doubt that such
incidents are .fairly common at Taylor CI.
FDOC Secretary. Jim McDonough has claimed that
abusive behavior by prison officials will not be tolerated
under his watch. If the recent firings at Hendry CI are any
indication, Mr. McDonough see~ to be backing up his
words with definite action (see last issue and this issue of
FPLP). Hopefully the housecleaning at Hendry will not
tum out to be an isolated incident. A thorough purging of
staff at Taylor CI is in order as well, before someone is
seriously injured or worse.
While a changing of the guard would make things
somewhat more humane at Taylor, it would not have any
impact on another problem. Bugs. And I do not· mean
psych prisoners. The institution is infested with biting
inl\ects. It seems as if a person spends more time swatting
at bugs and scratching their bites than anything else.
And of all the institutions I have been to, the recreation
yard at Taylor Annex is the worse I've seen. The weight
pile could fit inside two two-man cells. The softball field,
pillow cases filled with sand for makeshift bases.
Those of us who were transferred from Mayo to Taylor '
were fortunate in only staying there for a week. To those
unfortunate enough to be housed at Taylor. ,I say keep
your heads up:While Mr. McDonough cannot do anything
. about the bugs, and probably won't do anything about the
rec yard, ~e can do something about the unprofessional
and abUSive stiff-if he receives enough valid cOmplaints
about them. Change only comes when you fight for it. •
2

Florida Prison Legal Perspectives

The Great Unobtainable Writ:
Indigent Pro Se Litigation After the
Antiterrorism and Effective Death Penalty Act
of 1996
Thomas C. 0 'Bryant·

I. INTRODUCTION
Imagine a defendant pleading guilty to an offense and being sentenced to life in prison after his court-appointed
attorney infonncd him that, under the plea, he will be eligible for release after ten years. His attorney reiterates this
undcrstanding in open court at sentencing, and neither the prosecutor nor the judge refutes him. Now imagine that, when
the defcndant arrives at prison, he learns that~ontrary to his counsel's infonnation-he will never be released from
prison. I
Under such circumstances, a person should be able to receive some sort of relief from the court system. What
happens. hO\vevcr, if the state court system refuses to rectify the matter? Traditionally, a defendant could tum to the federal
courts, but for nearly a decade access to the federal courts has not always been available due to a devastating combination:
pro se litigation2 and the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA,,).3
I have been a "jailhouse lawyer" since 1997, and I have encountered hundreds
situations like this. 4 ,
These cases arc not limited to defendants who entered into negotiated pleas based on incorrect information
provided by defense counsel, but also encompass defendants whose defense counsel failed to investigate alibi
witnesses or exculpatory evidence, seek the dismissal of sleeping jurors, object to prosecutorial misconduct, etc.
In all of these cases, defendants have been unable to seek federal review of their claims.
I have been incarcerated since June 10, 1995, and I am serving two concurrent life sentences in the Florida
Department of Corrections for robbery while armed with a firearm and attempted first degree murder of a law
enforcement officer. s Because of my financial inability to retain an attorney to pursue any post-conviction matters
for me. I had to engage in two extremely difficult tasks: I had to teach myself the law, and I had to represent
myself. I had to perform these tasks iJsing only the limited resources available to me inside the prison walls and
while trying to adjust to prison life, overcome mental health issues, such as severe depression. and fight a drug
addiction.
.
,
In this Article, I will discuss the difficulties faced by those of us who, because we cannot afford to hire
counsel, must challenge violations of our federal constitutional rights ourselves.
When Congress enacted AEDPA, it curbed the federal judiciary's habeas corpus jurisdiction6 and
undermincd the ability of pro se prisoners to file meaningful federal habeas corpus petitions. As a result of this,
many individuals incarcerated in the state prison systems are unable to obtain federal review of potential
constitutional violations, simply because they cannot afford to retain counsel to pursue post-conviction matters on
their behalf.'
,
In this Article, I wi1l demonstrate the unreasonableness of AEDPA by addressing some of the problems that
plague indigent pro se litigation by prisoners-problems which AEDPA greatly enhanced. In Part II of this Article, I will
prescnt a brief summary of the writ ofhabeas corpus and its purpose. In Part III, I will discuss AEDPA and the changes it
created. Because the most critical component of pro se litigation is the prisoner himself,S I wi11 devote Part IV to an
examination of the prisoner and the resources available to him. Specifically, I will examine the educational
backgrou!1d and mental health of prisoners, as well as the process .of memory acquisition as it may affect a
prisoner's memory of his trial. I will also explore some of the defects and inadequacies of prison law libraries,
of the legal assistance available to prisoners, and of prison officials' application of the Supreme Court holdings
attempting to minimize the hurdles indigent prisoners face in pursuing judicial remedies. In Part V, I will use
my own criminal case to demonstrate how AEDPA is preventing federal judicial review of violations of federal
constitutional rights. I will conclude, in Part VI. that AEDPA's restrictive provisions should be re"-pealed
because they are unreasonable and unnecessary.
.
I hope this Article brings to light a matter I believe was overlooked by Congress when it enacted
AEDPA: the reality of pro se prisoner litigation.

of

II. THE IMPO,RTANCE AND HISTORY OF HABEAS CORP,US
3

Florida Prison Legal Perspectives
: .' jHab~~i ,ct?'rptis~i'.a'so known as the "Great Writ," has long held a place in ttie American legalsystem. 9
Moreover, it Is' of such importance, that it was once claimed that it, along with the Ex 'Post Facto Clause of the
Constitution~lll'e'tiritiitated any need for a Bill of Rights. nll
. .
The Great W~it' was available as part of common law l2 in the American colonies 13 and was included in
the U.S. Constitution after the colonies won independence frQm Englatld.14 The very first statute enacted by
the First Cona.ress empowered the federal courts "to grant writs of habeas corpus for the: purpose of an in9uiry
into the cause'of comrn'itnient."1S This authority, however, was,limi~ed to cases involving federal prisoners. 6
Since Congress did not define the term "habeas corpus:' courts had to resort to the common law for
clarification of the statute. Even though the purpose of the Great Writ was to secure the liberation of those
unlawfully incarcerated, at common law, a judgment of conviction rendered by a court of general criminal
jurisdiction was con'clusive ~roof that the confinement was legal. Thus, such a judgment, without more,
prevented issuance of a writ." 7
In 186t.'8tthe beginning of the Civil War, President Lincoln suspended the writ of habeas corpus. This
suspension was met with the immediate protest of Chief Justice Roger B. Taney. who claimed that only
Congress held the ,authority to suspend the Great Writ. 18 Chief Justice Salmon P. Chase later reaffirmed the
magnitude of habeas corpus. describing it as "the best and only sufficient defense [sic] of personal freedom.,,'9
With the JU$liCia..y Act of 1867, Congress changed the common law rule by providing for an inquiry into the
facts of detention. a pr6cess now referred to as an evidentiary hearing, and expanded the federal courts' habeas
corpus authority to encompass state prisoners. 2o Over time, the habeas corpus statute was recodified several
times, but the basic grant of authority to i~sue the writ remained unchanged. 21
For centuries a person deprived of his liberty has had habeas corpus available to deliver him from unjust
confinement,22 However, this beacon of hope is beginning to fade, and the writ of habeas corpus may now be
evolving into what could be considered the "Great Unobtainable Writ."
Until recently, two important characteristics of habeas corpus remained unchanged. There was no statute of
Iimitations23 for seeking the writ because it was believed that the right of personal freedom from illegal restraint
never lapses.,,24 Also, there was no prohibition against successive applications for a writ,2s Sadly, public
perception· of these essential characteristics contributed to the mistaken belief that the Great Writ was being
abused,'6 and on April 24. 1996, they faded into history when President Clinton signed AEDPA into law.,,27
For the first time in history, habeas corpus petitions were subject to a' statute of limitations, and successive
applications fora writ were prohibited. 2B These amendments 29 to habeas corpus procedures have tragically "eviscerate[d]
the ancient writ of Habeas Corpus... tt30
I

III. THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT
On April 19, 1995, a tragic event occurred that would dramatically change the Great Writ: a bomb exploded in the
Alfred P. Murray Federal Building in Oklahoma City, killing 168 people and injuring nearly SOO more. As a result of this
terrible bombing, AEDPA "was drafted, enacted. and signed in an atmosphere of anger and fear't31 At this point let me
make it clear that I do '?elieve legislation was warranted to combat terrorism. However, limitations on habeas corpus
procedures do not serVe that purpose.
.
AEDPA did contain many 'provisions that were related to terrorism prevention and victims of terrorist attacks.32
The habeas provisions, how-ever, were called a "knee-jerk reactiontt33 to the Oklahoma City bombings. As the New York
Times noted, including these habeas provisions in this antiterrorism bill was nothing more than an "exploit [ation ot]
public concerns about terrorism to threaten basic civilliberties.",34
It was claimed that these ha~ provisions were "the only legislation Congress [could] pass as a part of
[AEDPAJ that [would] have a direct effect on the Oklahoma City bombing case..,lS Such legislation, though, does nothing
to prevent terrorism or to fight terrorism: "To truly protect citizens of this Nation, terrorists must be stopped before they
strike...,,36 lri' order for a terrorist to be affected by a change in habeas proceedings, the terrorist must already have
commi~d an act ofterrorism.37 As Senator Feingold stated:
The link between habeas corpus and keeping the people of this Nation free from
acts of terrorism is tenuous at best. The argllment that [the habeas provisions in
AEDPA] will prevent another Oklahoma City [was] one which [was] manufactured
solely to justify inclusion of these unrelated provisions in a bill originally meant
to address terrorism. 38
.

Florida Prison Legal Perspectives
"
Iimitations;39 (2) a prohibition against successive applications for a writ, except when, in very limited
circumstances, an appellate40 court ~rants prior approval;41 (3) restrictive limits on obtaining permission to
appeal 42 decisions of the. trial court;4 (4) modified exhaustion of remedies44 requirements for pursuing claims
prior to seeking federal 'review; 4S (5) a requirement that federal courts defer to state court determinations on
federal constitutional issues; 46 and (6) additional restrictive procedures that become available to states if they
conform with certain requirements. 4? .
To prevent a prisoner's federal habeas corp,.us time limitation from expiring prior to the exhaustion of his
statc court remedies, Congress included a "tolling provision in AEDPA. 48 This tolling provision functions like
a time clock. Whenever a prisoner's conviction and sentence become final at the conclusion of direct review,
the time clock starts. Whenever a state post-conviction motion is properly filed with the state courts, the time
clock pauses until completion of the proceeding.49 Once the proceeding is complete, the time clock begins to
run from the point in time that it left off. The time limit does not start over at the completion of each ~te court
proceeding, unless either the prisoner is re-tried, or an adjustment is made to his sentence.'o This time clock runs
until either the prisoner files his federal habeas petition, or a total of 365 days has elapsed during which he has no
properly filed motion pending in state court.
.
For the pro se indigent prisoner, seeking federal habeas corpus relief prior to AEDPA was already an
extremely daunting task that was rarely achieved.'· The pro se prisoner had to teach himself complex criminal
procedure,'2 legal reasoning, n legal doctrines,54 how to research claims, and how to write legal briefs and
motions;SS only then could he actually initiate a proceeding. In the post-AEDPA world, the pro se prisoner must
still learn the same procedures, doctrines, and skills, but now must do so within an unrealistic and unreasonable
one-year time period.
Because of the reality of the circumstances facing pro se prisoners, which I wiIJ discuss in the next section,
the new statute of limitations for seeking a writ of habeas corpus has resulted in an untold number of indigent
prisoners having federal review of potential fedeial constitutional violations completely foreclosed to them.56
Not only is the one-year statute of limitations unreasonable and unrealistic. it is also unnecessary. In all of
the time that I have been· incarcerated and been a jailhouse lawyer, I have never witnessed a situation in which a
pro se prisoner wished to delay his post~onviction remedies. Those of us who are incarcerated and pursuing such
proceedings are doing so because we wish to be free. Intentionally or needlessly delaying the pursuit of these
remedies would be illogical and contrary to the reason we file the petitions in the first place.
Moreover, the time limitation has a perverse effect, as prisoners no longer have sufficient time to learn
legal procedures and research potential claims adequately. Therefore, many pro se prisoners, rushed to file
petitions, end up filing claims that may not warrant reversal of a conviction while overlooking claims ,that
may."
Based on my years of personal experience with pro se litigation· and pro seprisoners, I can assert that
prisoners do not intentionally file petitions raising claims they know are without merit. We research claims to
the best of our ability using what limited legal knowledge and legal reference materials we have at our disposal.
With these constraints, just researching claims consumes a great deal, if not all, of AEDPA's time limitation for
filing a habeas petition. The one-year statute of limitations has forced many of us to file petitions without being
able to research some claims adequately. In my experience AEDPA has, therefore, had the perverse result of
increasing the number of meritless claims filed by pro se litigants. At times it is only after we file petitionstrying to comply with AEDPA-that we learn that a claim may not have the merit we originally believed it to
have.

IV. AEnPA AND PRISONER LITIGATION
In nearly eleven years of incarceration, I have never seen, rior heard of, a non-death row prisoner having
a court-appointed or pro bono attorney research, draft, and file post-conviction pleadings for him. These matters
have all been performed without guidance from counsel, using what legal materials and assistance were
available within the prison walls.
.
, It goes without saying that an indigent ~ro se prisoner faces greater hurdles to gaining meaningful access
to the courts than does an affluent free citizen. 8 Recognizing this fact, the U.S. Supreme Court handed down an
entire body of case law attempting to reduce the additional burdens of indigency and incarceration. Lane v.
Brown prohibited the states from adorting regulations that leave indigent defendants cut off from the appeUate
process by virtue of their indigence.' Burns v. Ohio required that indigent prisoners be allowed to file appeals
and habeas'corpus petitions without paying docketing fees. 6o Griffi1l v. Illinois ruled that, when necessary, trial
records must be provided at no charge to inmates who are unable to afford them. 61 Younger \I. Gilmore affirmed a

•

5

Florida Prison Legal Perspectives
~'

district court's:opinioD, invalidating an ovefly restrictive California 'prison regulation limiting prisoners access to
books aDd a law Jibrary.62 Ex parle Hull struck down a regulation that required prisoners to obtain a determination
63
from a parole board "legal investigator" that a petition was properly drawn prior to filing.
Johnson v. Avez
invalidated a prison regulation that prohibited inmates from assisting one another with habeas corpus petitions. 4
Bounds v. Smith held. that ''the fundamental constitutional right of access to the courts requires prison authorities to
assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law
libraries or adequate assistance from persons trained in the law.,,65'More recently, in Lewis v. Casey, the Supreme
Court limited the Bountl$ decision but reaffirmed a prisoner's constituiional right to have th~ capability of bringing
.
contemplated challenges to his conviction and sentence. 66
The foregoing body of case law creates the impression that everyone has equal access to the courts,
whether they are affluent or indigent, imprisoned or free. The efforts of the Supreme Court to place indigent, pro
se prisoners on equal footing with non-indigent litigants appears to imply that any imposition on the habeas corpus
right would affect everyone equally. Unfortunately for indigent, pro se prisoners, things are not always as they
appear.
An individual who is involved in the judicial process on a daily basis can attest to the fact that the judicial
system consists of two entirely different "systems" that can best be described as the "myth system" and the "real
system,,61
The "myth system" is the way the judicial system is designed to work: an indigent defendant has a
constitutional right to court-appointed counsel;68 the right to appointed counsel extends to direct appellate
review;69 and the defendant has a constitutional right for counsel to provide adequate and effective
representation. 70 The "real system" is the reality of the judicial process. Indigent defendants do receive
appointed counsel, but these attorneys regularly have such an overburdened caseload that they are unable to
spend sufficient· time on anyone particular case. 7• Counsel, in the majority of cases, lack funds to retain expert
72
witnesses or to perform independent tests on evidence and must use tests performed by the prosecution. Many
of the attorneys lack funds to hire enough investigators to prepare the cases adequately. 73
The "myth system" and the "real system" problem is not limited to the innocence/guilt phase of the
judicial process, but also extends to post-conviction proceedings.
The efforts of the U.S. Supreme Court to place indig~nt prisoners on equal footing with non-indigent
non-prisoners, as laudable as they were, unfortunately are part of the "myth system." Comprehending the
reality of pro se prisoner litigation requires looking beyond the case law and examining the average pro se
prisoner, the challenges he faces, and the regulations imposed upon him and implemented by prison officials in
response to governing laws.
.
This part of the Article discusses the reality of pro se litigation as I have witnessed and experienced it. I
will show that the average prisoner lacks the education, and sometimes the mental competency, necessary to
pursue meaningful and t·imely post-conviction remedies. Prisoners must count on unreliable memories of trial
court proceedings and may not be able to obtain a record of their trial in time to meet AEDPA's· deadline. In
addition, prisoners sometimes cannot obtain assistance from prison law clerks, and cannot receive assistance from
other prisoners without fear of being subjected to disciplinary action. Even'the limited assistance that clerks
provide is not always helpful because law clerks are often insufficiently trained or incapable of providing
necessary legal assistance. The above hurdles, taken together with the fact that prison law libraries are
inadequate and governed by outrageously restrictive regulations, make the pursuit of meaningful pro se
litigation from prison prohibitively difficult.
A. The Educational Background ofPrisoner...

6

Because every facet of pro se prisoner litigation begins with the prisoner, understanding the effects of
AEDPA requires understanding the average prisoner. Prisoners do not enter the prison system anned with a
legal education and skilled in the art of legal advocacy; rather, they must acquire what legal knowledge they can
once in prison. This can be an extremely daunting task. As the Supreme Court long ago acknowledged,
h[prisons] include among their inmates a high percentage of persons who are totally or functionally illiterate,
whose educational attainments are slight and whose intelligence is limited.',74
The claim that prisoners have "slight" educational attainments is an understatement. In fiscal year 2003-04, using
the Test of Adul~ Basic Education ("rABE"), the Florida Department of Corrections ("F.D.O.C.") found that the average
tested prisoner has obtained an education equivalent to a 5.5 grade leve!.1.5 This TABE grade level score is consistent with
t}te tests performed in each of the four preceding years. '6 For an inmate to be considered even functionally literate, he

Florida Prison Legal Perspectives
must achieve at least a 6.0 grade level TABE score.77 Since reading and language skills are essential to judicial
litigation, these two areas of the TABE should be examined in particular. The averalie reading score of a Florida
inmate is a 6.0 grade level, while the average language score is a mere 4.8 grade level. "
A person with such slight educational attainments can hardly be expected to teach himself complex legal
procedures and how to research viable post-conviction claims, and then to pursue meaningful post-conviction
remedies pro se. As unrealistic as these expectations are, they are even more unrealistic in light of AEDPA's oneyear time limitation.

B. The Mental Health ofPrisoners
A significant portion of the U.S. prison population lacks the mental competency necessary to proceed pro
se adequately and effectivell' In fact, the rate of men~1 illness among prisoners is more than triple the rate in the
rest of the U.S. population. 7 A Bureau of Justice Statistics report describes the.extent of this phenomenon, finding
that approximately sixteen percent of prisoners in the United States are mentally iIl. so The National Commission
on Correctional Health Care similarly finds that:
On any given day, between 2.3 and 3.9 percent of inmates in State prisons are
estimated to have schizophrenia or other psychotic disorder, between 13.1 and
18.6 percent major depression, and between 2.1 and 4.3 percent bipolar disorder
(manic episode). A substantial percentage of inmates exhibit symptoms of other
disorders as well, incl!ding between 8.4 and 13.4 percent with dysthymia,
between 22.0 and 30.1 percent with an anxiety disorder. and between 6.2 and 11.7
percent with post-traumatic stress disorder. B1
Nearly ten percent of all State inmates are being treated with psychotropic medications. B2 This percentage
increases to nearly twenty percent in Hawaii, Maine, Montana, Nebraska, and Oregon83 These medicatiods do
not necessarily alleviate the psychological encumbrances faced by the prisoners. In many instances these
medications may actually increase the difficulties for these prisoners because ohhe cognitive side effects of the
psychotropic medications. These side' effects are well-documented and may include: decreased psychomotor
speed and general intelligence, and memory loss; sedation, drowsiness, and deficits in learning, attention, and
concentration; and psychosis, confusion, and somnolence. 84
Considering the foregoing information, it is both unrea~onable and unrealistic to expect mentally ill
prisoners to file meaningful petitions within a one-year time limitation. Under the guidance of Bounds v. Smith. a
prisoner meeting the foregoing description should be provided "adequate assistance from persons trained in the
law. 8s
Prison officials in states such as Florida have adopted regulations pertaining to mentally ill prisoners. 86
These vague regulations, though, are woefully inadequate to satisfy any ··adequate assistance~ standard and do not
establish any set criteria to consider in determining what constit,utes a "mentally disordered': inmate. For the
purpose of this Article, I can use my-self as an example to show the deficiencies in these regulations when a
prisoner such as I have been describing attempts to engage in pro se litigation. I am an inmate in the Florida
Department of Corrections who was treated with psychotropic medications for approximately two years of my
incarceration.
Shortly after my arrestB7 I was given a psychological evaluation and placed on Wellbutrin, Congentin,
Tegretol, and L9xitane at a dosage of 200 mg of each, three times a day.88, These medications had me in a
contin~ously drugged state and affected my memory of some of the proceedings concerning my criminal case.
Upon my intake into the F.D.O.C. in January 1996, I was evaluated by F.D.O.C. mental health officials, who
determined that I was being overmedicated. All of the medications were discontinued, with the exception of
WeJlbutrin 1 which was reduced to 100 mg, twice a day. After this adjustment to the psychotropic medications, my
mental facilities improved rapidly and significantly.89 I was given the TABE in February 1996, approximately two
weeks after the adjustment to my medications, and scored a total battery of 12.9 grade level.90 In March 1996, I was
re-evaluated by mental health officials, and my medication was again adjust,ed. The Wellbutrin was increased to
200 mg, twice it day. and I was placed on Tegretol at a dosage of200 mg, twice a day. My mental condition quickly
. deteriorated. As' a result of taking these medications, I began experiencing side effects such as sedation,
disorientation. confusion, lack of concentration, memory loss, difficulty comprehending things, and at times I did
not even know where I was. It was w~ile I was in this condition that I had to begin pursuing post-conviction
remedies pro se, since I could not afford an attorney and Florida does'l1ot provide counsel to indigent defendants
7

Florida Prison Legal Perspectives
for the preparation of collateral post-conviction motions or petitions. 91
An inmate law clerk'2 who worked in the law library at Washington Correctional Institution described his
attempts to discuss legal matters ~th me as follows:
Mr. O'Bryant would just stare at me. He was not able to grasp the concept of
different levels of degree of offenses] (he was sentenced under a life felony as
opposed to a first degree felony). Furthermore, he was not even able to grasp the
information of how the legal books corresponded to one another. It was as if I was
teaching basic legal principles to a 12 year old.
After repeatedly covering any particular subject Mr. O'Bryant would finally say
"Now I understand," but the next time I saw him he would only' be able to
remember a small portion of what was covered previously, leading me to believe
that he never really understood to start with. 9) .
Despite my mental condition, my relatively high TABE score (which I achieved during my ~rief period of
clarity when my medications had been reduced) disqualified me from being eligible to have a law clerk' assigned
to my legal work to help draft a post-conviction motion on my behalf,94 even though my medical records
demonstrated that I was suffering from psychosis. 9s If I had been given the TABE test at the time I was trying to
get assistance from the law library, and while I was on the increased medic,tions, I believe I would have qualified
.
for a s s i s t a n c e . .
Dr. Judith O'Jile: director of the Neuropsychology Laboratory of the University of Mississippi Medical
Center, reviewed my situation and determined that "the combined side effects of these medications could have
easily caused a diminished ability to read, comprehend, and remember the complex legal information necessary
for hilp to complete the legal procedures, research legal issues, and draft legal petitions amlldr motions in a timely
manner.,,96
However, because of my ineligibility to have a law clerk assigned to assist me in pursuing post-conviction
remedies-which was determined based solely on my TABE score. without any consideration of my psychological
status-and my inability to grasp the complex legal information necessary to pursue these remedies myself, I was
unable to comply with AEDPA's one-year time limitation.
My conviction and sentence became final prior to AEDPA's April 24, 1996, effective date. 97 Therefore, I had until
April 24, 1997, to initiate state post-conviction procedures if I wanted to seek federal habeas corpus relieflater. 98 I
was being administered psychotropic medications during this entire time period by prison mental health officials, .
which rendered me incapable of pursuing such remedies. After discontinuing these medications in September
1997, my mental health improved, and I filed my first state post-conviction motion on November 7, 1997.
Unfortunately, my time limitation for seeking federal habeas corpustrelief had expired on April 24. 1997five and one-half months before I filed my first state post-conviction motion. Had it not been for these
psychotropic medications and their adverse side effects, I would have been able to learn the legal procedures
necessary for ine to pursue meaningful post-conviction matters earlier and would not be time-barred from the
federal courts by AEDPA.
To be clear, I am not asserting that prisoners should not be given psychotropic medications because it may
render those prisoners unable to pursue legal claims pro se; these medications do have benefits for those who need
them. 99 What I am asserting, though, is that prisoners in this situation are being deprived of federal habeas corpus
review because the medications they are being given for their diagnosed mental disorders are preventing them from
comprehending the legal information they must learn when they cannot afford to retain counsel. Congress either
overlooked or completely ignored this aspect of pro se litigation when it enacted AEDPA.
C. Prisoners' Reliance on Memory o/Trial Court Proceeding.'i

a

Even if a prisoner i's fortunate enough to be functionally literate and mentally competent, he faces
unreasonable hurdles in attempting to comply with AEDPA.
'
Since AEDPA's time limitation does not begin until the judgment and sentence become final. it might
seem logical that the time period in which an appeal of the judgment and sentence is pending would give the pro
se litigant a sufficient head start on compliance with ·AEDPA. However, it is important to take into account
another reality of the post-conviction process that prevents the pro se litigant from. making use of this time. 100
Unless the pro se prisoner has sufficient fuhds to purchase a copy of the trial court record, he must attempt to

Florida Prison Lel!al Penpeetives
discover and research potential claims based on his memory of the proceedings. 101
As mentioned previously, the Supreme· Court has held that an indigent defendant is to be given a copy of
the trial record, or a reasonable alternative, without charge. 102 This copy of the trial court record. however, is
provided only if an appeal is taken and it is then given to appellate counsel, not to the defendant. IOJ Some courts
have even held that the right to free trial court records established iitGriffin v: Illinois does not apply for the
purpose of preparing collateral. post-conviction remedies. 104 A prisoner. wishing to pursue post-conviction
remedies, therefore, will only receive a copy of the trial court records after completion of the direct appeal and. in
tum, after AEDPA's time limitation has begun. At times, much of the one-year'time limitation lias elapsed before
the prisoner actually receives the record. 105
.
The :iupreme Court has stated that indigent defendantS are to be given a copy of the record of their
conviction, without charge, because obtaininlt "'adequate and effective...review' is i"!possible without a trial
transcript or [an) adequate substitute .... ,,106 Ii proposition is well-founded..It is extremely unwise to ~Iy on
,
memories of trial court pr<?ceedings, especially for a pro se prisoner.
Experts break down the memory process into three major stages: acquisition (when a witness perceives an
event and· information enters the mem0fl, system), retention (the time between ,acquisition and' retrieval), and
retrieval (the attempt to recall the event).' 7
At each of these three stages, several factors affect the accuracy and reliability of an individual's memory:
in the acquisition stage, "witness factors" (expectations, stress/fear) and "event factors": (duration of the event,
lighting conditions, noise levels); 108 in the retention stage, the length of the retention' interval and the timing of postevent information; 109 in the retrieval stage, factors such as method of questioning and confidence leVel. llo The education
level or mental competency of a prisoner could be. '"witness faetors~' that negatively impact the acquisition stage, and
therefore affect the accuracy of his memory of his trial. The "stress/fear" factor and "expectation" factor of trial court
proce~ings could .also heavily influe'nce the memory process.
.
.
As an(.ooe who has evc:r been a defendant in a criminal trial can, attest. it is an'extremely stressful and feai-ful
experience.,,11 The prosecution describes everything in the worst possible context, using "experts," scientific evidence." and
"distinguished law enforcement officers." All the while, a panel of complete strangers weighs the evidence and testimony
and decides a defendant's fate, which in some instances may very well be a decision between life and death.,,112 Some
defendants, because of the level of stress, experience nausea, disorientation, and feel as if they are ina daze through-out the
trial. 113 Pro se prisoners must rely on these memories to prepare requests for post-conviction remedies in order to take
advantage of the supposed "head start" on AEDPA's time limitation. Due to the unreliability of the memories acquired
during such a situation_ some pro se prisoners find themselves having to' begin' anew the process of attempting to discover
and research potential post-conviction claims when-and if-they manage to obtain the record of their conviction. In some
instances this may contribute to the. pro se litigant being time-barred under AEDPA. According to one inmate:
M

When 1got my trial transcripts, I thought they'd been altered. There were things I thought
happened that were nowhere in the transcripts. And these were the issues I'd been trying to '
learn aboutso I could file my state post-conviction motion. The entire time [spent trying to
learn about those issues was dead time. I had to start all over again. By the time I filed
my state post-conviction motion, I was already time barred in the federal court. ,,114
This is not an uncommon occurrence. ,,115 Many times while assisting other i~mates I have had them ten me, very
adamantly, that their trial transcripts have been altered and that things happened differently from what the
.
.
transcripts actually reflect. ,,116
If a pro 'se prisoner waits until he obtains a copy of the transcripts of his conviction to begin preparing
state post-conviction motions, he runs the' danger of failing to comply with AEpPA. If the prisoner attempts to
pursue state post-conviction remedies prior to receiving the transcripts, he then runs the danger of filing m'otions
the courts deem frivolous and meritless, and of fotentially overlooking (and in some instances, thereby waiving)
viable claims that are supported by the record." I I
•
.
•
The time period in which a direct appeal of a judgment and sentence is pending, which delays the
triggering of AEDPA's one-year time limitation, is therefore of little meaningful ben,efil to the prisoner as far as
discovering and researching post-conviction claims.
.
D. Law Clerics. Jailhouse Lawyers. Prison Law Libraries, alld Other Barriers to Legal A.fsistallce
The time in which a direct appeal is pending should be an e~cellent opportunity for the pro se prisoner to '
begin learning legal research and writing. legal reasoning, legal theories and doctrines, and legal. procedures, even
9

..

Florida Prison Legal Perspectives
if the prisoner cannot effectively research viable post-conviction claims until he obtains the rec.ord of his
conviction. However, Bounds v. Smith, was a limited decision that left prison officials-who are experienced in
prison administration, not in judicial or post-conviction matters-without any mandates to follow in assisting
prisoners w.ith access to the courts.,,1l8
.
The Supreme Court later modified Bounds in Lewis v. Casey. where it held that Bounds did not recognize a
freestanding, absolute right to "physical access to excellent law libraries plus help from legal assistants and law
clerks."ll9 Bounds. according to Lewis. "guarantees no particular methodology but rather the conferral 'of a
capability-the capability of bringing contemplated challenges to sentences.... ,,110 Therefore, "it is that
capability, rather than the capability of turning pages in a la~ library, that is the touchstone [to adequate law
libraries and adequate assistance from persons trained in the law]. ,,121
. .
.
Examining prison law libraries, inmates' Jlccess to law libraries, the training provided to law clerks, and
other hurdles reveals another aspect of the "real system" of pro se litigation. In this Section, I will address,the
reality of the resources provided to prisoners, which they must use to develop the "capability" of launching
meaningful post-conyict~on challenges to their convictions.

J, Law Clerks

Florida Prison Legal Perspectives
adequate assistance to other prison~rs.131
For a prisoner'to become a "certified" law clerk, and thereby bee"ome authorized under prison regulations
to provide legal assistance and advice, the prisoner only. needs to take the seminar, complete a few written
exercises during the seminar, and receive a passing score on the final examination. 132 This final examination is a
test consisting of fifty true/false and multiple choice questions. Before taking the examination, the prisoner is
given the option of either answering the firSt thirty questions "closed book" or answering all fifty questiqns ':open
book," using any manuals and notes available. A "passing score" is a mer~ seventy percent. 133
The law clerk training seminar held in November 2005 by F.D.O.C. officials at A.C.I. used a different
final exam for the completion of the seminar and for certification. A passing score on this particular test was
. eighty percent, but the test consisted of only twenty-five questions and the inmates were allowed three hours to
complete the test using any materials in the law library-including the assistance of others. Whether this test was
just for the "psych inmates" or will be the test used from now on has yet to be seen.
Over the years that 1 have been a jailhouse lawyer, I have had to show certified I~w clerks how to researoh
claims, explain that introductory signals to a citation do actuall~ have meaning and are nor merely a portion of the
title of the book or journal the cited authority is published in: 4 and show .that the West Key Numbering System
cross-references state case law,with federal case law. I have even had to assist certified law clerks in preparing
their own motions because, as they admitted, they did not know what to do or where to begin. These certified law
clerks, however, are the prisoners who the F.D.O.C. officials assert meet the "adequate assistance from persons
trained in the law" requirement of Bounds and the "conferral of capability" requirement of Lewis. 13S

.

2. Jailhouse Lawyers
There are prisoners among the prison populatic;m, other than the ones working in prison law libraries, to
whom prisoners may turn in order to gain legal knowledge and assistance. Some of these jailhouse lawyers were
trained b~ prison officials initially to be law clerks. some trained themselves, and some enrolled in correspondence
,
.
,
courses. I 6
The Supreme Court has addressed prison regulations concerning jail-house lawyers providing assistance to
other prisoners. In Johnson v. Avery, the Supreme Court struck down a Tennessee prison regulation that prohibited
jailhouse lawyers from assisting others with legal matters and ~ould have effectively barred illi~erate prisoners
from filing habeas corpus petitions. The Court held that the regulation violated Ii prisoner's right of access to the
.
courts. 137
Given the Supreme Court's decision in Johnson, a prospective pro se prisoner should be able to seek out
jailhouse lawyers to find guidance in gaining the necessary legal knowledge to prepare for post-conviction
procedures. Prison officials in some states, such as Florida, have adopted regulations in response to Johnson. 138
Florida's regulation states: "Inmates may assist other inmates in the preparation of legal documents and legal
mail. "139 The F.D.O.C., however, has also adopted regulations that, it. effect, operate to prevent the assistance'
authorized in Johnson. 140
• In order for a jailhouse lawyer to "assist other inmates in the preparation of legal documents and legal
mail, 141 the jailhouse lawyer must be able to read the inmate's legal documents. For the jailhouse lawyer to
read these documents, he must possess them-and therein lies the problem. Prison officials prohibit an inmate
.
from possessing property belonging to another inmate, including legal documents and papers. 142
I have personally been subjected to disciplinary action for assistin~ other inmates in the preparation of
legal documents. 143 1 was given fifteen days in disciplinary confinement, 44 and lost twenty days of incentive
gain time,14S for assisting other inmates in attempting to file timely 'state post-conviction motions in order to
comply with AEDPA. 1 could have been punished more severely, and I have been info,rmed that t wi11 be given
the maximum penalty if 1 am found in possession of another inmate's legal papers, agaiit}46 The maximum
penalty for possession of contraband" in Florida is fifteen days disciplinary confinement and loss of thirty days
incentive gain time. 14 ? . This. however. is not the end of the punishment.
"An inmate is not eligible to receive incentive gain time for the month in which there is an infraction of the
rules,nl48 nor is the inmate eligible to receive incentive gain time for the three months following the month the
rule infraction occurred. 149 Therefore, if a jailhouse lawyer provides assistance to an inmate in Florida, and the
jailhouse lawyer is found in possession of that inmate's legal papers. the jailhouse lawyer can spend anywhere
from five to nine days in administrative' confinementl.SO pending a disciplinary hearing. ISI fifteen days in
disciplinary confinement after the hearing, and an additional seventy days in prison. These disciplinary
sanctions act as quire a deterrent and severely hinder many prospective pro se prisoners.
Over the years, I have seen competent jailhouse lawyers who were'within a year or two of being released
M

11

Florida Prison Legal Perspectives
turn down other inmate.s needing assistance because they were, understandably, afraid of. getting caught
providing assistance and having to accrue prison extra time for it.

J. PriSon Law Libraries
Prison offi.cials are required to provide prisoners with I.aw Iibraries. 152 These law libraries should be
evaluated to determine whether, in light of AEDPA, they guarantee a "conferral of a capability" to prisoners to
gain meaningful access to the courts. IS] An examination of ·these law libraries reveals that they fall short of
being "adequate" to assist prisoners with obtaining ,post-conviction relief. 1S4
.
Ineffective assistance of counsel ("LA.C.) is "the most frequently· cited reason for habeas corpus
petitions filed by· State inmates. 155 I.A.C. claims, therefore. are .an appropriate reference point for an
..
examination of prison law libraries.
t
In order for the pro se prisoner to establish an I.A.C. claim, the prisoner must satisfy the two-prong test
. announced in Strickland v, Washington. 156 This is an extremely difficult task for anyone to accomplish, but even
more so for the pro se prisoner. Not only must the pro se prisoner teach him-self complex legal proced~res, but he
must also become a "jack-of-all-trades" in the fields of evidence and witness testimony. If testimony is presented
concerning DNA, the pro se p~isoner must learn about biology, genetics, population st~tistics, and the methods of
DNA analysis. If an autopsy was performed, the pro se prisoner must become familiar with forensic pathology. If
a police officer testi~e~ concerning police procedure, the pro se prisoner needs to be familiar with the police
department's standard operating procedures. If a records custodian testifies, the pro se prisoner must learn about
the business's record keeping practices. Without learning these things, the pro se prisoner cannot determine
whether proper procedures were followed, whether the witness was qualified to testify, whether the testimony and
evidence were reliable and admissible, or whether defense counsel rendered deficient representation. for not
properly objecting or impeaching. The pro se prisoner must also learn about the psychology behind a jury's
decision-making process to be able to determine whether defense counsel's errors or omissions were prejudicial.
. In Florida, prison officials do not provide the materials in prison· law .libraries to teach the foregoing
matters. Florida regulations define a "major collection" law library as containing:
an annotated edition of the Florida Statutes; an annotated edition of· the U.S.
Constitution and federal statues governing habeas corpus and prisoner's rights;
Florida and federal case reporters; Florida and federal Shepard's citation indexes;
Florida and federal practice digests; forms. manuals; and secondary source materials
providing research guidance in the areas of federal habeas corpus, Florida postconviction and post-sentence remedies, and prisoner's rigtits. IS7 .
,
It seems logical that ~ith the importance of researching subjects such as scientific evidence, jury
psychology, and police procedures, prison law libraries would be required to possess resource materials
concerning these subjects. This, unfortunately, is not t"'e case.
. The materials that are in the law library can be difficult for prisoners to access, especially federal material,
which is critical when attempting to comply with AEDPA. For example, some prisons· in Florida have replaced
their hardbound volumes of federal case reporters with a CD-ROM collection of these reporters. us In theory, this
should benefit the pro se prisoner. In. reality, it does not.
Performing research of potential claims is much faster and easier with a computer. A person may simply query a
keyword or phrase and have numerous case citations available at the touch of a button. What could take days manually
searching through volume after volume of cases could, literally, be done in a matter of minutes with a computer and a COROM collection of case reporters. In Qrder for a pro se pr.isoner to benefit from this, however, the prisoner must first have
access to the c o m p u t e r . ·
. .
Prisoners in Florida are not allowed to use the computers in the law libraries for research pUrposeS.lsg A pro se
prisoner needs to know the name and citation ofthe case he wants to read. He must then give the case citation to a law clerk.
The Jaw clerk. when he gets around to it, will then pull up the case on the computer, and the pro se prisoner may then read
the case off.the computer screen and take notes. At no time during this process is the pro se grisoner allowed to touch the
keyboard; 160 the pro se prisoner must have a law clerk available to scroll the text up or down. 61 The law library ma~ have
t1u;ee or four computers in it, but only one is designated for use by the prisoners who do not work in the law library.'
When a prison (like the one where I am housed) has over 1000 prisoners. plus the 350-400 prisoners at a work
camp,l63 one computer is woefully inadequate to accommodate the needs of the prisoners attempting to comply with
AEDPA. There have been times when I spent an entire day in the .law library and was only able read two or three cases.

to

12

Florida Prison Legal Perspedives
Other times I was unable to read any federal cases. Needless to say, when attempting to comply with AEDPA. it is of the
Ulmost importance that a pro se prisoner be able to read federal case law, especially given that AEDPA created a
limitation which provides that:
'
An application for a 'writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim-(l) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly estabtished Federal law, as
determined by the Supreme Court of the Unite~ States... 164
\

It is impossible to determine if something satisfies this requirement if one cannot read "established Federal law,
as determined by the Supreme Court of the United States."
Prisoners who seek to c,hallenge federal convictions are severely ,disadvantaged by the law library
collection in the F.D.O.C. when attempting to comply with AEDPA. Numerous state prisoners also have
consecutive federal sentences. 165 There are also federal prisoners being housed in state prisons under
intergovernmental agreements.'66 Because the F.D.O.C. prison law libraries only have federal statutes
concerning habeas corpus and prisoners' rights. 167 these prisoners cannot even read the federal statutes under
which they were convicted.
Prisons have limited budgets and therefore may not he' able to afford to provide prisoners with aJ)inclusive law libraries and more adequately trained law clerks. But it is not at all obvious that sonie very
helpful reforms would cost the state money.'68 , Prisoners, such as myself, are not requesting everything
available concerning criminal law, nor are we requesting college-trained law clerks-as nice as that would be.
It would not cost prison officials any more money to train prisoners with a minimum TABE score of
12.0 as law clerks than it would to train ones with a 9.0 grade level score. Nor would it cost any additional
money to stop destroying legal materials that are already in existing law library coJlections when the law library
has ample space to store those materials.
Whenever an inmate is placed in the law library as a law cletk and 'begins to demonstrate adequate skills,
prison officials are quick to remove him from the law library. I have witnessed this and have been subjected to it
personally. It would not cost any additional money to leave inmates with such skills in the law library.
Improving the training programs may cost additional money, but the additional costs should not be
unreasonably burdensome since these expenditures may very well be offset by funds saved in other areas. For
instance, how much does it cost the courts each year to entertain insufficient motions and dismiss them for
prisoners to correct and re-fiIe? Logically, better-trained prison law clerics could cut back on the number of
such pleadings and could save the judiciary money and time, which could be used on other, legally sufficient
filings.
A cost-effective solution could also be to thorough'ly train ten to fifteen inmates and then use these
inmates to teach the certification seminar. Inmates are already used in education departments at institutions to
teach literacy courses.!69 The same could be done for the law clerk training program.
Another avenue that could be taken to resolve many problems is to repeal AEDPA. This would not cost
prison officials any money and would help maintain the integrity of the judicial process.

4. Other Barriers Prisoners Face

If a pro se prisoner is fortunate enough to overcome the barriers discussed above, he still faces many
hurdles while pursuing meaningful post-conviction relief and working to comply with AEDPA.
Gaining access to a prison law library is not as simple as walking into the law library and requesting
legal books or assistance. All access must be obtained by submitting an "Inmate Request Form," which under
prison regulations must "be responded to within 10 days, following receiptby the appropriate officiaJ.."!70 If a
prisoner has a deadline!7! and is requesting priority access,l72 then the Inmate Request Form must be answered
within three working days.!73
The rules governing law library access for prisoners with deadlines are different from those governing
prisoners without deadlines. Prisoners in open population l74 who do not have deadlines ire expected to use the
law library only during their off-duty hours. I?! Because access must be obtained through a written request form,
and because prison officials are allowed up to ten days to answer written reque~ts, a prisoner must request
access well in advance. Therefore, the only "off-duty" hours the prisoner may request are the prisoner's regular
13

Florida Prison Legal Perspectives
scheduled off days. I16
It is the stated goal of prison officials to work prisoners at least forty hours per week. m The vast majority
of prisoners participate in programs or jobs in which ther get Saturdays and Sunday's off. 118 Prison law
libraries in Florida are closed on Sundays and Mondays.17 The majority of prisoners, therefore. only have
access to the law library, its materials, and the assistance of law clerks one day per week-Saturday. That is
approximately six hours of access if the prisoner is scheduled for both the morning and afternoon sessions.
Conversely. access to the general library is unrestricted by such regulations. Any time a prisoner is off-duty and
wants to go to the general library, all he needs to do is get a pass and go. If a prisoner gets a pass to go to the
general library and attempts to use the law library. the prisoner can go to confinement for being in an
unauthorized area, even though the general library and the law library are in the same room.
The lack of law library access is extremely problematic When considered in the context of AEDPA's time
limitation. In a year, a prospective pro se prisoner may only have fifty-two days of law library. access in which
to learn complex legal procedures, research potential claims, and learn how to draft post-conviction motions. ISO
No reasonable person can honestly believe that prisoners facing the problems described above will be able to
prepare adequate post-conviction motions in compliance with AEDPA under such circumst~nces.
Prisoners who seek "priority access" are not in a much better situation. Priori~ access is a procedure
which affords inmates greater access to libraries under certain specified circumstances. I I As unbelievable as it
may seem, an AEDPA deadiine does not quaiify a prisoner for priority access to the law library in Florida
prisons: 82 Under prison regulations, AEDPA is recognized as a "deadline. 183 but "priority access shall be
. granted if the maximum time limit is 20 or fewer calendar days. MI84 Therefore, because the AEDPA deadline is
one year, priority access is unavailable for prisoners seeking to comply with AEDPA.
Furthermore, prisoners are routinely denied priority access if the time available to them to use the law
library during their off-duty hours is more than six hours per week. 18S Pursuant to this practice, if a prisoner has
an off-duty day that falls between Tuesday and Saturday, he may very well be denied· priority access. To further
frustrate matters. even if the prisoner qualifies for priority access. a law library supervisor "shall not excuse an
inmate... from a work or program assignment to use the law library for more than one-half of the inmate's
workweek."I86 Moreover. prisoners have restrictions placed on the use of their time while in the law I.ibrary.
Prisoners are not to be "excused from a work or program assignment solely for the purpose of drafting legal
documents and legal mail; such activities shallibe performed during off-duty hours. ,,187 This rule is enforced.
In 1998. while in the law library preparing an initial brief for the appeal of my state post-conviction
motion, I was confronted by the law library supervisor concerning this"no drafting motions" regulation. The law
library supervisor told me that if I was going to be drafting my brief. I would have to leave and return to work. ISS
W~en I attempt~d to explain that I was using law library material, the Florida Rules of Court, to ensure that my
brief was in compliance with the appellate court's filing requirements, I was ordered to leave the law library Qr
risk receiving a disciplinary report and being sent to confinement for disobeying institutional rules and
regulations. I was informed that drafting my brief was not "research" and was prohibited in the law library. even
using the Florida Rules of Court. 189 .
When an inmate does acquire law library time and is actually in the law library, obtaining assistance from
one of the law clerks still may be quite difficult.
While prison. officials have adopted regulations concerning prisoners' access to the courts, some states
actually prohibit prison law library services from assisting a prisoner during the pendency of his direct apeeal. In
Douglas v. California. the Supreme Court mandated appellate counsel for indigent prisoners: 0 This
requirement, while essential for quality appellate review,191 actually prevents some prisoners from being assisted
by prison law clerks while their appeals are pending. In Florida, a prospective pro seprisonerwill not be allowed
to receive such guidance from the inmate law clerks while the prisoner has a direct appeal pending.
,
This position of the F.D.O.C. is demonstrated by an e-mail communication between two F.I:?O.C.
officials, Susan Hughes and Barry Rhodes. '92
On December 11. 200 I, Ms. Hughes e-mailed Mr. Rhodes about a 'research aide who had requested
permission to send a "status report" to an inmate's attorney. The inmate, who was illiterate. was represented by
the attorney on direct appeal, but had been working with the aide on a post-conviction motion while the direct
appeal was pending. Mr. Rhodes responded as follows:
.
If the inmate has an attorney representing him/heron a case we are not to' be
involved what-50-ever in the research-assistance advice cycle....
EXCEPTION Some inmates will tell us they are actually writing the court

14

Florida Prison Legal Perspectives

to

document to file "pro se" and want to send the document to a lawyer just
review....We can instruct the inmate to obtain a letter from the lawyer stating that
the inmate is acting on his own and filing pro se. Then the research aide can help
the inmate.

However, when an inmate is represented by an attorney we must continue to:
retrieve research materials from the shelf for the prisoner; provide appropriate and
required forms; and provide supplies such as paper, pen, and envelopes per the
rule ....
If the lawyer is the prisoner's attornt!y of record-so be it. In that case instruct the
aide to stop assisting the prisoner. 19 ]
As demonstrated by the foregoing communication, a prospective pro se prison~ is unable to obtain
assistance from' prison law clerks to begin preparing for eventual post-conviction proceedings while he has an
attorney pursuing direct appeal issues on his behalf. Once the direct appeal process is complete, and AEDPA's
one-year time period has begun, 'a prisoner may use prison law clerks and any guidance they may provide.
Even after the direct review is finished, the very first piece of information given to a prisoner concerning
post-conviction remedies is incomplete. When prisoners in Florida are notified by their court-appointed
appellate counsel that their direct appeals have been denied, they receive a standardized form letter that contains
the following statement concerning post-conviction remedies and judicial time periods:
I should like to advise you ... that you may file a motion to mitigate or reduce your
sentence. Such motion is filed with the trial judge; it must be both filed with the
.trial judge and heard within sixty (60) days after the decision of the district court
[on appeal] becomes final. In informing you of this possible remedy, I make no
assessment as ·to whether it would be successful or not. However, I did feel you
should be advised since there is a specified time period for filing a motion to
mitigate.
You also have the right to file a motion for post-conviction relief under the Florida
Rule of Criminal Procedure 3.850. A Rule 3.850 motion is filed in the trial court,
and must be filed within two years of the date that the conviction became final ....
If a Rule 3.850 motion is filed and denied, you would have the'right to appeal from
the order denying post-conviction relief within 30
days of that order .... 194
For a pro se prisoner to comply with AEDPA, it is of the utmost importance for the prisoner to be made
aware of the one-year time limitation. It has been my experience that court~appointed appellate counsel in Florida,
for some unexplainable reason, neglect to inform the prisoner of the .existence of a time limitation for seeking
federal habeas relief. l9J As a result, prisoners begin preparing for state post-conviction remedies under the
mistaken belief that they may use the entire two-year period before filing their )Jost-conviction motion in the state
court without missing any important deadlil)es.
I have been asked many times by prison~rs who are out of time for seeking federal habeas review. "How
can I have only one year to file a federal habeas corpus when I cantt file it until after I finish my state remedies.
and I have two years to file state post-conviction motions? Should my federal time not begin after I finish with my
state post-conviction remedies?" Such a situation does not seem logical, but it is the situation.
V. THE END RESULT OF AEDPA

AEDPA has resulted in what could be considered an affront to the very dignity and credibility of the
judicial system. In numerous cases, federal review of the constitutionality of a prisoner's conviction ·and sentence
has been barred simply because the prisoner is uneducated, mentally ill, .or indigent. Because of AEDPA's time
limitation, inadequate and inaccessible prison law libraries, under-trained and poorly chosen prison law clerks.
and a host of potential education and mental health issues, Illany pro se prisoners are simply unab~e to obtain

15

Florida Prison Legal Penpectives
federal habeas review of constitutional violations. 196
Recall the person 1 described in the introduction who accepted a plea based on his attorney's explicit
assertion that he would be released from prison after serving a certain number of years, only to learn too late that,
under the plea, he would never be eligible for release from prison. Or imagine a person being told to take a plea
by his attomey because, according to the attorney, the defense the person wished to pursue was not allowed under
state law. when in fact it was an allowable defense and was supported by competent medical evidence. A person
should not be prevented from obtaining federal habeas review of claims such as these simply because he was one
of the prisoners detailed earlier and could not afford to hire an 'attorney to pu~ue post-conviction claims.
Unfortunately. in the real system of pro se litigation, this is not uncommon.
The sad fact of the matter is that 1 am an indigent prisoner with such claims who is time-barred by
AEDPA. 197 And 1am not alone. There are many of us in this situation. 19B
. On June 10. 1995,1 was arrested and charged with, amon~ other things, robbery while armed with a firearm
and attempted first degree murder of a law enforcement officer. 99 The charged crimes also occurred on June 10.
1995. I do not deny committing the acts for which] was arrested. 1 was se verely intoxicated on drugs and alcohol
at the time the events happened. I do not wish to have my voluntary intoxication excuse my conduct. My entire
defense concerning my intoxication was that 1 lacked the "specific intent..2OO required under Florida law for these
offenses201 and that 1 should have been charged instead with grand theft and attempted second degree murder. 202
The attorney who was appointed to represent me misinformed me that voluntary intoxication could not be used as a
defense in Florida and told me that if this was the defense 1was claiming, 1should plead guilty.203
I pled guilty to robbery while armed with a firearm and attempted first degree murder of a law
enforcement officer based on, my court-appointed counsel's advice. The agreed-upon sentence, as explained to me
by my counsel, was that I would be sentenced to life in prison for each offens~to be served concurrently-and
that 1 would be released on parole after serving, at the most, twenty-five years. This, however, was not true.
According to the Florida Parole Commission, 1 "will serve the remainder of [my] natural life in prison unless [I
am] granted clemency."l04
Later, my defense counsel admitted:

1 specifically advised the defendant, Thomas C. O·Bryant. that he could expect to be
eligible for release under the sentences...after 25 years... .1 am certain that the
possibility of being eligible for release, after 25 years, was a major factor in the
defendants [sic) plea... .It has now been explained to me concurrent life sentences
imposed upon Count 11, for Armed Robbery, is being construed to prohibit any
possibility of parole. The defendant was never advised in this plea that the
negotiated sentence would prohibit parole. 20s
When I raised this matter as a claim of ineffective assistance of counsel and as an involuntary plea (without a
full understanding of the consequences), the trial court denied the claim and the appellate court affirmed the
denial without comment. 206
The Supreme Court has long held that since a guilty plea necessarily entails a defendant foregoing
numerous constitutional protections-the right against self-incrimination, the right to a jury trial, the right to
, confront one's accuser-the guilty plea may only be upheld if it was voluntarily, knowingly, and intelligently
made. 207 A critical component of the plea being "knowing" is that the defendant must have a full understanding
of the consequences of the plea. 2GB When a defendant enters into a plea based upon incorrect or incomplete
information from his defense counsel, the prosecution, or the judge, how can the plea have been made
"knowingly"? When the state courts refuse to abide by this federal constitutional doctrine, a federal court
should not be divested of its authority to review the case because of an unreasonable time limitation, such as the
one created by AEDPA.
My case is not an isolated incident. As a "jailhouse lawyer," I have encountered many prisoners who
are time-barred by AEDPA despite having valid claims of substantial ,constitutional violations. This includes
prisoners who were 'Villin~ to accept responsibility for their unlawful cond,uct and entered a plea to a certain
charge or sentence, but learned after being incarcerated that the sentence imposed was not the sentence they
agreed to. It also includes prisoners who remain incarcerated for crimes to which others have confessed.
defendants being prohibited from cross-examining prosecution witnesses concerning their motives to fabricate
testimony,209 fabricated' "confessions" of the defendant being presented to the jury,'110 etc. In all of these
situations, tbe individuals had to proceed pro se be-cause they could not afford to hire post-conviction counsel,
and because of AEDPA, they were unable to obtain federal review.
16'

.

Florida Prison Legal Penpectives

VI. CONCLUSION

.;

.' "

Congress should repeal ABDPA's habeas corpus provisions. Bven with-out ABDPA.. tlie entire system
seems to prevent indigent prisoners frOm obtaining meaningful review of constitutional 'violations:
undereducated prisoners. prisoners with mental disorders. unreliable memories of trial court proceedings, under-'
trained and under-educated law clerks. "psych inmates~ .working as law clerks. law libraries with meager
resources. restricted access to these law libraries, law clerks, and jailhouse lawyers-the list goes·on. Combine
these problems with an unreasonable and unnecessary time limitation and a prohibition against successive
habeas petitions, and the writ of habeas corpus has truly evolved into the "Great Unobtainable Writ.,,211 Surely
this is not what the Founding Fathers envisioned the writ of habeas corpus to be when they proclaimed that it
obviated the need for the Bill of Righ 15. 212
:
.'
When obtaining a conviction against or imposing a sentence upon a defendant for his unlawful conduct. it
is of the utmost importance that the law arid constitutional safeguards be followed. Because ofAED~A. many of
us in prison are not able to obtain the federal review necessary to ensure that this basic principle is. followed. A
Congressional review and reconsideration of the habeas provisions of AEDPA is justified•. warranted. and
necessary.

ENDNOTES
lam an inmale In die Florida DeplUtmCl11 ofComctlons, InmalC lD #()'124004. From 1997 lIuough 2000.1 c:ducated mysclfln die law. In iOO1.1 completed a
plIIlI1epI c:orrcspoadcnce course lIuough the University of Florida.
In this Article, I use some foolnoles to define terms that are uMecesslU')' for the legal communily. These footnotes lite included for the benefit of fellow
inmates IUld pro se liti8lll\ts.
I would like to thank Rachel Wainer Apter, Audrey Blanco, Eun Young Choi, Daniel Farbman, John Lavlnsky, Scoll Levy, Lauren Robinson.
Jocelyn Simonson, and Prashant Yerramalll at the Harwud CMI Rlghu-CMI Llbertle. Unv &lI/ew for their editorial assistance and their help in locating
some of the Duthorities used in this Anicle. I would also like to acknowledge the many CR-CL staff members who provided substantive research llSsistance
for this Article. Due to my incarceration, I have a limited amount of research material available to me. Without their lUsistance, this Article would not
have beca r:sible.
.
This hypothetical situation is based on the case of Kenneth Brian Vittorio. 54e State II. Victoria, ClISe No.. 1986-6167 (Fla. Cir. Ct. Apr. 3.
1987).
.
1 A pro se litigant is "[oJne who represents oncselrln a court proceeding without the lISsislance ora lawyer." BLACK'S I.AW DICTIONARY
1258 (8th cd. 2004).
. ,
J Pub. L. No. 104-132,110 Stat. 1214 (1996) (amending 28 U.S.C. 112244,2253-2255 (1994) ond adding 28 U.S.C. §§ 2261-2266 (2000».
Mr. Victoria, for example. has sought judicial relief pro se, but any federal review sought would be untimely under AEDPA. He has been in prison for
twenty years, is currently housed at DCSoto Correctionillnstitulion and Is serving a life sentence. 54e Fla. Dep't. ofCorr., Inmate Populotion Information
Detail, httr"www.de.state.n.us/oppcommonlsClltchall.asp (last vlsiled Apr. 22, 2006).
.
Ajailhouse lawyer is ~a person who has taught himself or herself law while serving time, is knowledgeable about tcchnical legal matters.
ond gives legal advice, esp. to fellow prisoners: WEBSTER'S ENCYCLOPEDIC UNABRIOOED DICTIONARY OF THE ENGLISH LANGUAGE 1022
(1996).
,
J See Transcript of Pica and Senlencing Hearing, State v. Richards, No. 95·92.cF (Pia. Clr. Ct. Jan. 25, 1996); Second Amended
Information, State v. Richards, No. 95-92.cF (Fla. Cir. Ct. Sept. IS, 1995).
6 For a description of habeas corpus, see IlfI'ra Part II.
.
, Indlgenl prisoners do not have a right to coun-appointed counsel for pursuing colhlleral post·conviction motions. See··Murra)· v.
Giarratano. 492 U.S. I, 12 (1989) (Rehnquist, C.J., plurality opinion) (no right to counsel in state post-conviction proceedings for dead' row inmate);
Pennsylvania v. Finley, 481 U.S. 55 I, 555 (19g7) (no ,ight to c.ounsel in state post-conviction proceedings).
. .
.
• The Harwud Civil Rlghu-C1l1I1 LIN,IIII' Unv Review 8 policy is to use the ferninine article. Since my experience is with all-mole prisons. ond
because most prisoners arc male, I will usc Ihe masculine.
, See EzptUte Bollman, 8 U.S. (4 Cranch) 75,95 (1807) (referring to habcllS corpus as the "Great Writ"). "Habeas corpus" isa Latin phrase
'.
meaning "that you have the body."
BLACK:S I.AW DICTIONARY, SlIp,a note 2, ot 728.
10 U.S. CONST. llrt. I, § 9. cl. 3 (hNo Bill of AlIalnder or ex post facto Law shall be passed").
" THE FEDERALIST No. 84, at 345 (Alexander Hamilton) (BuccanccrBooks 1992).
U Common law is "[tJhe body of low derived from judicial decisions, rlllher than from statutes or c:on.titutions'- BLACK'S LAW
DICTIONARY oupra note 2, at 293.
.
IJ Sec Prei.er v. Rodriguez. 411 U.S. 475,485 (1973).
• . .. .
If s.~ U.S. CONST. art. I. f 9, cl. 2 (the Suspension Clause) .<"The Privile8e of the Writ of Habeas Corpus shall not be. suspended, unlen
when In ClUes of Rebellion or Invasion the public Safety may require it.").
II Judiciory Act of 1789, c:h. 20, § 14, I Stat. 73, 81-82 (1789) (codified as amended at 2g U.S.C. i 2241 (1948».
16 Jd. ("[WJrits of habeas corpus shall in no case extend to prisoners in ganl, unless where they ll1e in custody, under. or by colour of the
authority of the Unlud Siales. or Dre committed for trial before some coun of the same .•• ") (emphosis added); II!C uiso Ez PQrlll Dorr.. 44 U.S. (3
How.) 103, lOS (1845).
.
.
.:'
17 Sec Ezparte Watkins, 2g U.S. (3 Pd.) 193, 197 (lg30).
.
.. See EzptUte Merryman. 17 F. Cos. 144, lSI-52 (No. 9.487) (C.C.D. Md. 1861). In response to Chief Justice Taney's pnllesl. Congress soon
thereafter delegated the authority to suspend the writ. Su Dtwe/cpmtm16 In tha ~Fl1krrd III1b«u CorptU, 83 IIARV. L. REV. 1\>38. 1265 (1970)
Inelading the suspension by Lincoln, codified by Cong1CSs in the Act of Mar. 3. 1863, ch. gl. 12 Stat. 755, the Great Wrll has only been suspended four
times. Limited suspensions were invoked in 1871 and 1905 by Presidents Ulysses S. Orant and Theodore Roosevelt, respeetlvC;ly. See'WILLIAM F.

17

Florida Prison Legal Perspedivefl
DUKER. A CONSTITUTIONAl. IIISTORY OF HABEAS CORPUS 178 n,l90(l980); Act of Apr. 20. 1871. ch. 22, 17 Slat. 13. 14-15 (su;p~n;h'n
undcr Granl); Act of July I, 1902, ch. 1369, 32 Slat. 692 (suspension under Roosevelt). The mosl recenl suspension look place in Hawaii in 1941. wh~n
lernlorialgovemor Joseph B. Poindexter suspendcd the writ following the attack at Pearl Harbor. Dunt:Qlf Y. KDhanamoku. 327 U.S. 304. 307-08 & nnl2 (1946). Pursuanllo Seclion 67 afthe Hawaiian Organic ACI. ch. 339. § 67. 31 Slat. 141 (1900). Poindexter suspended habeas corpus. placcd lIawali
under marliallaw, and relinquished civilian gubernlliorialand judicilllllUthority to U.S. Army Gcncral Walter C. Short. KuhafIQmoku. 327 U.S. al 353-54
& n.6. General Short closed all civilian courts and created military tribunals thai had the power 10 Iry civilians for violating territorial or federal law. as
well as violating orders of the military govemmenl he had establishcd. See Harry N. S~hciber & Jane L. Scheiber. 11tJyoM~ in Paradise: A Half-Cim/un'
~onMarttaJLDw In Ha\1iall, 19 HAWAII L. REV. 477. 487-88 (1997). This governmenlal regime lasted until Oclober 1944. Id. at 488. (,I \. In
Dwtcon v. KDlumamobi. this habeas suspension was ruled illegal. not unconstitutional, on the bllSis that the Organic Act's authorization of martia/law did
nOllnclude thc power 10 supplant civilian COUrlS with military tribunals for trials of civilians. 327 U.S. at 322-24.
19 upane Yerger. 75 U.S. (8 Wall.) 85. 95 (1869).
lO Act of Feb. 5. 1987. ch. 28. § I. 14 Stat. 385 (~(TJhe several courts of the United SllItes, and the scverll1 justices and Judges of such
courts.. .shall have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violallon of the
constitution, or of any trealy or law of the United States ......) (emphasis udded).
II The provisions from the Act of 1867 did not change in any important Wlly until 1948. when Ihey were codified in 28 U.S.C. §§ 2241-2255
Se~ Act of June 25.1948. ch. IS3. § 2241.62 Stat. 964, 964-65. Although the revision did nol significantly change the grounds for chalkngcs to
detention or the prisoners to whom the writ extended. it created a new section, § 2254. dealing with challenges to custody from slale court SU
RICHARD H. FALLON JR.• DANIEl. J. MELTZER & DAVID L. SHAPIRO. HART & WESCHLER'S THE FEDERAL COURTS AND tilE
FEDERAL SYSTEM 1288 (5th ed. 2003). This structure remained for nearly a hllif-century. with only small alterations. until the passagc of AEDI'I\ 111
1996.Se~jd.

18

U The roots of habeas corpus arc usually allributed to Clause 39 of the Magna Cl1rtlI: "No freeman shull .be taken or imprisoncd. M
diueiscd, or outlawed. or bunished, or any wllys destroyed. nor will wc pass upon him, nor will we send upon him, unlcss by the lawful judgment of
his peers. or by the law of the land." MAGNA CARTA CH. 39 (12IS).
) I A "stutute of limitations" is a statute establishing a maximum period of lime in which an aClion may be brought. See BLACK'S 1,\ \,.
DICTIONARY, .tupranote 2. at 1450.
l. &e Hurris v. Nelson. 394 U.S. 286, 291 (1969) (~The scope and nexibility of the wril-its capacity to reach all manncr IIf illcgal
detention-ils ability to cut tbrou8h burriers of form and procedural mazes-have always been emphasized and jealously guarded by CIIUrts <lnd
lawmakers"); United SllItes v. Smith. 331 U.S. 469.475 (1947) ("habeas corpus provides a remedy for jurisdictional and constitutional emus al Ihe
uial without limit of time-); see also Limin Zheng, ActUQllnnocence as a Gat~"'ay Through the Statute-oj-Limitations Bar on lhe Filing oj Fecl,'r,,1
Habeas Corpus Petitions. 90 CAL. L. REV. 2101,2127-28 (2002).
.
II None of the amendments mentioned in this Purt included any sort of prohibition on filing successive habeas applications. For a review IIf
otber wncndments. see I RANDY HERTZ & JAMES S. LIEBMAN. FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE 69-78 (41h cd
2001~
.
I
.
n Compare 142 CONO. REC. S3454. 3459 (daily ed. Apr. 17. 1996) (stalement of Sen. HalCh) ("[Habeas corpus I is being abused all oYcr
the country."). with 142 CONGo REC. 53427.3439 (daily ed. Apr. 17. 1996) (sllltement of Sen. Moynihan) ("I make the point thai the abuse uf
habeas corpus... is hugely overstated.").
My auemon that Senator Hatch's belief is "misllIken" is well-founded. In fact. between 1980 and 1996, the per.prisoner hllbcas filing
rate for stale and federal prisoners declined by forty-seven percent. Se~ JOHN SCALIA. U.S. DEP·T. OF JUSTICE. BUREAU OF JUSTICE
STATISTICS. PRISONER PETITIONS IN·THE FEDERAL COURT. 1980-1996, ut 4-5 (1997). According to statistics from 1995. most federal
habeas petitiOns were terminated In district court in less than one year. Id. at 7. For an explanation of the problems with restricling successive habeas
corpus pelItions. see Bryan A. Stevenson. The Politics oj F~ar and D~ath: SlICcelSlv~ Problems in Capital F~di1ralllabetn Corpus Cases.· 77 N. Y.U I.
REV. 699 \2002).
I President William J. Clinlon. Statement 011 Antitenorism Bill Signing (Apr. 24, 1996) ("I have loday signed into law... the . Antiterrnrislll
and Errective Death Penalty Act of 1996,''').
II StJc 28 U.S.C. § 2244(d)(1)-(2) (2006) (AEDP.A·s new time Iimitalion); 28 U.S.C. § 2244(b) (2006) (AEOPA's new reSlrlCtion; on
successive rtitlons).
.
l An amendment is an alleration by modification, deletion, or addition. StJc BLACKS LAW DICTIONARY. supra note 2. al 89·90
"'142 CONO. REC. S3454, 3458 (daily ed. Apr. 17.1996) (stlltement of Sen. Kennedy).
II Stevenson, supra note 26. at 70 I.
.
II StJc. e.&. 28 U.S.C. § 2339B (2006) (prohibition on intemationul terrorism fundraising); 28 U.S.C. § 2332(d) (2006) (prOhlbll\ll1l pn
assistance to terrorist stales); 18 U.S.C. § 3663A (2006) (mandatory victim renltution).
)1142 CONGo REC. E638-G1 (slalement of Rep. Young) (~I sirongly feci this legislation is a knee-jerk reaction to a most heinous crimc.")
34 Editorill1. GtmJeTroublejarlheGreal Writ. N.Y. TIMES, Apr. 8. 1996, at A14.
"142 CONGo REC. 83352. 3353 (daily ed. Apr. 16, 1996) (stalement of Sen. Haleh).
16 142 CONGo RF.c. 53454, 3462 (daily ed. Apr. 17, 1996) (hereinafier Feingold Statement) (statement of Sen. Feingold).
11142 CONGo REC. S3352. 3357 (duily cd. Apr. 16, 1996) (stalemenl of Sen. Biden) ("Remember. folks. you already havc 10 be: In Jail.
convicted ora crime:, in order to be ahle to file one of Ihese [hubeas) pelitions .....).
" Feingold SllItemenl, 8VpTa note 36.
•
"28 U.S.C. § 2244(d)(l) (2006) (~A I-year pcriod of Iimitalion shall apply to an applicalion for a wril of habeas corpus b)' a persoll in
custody pursuant to the judgment of a State Court").
... An appeJlate court is a court with jurisdiction to review decisions of lower courts or administrative agencies. See Bt.ACK'S l.AW
DICTIONARY,wplllnote 2. ut 378.
• 1 28 U.S.C. § 2244(b) (2006).
U To appeal is "(do seek review (from a lower court's decision) by a higher court." BLACK'S LAW DICTIONARY, supra note 2, ut 106.
u 28 U.S.C. § 2253 (2006).
.
•• Bxhuustion ofremedies refers to taking advantagll of allavailablll remedics. Sea BLACK'S LAW DICTIONARY\ supra noIe 2, al 613-1·1
u 28 U.S.C. § 2254(b)-(c) (2006).
•• 28 U.S.C. § 2254(d) (2006).
., 28 U.S.C. II 2261-2266 (2006).
"28 U.S.C. § 2244(d)(2) (2006). (~The time during which a properly filed application for Stule post-conviction or olhcrcol/alcral re\I~W
with respect to the pertinent judgment or cillim is pending shall not be counted toward any period of Iimltulion under this subseclion.'·,.
•• In Artuz 1'. Be~It. the U.S. Supreme Court examined AEDPA's tolling provision and CKphlincd that a "properly filcd" Slate po,tconviction mOlion was one thllt complied with applicable filing requirements. 53t U.S. 4, 9-10 (2000).
so See Walker V. Crosby. 341 F.3d 1240. 1246 (11th Cir. 2003) ("[TJhc statute oflimillltions lor a habeas applicution challcnllinga rcscntcnclllg
coun's jUd~menl begins to run on the date the rc:scntcncingjudgmenl becomcs final Dnd nolthe dale the originlll jUdgment bccomes final.").
, In 1995. priof to the paslOage of AEDPA. only 1.2% of SllIle prisoners' habeas petitions disposed of in U.S. Disirici Ct1urts result~ll III
judgments for the inmate. SCALIA. SUplll nOle 26. at 6. The percentage was only slightly higher for federal "risoners. Id.
JI Some procedures lhat I had 10 leach myself include: types and llvailabilily of pre-trial millions. discovery procedures. rulcs IIf e\lll~Il;;~.

Ii'~f).r.ida

Prison Legal Perspectives

procedures for suppression of inadmissible evidence, jury selection procedures. procedures for direct and cross·examination of witnesses. typei of
objections. types of motions available during trial, procedulCS for re-qucsting curative Instructions or mistrials. post-trial motions. sentencing procedure).
rulCJ orap~lIate procedwe. rules governing state post-eonviction procedures. and rules gove~ing federal post-eonviction procedures.
.
J This includes understanding and developing trial strategies and trial tactics. coherent theories ofdefense. etc.
.
" For example. this could include: the "fruits of the poi~onous tree~ doctrine, exclusionary rules. good-faith exceptions, fundamental/plain crror
analysis. harmless error analysis, Mansfield Doctrine•. res judicata. last antecedent rule. express mention/Implied exclusion. ejusdem generis. stare deCISIS.
etc.
" A brief is "(a) written statcl1lentseuing out the legal contentions of a party in litigation, esp. on appeaJ." BLACK'S LAW DICTIONARY.
sllprQ note 2. at 204. A motion is "[a) wrinen or oral applil::ation requesting a court to make a specified ruling or order.... Jd. at 1036.
"Unfortunately, I am one such pro se prisoner who is unable to seek federal review because of AEDPA's time limitation.
,., Thcsc assenions ure based on my experiCllCCllas ajailhouse laW)'Cf. .
" In contra51to an indigent prisoner, an IImuent free citizen may simply retain an attorney to pursue legal remedies on his behalf.
.
. ,. 372 U.S. 477. 4g1 (1963).
.. 360 U.S. 252. 2S7~Sg (l9S9).
61 3S1 U.S. 12. 19-20 (l9S6).
The Supreme Court hilS only rejectcd an indigent defendant's claim touanscripts where an adequate
I1lternative was available but not used,:Jeo Britt v. North Carolina. 404 U.S. 226, 230 (1971). or because the request was plainly frivolous and a prior
oppo"uni~ to obtain a ttunscript had been wuived. See United States v. MacCollom. 426 U.S. 317, 328-29 (1976).
404 U.S. IS. IS (1971) (qQ"g319 F. Supp. 105 (N.D. Cal. 1970».
GJ 312 U.S. S46. S49 (1941).
.
.
"393 U.S. 483, 490 (1969).
61
430 U.S. 817. 828 (1977).
.. S 18 U.S. 343. 3S6 ( 1 9 9 6 ) . . .
.
. 6' The "myth system" and "real system'~ to which I refer are similar to the Mmyth system" and "operational code" described by Professors
Reisman and Schrieber. See IV. MI-CHAEL REISMAN &. AARON M. SCHRIEBER. JURISPRUDENCE: UNDERSTANDINO AND SHAPING LAW 23-3S
(/987).
.
"See Gideon v. Wainwright, 372 U.S. 335. 339-42 (1963); Powellv. Ala&amo, 283 U.S. 4S, 71 (1932);
6. See Halbert v. Michigan. 12S S. Ct. 2582.2593-94 (200S): Douglas v. California. 372 U.S. ~53, 357 (1963).'
10 See Strickland v. Washington. 466 U.S. 668. 687-8g (1984).
.
.
.
.
11 Note. Effectively Ineffee/il": The Failure of CouNs to Address Underfunded Indigent Defense Syslems, 118 HARV. L. REV. 1731. 1734
(200S).
nJd.
n Id. 011735.

.

7' Johnson

v. Avery. 393 U.S. 483. 487 (1969) (citing Note, COII.r/itutlonoILaw: Prison "No-Anlslance' Regu!ol/on.r and Ihe JQilhauso Lawyer,
1968 DUKE L.J. 343.347-48.360-61 (1968».
.
U
FLA. DEP'T OF CORR., ANNUAL REPORT 2003·2004 M23. Ql'Qllable Qt hllp:llwww.dc.state.n.uslpubiannualf0304/pd&leducation.pdf
(hereinllfter ANNUAL REPORT 2003-20041. The TABE is a standardized test Ibnt assesses a person·s. general education level in math, reading. Bl\d language
comprehension skills. A test score reflects the person's approximatCl gradc level. For example. aTABE score of S.O means the person's approximate level of
education in that area is a beginning fifth grade level. The highest score achievable on the TABE is a 12.9 grade leVel, which indicates an education level of
at lellSl a high school gtlIduate. Cf. S)'s. for Adult Basic Edoc. Support. Glossary ofUJeful Term.f. hllp:/I www.sabes.org/asscssmentlglossnry.htm (lll5l visited
Apr. 22.2006).
.
.
~ ANNUAL REPORT 2003·2004, supro note 75. at M24.
"FLA. DEPT CORR.• PROCEDURES MANUAL 501.106 (2002).
71 See ANNUAL REPORT 2003·2004. supro note 7S, at M23.
79 A Nationl11 Alliance on Mental lIIness (NAMI) fact sheet updated in January 2001 .indicates that approximately 5.4% of the U.S. population
suffers from mcnllll illness. Nat'l Alliance on Mental Illness. About Men/al Illness. hllp:/fwww.nami.oril/helplinelfaclSandfigures.html(last visited Apt. 22,
2006) (cired In SASHA ABRAMSKY &. JAMIE FELLNER. HUMAN RJOHTS WATCH. ILL EQUIPPED: U.s. PRISONS AND OFFENDERS Wl11l MENTAL
llillESS n. 12.(2003), available Qt hllp:/Iwww.hrw.org/reportsJ2003IusaI003/usalOO3.pdf). The American Psychiatric Association hll5 re{lOrled'tbat one out
of every five (twenty percent) inmates in the U.S. prison population suffers from serious mental illness. AM. PSYCHIATRIC ASSN. PSYCHIATRIC
SERVICES IN JAILS AND PRISONS xix (2d ed. 2000) (cited In ABRAMSKY &. FELLNER. suprQ. 'at n.l3). This disproportionate rate of mental illness was
confirmed in a telephone interview with my brother Sid E. O·Bryant. Ph.D. Telephone Interview with Sid E.O·Bryant. Ph.D., Assistant Professor. Dep't of
Neuropsychiatry and Behavioral Scis.• Texas Tech University Health SCience Center, in Lubbock, Tex. (Sept. 3.1005).
.
QJ PAUl.A M. DmON, U.S. DEPT OF JUSTICE. BUREAU OF JUSTICE STATISTICS, MENTAL HEALTH AND 'lREATh1ENT OF INMATES AND
PROBATIONERS .. (1999) (cited In ABRAMSKY &. FELLNER, mprQ note 79, lit n.16). ava/lablo Qt hUp:l/www.ojp.usdoj.govlbjslabstractfmhtip.htm.
II I NATIONAL COMMISSION ON CORRECTIONAL HEALTH CARE, TIlE HEALTIi STATIlS OF SOON-TQ.BE-RELF.ASED INMATES: A REPORT TO
CONGRESS 25 (2002) (cited lit ABRAMSKY &. FELLNER. SUprtI note 79. at n.l5).QvQilablq QI bup;}lwwwnccbCOfSIstbrfYn)um
lIHealth%20Status%2O(vol'%201).pdJ: O)'Slhymia is "morbid llUXiety and depression acc:ompanied by obsession." WEBSTER's THIRD NEW INTF.RNATIONAL
DICTIONARY OF THE ENGLISH LANGUAGE, UNABRIOOED 712 (1981).
.
a Sile ALLEN J. BECK &; LAURA M. MARUSCHAK. U.S. DEPT OF JUSTICE, BUREAU OF JUSTICE STATISTICS, MENTAL HEALTH TREATMENT IN
STATE PRISONS. 2000. lit 4 (2001), al'QilableQ/ hUp:/Iwww.ojp.usdoj.govlbjslpublpdflmhtspoo.pdJ: Ps)'chol1Opic medications are medications pn:scribed by a
f,S)'chiatrist tJw "affect mcnlllllldivily. behavior, or perception: WEBSTER'S ENCYCLOPEDIC UNA8RlOOED DICTIONARY, suprQ note 4. at1S62.
J BECK &; MARUSCHAK. supra note 82. atl.
"See genzrally JERROLD G. BERNSTEIN. HANDBOOK OF DRUG TIIERAPY IN PSYCHlAlRY 266-97 (3d ed. 1995); S. J. ENNA &; JOSEPH T. COYLE.
PHARMACOLOOICAL MANAGEMENT OF NEUROLOOICAL AND PSYCHIATRIC DISORDERS 22-24 (1998); Joseph F. Goldberg & KllIhcri!le E. Burdick,
Cognilil'e Side Effects of Anticon.lluls,Qnls. 62 J. CLIN. PSYCHIATRY (SuPP. 14) 27-33 (1998); Michael Kolber et al., Adverse Events with lybal/
(B"proplon). 169(2) CAN. MED. Ass'n J. 103-04 (2003); Oriano Mecurelli et 01.• Clillical. Cognitive. Qnd Neurophysiologic," CorrelQle, of Shorl Term
TreQrmont with CarlHJma:epine. Oxcar-ba:eplnlf. and uVl'efirac:eIQm In HeQllhy I'ol"ntelfrs. 38 ANNALS PHARMACOTHERAPY 1816-22 (2004); J. O.
Vanderkooy. Antidepressant Side Effects 1/1 Depre.rs/on PQI/ents Treated In a No/urallmc Soltilln: ~ Swdy of Buproplon.· Moc:lobemide. Parwteline. Ser·traline. and l'enlQfoxtne. 47(2) W. CAN. J..PSYCHIATRY 174-80 (2002).
.. 430 U.S. 817,828 (1977).
.. See Fl.A. ADMIN. CODE ANN. r. 33-501.301(3)(e) (200S) ("Inmates who are illiterate or havl: disabilities that hinder their abilit)' to research the law
and prepare legal documents and legal mail. and nced rellearch assistance, shall:be provided DCC:ess to the law library and to inmate law clerks .... Upon
receipt of [aJ ...rcquest... the law library supervisor shall schedule the inmate for a l'is/lto the law library or a vi.1t with an inmate law elertc.~) (cmphbls
added); /(J. at r. 33·S01.301(7)(c) ("[MJajor and minor collection law libraries shall' be assigned inmates os. inmate law clerks to assist inmates in the
research lind use of the law library collection, Ilnd in thc draning of legal documents.... Instltutions shall assign additional inmate law clerks to the law
librury as needed to ensure that illiterate and impaired inmates arc provided research assistance.").
11 On June J 0, 1995. while on various drugs and alcohol, I robbed Il motel clerk and was involved in a shootout with police. I eventually pled guilty to
robbery while armed wilh lllirearm and· attempted first degree murder of a law enforcement officer. and was .sentenced to two concurrent life sentences.
See Transcript of Plea and Sentcneing Hea~inll. '''pra note 5, and accomponying text.

19

Florida Prison Leg~1 Perspectivea
P Wellbutrin is an ontideprcssllllt tbat was used to In:at my severe depression. Cogentin WIlS prescribed to me in an allempt to ofTsetthe side effec:ts of Ihe
other medications. this errort failed. If anything, the side errects I was experiencing Increased while I was taking Cosentino Tegretol Will prescribed to
me for lrcDtmcnt of severe mood swings. LoxillUle is on onlipsyebotie medie:ation thlll was given to me because of the ballucinlltions I was experiencing.
See gencl'Qlly MANUAL OF CUNICAL PSVCHOPHARMACOLOOY (Sth ed. 2005).
I WIll severely abusing drugs ond alcohol III the time of my arrest. The mlljority of my mental hClllth issues Ilt the lime, I believe, were
allr.ibulable in part to wltbdrawal from the illegal druBs and alcohol.
09 My thoughts were more coherent. I could conccnlrllle on things ond could remember events. I was not disoriented.
,., A t01ll1 ballcry TABE score is the cumulative averagc of all ll1Cas of the TABE test S« ANNUAL 'REPORT 2003-2004, 6IIp1'Q note 7S, at M23.
FLA. STAT. § 924.066(3) (2005) (effective July I, 1996) ("A person in 11 noncapltal case who is seeking collateral review under this cbapter hili no
rishtto a ceun-appointed lawyer.".
" An Inmate law clerk Is a prisoner wbo Is given a job assignment in a prison law library and who has been "trained" by prison officials to provide
assisllUlce to othcrinmatcs in preparing ond/or pursuing leBllI mllUm. SIt FLA. ADMIN. CODE ANN. r. 33-501.301(2)(e) (2005).
.. Affidavit of Christopher Todd Benton at 2 (Sept 29. 20(4), O'Bryont v. Sapp, No. 3:03-ev-803-J-20MCR (M.D. Fla. 2003) (submitted in support of
claim of entitlement to equitablc tolling of AEDPA's one-year time limitation) (document on file with Ihe aut~or and the Harvard Civil Rights-Civil
Liberties Law Review).
.
.. Sa td. at 3 ("Aflcr repeatcd attempts [sic] of trying to IlSllist Mr. O'Bryont ond learning through trial and error thlll he Wlls unable to prepare (sic]llny
meaningful post-c:onviction (motions] I approaebed my Supervisor Ms. Rhyons (sic) and llUempted to have a law clerk IlSlIlgJled to handle his case,
unfortunately. Mr. O'Bryont scored high enough on his cducatlon testing that resulted in him not being entitled to have. a law clerk IlSlligned to hondle his

o.

CllSC.").

" Sec Petitioner's Notice of fillng Supplemental Documentation. O'Bryanl v. Sapp, No. 3:03-ev-803·J-20MCR (M.D: Hu. Sept. 29, 2004) (showing

multiple drug prcscriptionll for psychosis) (document on file with the author and the Harvard Civil RighlS-Civll Llbcnlcs Law Review). These medical
records sbow ihat I was suffering from psychosis for approximately nine of the nineteen'monthll that I took to file my first state post-convietion motion on
November 7: 1997. By this date, my AEDPA clock had expired.
t6 Affidavit of Dr. JUdith R. O'Jile, O'Oryanl v. Sapp, No. 3:03-ev-B03-J-20MCR (M.D. Fola. Jan. 27, 2005) (submiUed as Exhibit D by petitioner)
(doeument on file with the author and the Harvard Civil RIJI!1ts-Civil Llbenles Law Review).
" See AEDPA, Pub. L. No. 104-132, 110 Stat. 1214 (1996) {"effective Apr. 24, 1996).
•
.91 Stc Duncan V. ·Walker, S33 U.S. 167, IB3 (2001) (Stevens, J., concurring in part and coneurring!n the judgment) ("In the·contexl of AEDPA's I-year
Iimitlltions perlod...the Couns of Appcals have uniformly created a I-year grace period, running from the date of AEDPA's enactment. for prilloners
whose state convictions becllme final prior to AEDPA").
.. I also bclieve there lIrC a lar&c number of inmates who arc being ovcrmedicated by prison officials. I believe this Wlls my' situlllion. Instead of
increasing my medications. I believe I would have been better orr If provided counselins to go along with the medications I Will alrcDdy receiving, wlih
the goal orcvenwally weanin; me orrpsyebotropic medication altogether.
lao From ten Years worth of pcrsonal'observationll and experience as a pro se litigant and jailhouse lawyer. I have observed that on appeal in the Florida
af,pellllle couns normally lakes approximlltely ten to twelve months.
• I It is noteworthy to mention that some proc:ccdings, such as depositions. lire routinely conducted in the absence of thc defendant, who Is the eventull1
ero se litigant.·
.
01 See Griffin V. Illinois. 3S1 U.S. 12 (1956).
(0) Over the years, I have IIlIsisted In nu""rou.r allempts by prisoners to obtllin copies or their records of eoun proceedings. Those who did not have II
direct appeaJ were consistently told by the clem of the trial couns that they would have to pre-pay to get the records and that the fcc would be up to $4
pcr page. Thosc who did pursue a direct appeal were consistently told that they were only entitled to one free copy, that the copy would be furnished to
their llppellate counsel, and that they could fC'!uest the copy from appellate counsel when their appeal was finished.
I'" Set. e.g., Hansen v. United SlatCS, 956 F.2d 245, 248 (11th Cir. 1992) ("We do not asrcc. however,that this right (to free trial coun records] extcnds to
acccss to Ihe record (or the purpose of preparing a collateral attack on a conviction.").
lOS Se, Day v. Crosby, 391 F.3d 1192, I 193 (11th Clr. 2004) ("Day's third argument Will that the state public defenders withheld his trial transcripb for
3S2 days, llnd the delay cost 111m time in which he could have worked towards IiIlng his appCllls.;.
100 Bounds v. Smith, 430 U.S. 817, 822 (1977) (quoting Griffin v.lllinois, 351 U.S. 12.20 (1956».
'01 EUZABEllI LOFTUS, SYEWlTNESS TESTIMONY 21 (Hllrvard Unlv. Press 1996) (1979). This panicular work conccrns eyewitness testimony or
events ond the identifie:ation oflISUSpect by the wilDess.
I know o( no studies concentrating on the accuracy or reliabilily of a defendant's memory of trial proceedings. Howevci', a defendant
witncslling his criminal trial might well go through the same memory proccss as all individual witnessing a crime, and each stage of hill memory process
would be subject to the same (aetors. The reasoning set forlb in LOFTUS, supra. therefore would apply to a criminal defendant as well.
10' Ste id. at21, 32.
.... See id. at 54, 64.
'ltlELlZABETH F. LOI'TUS It. JAMES M. DOYLE. EYEWITNESS TESTIMONY: CIVIL & CRIMINAL 31-32 (1987).
III Interview with Teddy Scan Stokes. Inmllle in Holmes Corr. Inst. Bonifay, Fla. (Oct. 18,2005) (hereinal\er Stokes Interview), Stokestold me:
Thcre were times during my trial that I thoughl I Wlls gonna faint. It felt like I was In a bad dream. My lawyer
never told me what to expcct, so I Wlls gelting hit with so much sturr I'd never beard before that I couldn't
keep up with cverything. Durins recess a couple oftimcs. when I was in the holding cell, I thought I was gonna
vomit I Will so stressed out, you know. not knowing what the jury was thinking about this.

M

.

IIllhis "life or death" assertion is nOtlln elCosgeralion. If the Stale ill seeking the death penalty. these complete strangers will decide whether the SlIlte

20

should kill the defcmlant for hill alleged actions.
lU Seq Stokes Intcrview, .ruPI'Q nole III.
. .
'''Intervlew with Donald D. Wood. Inmllle in Holmes Corr. Inst., Bonifay, Fla. (Oct. 15, 200S).
. III This assertion is based on my own personal experience. as well as my years of ellJlCrienccas a joilhouse lawyer.
11"1 have even experienced this myself after receiving the transcriptll. of a state coun evidentiary hearing conductcd in my own casc on November IS,
2000.
.
II' Thill is ClIpccially true of situations in which proceedings were held in the absence of the defendant. For Instanec, Imagine that a witness makes a
slatement at II deposition conducted wlthoUlthe defendant present At trial, ihe witness's teslimony iJ inconsistent with the prior statement and the defense
counsel (ails to impeach the Witness. The defendant will not be aw\UC of Ihe inconsistency because hc was nOI at the deposition. Therefore he will not
Imow to rescarch the potential "ineffectiveness of counsel" claim until he receivell the record. If thc defendant has olready filed a state post-convietion
motion. he may be prohibited under state filing requirements from raisins Ihe claim in a successive mOlion. and the claim is now waived or barred from
federal revicw because it was not exhausted in State coun proceedinBll' This is not a fur·fetched or unreasonable sccnario, bUI is rather one I have seen.
III 430 U.S. g17, 830-32 (1977) ("[W)hile adequate law librarlep arc one constitutionally acccptllblemethod to IlIsure mcaningfulacccss 10 the courts.
our decision here... does not foreclose allernlllivc means 10 achieve that goal....)A] legal access program nced not include any paniculllr clement we have
discussed. ond we encourage local experimentation,").

Florida Prison Legal Pe~1J_ec!ives .

SI8 u.s. 343. 356 (1996).
•1·ld.
I1Ild, at 3S6-S7. It is worth mentioning that. from my ob.ervlltion. sbortly after the Supreme Court banded down ilS decision in !Awls. the F.D.a.C. began
destroying research materials that were already contained in the law libraries, stopped providing certain periodicals, and reduced the number of hours
each week that the law Ii,braries were required to be open.
'
IJI Sie FLA. ADMIN. CODE ANN. r. 33-501.301(7)(e) (2005) (law clerle training pro-gram). .
m SNsupra notcs 118-121 and accompanying texl.
I2t In all fairuss to inrnlIte cletks, I must say thlll some of them do trY to do what they can. and some are competent in the law. For the most plllt, though. these clerks
do not provide adequate llIslstance to inmates attempting to pursue meaningful stllte post-eonvietion remedies or to comply with AEDPA.,
III FLA. ADMIN. CODE ANN. r. 33-S01.30I (7)(d)(1)-(4) (2005).
, .
116 See id. This section of the Florida Administrative Code covers the only qualifil:ations to become a certified law clerk. There is no mention of any mental
bealth criteria.
.
,
U7 Sucb inmates may be experiencing the common side effects of psychotropic medications as mentioned In Part IV.B. supra. Also, inmates 'wlth
dlogaosed mental disorders may be prone to psychotic episodes and in need of psychiatric intervention without warning.
When Inmate Harold Bush was informed that he was going to the law clerk training seminar at A.C.I..prison officials told him that the seminar was
being held 11 A.C.I. for the purpose of certifyinS some "psych inmates." I personally heard prison officials inform inmate Bush of this. A "psych inmate"
is an inmate who has been diagnosed lU mentally disordered by prison mental hcalth staff and is being treated with psychotropic medications.
Qt See supra notes 118-121 and accompanying text.
'
no See .wp1'Qtext llCcompanying notes IID-112.
'
IJI This information concerning the lensth or the seminar Wlll provided by inmate Sean Russell. who attended the seminar at Wakulla Correctional
Institution in June 2005. and inmate Harold Bush, who attended the seminar at A.C.l. in November 2005. Interview with Harold Bush. inmate. Holmes
Correctionall~tution •.Bonifay. Fla. (Dee. 7.2005); Inter-view with Sean Russell. Inmate. Holmes Correctional Institution, Bonifay, Fla. (Nov. II.
2005) (~rcinafter Russell intervlcw). My assertion about the seminar covering only a small portion of the legal matters necessary to provide quality
assistance is based on my interviews with Russell and Bush. as well lIS my examinations of the law clerk training manuals ued over the years by the
F.D.O.C.
.
IJ.I See FLA. ADMIN. CODE ANN. r. 33-501.30 I(7)(e)(I ) (2005).
In I questioned Mr. Russell about the law clerk training seminar and its tinal exam on Friday. November II. 2005. I also asked him for his opinion on
the quDllty of the seminar and the difficulty level of its final exam. In response. Russelliaughcd and stated, "It·s a COmplete joke. Any moron can pass
it," Russell interview. Sllpra note 131.
.
IU When I was explaining this to the certified law clerk. I asked him to get "The Blue-book." His response was that I needed to be more specific and
give him the book's title because. there were several books in the law library that were blue. I tol'd him "TheBlue-boole" was the tiUe. He claimed
that there was no legal book or citation book with such a name.
'
,
IJJ Ste 1tIpt'Q notes 1I8-1~1 and accompanying text.
II6Some prisoners. such as myself. acquired legal knowledse through a combination orall of these methods.
In Johnson v. Avery, 393 U.S. 483, 490 (1969).
"1S«,I1.g..FLA. ADMIN. CODE ANN. C. 33-210.102(2005).
I)' Id. at r. 33-210.102(12).
.
.
140 SN /d. at r. 33-602.203(1)(b) ("Any item or article not originally contraband shall be,deemed contraband if it is passed from one inmate to another
without authorization"); td at r. 33-602.201(7)(a) (impounded property) ("If the property... does not belong to the inmate in possession of the
property, an investigation shall be conducted, to determine if the owner' of the propert)' knowingly permitted the use 'of the property. If so. the
eroperty shall be handled as contraband.").
~I/d. at r. 33-210.102(12).
1&' Soo IlIPra note 140.
.
In F.D.O.C. Charging Disciplinary Report Log1#107-0S0088 states:
'19

n.

On Tuesday, January 18. 200S... myself (Sergeant Michael S. White) and Officer (Mitchell) Finch were
conducting a routine searcb of cell H-21~7. housing Inmate O·Bryant....During the search of Inmate O'Bryant's
property. legal work be-longing to Inmate Martin. Richard... was found. The shift OIC was notified for
appropriate action. Inmate O'Dryant remains in disciplinary confinement pending the charse 3-12 possession
of any other conlnsband.

See 12110 F.D.O.C. Charging Disciplinary Report Log fli 07-0S0463.
.
I" P.D.O.C. Disciplinary HcarinS Worksheet Log tlI07-200SQ463. Disciplinary confinement Is segreSlnion/i.olation. An inmate Is locked in a cell with
no out-of-eell recreation for the tirst thirty days; is olily allowed to shower Mondays, Wednesdays, and Fridays; and is denied telephoncltclevision
r.rivileges. any reading material. with the exception of a Bible, and numerous other privileges. See FLA. ADMIN. CODE ANN. r. 33-602.222 (2005).
U F.D.O.C. Disciplinary Report Hearing Information Log tH07.QS0088. Incentive gain time. also called "good time." is early release erc;dits. One day
of gain time represents one day earlier an inmate is released from prison. For the full regulations governing incentive gain time. see FLA. ADMIN.
CODE ANN. r. 33-601.101 (2005).
I~ I was told this by the Disciplinary Hearing Team for Disciplinary Report Log.l1I07.QS0463 on April 7. 2005.
1&' See FLA. ADMIN. CODE ANN. r. 33-601.314 (2005).
.
IU/d. at r. 33-601.l01(S)(a).
I&"ld. at r. 33-601. 101(5)(8)(2).
ISo Administrative eonfinement:is not "disciplinary' in nature. AJ opposed to disciplinary confinement. inmates in administrative confinement are
allowed reading material and radios. See Id. at r. 33-602.220. This is about the only difference.
lSI A diJciplinary hearing is a hearing where an inmate appears before a clu.ification officer and a security officer (lieutenant ranle or above) and
enters a plea of guilty, not guilty, or no contest. and is allowed to make a slatement on his behalf concerning the alleged rule infraction. Id. at r. 33601.307. These hc:urinp are often referred to by inmates as "DR Court" (DR stands for disciplinary report) or "Kangaroo Court."
"'Id. at r. 33·S01.301(1).
'
In See Lewis v. Casey. 518 U.S. 343.356 (1996). It needs to be pointed out thal!Awis was argued before the Supreme Court on November 29. 1995.
lUid was decided on June 24. 1996. Therefore. when the Court rendered its decision in this ClUe, which was based on the fact that any "actual harm"
suffered by the inmates was not "systemwide." the implications of AEDPA and lis systematic effects on prisoner IItisalion were not before the Court
for consideration. This fact alone should warrant the Court revisiting the issue of ~adequate" libraries and assistance.
IS4Boundsv. Smith. 430 U~S. 817.828 (1977).
m SCALIA. supra note 26, at 14 (citing ROGERA. HANSON &: HENRY W. K. DALEY. BUREAU OF JUSTICE STATISTICS. FEDERAL HABEAS
CORPUS REVIEW: CHALLENGING STATE COURT CRIMINAL CONVICTIONS 14 (1995».
u61n St"ck/Qnd, the Supreme Court established a two-prong test to determine whether a criminal defendant's Sixth Amendment right 10 the effective
llSSlsranC4i of counsel has been violated. 466 U.S. 668 (1984). With regards to the first prong-lhc performance pr9ng-the defendant must show that
defense counse"s representation fell below an objective level of reasonableness. See Id. lit 680-81. In the second prong-the prejudice prong-the

21

Florida Prison Legal ,Perspectives
defendant must show that there is a reasonoble probability that, but for defen~e counsers unprofessionol errors, the results of the proceedings would
have been different ld. at 694.
.
I ) ' FLA. ADMIN. CODE ANN. r. 33-501.301(2)(1) (2005).
.
,
I~ The prison where I am currently housed: Holmes Correctional Institution•. is one of the prisons in Florida that, at the time of this writing, has a CD·
ROM collection offederal case reporters in its law library.
IWln all the time I have been in prison and used the law libraries, I have never been allowed to use a computer, even though I hove requested to do so on
numerous occasions.
1M FLA. DEP·T. CORR. PROCEDURES MANUAL 501.107 (2003), The only inmotes allowed to touch computers arc the ones who 'have job lIJsignmenll
Ihal require them to have the usc of II computer. In order for a prisoner to get on a computer, his work supervisor mustlubmit an "Inmate PC Usage
Request Approval,~ and the request must be approved by the warden. the chief of security, and the classification supervisor. FLA. DEP'T. CORR.
FORM DC6-109 (2000). Therefore. even for the sake of convenience or eJqlediency, the law library supervisor is not authorized to make exceptions to
this absurd practice. I Edilor'J Note: The Florida Department of Corrections declined the requests of the Harvard Civil RighlJ-Clvll LlbertiO' Law
Review to obtain a copy of this manual (e·mail on tile with the Harvard Civil Rights·Civil Liberties Law Review).)
161 As ridiculOUS as it may seem to require that a law clerk scroll a page for the prisoner, tbis rule is made even more onerous by the fact thaI tbe law
clerks are not always available because of their other duties (making photocopies, pUlling books off the shelves for other inmates, filing popers, etc.)
and the prisoner may have to wait for quite a while just to have a page scrolled for him.
I61This assertion is based on my personal experience and observations at Holmes Correctionallnstitulion.
•
.., A "work camp" is the unit of the prison tbat houses lower custody prisoners, tbe majority of whom work outside the prison fences. FLA. ADMIN.
CODE ANN. r. 33-501.301(3) (0(2) (2005) provides tbat work camp prisoners must use the same law library facilities as the prisone'rs housed at the main
unit.
IW 28 U.S.C. § 2254(d) (2006).
.
•., I have helped a few such prisonen during my years lIS a jailhouse lawyer.
166 For instance, Intergovernmental Agreement 98·188 is an agreement between Florida and the federal government to exchange prisoners prosecuted
under joint state/federal drug task forces. Cj. FEDERAL BUREAU OF PRISONS. STATE OF THE BUREAU 7 (2000), available at
http://www.bop.govlnews/PDFslsoboo.pdf.
\61 Sec FLA. ADMIN. CODE ANN. r. 33-501.301(2)( I), (5)(a) (2005).
I " Because of my incarceration I am unable to perform empirical research to prove that alternative solutions would be cost·free. My assertions that
some of my sUBScstions would be cost-free, however, arc logical.
\69 FLA. DEP·T. CORR. PROCEDUReS MANUAL 501.1 07 (2003).
If. FLA. DEP'T. CORR. FORM DC6-236 (2000) (back of form). An Inmate Request Form is a form· used by inmates to ask prison officials questions, to
schedule appointments, or to initiate a complaint against a staff member.
m A deadline is "any requirement imposed,by law, court rule or court order that imposcs Jl maximum lime limit on the tiling of legal documents with
the court. " FLA ADMIN. CODE ANN. r. 33-501.30 1(2)(b) (2005).
' .
III "Priority access" is self-explanatory. An inmate who has an upcoming deadline is given a higher priority when scheduling time In the law library
than an inmate who does not have an upcoming deadline. &111 I'd. at r. 33.501.J01(2)(q).
III Jd. at r, 33-501.301(3)(0 ("Department starr shall respond to a request for special access to meet a deadline within 3 working days of rec~ipt of the
reguest, not including the day ofreceipl.").
.
I'. "Open population" irimates lire inmates who are housed in the general inmate population, lIS opposed to those who are segregated from other inmates
beclluse ofspccial medical conditions, a heightened need for protection, security concerns. or disciplinary action. S4e1d. at r. 33-501.301(2)(0).
m /d. at r. 33-501.301(3)(g). "Off-duty" houfs are the hours during which an inmate is not lit work at his assigned job' or participating in an assigned
rrogr:im. such as education. drug rehabilitation, or pre·release programs.
'6 When a prisoner submits an Inmate Request Form seekiog law library access, the prisoner must specifically state on the request form that the
desired days arc his orr.duty days-not off-duty hours-or the request will be returned instructing the prisoner to resubmit the request stating his
. assigned off·duty d a y s . '
,
." FLA. ADMIN. CODE ANN. r. 33-601.201(1) (2005) ("It is the continuous goal of the department that inmates In work assipmenU work at least
40 hours per week.").
UI Such jobs and programs Include inside grounds (cutting grass, picking up trash, sweeping sidewalks), maintenance (plumbing. roofing. painting.
electrical work, carpentry), orderly work, edueational classes, or staffing the classification or property rooms.
119 In my experience, tbese have been tbe standard hours for libraries and law libraries in tbe F.D.O.C.
110 Fifty-two days is an estimate based on one day of library access per week. This assumes that tbe library will not be closed on an inmate's off-duty
dllY because of inclement weather. staff shortage. buffing or waxing of the noors. the librarian taking a day off, ctc. This also assumes that the
prisoncr is able to get into the law library each week, The number or prisoners allowed in the law library at any given time ill limited by the slllte fire
code, In all of the prisons in which I have been incarcerated, library capacity has been limited to approximately sixty people, which includes library
worlccrs, law library workers, general library prisoners. and law library prisoners. Therefore. only about thirty 10 thirty-live prisoners are allowed access
to the law library at any given time. Wilh prisons housing over 1000 inmates, regular access to the law library on an orr-duty day each week Is far'
from guaranteed.
III FLA, ADMIN. CODE ANN. r. 33-501.J0I(2)(q) (2005).
.
III In 1997 and 1998, while assigned a job in the law library at Washington Correctional Institution, I tried numerous times to register prisoners who
had three or four months len to file post.conviction motions for priority access. I was lold repeatedly that .these prisoners did not qualify for priority
access because they bad more than twenty days remaining 10 file their motions. In the years since, I have witnessed many other prisoners denied
r,riorilY access because AEDPA's one-year time frame exceeds f.D.O.C. 's twenty-day requirement.
II FLA. ADMIN. CODE ANN. r. 33·501.301(2)(6) ( 2 0 0 5 ) . .
IU teL at r. 33-501.301(3)(1)(1) (emphasis a d d e d ) . .
.
III Florida rcgulations provide that inmates in open population shall be given priorily access to the law library and be excused from work only "when
the inllUlte demonstrates an exceptional need for it. The Inmate bears sole responsibility for proving why I1dditionlll research time in the law library
should be provided." Jd. at r. 33-501.301(3)(0(2). Prison regulafions do not slate wbat burden the prisoner carries 10 prove exceptional need.
However, it is my understanding and experience that Chapter 33-501.301(1)(2) of the Florida Administrative Co.de used to declare inmates with six or
nlore off-duty hours ineligible for priority access, and. as a result, prison officials in the F.D.O.C. continue to deny priority access to inmates with
more than six hours off-duty lime.
'''/d, at r. 33-50J.301(3)(1)(2). Since prisoners have five-day work weeks,law library supervisors will not allow a prisoner more than two days or priority
acces~ per work week, if they are allowed any days at all.
.
117 [d, al r. 33-501.301(3)(s). This rule has been interpreted by prison officials at the seven prisons where I have been housed to mean that no inmate
IS allowed to use law Ii.brary time to dran legal documents, regardless of whether they arc in the law library on "priority access" or on off-duty hours.
IU My job assignment at the lime. was "houseman." I was responsible for sweeping the noorin my housing unit (thcre were about ten inmQtes assigned
to this tllSk). My job assignment had been complcled, and my work supervisor had given me the afternoon off. Therefore, there was not any work for
me to retum to.
.
lit Fortunately. another prisoner in my housing unit had a copy of the Florida Rules of Court. which hI: let me use, I had to be careful not 10 let a 3ullrd or

22

'

Florida Prison Legal Penpeetives
officer see me wilh lhe beok. Because it belonged to another prisoner, it became "contraband" each time il was in my possession; If caughl wllh n. I
could have been senllO confincment, and the book could have been confiscated. Soe supra nOle 140.
1~'3i2lJ.S. 3S3 (1963).
,., Su Halbert v. Michigan, 12S S. CI. 2S82, 2S93 (200S) ("Navigating lhe appellate process without a lawyer's assislance is a perilous endeavor for a

layperson, and well beyond the compelence of individuals•.•who have lillie educalion. learning dislibilities, and menIal impairments.").
Ii: Susan Hughes was the Library Program Administralor at the Apaillehee Correctional Institulion in 2003. Sec FLORIDA LIBRARY DIRECTORY
WITII
STATISTICS
152
(listing
of.
Institutional
Libraries),
available
al
hllplldlis,dgs sUlIe·fl uslbldfResearch Officel2003LibmryDjrecloryl2Q03'nstjlUlional Libmries.pdf.
Barry Rhodes is a Research and Training
Specialist wilh the F.D.O.C. Bureau of Program Services. See CORRECTIONAL COMPASS: THE OFFICIAL NEWSLETTER OF THE FLORIDA
DEPARTMENT OF CORRECTIONS, Ocl. 200 •• at 12, tlWll/Qble 01 hltp:llwww.de.state.n.uslpubfeompasslOlJOICompllSS_OetOI.pdf. Mr. Rhodes is
responsible for overseeing lhe F.D.O.C. Law Library Services and for training inmates as "research aidcs" or "law clerks."
191 E-mail from Barry Rhodes to Susan Hughes (Dec. 11,2001,09:22 EST) (on tile with aulhor). Mr. Rhodes forwarded this e-mail to lhe librarians, who
in llirn posted a copy of it on the bulletin boards in the prison law libraries for the inmalCi to see. I have personally seen this e-mail posled in live
different prison law libraries. I was given a copy ofthis e-mail by·the librarian at Okaloosa Correctionallnstilulion in 2002. .
I~ LeIter from Valerie Jonas. Assislanl Public Defender. to Inmale Oriel Bcmadeu (Apr. 26, 200S) (on tile with lhe author).
•., I have read Iitcrally hundreds of lellers over the years froln coun·appoinled app~lIBte lIltomeys informing prisoners of the denial of an appeal and lhe
aVlIillibilily of slale post-eonviction motions. In all of the letters I have read. I have ncver read one in which the altorncy informed the prisoner that he
only had one yeW' to file a federal habeas corpus application.
.
... Se.. generally Part IV. supra.
'01 O'Bryant v. Sapp, No. 3:03·cv·803·J·20MCR (M.D. FIll. Jan. 27.2005).
·"'nterview with Inmate Victoria, Holmes Correctionlliinstitution, Bonifay, Fla. (June 10, 200S) (discussing Florida v. Victoria, No. 19B6-6167 (9lh Fla.
eir. Ct. Apr. 3, 1987»; Interview with Inmate Hall. Holmes CorrectionallnstilUtion, Boniflly, FIll. (Oct. 18. 200S) (discussing Florida v. Hall, No. 87·
4472·CC (7th FIll. Cir. Ct. originally sentenced to death on March '22, 1989; resentenced to life without parole on May 10. 1991), regarding alleged
misinformation from defense counsel lhat a particular expen witness would not be able to testifY during the guilUinnoccnce phase of trial, but rather onl)'
al penalty phase); Inlerview with Inmate Walters, Holmes Correetionallnslitution, Bonifay, Fla. (Oct. IB, 200S).{discussinll Florida v. Walters. No. CRC
01-IS818CFANO·K (6th Fla. Cir. Ct., dale unavailable), regardinll alleged misinformlllio!, concerning the elements of the charged crime); Interview with
Inmate Durbin, Holmes Correctional Institution. Bonifay, FIll. (Ocl. 18. 200S) (discussinll Florida v..Durbin. No. 2001·CF 001173A (1st FIll. Cir. CI.
Mar. 18.2001), regarding defense counsel's assurance to lhe defendant that he would receive a suspended sentence of five 10 nine years ifhe plead guilly
since il was his lirst offense; instead, he received fifteen )'ClI~ in prison).
I " See O'Bryant v. Stale, 76S So. 2d 74S, 746 (Fla. Cir. Ct. 2000).
.
200 hi Florida, crimes arc divided into IWO categories: "specific intent" crimes and "general intent" crimes. Specific intenl crimes require the olTender to
have Ihe nlenlal capacity to form an inlent to commit an offense. Se, FLORIDA CRiMINA~ PRACTICE AND PROCEDURE §11.1 S (200S).
20. Sec Penn v. State, 82S So. 2d 4S6, 457 (Fla. 2002) (noting first·degree murder is a "specific intent crime-); Gentry v. State, 437 So. 2d 1097 (Fla.
1983) (holding that if specific intent is required for a crime. it is also required for a charge of attempting to commit lhat crime); Parrish v: Stale, 892 So.
2d I t99, 1200 (Fill. Disl. Ct. App. 200S) (noting that armed robbery is a specific intent crime).
lU2 S4c Brown v. State. 790 So. 2d 389. 391 (Fla. 2000) ("[TJhe crime of attempted secoqd-degree murder is a general intent crime."). At the lil1!e of the
offenses in my ciue. I had been awake for four days and was hcavily"consuming drugs. I was sRoning and smoking cocaine. smoking marijuana. taking
LSD, and consuming Ilirge amounu of alcohol. Because of this, I lacked the "specific inlenl" 10 commit the charged olTenses. I did have the "general
intent" necessary to marge me with the lesser olTenses. Therefore. I should have been charged wilh the lesser offenses. In fact, in 1995, grand then WllS
also. a "specific intent" crime in Florida. Seo Linehan v. State, 442 So. 2d 244, 2S1 (Fla. DiSl. Ct. App. 19B3). Therefore, I should hllve been charged
with an even lesser offense than grand then.
.
2n, s.!C Lineham v. State. 476 So. 2d 1262. 1264 (Fla. 1985) ("[This coun has Iring recognized voluntary Intoxication as a defense to specific inlent
crimes."). BUI see FLA. STAT. 1775.0S I (200S) (prohibiting voluntary intoxication as a defense to specific intent crimes as of October 1999. three years
ane~ my tnal).
' .
2'" Affidavil of David E. Roberts. Florida Parole Commission (June 13,2003), O'Bryanl v. Sapp. No. 3:03·cv-803-J-20MCR (M.D. Fla. 2005) (document on
file wilh the lIuthor and the Harvard Civil Righu-eivil Libenies Lilw Review).
.'
10' Affidavit of Donald K. Rudser (OCI. IS, 1997), Florida v. O'Bryant. No. 9S-92 (Fla. Cir. Ct. May S, 1998) (document on file with the author and the
Harvard Civil Rights-eivil Libenies Law Review).'
.
.
.
206 Florida v. O'Bryant, No. 9S-92 (FIlL Cir. CI. May S. 1998) (order denying grounds one through six and ground eight of motion for post-conviction
relief): Florida v. O'Bryant, No. 95-92 (Fla. Clr. Ct. June 29. 1998) (order denying gro..und seven); O'Bryant v. Florida; 76S So.2d 74S (Fla. Dist. Cl.
App. 2000) (remanding for evidentiary hearing on ground three (vOluntary intoxication defense) and ground six (penalty aUlhorized by statute) and
affirming denial on grounds of the misinformation of parole eligibility ond the influence of psychotropic drugs on plea). On remand; the trial coun
denied relief even though defense counsel acknowledged hc told me I could not usc a defense of voluntllty intoxication (which was allowed and
applicable). Transcript of Proceedings at 49-SS, Florida v. O'Bryant, No. 9~92 (Fla. Cir. CI. Dec. 3, 2000), roh 'g denied, 826 So.2d 289 (Fla. Dist. Cl.
AfP. 2002) (decision without published opinio·n).
.
20 Brody v. United States. 397 U.S. 742,748 (1970).

2'·' See id.
M

See. e.g.. Wood v. Hamillon, No. 4:0S-cv·002S4-MP-AK (N.D. FIlL Sept. 22. 2005).
e.g.. Rock v. Crist, No. OS·20899 (S.D. Fla. Nov. 14.2005).

110 See.

JII Prior to AEDPA.. in I99S. S8.7% of the habeas corpus petitions filed in U.S. district courts by state prisoners ~erc dismissed. while only 1.2% resulled
in judgmenls for the inmate. SCALIA, supra notc 26. al 6. Considering the reality of pro se litigation, ills no wonder the foregoing percentages arc so
dismal. I have been unable to learn the exact percentngCi POSI-AEDPA, hut based on years of persooal experience with prisoner litigation. I believe the
number of dismissals hilS increased and the grants or relief decreased. After all. the relIlity or indigent pro se litigation from a prison setting has remained
unchanged. and indigenl prisoners arc now provided even Icss lime to file their pro Se motions.
III SeeTHE FEDERALIST No. 84, supra note t1 .

.

(Note: Thcfon:going article was originally published In the Harvard Civil Rights-Civill.ibenlcs Law Review, Vol. 41. No.2. Summer 2006. and is reprinted hen: wilh
permission.!
. .

23

'Florida Prison Leg~1 Perspectives
"

POST CONVICTION
CORNER

I~.

by Loren Rhotoa. ...

.

..

Art~cle 1, §16 of the Florida ConstitUtion and the Sixth Amendment to the

United Stat~s Constitution, individually and collectively, guarantee an accused the
right to a j~ trial 'in ,a criminal cas~. Included in this right is an entitlement to an
impartial juiy. Because ''trial by jury in criminal cases is fundamental to the
American s~heme'ofJustice," Duncan v. Louisiana, 391 U.S., ]45, 149 (1968), the
failure to a~cord a defendant a fair ~earing violates the minimum standards of due
, process~ Morgan y. Illinois, 504 U.S. 719t 727 (1982). As such~ a juror should be
· dismissed' for cause where there is reasonable doubt as to his or her impartiality.
, 'Juede v. Staie, 837 so.2d 1114 (Fla. 4th DCA, 2003). Sometimes, though, biased
, jurors inadvertently e~d up servirigon a criminal jury. Iftrial counsel mistakenly
, fails,to chalJenge an actually biased juror, it can amount to ineffectiveness of
'counsel tha(is sufficient to require a new.trial.
" The'applicable"test. With regard to juror bias is whether a juror can lay aside
any bias or prejudice and render a verdict solely on the evidence presented and the
law given by the court. LJ,mk v. State, 446 So.2d 1038, 1041
· instnictiorison
· (1984):, on' direct app,eal, the erroneous denial of a preserved cause challenge is
reverSn~le error. Cat"Iltelli v. State, 915 So.2d 1256 (Fla. 4th DCA, 2005). But,
, when the failure to raise or preserve a cause challenge arises in a postconviction
, relief clai~ the q~esdon ofprejudice is central to the outcome. ML at 1258. In
· ord~r to prevail on,a claim that counsel was ineffective for failing to challenge a
: juror for caUse, the two pronged test enunciated in Strickland v. Washington, 466
· U.S~ 668(984) must be satisfied.
.
'. In order to demonstrate ineffective assistance of counsel a defendant must
" prove both iliat his 'counsel performed deficiently and that the performance
actually prejudicedthe defendant. Strickland y. Washington, 466 u.s. 668 (1984).
~ The two prongs'ofthe' ineffectiveness inquiry are independent of one another, and
, thus, must both.be proved to establish a Claim of ineffective assistance of counsel.
, l!h at 697. ' if a defense attorney somehow allows an actually biased juror to
: remain on a:JurY, the first prong of the Strickland test may be satisfied. The
· determininglactor 'with regard to the prejudiCe prong will be whether trial counsel
· had 'a reas~nable tactical· de.cision for allowing, the biased juror to remain.
, Wheri'a laWyer'S alleged incompetence involves the failure to exercise or
preserve a juror:challenge for cause, the proper inquiry for determining the
· prejudice p~Qng of Strickland is "whether the failure to preserve a challenge to a
:
·
,
:.

the

24

Florida Prison Legal Perspectives

juror by sufficiently bringing the objection to the judge's attention 'resulted in a
biased juror serving on the jury.'" Carratelli v. State, 915 So.2d 1256 (Fla. 4th
DCA, 2005) decision approved by Carratelli v. State, 32 F.L.W. S390 (Fla. July 5,
2007). The nature of the juror's bias should be patent from the face of the record.
CarrateUi at 1260. Thus, to satisfy the prejudice prong of Strickland, a defendant
must show that a juror who served on the jury was actually biased against him. ld.
For example, ajuror's statement that a defendant would be required to introduce
evidence to convince her the defendant was not guilty pointedly demonstrates the
juror's preconceived opinion of guilt and consequently requires the defendant to
prove his innocence rather than requiring the state to prove his guilt Hamilton y.
£tDm, 547 So.2d 630 (Fla. 1989). Ajuror is not impartial when one side must
overcome a preconceived opinion in order to prevail. llb quoting Hill v. State, 477
So.2d 553, 556 (Fla. 1985).
•
The Carratelli court noted that "[t]rom a practical ~dpoint, ajury
selection error justifying postconviction relief is so fundamental and glaring that it
should have alerted a trial judge to intervene, even in the absence of a proper
objection, to prevent an actually biased juror from serving on the jury, th~reby
irrevocably tainting the trial." lit. at 126 I. Thus, if it can be demonstrated from
the jury selection transcripts that an actually biased juror was mistakenly,
inadvertently, or unreasonably allowed to remain on ajury, both prongs of the
Strick/and analysis will be adequately demonstrated. In such case the judgment
and sentence should be vacated and a new trial should be granted.

Loren Rhoton is a member in good standing with the Florida Bar
and a member ofthe Florida Bar Appellate Practice Sec/ion. Mr.
Rhoton practices almost exclusively in the postconviction/appellate
area.ofthe law. both at the Slate and Federal Level He has assisled
hundreds ofincarceratedpersons with their cases and has numerous
written appellate opin~ons.

•

•
25

Florida Prison Legal Perspectives

Loren D.Rhoton
,

-1

.p.os.t.c.o.nV.i.ct.io.n.A_tto.r.n.e.Y__
•
•
•.
•
•
•

Direct Appeals
Belated Appeals
Rule 3.850 Motions
·Sentence Corrections
New Trials
Federal Habeas Corpus Petitions

412'East Madison Street, Suite 1111
Tampa, Florida 33602
(813) 226-3138
Fax (813) 221-2182
Email: lorenrhoton@rhotonpostconviction.com
Website: www.rhotonpostconviction.com
The hiring of a lawyer is an important decision that should not be based solely on advertisements. '
Before you decide, ask us to send you free wntten information about our qualifications.

BUY THE BOOK - ON SALE NOW
POSTCONVICTION RELIEF FOR THE FLORIDA PRISONER
A Compilation ofSelected Postconviction Corner Articles
A collection of Loren Rhoton's Postconviction Corner articles is now available in one
•
convenient book geared towards Florida inmates seekingjustice in their cases. Insights basea
on professional experience, case citations, and references to the relevant rules ofprocedure
are provided. This book is specifically directed toward those pursuing postcOnviction relief.
To order, send $20.00 in the form of a money order, cashier's check or inmate
bank check (no stamps, cash or personal checks please) to the address above, or
order'online at wWw.rhotonpostconviction.coni.
26

FloridaPrisoD Legal Perspectives

Issue Of Imposing Higher Sentences
For Crack Cocaine To Be Reviewed
By The US Supreme Court

O

n June 12, 2007, the US Supreme Court agreed to
review the issue of judges being required to impose
longer sentences for crack cocaine vs cocaine powder.
The Court said it will hear a case of a veteran of the
first Iraq war, Derrick Kimbrough, who was sentenced to
15 years in federal prison for dealing in crack and powder
cocaine and who was also in possession of a firearm in
Virginia.
Kimbrough received a shorter sentence than the
required federal sentencing guidelines of 19 to 22 years.
The sentencing US District Judge said the later sentence
range was "ridiculous."
"This case is another example of how the crack cocaine
guidelines are driving the offense level to a point higher
than is necessary to do justice in this case," said the US
Districtjudge.
"Is clearly long enough under the circumstances. As a
matter of fact, it's· the court's view that it's too long, but
the court is bound by the mandatory minimums ·of 10
years on three of these counts," added the judge while
referring to the 15 year sentence.
The government has sought appeal and the White
House has asked the Supreme Court to deny review in
Kimbrough's case.
Judges from the Fourth US Appeals Court have
expressed their opinion that lower court judges have no
discretion to sentence offenders below the guideli~es,
"based on a disagreement with the sentencing disparity for
crack and powder cocaine offenses." _

Lawsuit Filed Against DOC's
Faith - Based Contract

D

uring the month ofMay, 2007, a lawsuit was filed
against FDOC's faith-based contract in Leon County
circuit court. The suit claims that agreements with two
faith-based contractors to provide transitional housing
programs for released prisoners are unconstitutional.
The constitutional challenge is based on a provision in
the Florida Constitution that prevents state revenue from
being used to aid "any church·, sect, or religious
denomination or in aid ofany sectarian institution."
The suit was brought by the Council for Secular
Humanism and two private citizens. The relief being
sought·by the-Plaintiffs is for Dot- contracts with
religious groups, Prisoners of Christ, Inc. and Lamb of"
God Ministries. to be held unconstitutional and be
discontinued.

Allegations in the suit argue that DOC pays
Jacksonville-based Prisoners of Christ and Okeechobeebased Lamb· of God to provide "faith-based substance
abuse post-release transitional housing" for prisoners who
are released from prison.
DOC's response asserts that the contracts challenged
aren't unconstitutional as a matter of law because they
specifically called fpr the state funds to go only for secular
purposes.
During a brief statement, Robby Cunningham, a
spokesman for the DOC, called attention to relevant parts
of the contract tl'!at states that ventors shall "ensure that
state funds are used for the sole purpose of furthering the
secular goals of criminal rehabilitation, the successful
reintegration of offenders into the community, and the
I
reduction of recidivism."
Furthermore, the faith-based groups cannot deny
admission to the program based on a participant's belief,
Cunningham stated. Moreover,. the contract states "the
. program shall not attempt to convert an offender toward a
particular fai~or religious practice:"
No ruling has been made by the Leon County circuit
court on the lawsuit. _

Correctional Officer Found Slain

A

uthorities are investigating the shooting death ofa
FDOC correctional officer found on June 8, 2007.
lying on the floor of her living room.
Tyvon Nichole Whitford, 25, was an employee at the
Gainesville Correctional Institution, where she had
worked for several years. It did not appear that her job as a
correctional officer was related to her death, said Putnam
County Sheriff's Maj. Keith Riddick.
Whitford's five year old son was. apparently in the
house when the incident took place. Authorities believe
that Whitford was about six months pregnant when she
was killed.
Police investigators are saying that the)' have no leads
in the case. The case is "a horrible mystery," Riddick said.
Whitford was struck by a single gunshot in the upper
torso, the sheriff's office reported. Two 911 calls were
made from her house~ but officials would not give further
details about the calls. Only that one call was made by her
boyfriend, who claims he found Whitford dead when he
came to her home.
"We mourn the loss of our fellow officer. as we do the
loss of her soon-to-be-bom child. We will do all that we
can to assist law enforcement as they investigate this
tragic death. She and her loved ones will be in our
prayers," said the secretary of DOC, Jim McDonough, in a
brief statement on J ulle 9, 2007. _
_

,h'~

_._

,_

• __ •

•.. _

27

Florida Prison Legal Perspectives

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Violent crimes • sex crimes • Drug crimes • Property crimes • Alcohol crimes • White coUar crimes

Post-c:onvictionmotions are used to get convictions overwmed and sentences reduced but there are deadlines
for filing. Regardless ofwbo you have prepare your motions, act now before the deadlines pass and you find
you are procedurally bam!d fiom correcting your errors and getting relief.
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The Law Office of David W. Collins
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Before you decide, ask me to send you fi'ee written information abOut my qualifications and experience."

28

Florida Prison Le2al Perspectives
•••

\.
~f

.

•
I

~~

•

Thefollowing are summaries ofrecent state andfederal case... thatinay be usefUl to or have a significant impact on Florida prisoners. '
Readers should always read thelull opinion as published in the Florida Law Weekly (Fla, L. Weer.ly); Florida Law Weekly Federal
(Fla. L. Weekly Federal); Southern Reporter 2d (So. 2d); Supreme CoUrt Reporter (S. Ct.): Federal Reporter 3d (F.3d): or ,he
Federal Supplement 2d (F.Supp.1d), .'iincethese summaries arelor general information only.

U.S. SUPREME COURT

Erickson v.' Pardus, 20 Fla. L.
Weekly Fed. § 317 (614/07)
William Erickson, a Colorado
state prisoner, had filed a 42 USC
section 1983 petition alleging that his
Eighth and Fourteenth Amendment
protections against cruel and unusual
punishment had been violated.
The allegations in Erickson's suit,
in part, were that prison officials
removed him from' a hepatitis C
treatment program, after he had
begun treatment, and such was
causing irreversible damage to his
liver, and may even cause his death
without the continued treatment.
Deeming such allegations to be
"con,clusory," the Court of Appeals
for the Tenth Circuit had affirmed
the District, COQrt's dismissal of
Erickson's complaint, and Erickson
sought certiorari' review, in the
Supreme Court.
On review. it ws held that such
allegations made by Erickson were
sufficient to meet the liberal pleading
standards set forth by Rule 8(a)(2).
Therefore, the case should not have
been dismissed on the ground that
allegations of harm were loo
conclusory.
Accordingly, Erickson's certiorari
was granted and the judgment of the
Court of Appeals was vacated. The '
case was remanded for further
proceedings that would be consistent
with the opinions that were held in
the review ofthe case.
Fry \I. Pliler, 20 Fla. L. Weekly Fed.

§ 333 (6111107)
On review from John Francis
Fry's,certiorari petition. the Supreme·
Court held that in a 28 USC section .

2254 proceeding a federal court must
assess the prejudicial impact of
constitutional error in a state-eourt
cri~inal trial under the Brecht v.
Abrahamson, 507 U.S. 619
(1993), "substantial and injurious
effect" standard. This is whether or
not the state appellate court
recognized the error and reviewed it
for harmlessness under the "harmless
beyond a 'reasonable doubt" standard'
set forth in Chapman v. Californ/a,
386.s. 18 (1967).

Brendlin v. California, 20 FJa. L.
Weekly Fed. § 365 (6/18/07)
Bruce Edward Brendlinpresented
the United States Supreme Court
with an issue of whether a passenger
in a car, like the driver, when police
have made a traffic stop, is seized for
Fourth Amendment purposes and so
may
challenge
the
stop's
constitutionality.
In Brendlin's case, officers had
stopped a car to check its registration
withput reason to believe it was
being operated, unlawfully. One of
the officers recognized Brendlin, the
passenger in the stopped car, as
being a parole violator. Upon
verifying such, the officers arrested
him, searched him, the driver, and
the car, finding various drug
contraband.
Charged with possession and
manufacture of that contraband.
Brendlin had sought to suppress the
evidence obtained in searching his
person and the car, arguing that the
officers lacked probable, cause or
reasonable suspicion to make the
stop, which, was an unconstitutional
seizure of his person.
The trial court denied the motion
to suppress, but a State appellate

court reversed, opining that Brendlin
was seized by the stop. which it held
was unlawful..
Subsequently, on review from the
State's supreme court, it was held
that suppression was unwarranted,
reversing the appellate court's
opinion. It was reasoned that a
passenger was not seized as a
constitutional·
maller
absent
additional circumstances that would
indicate to a reasonable .person that
he was the subject of the officer's
investigation or show ofauthority.
On certiorari J:Cview to the United
States Supreme Court, it was held
that a passenger. like the driver, is
seized ,for fourth Amendment
purposes and so may challenge the
stop's
constitutionality.
Any
reasonable passenger would have
understood that the officer was
exercising control to the point that no
one in the car was free to depart
without police pennission.
Therefore, the California State
Supreme Court's decision was
vacated,and Brendlin's case was
remanded for further proceedings ,
consistent with the above opinion.

FLORIDA SUPREME COURT

,In Re: Standard Jury Instructions
In Criminal Cases,
32 Fla. L. Weekly § 183 (Fla.
5/3/07)
The
Supreme
Coon
Committee on Standard Jury
Instructions in Criminal Cases
(Committee)
submitted
new
inStnlctions and proposed changes
for the standard jury instructions
in criminal cases.
.

29

Florida Prison Legal Perspeetives
The
Committee
proposed
amendments to standard jury
instructions 28.9, No Valid Driver's
License, and 28.1 I, Driving While
License Suspended, Revoked or
Canceled with knowledge. Further, it
proposed two new standard jury
instructions, 28.9(a), No Valid
Commercial Driver's License, and
28. 11 (a), Driving While License
Revoked as a Habitual 'Traffic
Offender.
After comments were received
and errors corrected, the Supreme
Court authorized the publication and
use of the instructions.· and was
effective when the opinion became
final.

[Note: A complete view of the
changes and new instructions can be
seen in 32 Fla. L. Weekly,.at §, 184
through § 186, Issue number 18, the
May 4, 2007 edition.]
State v. Weaver, 32 Fla. L. Weekly §
216 Fla. 5/10/07)
In Gregory Carnell Weaver's
appellate court case, Weaver v. Stale,
916 So.2d 895, 898-99 (Fla 2d DCA
200S), the appellate court certified a
question to the Florida Supreme
Court, which it had excepted for
review.
The Second District Court of
Appeal had opined that the "trial
court commit(s] fundamental error
when it instructs a jury regarding
both 'bodily hann' battery on a law
enforcement officer and 'intentional
touching' . battery on a law
enforce01ent officer when the
infonnation charged only one fonn
of the crime and no evidence was
presented nor argument made
regarding the alternative fonn. .
Subsequent to its review and a
short discussion on the appellate
court's opinion, the Supreme Court
concluded that the Second District
was incorrect Therefore, that
opinion ~ quashed.
Reeves v. Stale, 32 Fla. L. Weekry §
239 (Fla. ,5/17107)
30

The Fifth District Court ofAppeal

McDonald and held: (l) that a
mandatory mini01u01 I()..20-Life
,sentence
must
be
imposed
concurrently with a PRR sentence
even when the 10-20-Life sentence is
the lesser sentence and (2) that the
O1andatory sentence for first-degree
robbery with a firearm under the
PRR statute is life in prison.
Accordingly, the decisions in Hall
and Helms were disapproved as to
the first conflict issue. To the extent
it conflicts with McDonald, the
decision in Frazier was disapproved
as to the second conflict issue.

in Leroy Reeves' appeal, Reeves v.
State, 920 So.2d 724 (PIa Sib DCA

2006), had opined that when multiple
crimes arise out of the same criminal
episode, a sentence under the Prison
Release Reoffender statute can be
foll,owed by a Criminal Punishment
Code sentence that is not enhanced
beyond the statutory maximum.
That opinion however, was
expressly, and directly in conflict
with the Second District's in
Rodriguez v. Slale, 883 So.2d 908
(Fla. 2d DCA 2004), thus, Reeves
sought. and was granted, review of
the conflicting opinion in the Flori~a
~upreme Court.
On review and subsequent to a
lengthy discussion about the issue,
the decision made by the Fifth .
District in Reeves' case ws approved,
and the Second District's in
Rodriguez was disapproved.
McDonald v. Stale, 32 Fla. L.
Weekly § 242 (Fla. 5117/07)
In Roy McDonald's case, the
Florida Supreme Court had granted
the review of the Fourth District's
decision in McDonald v. Slate, 912
So.2d 74 (Fla. 4111 DCA 2005), in
which it certified conflict on 'two
issues.
First. the Fourth District certified
conflict with the decisions of the
Second District in Hall v. Slate, 837
So.2d 1179, 1180 (Fla. 2d DCA
2003), and Helms v. Slate, 890 So.2d
1256 (Fla. 2d DCA 2005), on the
issue of whether the mandatory
minimum sentence under the PRR
statute must be imposed concurrently
. with a lesser O1andatory minimum
sentence under the 10-20-Life
statute. Second, the Fourth District
certified conflict with the decision of
the Third District in Frazier v. Stale,
877 So.2d 838 (Fla. 3d DCA 2004),
on the issue of whether the
mandatory sentence for first-degree
robbery with a fireann under the
PRR statute is thirty years or life in
prison.
The Supreme Court approved the
Fourth District's decision in

DISTRICT

COURTS

OF

APPEAL

I

Gee v. State, 32 Fla. L. Weekly
DI 028 (Fla. I" DCA 4/19/07)
Michael D. Gee petitioned for a
writ of prohibition, where he
contended that his right to a speedy
trial under the Interstate Agreement
on Detainers, section 941.45, Florida
Statutes, (lAD) was violated.
Gee was a Georgia State prisoner
when he made , request to. be
returned to Nassau COUDty, Fla. for
disposition of certain felony charges
pending against him there. Article 1lI
(a) of the lAD provides for trial to be
held within 180 days ofreceipt of~e
request by the clerk of the court. That
180 days had expired on January 9,
2007. Thus, Gee's attorney filed a
motion to dis01iss Gee's charges on
speedy trial grounds on January 16,
2007, and the motion was denied.
At the hearing in the lower court
on the motion, the State had argued
that it was entitled to the "window of
recapture' set forth in Florida Rule of
Criminal Procedure 3.191(p). Under
that rule subdividion, the defendant
must file a "notice of expiration of
speedy trial time" and, within five
days thereafter, the court shall hold
hearing. If it is found that the
defendant is correct. the state shall
have ten. days to bring the defendant
to trial. Without a proper "notice of
expiration of speedy trial time" the

Florida Prison Legal Pe~peetives
defendant is not entitled to discharge
on speedy trial grounds. See, Stale v.
McCullers, 932 So.2d 373 (Fla. 2d
DCA 2006).
•
Gee argued that the "window of
recapture" did not apply, and proper
procedure was followed in reliance
of the lAD. the appellate court,
however, opined that Rule 3.191 (p)
did apply, citing. Vining v. Slate, 637
So.2d 921 (Fla. 1994) and Stale v.
Garz.a, 807 So.2d 790 (Fla. 2d DCA
2002). It was further noted that the
opinion was bolstered by the fact that
lAD itself contained no procedural
provisions for enforcement of the
act's right to speedy trial in the
'circuit court.
Therefore, it opined that the lower
court did not err in denying Gee's
motion to dismiss. Gee's petition was
denied.

Morlon v. Fla. Depl.· of Corrections,
32 Fla. L. Weekly 01041 (Fla. lit
DCA 4/19/07)
Larry S. Morton petitioned for
writ of certiorari following the lower
court's denial of his mandamus
petition that challenged, in part,
DOC's forfeiture of l8 years basic
gain-time following revocation of his
parole.
Morton's offenses occurred in
October and December 1978, and he
received 7 consecutive sentences
totaling 8S years DOC. Upon
entering DOC, he was awarded basic
gain-time in a lump sum pursuant to
the Correctional Reform Act of 1983.
In 1998, Morton was released to
parole supervision while serving the
second consecutive sentence., After
Morton's parole was reyoked, DOC
forfeited his gain-time pursuant to
serion 944.28, Florida Statutes.
Morton
then
exhausted
his
administrative remedies and then
filed the mandamus petition. In the
petition he argued DOC unlawfully
forfeited the. 18 years, because .the
gain-time statute in effect at the time
of his offenses. The lower court
disagreed and denied the mandamus
petition. '

.Under Waldrup v. Dugger, 562
So.2d 687 (Fla. 1990), it is shown
• that DOC was permitted to' award
basic
gain-time
on
pre-1983
consecutive sentences. However, in
Waldrup it was opined that it would
violate the ex post facto clause if,
, after a crime had been committed, it
increased the penalty attached to that
crime. Id. at 691.
.
The appellate court opined that it
was clear that Morton w8s
disadvantaged by the DOC's reliance
on the' 1983 statute. treating his
consecutive sentences as a single
tenn for purposes of aWarding and
forfeiting basic gain-time in a lump
sum. Accordingly, the DOC could'
not retroactively apply the 1983
statute to authorize the forfeiture of
all basic gain-time on Morton's pre1983 con~cutive sentences without.
violating the ex post facto clause.
See. AvtVa v. Barton, 632 So.2d 167
. (Fla. 1st DCA 1994).
By not applying the correct law, it
was concluded that the lower court
departed
from
the
essential
requirements of, law. Accordingly,
Morton's petition was granted, and
the lower court's order was quashed.
in part, and remanded for further
proceedings.

Garnett v. Stale. 32 Fla. L. Weekly
D 1065 (Fla. 2d DCA 4/25/07)
Daniel 'A. Garnett appealed a
summary denial of his Rule 3.800(a),
motion to correct illegal sentence,
where he sought jail credit for time
spent in an Ohio jail on a fugitive
warrant issued by the Circuit Court
for Pasco County,. Florida.
The appellate court opined that
such out-of-state jail credit is not
credit that a defendant is entitled to
receive as a matter of law, but is an
issue that is within the inherent
discretion of the sentencing court.
See. Kronz v. Slale, 462 So.2d 450,
451 (Fla. 1985).
Because of the opinion above, the
appellate court receded from its prior
decisions in Beuton v. Stale" 790
So.2d 1204 (Gis. 2d DCA 2001), and
the .cases that followed that decision

in Redding v. Slale, 848 So.2d 417
(Fla. 2d DCA 2003), and Robbins v.
Stale. 799 So.2d J093 (Fla. 2d DCA
200 I), because they are in conflict
with that opinion it made in Garnelt.
It was reasoned that upon further
consideration that was made due to
Garnett's case, it was clear that in
those prior cases the appellate court
failed to focus on the requirement of
an "entitlement" for purposes of rule
3.800(a). Under the holding of
Kronz, such an entitlement does not
exist for such out-of-state credit.
Accordingly, the lower court's
order of denial was affirmed in
Garnett's case.
.

Glenn v. State, 32 Fla. L. Weekly.
01088 (Fla. III DCA 4/26/07)
Jamal Che Glenn appealed the
summary denial of his Rule 3.853.
motion for posteonvictiori DNA
testing, where the trial court's denial'
relied on language in section
925.11(1)(a), Florida Statutes (200S).
Section 925.II(I)(a) of the 2005
Statutes limited the right to file rule
3.853 motions to those who have
been tried and found guilty of a
felony, excluding those who entered
a guilty or nolo contendere plea to
such crimes. However, section
925.11(1 )(a)2. was amended in 2006
to allow for such motions in cases
where the defendant has entered such
pleas. See: section 925.1l(1), Fla.
Stat. (2006);' Lindsey v. Slale, 936
So.2d 1213 (Fla. 5111 DCA 2006).
In light of the 2006 change in
Florida law, Glenn's case was
reversed and remanded for the lower
court to address the merits of his
sections
motion
pursuant
to
925.1 1(2)(c)-(f), Florida Statutes
(2006).

Harris v. State. 32 Fla. L. Weekly'
01101 (Fla. Sib DCA 4/27/07)
Joshua Harris appealed the lower
court's denial of his motion for
judgment of acquittal as to his
trafficking in 28 grams or more of
cocaine offense.
The appellate court opined that
.evidence of Harris being a visitor in

31

Florida Prison Legal Perspectives
the residence where officers
discovered the cocaine and that such '
contents was within his "ready
reacb" was insuffi~ient to establish
that Harris was in constructive or
actual possession of the cocaine,
Further, the fact that Harris was in
possession of a small amount of
cocaine on his person was
insufficient to establish that he had
dominion and control of the cocaine
found in the residence.
Accordingly, the trafficking
offense was reversed and Harris' case
ws remanded for the lower court to
adjudicate him guilty of the lesserincluded offense of possession of
cocaine.

Smilh \I. McDoHough, 32 Fla. L.
Weekly 01136 (Fla. 41h DCA 512107)
Glenn Smith presented an issue to
the Fourth District Court of Appeal
that challenged the Nineteenth
Judicial
Circuit
,Court,
in
Okeechobee County. non-final order
transferring the venue of his lower
court action to Leon County.
Smith's action in the Ninett;enth
Circuit challenged
disciplinary
confinement and gain time reduction
imposed by officials, at the
Okeechobee Correctional Institution.
The Nineteenth Circuit entered an
order that transferred the venue of his,
actions without affording Smith any
notice or opportunity to be heard.
DOC confessed error based on that
procedural ground.
Accordingly. Smith's case was
reversed and remanded for the lower
court to hold a hearing to determine
whether, as' Smith argued. his
. petitions
sufficiently
.allege
cOnstitutional
violations
which
qualify for the "Sword-wielder"
exception to the state's home venue
privilege. See: Barr v. Fla. Bd. of
Regents. 644 So.2d 333, 337 (Fla. III
DCA 1994); Hancock \I. Wilkinson,
407 So.2d 9M (Fla. 2d DCA 1981);.
see also, Smilh v. Williams. 35 So.2d
844, 847 (Fla. J948).
Hooks \I. Slale; 32 Fla. L. Weekly
1?1136 (Fla. 4th DCA 512/07)

Brian Hook. Thomas Daugherty,
Slale,942 So.2d lOIS, 1017-18 (Fla.
and William Ammons petitioned the
2d DCA 2006) (where it was held
appellate court for writ of certiorari • that a trial caprt may not revoke
to quash the lower court's order that', probation for failure to complete a
granted the State to test' and
drug treahOent program if sufficient
unavoidably consume DNA evidence
time in the probationary period
without the presence of a defense
remains for a probationer to
expert or a video camera to
complete the program and the'
document the testing procedures. '
probation ord,er did not specify any
The appellate court commented
time limit or within a certain number
that the Stilte had not committed any
ofattempts).
Only on this, issue. Vernon's case
constitutional violation as to the
unavoidable
consumption
of
was 'reversed for the lower court to
evidence during DNA testing, when
strike the violation' of condition
done in good faith, does not violate
thirty-two from the revocation order.
due process. However, it was noted
Donaldson \I. State, 32 Fla. L.
that "everal courts 'have stated that
Weekly 01293 (Fla. 41h DCA
the better practice is for the State to
notify the defense of such testing in
5116/07)
Tedrick Donaldson sought a
. order to give the defendant or
prohibition petition to the lower
representative a fair opportunity to
court that regarded an expiration of
be present during the testing. See:
speedy trial notice he filed against
Slipp v. Siaie. 371 So.2d 712. 714'
charges from Indian River County,
(Fla. 41h DCA 1979); Siale v. Jllkins,
which had placed a detainer against
369 So.2d 389 (Fla. 2d DCA 1979).
him while he was serving sentences
Therefore. the certiorari petition
from Polk County.
ws granted. quashing the lower
The information on the Indian
court's order, and the case was
River County charge (armed
remanded for an evidentiary hearing
robbery) showed that it had been
50 the parties could demonstrate
filed in 2003. Thus Donaldson
whether it is practicable to allow
moved for discharge. However, he
video taping or the presence' of a
did this withoul demand. pursuant to
defense expert during the testing
Fla. R. Cirm. P. 3.191(a).
process.
The appellate court opined that
Donaldson W5 not entitled to such
Vernon v~ State, 32 Fla. L. Weekly
application under his circumstances,
01259 (Fla. 2d DCA 5/11107)
citing Edwards v. Allen, 603 So.2d
Len Shannon Vernon appealed an
514 (Fla. 2d DCA) review denied.
order that revoked his probation and
613 So.2d 3 (Fla. 1992). Neither the
argued that' the lower court
detainer. nor the filing of the
improperly concluded that he
information, constituted an Brrest for
violated condition thirty-two of his
purp,oses of rule 3.191(a). Id. It ,was
probation requirements.
explained thar, if the information had
Condition thirty-two required that
been filed in the Indian River County
Vernon obtain drug and alcohol
case, Donaldson could file,a demand
evaluations within thirty days and
for speedy trial pursuant to rule
receive drug and alcohol treatment. It
3.191(a), the petition was denied,
was alleged that Vernon violated this
without prejudice.
condition
when
he
was
unsuccessfully discharged from
Caslillo v. Stale, 32 Fla. L. Weekly
"DACCO." a drug treatment
01294 (Fla. III DCA 5/17/07)
program.
Douglas Castillo appealed the
Vernon argued that the probation
summary denial of his Rule 3.850
order did not give him a specific time
motion, wherc he had claimed
within which to complete a drug
ineffective assistance dftrial counsel.
treahOent program. See: Anderson·v.

Florida Prison Legal Perspectives
Castillo had been convicted of
DUI manslaughter and DUI with
great bodily harm. One of Castillo's
claims in his motion was that his
counsel had failed to pursue evidence
that would have shown he was not
intoxicated at the time of the
accident. The alcohol content of his
blood that was taken for testing two
hours after the accident was due to
alcohol he had drank near the time of
the accident.
The appellate court opined that it
ws error for the trial court to have
summarily deny this claim. Castillo
had stated a facially sufficient claim
and it was found that the trial- court
attached no documents to its denial
that refuted the claim. See: Parker v.
Siale, 904 S02d 370,376 (Fla. 2005).
Also, Castillo had claimed his
counsel was ineffective in failing to
object to testimony and medical
records given by a nurse, who was
not qualified as an expert, that
Castillo had ,exhibited "Horizontal
Gaze Nystagmus," a condition
evidencing intoxication.
On that claim, the appellate court
agreed that such an opinion
teStimony required an expert witness.
See: Siale v. Meador, 674 So.2d 826,
41b
DCi\.
1996).
836
(Fla.
Furthermore,
although
medical
records are admissible under the
business records exception to the
hearsay rule, Love v. Garcia, 634
So.2d 158, 159-60 (Fla. 1994), the
Florida Supreme Court has opined
that a judge should exclude such
records when it has been shown that
they are not trustworthy.
The lower court's order that
summarily denied Castillo's motion
was reversed and the case was
remanded for an evidentiary hearing,
or for attachment of records that
refuel the claims.

Vega v. McDonough, 32 Fla. L.
Weekly DI295 (Fla. lsi DCA
5/17/07)
luan F\ Vega sought enforcement
of a mandate that had been issued by
the appellate court in Vega v.
McDonough, 946 So.2d 548 (Fla. 151

DCA 1/9/07). In that case, Vega had
sought certiorari review of the lower
court's denial of his mandamus
petition and its order authorizing a
lien being placed on hid DOC prison
account for cost and fees related to
the petition's filing.
In Vega. Id., the appellate court
had affirmed the denial of the
mandamus petition that challenged a
disciplinary report, but it had found
the lien to be in error. Thus, the case
was remanded to have the lien order
quaShed. Upon remand, however, the
lower court, sua sponte, opined that
Vega's mandamus petition was a
"mixed-petition" pursuant to Schmidl
v. McDonough, 951 So.2d 797 (Fla.
2006), and therefore affirmed its own
opinion in the placement of the lien
against Vega's prison account.
In the appellate court, on Vega's
motion for enforcement of its
mandate, it was noted that it is well
settled that a '''triar court is without
authority to alter or evade the
mandate of an appellate court absent
permission to do so." See:
Blackhawk Heating & Plumbing Co.,
Inc. v. Data Lease Fin. Corp., 328
So.2d 825 (Fla. 1975), citing Cone v. ,
Cone, 68 So.2d 886 (Fla. 1953).
Also, appellate courts will not
reconsider a previous ruling and
recall the mandate unless it is
necessary to correct a manifest
injustice. See: Strazzulla v. Hendrick,
177 So.2d I (Fla. 1965).
Therefore, it was ordered that the
lower court shall, without delay,
enter an order refunding $280.00 to
Vega's prison account.

Norman \I. Siale, 32 Fla. L. Weekly
01316 (Fla. 1st DCA 5/21/07)
David Norman sought certiorari
review of the lower court's denial of
his mandamus petition and the
imposition of a lien against his prison
account.
The appellate court denied
Norman's certiorari petition as to th~
denial of his mandamus petition. In
reviewing the imposition of the lien
issue, it was opined that it found
nothing in the record to indicate

Nonnan requested relief from the
lower court regarding its imposition
of that lien.
"In order to be preserved for
further review by a higher cou~ an
issue must be presented to the lower
court [first] and the specific legal
argument or ground... must be part
of that presentation." See: Tillman v.
State, 471 So.2d 32, 35 (Fla. 1985).
The appellate court also cited to a
case where it had recently held that a
proper motion is required in the
lower court before it would consider
argument regarding ~n erroneously
placed lien on a prison account. See: .
Kemp v. McDonough, 32 Fla. L.
Weekly. 01126 (Fla. 1st DCA
4/30/07).
As a result, Norman's petition was
denied in total.

Mitchell \I. Stale, 32 Fla. L. Weekly
01387 (Fla. 4lh DCA 5/30/07)
Charles Mitchell appealed his
convictions' for trafficking in cocaine
and in marijuana, where he
contended that the lower court erred
in refusing to give the requested
jury
instruction
on
special
constructive possession ofcocaine.
The background of this case, in
part, is where the authorities had
responded to a home where a 911
call hang-up initiated from. After
arriving, knocking on the door, and
entering after hearing a female
crying, the authorities secured the
home. Upon their search of '''e
home,' in excess of twenty-five
pounds o( marijuana and over 400
grams of cocaine, with $29,000 in
cash was found.
At trial, it was found that both the
female, Ms. Salazar, and Mitchell
jointly
possessed
the
home.
However, instead of the trial court
giving
the
requested
special
instruction to the jury, it gave the
standard one. Thus,
Mitchell
appealed.
On appeal, it was noted that the
standard instruction did not explain
to the jury what must be proven
when the premises is in a defendant's
joint
rather
than
exclusive
33

Florida Prison Legal Perspectives
possession. Thus, it was concluded
that the special instruction of
"constructive possession of cocaine"
was
necessary.
That
special
instruction would have infonned the
jury that the elemel)ts of knowledge
and abiJity to control may not be
inferred from mere joint possession
of the premises where the contraband
was found, but must establish by an
independentprooL
Therefore, it was concluded that
the trial court was in error for
denying the requested special
instJ:Uction. ACC41rdingly, Mitchell's
convictions and sentence .were
reversed and the case was remanded
for a new trial.
Lavallee v. State, 32 Fla. L. Weekly
01398 (Fla. 4th DCA 5/30/07)
Roger Lavallee argued on direct
appeal that the trial court erred in
allowing impennissible hearsay~ by
allowing the prosecution to introduce
testimony that he' had gloves and a
screwdriver in his pockets when
arrested immediately after the
burglary he was charged and
convicted of.
The appellate court opined that
the trial court did err in allowing the
introduction of the testimony where
there was no evidence that Lavallee
used or even attempted or intended to
use the items found on his person to
facilitate the burglary. See: Shennet/
v. State, 937 So.2d 287 (Fla. 4 th DCA
.
2006).
In Shennett, it was found that
"because of the admission of
testimonial hearsay that violated the
Sixth Amendment Confrontation
Clause" Shennett's convictions were
reversed.
It was also noted in Lavallee's
case that the prosecution, in closing
arguments at trial, bolstered the
hearsay: ''These are not items of a
biker~ these are items of a thief."
The appellate court opined that.
Lavallee's case was distinguishable
from Rebjebian v. State, 44 So. 2d 8 I
(Fla. 1949). There, it was already
known that Rebjebian had been
attempting unlawful entry into the
34

victim's home for some time. Thus,
there was at least a modicum of
relevancy to, the items found on his
person.
Accordingly,
Lavallee's
conviction and sentence for burglary
was reversed and the case was
remanded for a new trial.
Obara b: State, 32 Fla. L. Weekly
01406 (Fla. 51h DCA 6/1107)
Tywan Obara presented the
appellate court with 'an issue of
whether the trial court violated his
double jeopardy rights by recalling
him after his sentencing hearing had
concluded and resentencing him to a
greater tenn than that earlier
pronounced.
The appellate court concluded
that jeopardy had attached to the,
earlier
pronounced
sentence,
notwithstanding the short interval
between the time Obara ,was
removed from the courtroom to a
holding cell following the sentencing
and the time he was recalled to the
courtroom after a search in his
holding cell revealed drugs hidden in
his shoes.
Therefore, Obara was entitled to
the benefit of his' originally imposed
sentence because his conduct, while
unlawful, did not. violate any
expressed conditions of the written
plea agreement in the earlier
sentencing.
Accordingly, Obara's sentences
were reversed and remanded for a
resentencing consistent with .the
original plea agreement. It was
furthered noted. however, if the State
wished to pursue criminal charges
against Obara for possession of drugs
at the time of sentencing, "it is, of
course, free to do so. n
/

Schwenn v. State, 32 Fla. L. Weekly
01433 (Fla. 41h DCA 6/6/07)
,
Jeffry Schwenn appealed the
denial of his rule 3.850 motion where
tlk lower court had reasoned that his
sixty-seven page motion was too
lengthy.
On appeal, Schwenn argued that
rule 3.85. does not contain a page

limit. Nothing in the rule 3.850
contains a similar limitation to that
contained in rule 3.85 I, which
explicitly imPoses a seventy-five
page limit to a motion for collateral
relief after a death sentence.
It was noted that the State,
pursuant to the lower court's order to
respond 'on Schwenn's motion,
argued that the motion exceeded
even the limits for an appellate brief.
Patently, Florida Rule of Appellate
Procedure 9.210, does not apply to a
rule 3.850 motion.
It was concluded, after noting
Henery v. State, 937 So.2d 563 (Fla.
20(6), that a lower court can impose
a reasonable page limit on such a
motion. However, the movant should
be given an opportunity to show
good cause for filing a longer one.
Thus, it was o'pined that rule
9.2 I0(a)(5) could be used as a
benchmark for a lower court's
restricting a rule 3.850 motion to
fifty pages absent a showi~g of good
cause for a longer motion.
Otherwise, as in Schwenn's case, the
lower court should have either
dismissed the motion with leave to
amend, or issued an order to show
cause why the motion 6hould not be
dismissed without prejudice.
Therefore, it was concluded that
the lower court had abused its
discretion in denying Schwenn's
motion without considering the
merits of the case. Accordingly, the
denial order was reversed and the
case was remanded for proceedings
consistent with the appellate court's
findings.
Edison v. State, 32 Fla. L. Weekly
01420 (Fla. 2d DCA 6/6/07)
George Edison Jr. presented the
appellate court with an issue of
whether the State had proven he had
constructive possession of cocaine
found in a home where ten or eleven
other people were present at the time
a search warrant was executed, as he
had brought out in the motion for
judgment of acquittal that the trial
cOurt denied.

Florida Prison Legal Perspeetiv~s
The appellate court opined that
the trial court erred in denying the
motion for judgment of acquittal
because the State failed to present
independent evidence of Edison's
dominion and control over the
cocaine found in the house that was
occupied by ten or eleven other
people at the time. Mere proximity
was insufficient to prove dominion
and control over the contraband and
no evidence was presented that
Edison was the owner or an occupant
of the residence. Nor was there any
evidence presented.that he had drugs
in his system when detained, or that
his fingerprints were on any of the
contraband, weapons, or money
found.
Accordingly, Edison's conviction
and sentence was reversed and the
case was remanded with instructions
for the lower court to discharge
Edison.
Ailritt v. State, 32 Fla. L. Weekly
01459 (Fla. 111 DCA 6113/07)
. Charles F. Auritt appealed the
deniaJ of his rule 3.850 motion where
he challenged a conviction, of which
he was longer "in custody" for, with
newly discovered evidence.
The lower court had reasoned that
in light of McArthur v. State, 597
So.2d 406 (Fla. 111I DCA 1992),
citing Wall v. State, 525 So.2d 486,
487 (Fla. I II DCA 1988), it lacked
jurisdiction to consider Auritt's
motion's merits since he was no
longer in custody for the challenged
conviction.
Rule 3.850 is an appropriate
vehicle to seek postconviction relief
regardless of whether the movant is
"in custody". See: Woodv. State, 750
So.2d 592 (Fla. 1999).
Accordingly, the trial court was
found to be in error for denying
Auritt's motion. That order was
reversed and the case was remanded
for an evidentiary hearing.
Dept. ojCo"ections v. Daughtry, 32
F\a. L. Wcekly 0900 (Fla. Slh DCA
4/5/07)
,

The Florida Department of
Corrections (DOC) appealed an order
of the Seventh Judicial Circuit
enjoining the DOC from engaging in
the "practice of automatically
violating the p~bation of every sex
offender who fails to give an address
acceptable pursuant to section
948.30(1)(b) Fla. Stat. (2005), at the
time of a scheduled release from
incarceration," and requiring the
implementation of a policy designed
to resolve the issue.
On appeal, the DOC asserted that
the basis for taking such type of
actions in such cases was its statutory
obligation to report a' compliant
residence address fo.r each sex
offender release. It cited to section
944.606(3)(aXI), Fla. Stat. (2005),
which provides in pertinent part that:
"The Department must provide... ~e
offenders intended address, if
known...."
The appellate court opined that
the DOC had asserted multiple
why
the
injunctive
reasons
provisions of the challenged order
must be reversed. First, the DOC was
not party ,to the proceedings and,
evidently, no notice was given to
DOC that such an order was within
the contemplation of the court. Nor
had Daughtry filed any motion or
sought injunctive relief. Thus,
sympathetic to the frustration of the
trial court at the DOC's actions of rearresting probationers like Daughtry,
based on its decisional basis under
the provisional grounds, Which was
found to be "as baffling to [the DCA]
as to the trial court," the provisions
of the order directed to the DOC
were found to be not authorized and
were thereby vacated.
(Note: It was noted, at n.1 that
DOC's Deputy General Counsel did
.attend one of the several hearings
conducted prior to entry of the
appealed order, at the request of the
trial judge.1?)
Springer v. State. 32 Fla. L. Weekly
0890 (Fla. 4d1 DCA 4/4/07)

Shean Springer's case was granted
a motion, for rehearing where the
appellate court gave an opinion
regarding the timeliness of a nile
3.850 motion when a defendant
voluntarily absence himself from a
scheduled sentencing hearing and has
been arrested on unrelated reasons in
another state.
Pertinently, it was opined that if
the voluntary failure of a defendant
to appear at sentencing does not
render the sentence illegal, there
seems little reason to suppose that
the time to seek post-conviction
relief from the sentence does not
begin . to run from that legal
sentencing.
The rehearing opinion was from
an original order that affirmed
Springer's conviction and sentence.
Jenkins v. State, 32 Fla. L. Weekly
0964 (Fla. 5th DCA 4113/07)
,
Ernest O. Jenkins appealed an
order that denied his mandamus
petition that sought removal of a
detainer lodged against him by the
, Volusia County Sheriff's Office.
In filing his mandamus petition,
the lower court had entered an Order
on Application for Indigent Status,
,which declared Jenkins indigent" but
ordered him to pay the initial court
costs from his prison accounL In
tum, Jenkins filed a Motion for
Review of that order, claiming he
was exempt from a statutory lien
because his was a collateral criminal
proceeding.
The lower court did not address
Jenkins motion regarding the
exemption. Instead, it entered an
order Dismissing Writ of Mandamus,
finding it had no record of the
detainer Jenkins complained about,
and attached a copy of a computer
printout from the Volusia County
Justice Information System that
stated Jenkins had "no warrants on
file." Jenkins timely appealed.
On appeal, the State first argued
that "if there is no warrant, there is
no relief that can be granted. It
attached a copy of the same
It

35

FIQrida Prison Legal Perspectives
computer . printout that depicted
Jenkins had "no warrants on file."
A warrant is not a detainer. "A
detainer is a request filed by a
criminal justice agency with the
institution in which a prisoner is
incarcerated, asking the institution
either to ·hold the prisoner for the
agency or to notify the agency when
release of the prisoner is imminent."
Chapmen v. State, 910 So.2d 940.
94J n.J (quoting Carchman v. Nash,
473 U.S. 716 (1985». Thus, the
appellate court opined that it was not
clear how the lower court's check for
warrants on the court system's
computer would reveal a detainer
lodged by the Volusia County
Sheriffs Office. Further, even if such
a check would have revealed a
detainer, the court only checked
under the name Ernest Osbie Jenkins,
not his alias, Mack L. Jenkins, which
appeared on all Jenkins' prison
documentation.
As a result, the lower court's order
that dismissed Jenkins' petition was
reversed and the case was remanded
with directions to the lower court to
issue an order to the sheriff's office
to show cause why mandamus
should not be granted. It was noted
that Jenkins complaint incorrectly
named the State of Florida as the
respondent and requested the DOC to
remove the detainer. The appropriate
respondent would have been the
Volusia County Sherifils office
because it IQdged the detainer.
In regard to the lien issue, Jenkins
failed to establish that his proceeding
was a collateral criminal proceeding.
Thus, that issue was affIrmed.
(Note: Jenkins' complaint in the
lower court stated that the detainer
by the sherifl's office, from 1983,
which was still pending against him,
was impeding his eligibility for a
lesser form of custody.and early
release.)

Dessouce v. Siale, 32 Fla. L. Weekly
D993 (Fla. 4111 DCA 4/11107)
George Dessouce sought review
of an order that summarily denied his

36

rule 3.850 motion that sought to
withdraw a 1986 plea, where he
claimed his counsel improperly
advised him of the immigration
consequences ofthat plea.
The lower court's deniaJ was prior
to the ruling made in Slate v. Green,
944 So.2d 208 (Fla. 2006), instead, it
relied upon Pearl v. Siale, 756 So.2d
42 (Fla. 2000). In Green, the Florida
Supreme Court receded from the
pleading requirements of Pearl. The
movant must now allege at least, "the
trial court did not advise him at the
time of his plea that he could be
deported, that he would not have
entered the plea if properJy advised,
and that the plea in fact renders him
subject to deportation." Green, 944
So.2d at 2J9.
Accordingly, because Dessouce
failed to satisfy the pleading·
requirements noted, the summary
denial was affirmed. However, in
accordance with Green, it was fouhd
that the Affirmance .is without
prejudice to Dessouce "filing a new
motion within siXly-days after
jurisdiction returns to the trial court."
Id.

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Florida Prison Legal Perspectives

NEWS~RIEF
CT-. Robert Kennedy, 46, a police
Lt. was charged on May 22, 2007,
with sexually assaulting a 15 year old
boy. Authorities began investigating
after the boy's father told an
inspector, with the state's attorney
office, that be was concerned about
his son hanging around late at night
at two' parks. Kennedy, was placed
on paid administrative leave while
the case is resolved.
~

On May 24, 2007, the FBI
arrested Chuck Roberts, 48, a Lt.
with the Hollywood police. The
arrest was made for his alleged leak
of an undercover sting operation
which involved four other o.fficers
who pleaded guilty to drug
conspiracy charges. Roberts faces a
possible five-year prison sentence.
FIr' An ex-jait employee was
arrested on May 30. 2007, for
impersonating an undercover officer.
Bermore "Bernie" Malave, 36, asked
codes enforcement officers for the
911 address of a home allegedly
owned by a drug dealer. While
talking to the codes officers, he used
his I.D. issued by the corrections
division of the Putnam County
Sheriff's Office.

FIr .A Lake Wales police officer was
arrested on May 31, 2007, and
charged with lewd molestation on a
6-year old girl. Cristopher Roberts,
35, a corporal. allegedly. had clothed
genital contact with the girl, which
was a relative. The girl told her
mother that this was not the first time
that Roberts had genital contact with
her.
FL- Orlando Circuit Judge James
Ra\\Sa. was accused before the
Florida Supreme Court on June I.
2007. of making unwanted sexual
advances to a female who was a law
student in a class Hauser co-taught.

In Ii separate criminal investigation,
the married woman said that Hiuser
came to her apartment to pi<;k up a
movie that related to the class he cotaught, and while there, the· judge
exposed himself. pushed her onto her
bed. and held her down.

FL- Since Sheriff Sadie Darnell took'
office with the Alachua County.
Sheriff's Office six months ago,
there have been ten employees that
have been terminated or resigned
after being accused of misconduct.
two
The allegations
against
employees
included. watching
videos
in
the
pornographic
courthouse control room, Deputy
James Brown" 45, and rape, Deputy
Randy Thomas, 31.

.after afillgerprint analyst quit when
she learned she would be' fired.
Donna Birks, resigned on June 6,
·4007, after receiving a termination
notice for failidg to maintain a level
or' competence. for the position.' The
cases being reViewed'are cases Birks
worked on where th~ print· analysis
was the' onlf . piece of .physical
evidence used for a conviction. :
FL- Daniel Sieck, 38, a senior
HillsbOrough . County
Sheriff's
Deputy, was fired on May 24. 2007.
after an in'ternal review revealed \hat
he may have 'lied in his reports.
Officials believ.e· that Brock's
pending cases may be suspect and
that people were wrongfully arrested.

IDo:' On ~ay 20, 2007, .~ an
FL- ~enneth Wilk.' 45, who was
unidentified sniper sprayed doze!1s of
bullets on aeourthouse, killing a
charged with the killing of one
. police' officer, .and wounding a
Broward Sheriff's Office deputy and
the wounding of another, was found
sheriff's deputy and a civilian.
.Shortly after six in the morning three
guilty of first degree murder and
SWAT teams' ent~red a nearby
second degree-attempted mutder on
June 5, 2007. The.incident took place
church where ,the sniper ':Vas hiding
and found the bodies of the shooter
while deputies were serving a
warrant on Wilk. The' wounded
and anotlier mail who: was believed
officer testified that Wilk used a
to be a church' caretaker. Officials
high-powered' hunting rifle and a.' found' an' assauh rifle. ammunition
and spent shell$ next .to the gunman's
bullet pierced the officer's protective
vest.
.
corpse. The m'otive for tJte shooting
was not known. The shooter died of
what appeared' to be a self-inflicted
FL- On June 5, 2007, afire was
gunshot wound' to the head,
spotted in the North. Florida
Reception and Medical Center in . authorities said,
Lake Butler. Officers became aware
ID- David Holt, '51, a formel" city.
after Io p.m. that the unoccupied
councilman 'was 'charged with
laundry room was on fire. A captain
'endangering the welfare of a m.inor.
and a serg~t were treated for
sexual assault; and rape. The charges
smoke inhalation at Shands hospital.
were filed on ~ay 22, 2007. in Nez
A laundry cart. and about 70-100
Perce. Tribal COurt, Holt, allegedly
prisoner uniforms were destroyed:
The cause of the fire. is' being
give marijuana. fo a 17-year-old girl
at, his home, th~n raped her. . .
investigated by the State Fire
Marshal's office.
ID- Idaho DOC Director' Brent
FL- The Seminole County sheriff is
Reinke sa~d in July '07 that he wants
reviewing 272 cases of print analysis
37

Florida Prison Legal Perspectives
to send more prisoners to a private
prison in Texas ron by a company
accused of abuse by guards, filthy
conditions, lack of treatment, and a
suicide. Reinke admitted thilt his
department failed to properly
monitor conditions at the prison' ron
by the GEO Group, but claims that
sending prisoners to aJ'!other OEO
prison doesn't mean more problems
will happen.'
'IL- Robert Gallegos, a Chicago

police officer, was arrested on May
26, 2007, and charged' with
aggravated battery. The, Cook
County judge set a bond at $ I00,000.
T~e victim, a 15 year old high school
student, suffered a broken jaw and
other injuries in the attack.
ME- On May 2,2007, thestate DOC
transferred 46 prisonerS to county
jails due to overcrowding problems.
Another 90 prisoners were scheduled
to move within a week for the same
reason. There were still 200 priso~ers
being housed in the system over the
housing capacity.
OH· Joshua.Lunsford, 18, the son of
Mark Lunsford, a national crusader
for tougher sex-offender laws, has
been arrested for sexual conduct with
a minor. On May 18, 2007, he ,vas
arrested after a \Voman accused him
of fondling her 14-year-old daughter
twice.

OB- Bobby Cutts Jr., 30, a police
officer was arrested on JUlle '23,
2007, and charged with two counts
of murder. The charges relate to the
deaths of a pregnant woman and her
unborn child. Authorities believe that
Cutts was the father of, the unborn
child.
TN- J.D. Vandercook, 70, the former
sheriff of Sumner County was
sentenced, on May 22, 2007, to' 18
months in prison. The sentence was
-imposed for his role in a scheme to
funnel taxpayer money to his brother
through a construction contract.
Vandercook will not be allowed to
38

work in a government leadership' role
, and must also finish two years on
probation after his release.
VT- During the June ~2nd, 2907,
weekend, 'two prisoners at Northeast
Regional
Correctional
Facility
assaulted staff members and' one
prisoner, The incident took place
after a prisoner called on staff for
medical help and a staff member
opened his cell door. The prison
remained in loekdown for nine hours
after the incident:

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VA- Anthony RiI.:hardson; the Police
Chief of Damascus, was charged on
June 22, 2007, with six felonies
relating to all allegation that he
distributed methamphetamine. The
charges came after an undercover
investigation in to Richardson's
conduct. The police chief was also
charged with one firearms count..

FPLP
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Orlando, FL 32826-5134

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~.,\::.>/I

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.\ DVI':I(J'J.SIS{; :,\{fr!( :IC,("

PR- Seven prisoners convicted of
murder escaped from the Ouayama
prison. On April 10, 2007, authorities
searched .for the prisoners in the
island's southeastern city. The
prisoners escaped after gaining
. access to .air conditioning ducts. An
investigation .is underway as to
whether the prisoners were helped by
guards.

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PR- Damian Planas Merced, a
spokesman for the Association' for
Prisoner's Rights and Rehabilitation,
urged the island's govemment on
June 11. 2007, to address the
problem with contaminated water at
the Guayama prison. One medical
staff' member at the prison supported
Merced's ~Iaim that the water supply
is contaminated. _

,':llillll< "I' 'l'l'\'ir,·~ heflll'i' III:tl,-

ill:': a dl'l';sillll 10 hire ,t":1II II"
plIl'"has,· :1 .~I·n>i .. (: III' prodilci.
\ "II ,h",d" II," ,... :;1:1lt1 "'~al "I'
('; 1,,'1' d'''·lIll1i'III.'' III :'0 ;Illl,·,'.

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FLORIDA CLEMENCY SPECIALIST
FOR ASSISTANCE INFORMATION:
www.natlonalc:lemenc:yproject.com
NATIONAL CLEMENCY PROJECf
. 8614 CAMP COLUMBUS ROAD
HIXSON, TENNESSEE 37343

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