UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MILO ROSE
Petitioner
Case No. 8:93-CV-1169-T-23EAJ
V.
JAMES V. CROSBY JR
Respondent
PETITIONER’S SUPPORT BRIEF ADDRESSING
FARETTA STANDARD WHILE AMENDING AND
INCORPORATION ALL EXISTING HABEAS ISSUES
PENDING BEFORE THIS COURT
Now comes Petitioner Milo A. Rose Pro Se as a Layman to the law humbly submitting this support brief as a true and accurate reflection of the record. While begging the tolerance of this Court to forgive improprieties of procedure as Petitioner asserts knowingly and intelligently his Sixth Amendment Right to self-representation. Prayerfully to bring forth why it is peremptory for this Court to also accept this brief as an Amendment/Incorporation of all existing Habeas issues already filed before this Court. As the record clearly reflects when viewed cumulatively Petitioner for varying reasons been rendered with patently ineffective assistance of counsel throughout the entire legal process. As such Petitioner feels compelled to expound upon the travesty of justice he continues to suffer in his humble attempt to set the record straight.
Faretta v. California 442 u.s. at 820-21, 95 S.CT at 2533-34 (emphasis in original)
To thrust counsel upon the accused against his considered wish….. violates the logic of the (sixth) Amendment. In such a case, counsel is not an assistant but a master; and a right to make a defense is stripped of the personal character upon which the Amendment insists…… An unwanted counsel “represents” the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the constitution, for, in a very real sense, it is not his defense.
CUMULATIVE STATEMENT OF FACTS
Petitioner now prays to establish due to withheld exculpatory/impeachment evidence by the Prosecution his trial was turned into a farce and mockery of the criminal Justice System (a collective analysis of Brady will follow). By rendering Petitioner with patently ineffective assistance of counsel. The prejudice of this first becomes apparent in the conflict, it created between Petitioner and all of his court appointed defense attorneys. As Petitioner maintained his innocence while being told by all defense attorneys the evidence against him was overwhelming as to guilt. Petitioner was even labelled a problem client because he would not agree to any other defense except innocence.
Petitioner was being told:
1. Four eyewitnesses had positively identified him as the person they seen commit this crime.
2. The victims blood had been found on his person.
3. A couple (Mark Poole and Rebecca Barton) said Petitioner confessed to them and requested they provide him with an alibi.
Petitioner adamantly maintained that none of this evidence was true and that Poole and Barton had to be the perpetrators of this crime. The record clearly reflects the prejudicial effect the withheld exculpatory/impeachment evidence created as Petitioner sought to dismiss all of the Court appointed attorneys assigned to represent him. Including attorney Darryle Rouson whom Petitioner tried unsuccessfully to dismiss during trial as being inept, inadequate and ineffective. Afterwards Petitioner’s only hope of drawing attention to what was taking place was to stand during trial and shout he was being railroaded. Now Petitioner proceeding Pro Se humbly begs this court to weigh the cumulative prejudicial effect he suffered due to the Prosecutorial misconduct in withholding exculpatory/impeachment evidence (Kyles v. Whitley, 514 U.S. at 434). When the suppressed evidence undermines our confidence in the result of the trial the defendant is entitled to have his conviction set aside. Quoting from Florida Supreme Opinion in (Floyd v. State).
In reviewing the impact that withheld materials might have on defendants, courts must assess the cumulative effect of the evidence. See Kyles 514 U.S. at 441, 1155. ct. 1555. In other words, courts should assess the importance of the suppressed materials taken together. See id. In addition, courts should consider not only how the States suppression of favourable information deprived the defendant of direct relevant evidence but also how it handicapped the defendant’s ability to investigate or present other aspects of the case. See United States v. Bagley 473 U.S. 667.683.105 S.ct.3375, 87 L.Ed.2d 481 (1985)(reviewing court may consider directly any adverse effect that prosecutor’s failure to respond to request for information from defendant might have had on preparation or presentation of defendant’s case).
The materials that the State withheld from Rogers are bedrock Brady materials of the sort upon which many courts have relied in order new trials. We conclude that the individual as well as the cumulative effect of the suppression of materials discussed above indeed undermines confidence in the outcome of the trial.
In light of this Brady error, we conclude that Rogers is entitled to a new trial.
WITHHELD EXCULPATORY/OMPEACHMENT EVIDENCE ALONG WITH PREJUDICIAL EFFECT
The prejudicial effect of Petitioner being patently rendered with ineffective assistance of counsel became compounded when the first two court appointed attorney’s (Ron Edie and Wayne Shipp) took depositions without the aid of withheld exculpatory/impeachment evidence. Thus the Prosecutions evidence did not receive true adversarial testing. With the prejudicial effect/harm of these depositions then being passed on to proceeding court appointed defense attorneys. Petitioner argues had these defense attorneys had the following withheld favourable evidence the conflict as to Petitioner’s innocence would not have existed. As there is a wealth of exculpatory/impeachment evidence these attorneys would have been able to use to raise reasonable doubt and to point out the true perpetrators of this crime…
1. Blood test results were not turned over on demand for discovery. (See attached A - Affidavit by Forensic Scientist Dale Nute). BRADY
2. The First Officer on scene or murder (Officer Bernard McKenna) took a collective description of perpetrator from all four eyewitnesses. Officer McKenna was also Investigating Officer to an earlier incident in which Petitioner was involved in breaking up three separate physical altercations between victim in this case and another individual. Officer McKenna received Petitioner’s description from this incident and knew it did not fit description of perpetrator of the murder given to him by eyewitnesses at murder scene. Officer McKenna was not listed on demand for discovery and never deposed. BRADY. Officer McKenna would have provided a wealth of favourable exculpatory/impeachment value.
3. Detective Edmund Walthers who questioner key eyewitness (C. Bass) and received a composite drawing she made of the person she seen commit this crime was also not listed on demand for discovery nor was the composite drawing preserved as evidence. Thus Detective Walthers was not deposed. Nor did the defense know of the wealth of exculpatory/impeachment evidence he possessed. BRADY.
4. Tape recorded statements of three eyewitnesses (Haywood, Mastridge and Hutton) taken by Detective Ronald Luchan were not turned over on demand for discovery. Instead Detective Luchan chose to conceal this information from the defense throughout his testimony, deposition and pre-trial hearing to suppress highly suggestive photo array and at trial. With what has to be seen as wanton knowledge he was not going to be subjected to true adversarial testing. The irreparable prejudicial effect of Detective Luchan’s totally contrived actions and the Prosecution’s failure to discover and correct when viewed, cumulatively becomes the true interpretation of BRADY AND OTHER RELATED CASES.
EXCERPTS OF WITHHOLD TRANSCRIBED TAPE RECORDED EYEWITNESSES STATEMENTS
Witness Haywood
Luchan: What did his face look like?
Haywood: He was……… He wasn’t dark complected but he wasn’t light. Ya know he was just maybe medium, a little over medium.
Luchan: Was he a black male or a white male?
Haywood: White
Luchan: And he was male?
Haywood: He was a male. He had dark hair, shoulder length, maybe a little longer than shoulder length but I think so. Oh, I don’t know how to go about describing somebody. I’ll be honest with you.
Luchan: How old would you say he appeared to be?
Haywood: Oh, he was in his twenties, I would say mid twenties maybe.
Witness Mastridge
Luchan: Were they white or black?
Mastridge: White.
Witness Hutton
Luchan: Were they white or black?
Hutton: They were white. And he had dark brown hair that was about here and it really wasn’t straight, but like flipped out, with a little bit of a wave, like that.
Luchan: All combed straight back?
Hutton: No it wasn’t combed at all. It wasn’t straight like ……………… (incomprehensible) I think he had a moustache….. I know it was dark right here.
(See Attachment B - Police mug shot of Mark Poole, taken September 29, 1982 less than three weeks prior to this crime).
5. At Pre-trial Hearing to suppress Highly Suggestive Photo Array the judge and later at trial, the jury were misled into believing the eyewitness never wavered or varied from their description of the perpetrator. That the eyewitnesses had unwaveringly described the perpetrator as being dark complexed, Indian looking, long black hair and full beard.
EXCERPTS FROM PROSECUTOR BRUCE YOUNG’S CLOSING ARGUMENT
PAGE 1029 - LINES 5 - 14
Before I get into the argument and talk about the case in chief, I ask that you recall one thing throughout my argument throughout Mr Rouson’s argument and when you go back to that jury room. You had three people come in here……. Four people came in here and testify they identified that person. You saw the diagram where they were. You had three people come in here and testify that is the man. No doubt, despite of the cross-examination by Mr Rouson, despite all of the yeah but and what if. Nobody wavered from one thing that is the man.
PAGE 1044 - LINES 3 - 21
The eyewitnesses told you that the area was well lighted. Well lighted. They told you that there were two street lights and right there where the red dot is, right between the two street lights is where he lay. You learned from Technician Velong this is a flat asphalt parking lot, no obstructions - so highlighted between these two street lights from this first building is where they observed it. I submit to you there is no reason for you to disregard the testimony of the eyewitnesses.
There was some cross-examination about did you talk about this Yes, we did, we all talked about it a couple weeks later together. Folks, that is only normal. These people saw something that was absolutely gruesome and they talked about it. I submit to you there is nothing wrong with that. And I submit to you the story you heard here today was the same that the officer’s heard that night. That is what Detective Fire told you. Their story didn’t change. So what if they talked about it? It’s probably a natural release. That is no reason to disbelieve those witnesses.
PAGE 1031 - LINES 20 - 24
The defense attorney got up on his opening argument and told you this was a case of misidentification. He told you it happened. He, the defense attorney, described it as an atrocious crime. He told you it was a case of mistaken identification.
6. The Prosecution weighed heavily on the eyewitnesses description/identification. While defense attorney Darryle Rouson tried unsuccessfully at pre-trial hearing to suppress highly suggestive photo array and at trial to impeach the eyewitnesses without the aid of their withheld initial descriptions. This meets all the prongs of BRADY AND OTHER RELATED CASES. (Summary of case will follow). As well as having rendered Petitioner with patently ineffective assistance of counsel……..
EXCERPTS OF DEFENSE ATTORNEY D. ROUSON’S CLOSING ARGUMENT
PAGE 1057 - LINES 14 - 21
We have attacked identification. Just as Frank Ferder (phonetic) once said, “that the vagaries of eyewitnesses identification are well known. The annals of criminal law are rifed with instances of mistaken identification. What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by formidable number of instances……”
PAGE 1054 - LINES 5 - 13
Catherine Bass conceded her humanity. How? Recall with me the question, well, Miss Bass, you are an artist right? Yes. Have you ever made a mistaken identification? Have you ever been wrong about an identification? Yes, we all have. It happens. The prosecutor says the evidence is overwhelming. I submit to you that when the police got to Milo Rose’s house that night, the first thing they said is we got our man, case closed, bam. That was it. That was it.
PAGE 1069 - LINES 6 - 25 AND PAGE 1070 - LINES 1 - 21
Why did….. why did Mark and Becky, okay, they left Mano’s, they left Mano’s. They were going home. What is the quickest route home? Across the causeway. They always go across the causeway because they have to go across there to get home to Clearwater Beach. The quickest way isn’t down Cleveland. Did you wonder why he said they went all of the way up to Garden, down Drew, and they have to go around the curve, then come back up to the causeway and go down? Did you wonder about that? Were they taking the scenic route home after drinking all day? And they were mad at Milo. Milo told them they had to leave the apartment. He had to kick them out. And how convenient, how pat was the story? The first time he got in the tuck he said this, bang, he said that, bang. And they were certain and the words were the same. A murderer, would a murderer, knowing what he had just done, seeking alibis, go home and get into bed with the same clothes on that he had committed the murder in?
And why didn’t the detective look around for some shoes? He had shoes as a description. Why didn’t he? Is that too much? It is too much to get a search warrant to look at the house for incriminating evidence? Well, there are no fingerprints, okay. No fingerprints. There are no dirt samplings, either, all right? No dirt samplings. There is no sketch drawn by Miss Bass. And they want us to accept…. and they are already presuming that you have already convicted him, like Detective Fire.
Ark took the stand and Mark said that when they got there he didn’t say anything and neither did Becky. Come on. This is a death. This is a killing. But they are not going to say anything to the mother of the victim in whose building or apartment house they live in? They are not going to say anything? And Becky is not going to do anything when Mark and Milo leave and go to a store for some beer? And she is there alone? And they deny it to the police. But they decide, at some point, well, let’s pull their ear, okay, about a death. And didn’t Detective Fire talk about the fact that the only other way they could have know is if they were involved? Didn’t you hear him say that?
PAGE 1072 - LINES 12 - 22
And is it so preposterous, so preposterous to believe that three people can be wrong? He talked about the interest of witnesses, the detective. Well they want to make this case, right? Don’t you think they have an interest in the stake, outcome of this case, especially Detective Fire? He is the case detective. You don’t think Mark and Becky have an interest in the outcome? I’m not suggesting, I’m not submitting to you that the girls are lying, okay? But they can be mistaken, all right?
7. Again the prosecution relied heavily on the eyewitness identification and in the inability of the defense to discredit or impeach their testimony. In the prosecutions closing argument he stressed over ten times how the eyewitnesses never wavered or varied in their description. The prejudicial effect of the withheld favourable evidence to impeach the eyewitnesses becomes apparent throughout defense attorney Rouson’s closing argument. But had defense attorney Rouson received copies of the withheld exculpatory/impeachment evidence, prosecuting attorney Bruce Young would not have been able to tell the judge and jury over ten times that none of the eyewitnesses ever wavered or varied from their description. As well as use that evidence to bolster the other contrived evidence and vice versa. As to further expound on the extreme and irreparable prejudice, the withheld favourable evidence had for the defense to raise reasonable doubt we just have to weigh its impact as the defense was unable to put it to true adversarial testing by reading more of the prosecutions closing argument.
PAGE 1045 - LINES 21 - 24
They described him as Indian or dark-complected, swarthy complexion I believe Cathy Bass described it as. Folks, that is what was identified that night by everybody. That is the man.
PAGE 1047 - LINES 12 - 20
Does the witness’s testimony agree with the other testimony and the other evidence in this case? I submit to you it all agrees. Again, nobody varied on identification. Nobody varied as to the facts of the scene. Did the witness at some other time make a statement that is inconsistent with the testimony he gave in court? Nobody changed on identity. Nobody changed on the description.
8. The Prosecution was able to benefit through the withholding of favourable evidence from the defense in each aspect of their case. The blood test results were withheld, the eyewitnesses initial description of the person they seen was withheld, as well as a composite drawing not preserved as evidence. Yet even another piece of evidence was withheld from the defense and that was the fact that Poole and Borton received deals for their testimony from the Prosecution. This favourable evidence goes to the credibility of Poole and Barton’s testimony especially since they initially denied knowledge of this crime and only later changed it to implicate the Petitioner as the perpetrator.
The cumulative prejudicial effect of all of the withheld favourable evidence becomes apparent when weighed with what this Petitioner has always maintained and that is that Poole and Borton are the perpetrators of this crime. Mark Poole fits the initial eyewitnesses description before that description was irrepairably tainted by a highly suggestive photo array constructed by Detective Luchan. (See attachment C - Photo Array Evaluation by Dr Shomer). Poole and Borton both initially denied knowledge of the murder and changed their stories after being brought to the Clearwater Police Station where they spoke to Detective Fire and an unnamed State Attorney.
Detective Fire states in his deposition that he knew Borton from another murder case which Petitioner has of yet to find out details of. What becomes even more extraordinary is how Petitioner discovered the favourable withheld evidence of Poole and Borton having made deals with the prosecution for their testimony. In 1985 (three years after this case) Poole and Borton were involved in another murder case in which another one of their roommates is murdered and they point their fingers at another individual who maintains his innocence yet was also convicted and sentenced to death. Petitioner did not meet this individual until 1996 when on death rows yard they met and together found out that both Poole and Borton were involved in their individual cases. Petitioner found out that Borton had given a deposition in this individuals case and in it she is telling of how her and Poole were attempting to make deals with the Prosecution in exchange for their testimony against this Petitioner Milo A. Rose acting Pro Se. (This is important to note as Petitioner maintains he has been rendered with patently ineffective assistance of counsel throughout the entire legal process. Which has compelled him to knowingly and intelligently assert his Sixth Amendment right to self-representation in order to bring all of these facts to light).
9. The irreparable prejudicial actions of Detective Luchan and Detective Fire who contrived together to bolster the blood evidence/eyewitness/Poole and Borton testimony falls upon the Prosecutions failure to discover, disclose and correct the consorted abuse of these two detectives to insure a conviction by any means. Under ROGERS, MORDENTI,, FLOYD and other decisions applying BRADY there can be no question as to the culpability of the Prosecution in failing to disclose favourable evidence and the prejudicial effect this had in denying Petitioner a fair and impartial trial. Otherwise the farce and mockery of this Petitioner’s trial would be the norm as vigilante justice would prevail………….
COLLECTIVE ANALYSIS OF BRADY CLAIM
TAKEN FROM FLORIDA SUPREME COURT
DECISION OF FLOYD V. STATE
In Rogers v. State, 782 SO 2d 373 (Fla. 2001), this Court went to some lengths to explain the State’s constitutional obligation to disclose exculpatory evidence under the U.S. Supreme Court’s decision in Brady. We believe that explanationis equally pertinent to our analysis here:
In Brady, the United States Supreme Court held that the “suppression by the prosecution of evidence favourable to an accused ….. violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. ct 87, 83 5 ct 1194. In Kyles, the Court wrote:
(United States v. Bagley, 473 U.S. 667, 105 S. ct. 3375, 87L. Ed. 2d 481 (1985)) held that regardless of request (by defendant) favourable evidence is material, and constitutional error results form its suppression by the government”, if there is a reasonable probability that had the evidence been disclosed to the defense, the results of the proceeding would have been different.” 473 U.S. ct 682, 105 S. ct 3375 (opinion of Blackmun J); id., at 685, 105 S ct. 3375 (White J, concurring in part and concurring in judgement).
Kyles 514 U.S. ct 433-434, 115 S ct 1555 (emphasis added). Recently, in Young v. State 739 SO 2d 553 (Fla. 1999), we recognised this emphasis placed on the materiality prong and stated:
(Although) defendents have the right to pre-trial discovery under our Rules of Criminal Procedure, and thus there is an obligation upon defendant to exercise due diligence pre-trial to obtain information….. the focus in post-conviction Brady - Bagley analysis is ultimately the nature and weight of undisclosed information. The ultimate test in backward-looking post-conviction analysis is whether information which the State possessed and did not reveal to the defendant and which information was thereby unavailable to the defendant for trial, is of such a nature and weight that confidence in the outcome of the trial is undermined to the extent that there is a reasonable probability that had the information been disclosed to the defendant, the result of the proceeding would have been different.
Young, 739 SO. 2d ct 559. One week after our decision in Young, the United States Supreme Court decided Strickler v. Greene, 527 U.S. 263, 119 S. ct. 1936 144L.Ed. 2d 286 (1999), confirming its analysis in Kyles. In Strickler the court stated again the rules which must be applied to this case:
In Brady this Court held “that the suppression by the prosecution of evidence favourable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of good faith or bad faith of the prosecution”. 373 U.S. ct 87, 83 9 ct. 1194. We have since held that the duty to disclose such evidence is applicable even though there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107, 96 S ct. 2392, 49L.Ed. 2d 342 (1976), and that duty encompasses impeachment evidence as well as exculpatory evidence, United States v. Bagley 437 U.S. 667, 676, 105 S ct. 3375, 87L.Ed. 2d 481 (1985). Such evidence is material “if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different”. Id. At 682, 1059 Ct 3375; See also Kyles v. Whitley 514 U.S. 419, 433-34, 115 S.Ct 1555, 131 L.Ed 2d 490 (1995). Moreover, the rule encompasses evidence “known only to Police investigators and not to the prosecutor”. Id. At 438, 115 S. Ct. 1555. In order to comply with Brady, therefore “the individual prosecutor has a duty to learn of any favourable evidence known to others acting on the Government’s behalf in this case including the police”. Kyles, 514 U.S. at 437, 115 S. ct. 1555.
These cases, together with earlier cases condemning the knowing use of perjured testimony, illustrated the special role played by the American prosecutor in the search for truth in criminal trials. Within the Federal system, for example, we have said that the United States Attorney is “the representative not of an ordinary party to controversy, but of a sovereignty whose obligation to govern at all; and whose interest, therefore, in a criminal prosecutions not that it shall win a case, but that justice shall be done.” Berger V. United States , 295 U.S. 78, 88, 55 S. ct. 629, 79 L.Ed. 1314 (1935).
Rogers, 782 SO 2d ct 377 - 78. In Rogers , we ultimately determined that there was a Brady violation and the defendant was entitled to a new trial because of the violation.
Application of Brady
This Court has stated that the determination of whether a Brady violation has occurred is subject to independent appellate review. See Cardona V. State 862 SO 2d 968, 973 (Fla. 2002); Way V. State , 760. SO. 2d 903, 913 (Fla. 2000) (“Although reviewing courts must give deference to the trial courts findings of historical fact, the ultimate question of whether evidence was material resulting in a due process violation is a mixed question of law and subject to independent appellate review.”)
In order to establish a Brady violation, a defendant must prove:
(1) The evidence at issue must be favourable to the accused, either it is exculpatory, or because it is impeaching;
(2) That evidence must have been suppressed by the State, either wilfully or inadvertently;
(3) Prejudice must have ensued.
Carroll V. State . 815 SO. 2d 601, 619 (Fla. 2002) (quoting Strickler V. Greene , 527 U.S. 263, 281 - 82 (1999). In applying these three elements, the evidence must be considered in the context of the entire record. Carrol , 815 SO 2d ct 619 (citing State V. Riechmann , 777 SO. 2d 342, 362 (Fla. 2000); Sireci V. State , 773 SO. 2d 34 (Fla. 2000); Haliburton V. State , 691 SO. 2d 466, 470 (Fla. 1997).
10. Pro Se Petitioner relies on the tolerance of this Court's review of the record to reflect he has been patently rendered with ineffective assistance of counsel not only on the trial level but throughout all phases of the Appellate process as well. As such Petitioner has been forced to knowingly and intelligently assert his Sixth Amendment Right to self-representation ( Faretta ) to bring forth the irreparable prejudice he has suffered in the denial of Due Process.
11. The record reflects Petitioner was denied effective assistance of counsel on Direct Appeal before Florida Supreme Court due to 119 information being withheld. Therefore court appointed attorney was rendered unable to raise or argue Brady and Petitioner's conviction was upheld.
12. Mandated State appointed attorney's filed an effective assistance of counsel claim against themselves in post-conviction motion. Brady was not raised or developed. No Evidentiary Hearing on guilt/innocence issues was given. Trial Court and Florida Supreme Court upheld conviction.
13. In 1993 initial Habeas Corpus is filed before this Court. State mandated attorney's do not effectively raise or argue Brady .
14. In 1996 Petitioner discovers Brady concerning deals being made by prosecution in exchange for Poole and Borton testimony. State mandated attorney's file ineffective assistance claim on themselves and Petitioner's second post-conviction proceedings are not effectively argued or developed fully as to Brady . Trial Court and Florida Supreme Court uphold conviction.
15. Amended Habeas Corpus is filed before this Court by State mandated attorneys. Once more attorneys fail to develop Brady fully and Petitioner begins to voice his concerns to this Court. Petitioner tries to dismiss State mandated attorneys without success.
16. State mandated attorney's file motion to trial court for DNA testing. This Court places Habeas in abeyance. Governor dissolves office of state mandated attorney's representing Petitioner. Petitioner is assigned Court appointed registry attorney Bjorn Brunvand. Petitioner instructs attorney Brunvand on how he wishes to proceed. Brunvand neglects to follow Petitioner's instructions. Petitioner repeatedly attempts to resolve what he feels is ineffective representation being given to him by Brunvand by filing Pro Se before this Court. This Court shows tolerance but does not grant relief.
17. Petitioner files Faretta motion in Trial Court and also motion to waive DNA issue. Court grants Faretta and Petitioner waived DNA.
18. Petitioner through attorney Brunvand files to take Habeas out of abeyance and Faretta before this Court. This Court vacates stay and refers motion to proceed Pro Se to Magistrate Judge Elizabeth A. Jenkins to conduct proceedings, including an evidentiary hearing pursuant to Faretta V. California , Y22 U.S. 806, 95 S. ct 2525, 45 L.Ed. 2d 562 (1975), and to render a report and recommendation on the motion. With the report to include proposed findings of fact and conclusions of law Magistrate Judge Elizabeth A. Jenkins scheduled hearing for December 12, 2005, and further ordered that the parties file a brief addressing the application of the Faretta Standard specifically regard its application in this action on or before December 5, 2005.
19. Petitioner Milo A. Rose proceeding Pro Se now humbly request this Court grant Petitioner Leave of Court under Local Rule 2.03 (d.) (M.D. Fla.) and accept his Pro Se action as to Faretta Standard as it applies to this action.
20. Petitioner now places this Court on Judicial Notice of the Record in prayers of receiving an expeditious ruling on all Habeas issues including this Amendment/Incorporation arguing Petitioners claim of having been rendered with patently ineffective assistance of counsel. Which Petitioner prays this Court will apply the Plain Error Rule, U.S. V. Nunez , 146, F. 3d 36, 39 (1 st Cir, 1998) “plan error review necessary only for errors that seriously effect the fundamental fairness and integrity of the judicial process.” As Petitioner has been forced to knowingly and intelligently to assert his Sixth Amendment Right in order to bring to the attention of this Court the denial of his Fourteenth Amendment Right of Due Process.
21. Petitioner also request this Court appoint Petitioner Stand By Counsel in accordance with Faretta. To take possession of Petitioners trial/appellate records now in possession of attorney Brunvand whom Petitioner request to voluntarily withdraw.
CONCLUSION AND REMEDY SOUGHT
Petitioner swears under penalty of perjury that everything contained within this Petition is true and supported by the record. Petitioner therefore humbly prays this Honorable Court will accept his Pro Se pleadings as a true Habeas Corpus deserving Judicial Notice and Review. As Petitioner believes once done will bring this Court to vacate Petitioners conviction and sentence.
Submitted by Pro Se Petitioner
____________________________
Milo A. Rose # 090411
Union Correctional Institution
7819 NW. 228 St. P51135
Raiford
Florida 32026 - 4450
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been furnished by U.S. mail, first class delivery. This ………. day of December 2005, to:-
The Honorable Magistrate Judge
Elizabeth A. Jenkins
Courtroom 11A
The United States Courthouse
801 N. Florida Avenue
Tampa, Florida 33602
Carol Dittmar, Asst. Attorney General
Concourse Center #4
3507 Frontage Road, Suite 200
Tampa, Florida 33607
C. Marve King, Asst. State Attorney
Office of State Attorney
P.O. Box 5028
Clearwater, Florida 34618
Bjorn Brunvand Esq
615 Turner Street
Clearwater
Florida 33756 - 5314
Attachment B
State of Florida County of Leon - Affidavit. Follow link. http://www.zafu.demon.co.uk/milorose/Affidavit.htm