case: 15-15280 date filed: 05/02/2016 page: 1 of 24 (1 of 27)€¦ · district court case no....

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IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________________________

Appeal No. 15-15280

________________________________________

Frank Louis Amodeo,

Appellant,

-versus-

United States of America,

Appellee.

__________________________________________

APPLICATION FOR CERTIFICATE OF APPELABILITY

__________________________________________

District Court Case No. 6:12-cv-00641-JA-DAB

/s/ Jonathan Rose, Esq. JONATHAN ROSE, ESQ.

Florida Bar No. 0188832 JONATHAN ROSE, P.A. 337 North Ferncreek Avenue Orlando, FL 32803 Telephone: 407-894-4555 Facsimile: 407-893-8151 [email protected] [email protected]

Case: 15-15280 Date Filed: 05/02/2016 Page: 1 of 24 (1 of 27)

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APPLICATION FOR CERTIFICATE OF APPEALABILITY

On September 25, 2016, after forty-one months, the District Court dismissed

as untimely Mr. Amodeo’s motion to vacate sentence, filed pursuant to 28 U.S.C. §

2255. The District Court ruled without conducting an evidentiary hearing, despite

the allegation that the proximate cause of the untimeliness was an error made by the

Clerk of Court, and that a major contributing cause of the purported untimeliness

was Amodeo’s medically-documented and adjudicated incompetency.

I. STANDARDS OF REVIEW

A federal court should grant a habeas petitioner a certificate of appealability

when the petitioner makes a substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2553(c)(2); Miller-El v. Cockrell, 537 U.S. 322 (2003); Slack v.

McDaniels, 529 U.S. 473 (2000). A petitioner makes the substantial showing by

demonstrating that reasonable jurists would find the district court’s ruling on the

merits debatable or wrong. Tennard v. Dretke, 542 U.S. 274, 282 (2004) (citing

Slack, 529 U.S. at 484). A petitioner can also make the substantial showing by

demonstrating that jurists of reason would find that the “issues presented deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. at 336. (quoting

Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)).

Significantly, the certificate of appealability stage involves only a threshold

inquiry involving only a cursory examination of the factual or legal basis adduced


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in support of the questions to be certified. Miller-El, 537 U.S. at 336. In other

words, a petitioner need not show that he would succeed on the merits, but only that

the questions are worthy of debate. The Supreme Court has emphasized that a court

“should not decline the application for COA merely because the application will not

demonstrate an entitlement to relief.” Id. at 338. “Indeed, a claim can be debatable

even though every jurist of reason might not agree … that [the] petitioner will not

prevail.” Slack, 529 U.S. at 484; Engle v. Linahan, 279 F.3d 936, 936 (11th Cir.

2001). Further, if there is any doubt regarding whether to grant a certificate of

appealability the matter should be resolved in favor of the petitioner, and the severity

of the penalty may be considered in making this determination.1 Shinisday v.

Quarterman, 511 F.3d 514, 520 (5th Cir. 2007).

Finally, when a district court denies a section 2255 claim on procedural

grounds, a petitioner must demonstrate not only that the substantive claim is valid

but also that reasonable jurists would find the procedural ruling debatable or wrong.

Slack, 529 U.S. at 484.

II. THE DISTRICT COURT’S PROCEDURAL DISMISSAL OF AMODEO’S § 2255 MOTION

1 Amodeo was sentenced to five consecutive terms of 54 years imprisonment each, a total of 270 years.


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On September 25, 2015, the District Court dismissed Amodeo’s pro se2

motion to vacate sentence pursuant to 28 U.S.C. section 2255. Case No. 6:12-cv-

641, DE 109. In its order, the court found that neither the relation back nor equitable

tolling doctrines applied to Amodeo’s alleged untimeliness. Id.

As the District Court noted in its order, Amodeo filed four incorrectly prepared

section 2255

motions in the space of six months. The first filing, in Case Number 6:11-cv-1056-

Orl-GJK, was dismissed after three separate failed attempts at filing on an approved

form, and without incorporating his claims by reference. DE 2, 6, 12. Upon

dismissal, Amodeo refiled his motion on November 11, 2011 in Case Number 6:11-

cv-1850-Orl-GJK. On November 28, 2011, the motion was stricken for failure to

use the appropriate section 2255 form and for incorporating his memorandum of

law. He was directed to refile within twenty-one days from November 28, 2011.

Thereafter, the Defendant again attempted to file his 2255 motion on December 14,

2011. This time, the motion was stricken due to the Petitioner’s failure to limit his

motion to twenty-five pages. The order was entered on January 9, 2012. Case No.

6:11-cv-1850, DE 5. The Court directed Amodeo to refile his motion, with separate

memorandum of law, by January 30, 2012. Id.

2 All of Amodeo’s filings pursuant to 28 U.S.C. § 2255 discussed herein were prepared and filed pro se.


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Amodeo, however, did not receive this order until February 16, 2012. Case

No. 6:11-cv-1850, DE 7. Consequently, no amended motion was filed and the

district court dismissed the motion without prejudice on February 7, 2012. Case No.

6:11-cv-1850, DE 6.

On February 26, 2012, Amodeo filed his motion to vacate the district court’s

dismissal, and explained that he did not receive the district court’s January 9, 2012

order until after the January 30, 2012 deadline, and further explained that receiving

his mail in prison had been a problem previously. Case No. 6:11-cv-1850, DE 7.

Amodeo then filed his latest section 2255 motion on April 25, 2012, and was

docketed as Case Number 6:12-cv-641-GJK, despite being substantively identical

to the last version of the motion in Case Number 6:11-cv-1850.

A. AMODEO’S MENTAL ILLNESS

While understandably frustrated with Amodeo’s seeming willfulness and

inability to

follow court orders, Amodeo’s actions, and inaction, must be viewed through the

prism of his debilitating and well-documented bipolar disorder.

During the pendency of the charges in the District Court against Amodeo, he

was the subject of a Neuropsychological and Psychodiagnostic Evaluation at the

Harvard Medical School Department of Neuropsychology. District Court Case No.

6:12-cv-641, DE 87-2. Dr. Susan Parks, Ph.D., performed the evaluation on August


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12, 2008. Id. at p.23. In her report, Dr. Parks diagnoses Amodeo with a “Bipolar I

Disorder … Severe with psychotic features,” “Personality Disorder Not Otherwise

Specified (Narcissistic and Antisocial Traits).” Id. at p.26.

In her report, Dr. Parks discussed a number of factors that would make the

relatively simple tasks of filing a 2255 motion on a court-approved form, staying

within page number limits, and following other standard court orders far more

difficult for Amodeo than someone not so afflicted.

First, Dr. Parks noted that Amodeo suffers from “mini-episodes” and “rapidly

shifting moods” as a consequence of his bipolar disorder. These are marked by

disorganization, paranoia/suspiciousness, or delusions, and fluctuate with the

changes in the intensity of his mood state. Id. at 27, 28.

Further, as with most bipolar disorders, Amodeo is susceptible to “episodes

of affective disturbance with marked features of depression and mania.” Id. at 29.

His moods fluctuate from morose to being erratically moody, and are characterized

by intense anger and discontent that he may display in either a passive aggressive or

direct manner. He is also “predisposed to affective malaise that interferes with his

being able to function optimally.” Id.

Finally, Dr. Parks noted:

Mr. Amodeo’s manic episodes appear to involve a display of expansive and hostile character features, rather than euphoria. During these times he gives evidence of being talkative, restless, hostile, distractible, subject to tantrums and interpersonally disruptive. Evidence of


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emotional dyscontrol include feeling erratic, quick changing moods and feeling like that things are out of control when things do not go as planned." Id.

Indeed, after the District Court’s dismissal of Case Number 6:11-cv-1850,

Amodeo filed a “Motion to Clarify the Court’s Order Striking the Motion.” Case

No. 6:11-cv-1850, DE 3. In this motion, Amodeo explains the difficulties that his

bipolar disorder creates in the pro se litigation context, consistent with Dr. Parks’s

opinions. “…I remain bipolar and this results in certain difficulties when I am

dealing with my own case. Specifically, reviewing my case causes sharper and more

rapid mood swings than when I am working on other peoples [sic] cases.” “So on

occasion I can only control the disease through avoidance behavior – this is why I

did not see the requirement to file a third amended motion in the September 16, 2011

order, i.e., I stopped reading after my motion to extend was denied as moot and the

court stated it accepted my prior amended filing.” Id. Amodeo goes on to note that

he began having other inmates read court orders to him in order to avoid such

consequences. Id.

B. EQUITABLE TOLLING

As the District Court noted, the confluence of Amodeo’s appellate remedies

made his section 2255 motion due on November 22, 2011. The court dismissed Case

Number 6:12-cv-641 as untimely, as it was filed on April 18, 2012. However, the

doctrine of equitable tolling applies in the case at bar.


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A habeas petitioner seeking equitable tolling of the one-year statute of

limitations period under the Antiterrorism and Effective Death Penalty Act

(AEDPA) bears the burden of establishing two elements: (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in

his way. Pace v. DiGugliemo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed. 669.

With respect to the first prong of Pace, while one may perceive Amodeo’s

conduct to be contumacious or negligent, it cannot be said that he has not pursued

his rights diligently. Prior to the filing of 6:12-cv-641, he filed numerous lengthy

motions and memoranda with the District Court in his section 2255 actions, and

stated numerous bases of infringement of his constitutional rights, as noted in the

various court orders below. In 6:12-cv-641, Amodeo successfully moved to expand

the record nine times, including numerous documents supporting his claims of

having conflicted counsel, breach of plea agreement, lack of capacity to enter into a

plea agreement, denial of critical stage counsel, and actual innocence. See Case No.

6:12-cv-641, DE 6, 47, 56, 58, 65, 80, 87, 90, 105.

Further, an extraordinary circumstance did stand in Amodeo’s way. The

District Court filed its last order directing Amodeo to file an amended motion on

January 9, 2012. Case No. 6:11-cv-1850, DE 5. However, this order did not reach

Amodeo in the Bureau of Prisons, causing him to miss the January 30, 2012 deadline

for filing set by the District Court. Id. at DE 20. On January 19, 2016, Amodeo


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filed a verified motion stating that the clerk of court sent the order and Amodeo’s

stricken filing to the wrong address.3 Id. In this context, it must be noted that an

affidavit of non-service is sufficient to demonstrate a lack of notice when regular

mail is used because the only proof in the record is the affidavit that the affiant did

not receive notice. Maknojiya v. Gonzalez, 432 F.3d 588, 589-590 (5th Cir. 2005).

Moreover, a verified pleading, such as Amodeo’s verified motion to reopen the

section 2255 proceeding, has the legal effect of a sworn affidavit. See Perry v.

Thompson, 786 F.2d 1093, 1095 (11th Cir. 1986).

However, more proof of the non-service of the order exists than Amodeo’s

verified pleadings. Amodeo’s sister, Deborah Milotte, has maintained custody of

the envelope that Amodeo eventually received from the clerk of court. This

envelope contained Amodeo’s stricken 2255 motion and the District Court’s January

9, 2012 order. Amodeo received a letter-size envelope from the United States

District Court Clerk in Orlando, Florida. His inmate number was not written on the

envelope. Exhibit 1. The envelope was sent on January 10, 2012, one day after the

District Court entered its order directing Amodeo to amend his section 2255 motion

by January 30, 2012. Exhibit 2. However, the envelope also shows that someone

crossed out dates with what appears to be a black magic marker. Under one of these

3 The address appears to have been correct. However, Amodeo’s inmate number was not on the envelope from the Clerk of Court, as required by the Bureau of Prisons.


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markings, the word “RETURN” can be seen relatively clearly. Exhibits 3, 4. This

envelope and its markings are evidence that Amodeo did not, in fact, receive the

District Court’s January 9, 2012 order until after the deadline passed, as the

envelope, sent January 10, 2012, does not show his inmate number and at some point

the envelope was stamped “RETURN.”

As such, the two prongs of Pace are satisfied, and Amodeo is entitled to the

equitable tolling of the AEDPA one-year statute of limitations period

Finally, Amodeo’s mental illness, as discussed supra, its’ relationship to the

instant litigation - and its severity - entitle Amodeo to relief through the equitable

tolling doctrine. This circuit has held that a person with a substantial mental illness

may be granted equitable tolling of the one year limitations period if there is a causal

connection between the prisoner’s mental incapacity and his inability to timely file

a habeas petition. Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009). Dr.

Parks’s recitation of Amodeo’s symptoms creates a veritable cornucopia of

medically-founded reasons why Amodeo would have severe difficulty timely filing

a habeas corpus petition. Amodeo’s moods shift quickly, and when depressed, he is

morose. When he is manic, he is apt to feel intense anger and hostility, rather than

euphoria. Literally all of the symptoms described by Dr. Parks have been extremely

counter-productive for Amodeo during his post-sentencing litigation and have made

it exceedingly difficult for him to comply with even basic court orders. Amodeo’s


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own pro se motion describes in detail some of the difficulties his disease has caused,

including avoidance behavior when an issue arises that is outside what he believes

to be just and proper, and the inability to read his own pleadings and court orders

due to this affect.

Understandably, the courts seem to perceive Amodeo’s erratic behavior as

intractable and contumacious. However, his behaviors are borne of a debilitating

mental illness, not willful disobedience. There is a clear causal connection between

Amodeo’s documented mental illness and his inability to follow court orders. For

all these reasons, the doctrine of equitable tolling applies to Amodeo, and, as such,

this Court should issue its certificate of appealability.

C. RELATION BACK

In the context of habeas litigation under the AEDPA, an amended claim that

would be time-barred pursuant to the one-year limitations period may be timely if it

relates back to the original petition. Fed.R.Civ.P. 15(c); Cox v. Ferrell, 272

Fed.Appx. 147, 149 (11th Cir. 2008). An amended claim relates back to the date of

the original pleading if it arose out of the conduct, transaction, or occurrence set

forth or attempted to be set forth in the original pleading. Fed.R.Civ.P. 15(c)(2);

Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir. 2000). However, the

amended claim must arise from the same set of facts as the claims contained in the

original petition. Davenport, 217 F.3d at 1346. Here, as in Cox, the claims asserted


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in the motions are nearly identical, but Amodeo’s filing under Case Number 6:11-

cv-1850 had larger font and smaller margins, causing the motion to be considerably

longer than the local rules allowed. Case No. 6:11-cv-1850, DE 4. Further, this

circuit has ruled that when an untimely habeas petition simply cures a technical

defect in a previous, timely filed habeas petition, a district court abuses its discretion

by not construing the second habeas petition as an amendment that cured the initial

technical defect and related back to the timely initial motion. Mederos v. United

States, 218 F.3d 1252, 1253-1254 (11th Cir. 2000). This is clearly the case here, as

the April 2012 motion is substantively identical to the December 2011 motion, and

should have been considered an amendment to the earlier timely filed motion.

III. SUBSTANTIVE CLAIMS

Although the Petitioner has established that he is procedurally entitled to the

issuance of a

certificate of appealability, he now must demonstrate the validity of his substantive

claims.

A. ACTUAL CONFLICT OF INTEREST

1. Did Amodeo’s defense counsel have an actual conflict of interest?

2. Did the District Court adequately inquire into the alleged conflicts of

interest?


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Amodeo’s defense counsel below had an actual conflict of interest, in that he

was a witness to a “mock deposition” conducted to prepare him for a meeting with

the Internal Revenue Service. According to the government’s notice of conflict,

allegations arising from the “mock deposition” were at the heart of the conspiracy

and obstruction of justice counts in the indictment. Case No. 6:08-cr-176-GJK, DE

101. See also DE 38, p.36. The government raised the issue immediately before

Petitioner’s sentencing hearing by filing a Notice Regarding Possible Conflict of

Interest by Defense Counsel. The Court, being apprised of the possible conflict, did

address the issue. However, the issue was addressed sporadically through the first

day of a five-day sentencing hearing.

First, after some preliminary discussion, the court asked the Petitioner if he

wanted to speak to the court regarding the conflict issue. The Petitioner did so,

stating, “But I want to let the court know that the conflict is not just the mock

deposition, it extends back afterwards considerably through the investigation. There

are other issues of conflict that I wish to discuss. That’s why I needed to speak to

counsel, not just because of this event, although I heard Mr. Slaughter tell—“ Case

No. 6:08-cr-176, DE 144, p.17.

At this point, the Court stopped the Petitioner and inquired if if Dr. Danziger,

a psychiatrist testifying as an expert witness during sentencing, was ready to testify.


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Upon an affirmative response from defense counsel and Petitioner’s consent to begin

the hearing, the hearing began. Id.

Later in the first day of testimony, during a discussion in which it was revealed

that Amodeo had not read the Presentence Investigation Report (PSR), the court

asked Amodeo, “Can you tell me what you believe the conflict of interest with Mr.

Slaughter is?” Amodeo responded, “My recollection of a memo when the

government needed me to sign a plea agreement so that they could get the authority

to prosecute the case without going through their regular channels was they

threatened to deprive me of counsel and attack my counsel’s fees if I didn’t sign the

plea agreement within a couple of days, with no changes made, even though they

knew I didn’t agree with it. Shortly after that is when I went real manic and that’s

when Mr. Slaughter did the guardianship proceedings.” Id. at 103-104. Upon the

Court being satisfied that Amodeo’s complaints pertained to an earlier draft of a plea

agreement, with no further inquiry, the discussion shifted back to the issue of the

PSR. Though the district court did advise Amodeo that he could speak to any

attorney he wanted to about a potential conflict, the court did not conduct a hearing

on the issue. Id. at 15.

An actual conflict of interest is one that actually affects counsel’s

performance. Mickens v. Taylor, 535 U.S. 162, 167, 122 S.Ct. 1237, 152 L.Ed.2d

291 (2002). To demonstrate a Sixth Amendment violation where trial court fails to


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inquire into a potential conflict of interest about which it knew or reasonably should

have known, defendant must establish that the conflict of interest adversely affected

counsel's performance. Id. However, a defendant who shows that a conflict of

interest actually affected the adequacy of his representation need not demonstrate

prejudice in order to obtain relief. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct.

1173, 55 L.Ed.2d 426 (1978).

Here, the trial court did not fully investigate the Petitioner’s concerns

regarding a conflict of interest with his counsel. In addition to the issue of counsel

being a witness to facts forming the heart of the offense, the petitioner voiced

concerns about a pervasive conflict, existing throughout the representation, which

was never fleshed out by the Court. He also voiced concerns of threats by the

Government to seize his counsel’s fees if he did not sign a plea agreement, albeit an

evidently earlier version of the plea agreement he actually signed. Reasonable jurists

can surely debate whether a conflict existed or if the District Court adequately

inquired. As such, a COA must issue.

B. BREACH OF PLEA AGREEMENT

1. Did the United States breach its plea agreement with the Petitioner by

arguing against the one level departure, pursuant to USSG § 3E1.1(b)?

2. Did the trial court err by not granting the Petitioner the one level departure,

pursuant to USSG § 3E1.1(b)?


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“[W]hen a plea rests in any significant degree on a promise or agreement of

the prosecutor, so that it can be said to be part of the inducement or consideration,

such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct.

495, 499, 30 L.Ed.2d 427 (1971). When a prosecutor acts in contravention of such

consideration, by arguing that the court should not honor a promise made in a plea

agreement, vacation of the plea agreement warrants resentencing. United States v.

Johnson, 132 F.3d 628, 631 (11th Cir. 1998). Here, the Petitioner’s plea agreement

recommended a three level departure for acceptance of responsibility, pursuant to

United States Sentencing Guideline § 3E1.1(a) and (b). Case No. 6:08-cr-178, DE

38, p.5. During sentencing, however, the United States argued against the two level

departure pursuant to section 3E1.1(a), as well as the one level departure pursuant

to subsection (b), and even pursued an upward departure for obstruction of justice.

The government argued that the basis for its opposition was that Amodeo filed

lawsuits against professional firms for providing him with advice that his actions

were lawful, and deflected responsibility for is actions during his sentencing

testimony. However, the Court found that Amodeo did not obstruct justice, and

awarded the two level reduction under 3E.1.1(a). The government persisted with its

argument that Amodeo should not be granted the one level departure under section

3E1.1(b). The Court eventually agreed and did not award the additional one level

departure. Case No. 6:08-cr-178, DE 144, at 42-44.


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In Johnson, a prosecutor agreed to a specified amount of marijuana that

the defendant was responsible for. However, during sentencing, the AUSA

supported a higher amount specified in the Presentence Investigation Report, in

contravention of his agreement. The Eleventh Circuit found that this conduct

violated the plea agreement. Johnson, 132 F.3d at 631.

Further, having found that the defendant qualified for a two level

departure pursuant to section 3E1.1(a), the court failed to award the third level under

section 3E1.1(b). Case No. 6:08-cr-178, DE 148, at 44. This is error. “[O]nce a

defendant is awarded a two-level reduction for acceptance of responsibility, whether

or not to grant the one-level reduction is a matter of determining only whether the

defendant timely provided information and notified authorities of his intention to

enter a plea of guilty.” Id., citing United States v. McPhee, 287 F.3d 287, 289 (11th

Cir. 1997). The District Court found that Amodeo admitted his guilt, did so in a

timely fashion, and did not put the the government to the test of proving his guilt.

Case No. 6:08-cr-178, DE 148, at 44.

As such, the United States violated the Petitioner’s plea agreement and the

District Court erred by failing to award him with the third level departure. As

reasonable jurists can certainly find these issues debatable, a COA must issue.

C. DENIAL OF CRITICAL STAGE COUNSEL


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1. Was the Petitioner denied a constitutional right by being without counsel

during the period between sentencing and appeal?

The United States Constitution guarantees the assistance of counsel during

every critical stage of the criminal prosecution. United States v. Cronic, 466 U.S.

648, 104 S.Ct. 2039, 80 L.Ed. 657 (1984). The hiatus between sentencing and direct

appeal is a critical stage in the proceedings. Mayo v. Cockrell, 287 F.3d 336, 345

(5th Cir. 2002). The importance of counsel to a defendant immediately after

conviction is recognized in both case law and statute. Id. An attorney’s

responsibilities to his client do not end at sentencing. Id. This is so because a

defendant “must comply with a myriad of procedural rules in order to perfect a

meaningful appeal.” “It is no more reasonable to require a defendant to perform

these tasks without the assistance of counsel than it is to require him to represent

himself at a new trial hearing.” Id., citing Massingill v. State, 8 S.W. 3d 733, 736

(Tex.App.-Austin 1999, no pet.). However, it must be noted that the analysis of

whether a particular stage is critical turns on an assessment of the usefulness of

counsel to the accused at that time. Mayo, 287 F.3d at 345.

Here, an attorney would have been arguably the most useful to the Petitioner

during the sentencing-to-appeal hiatus than any other time. The Petitioner was just

sentenced to 270 months in prison on May 26, 2008. Case No. 6:08-cr-176, DE 125.

On June 2, 2008, his privately retained attorneys filed their motion to withdraw. Id.


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at DE 130. On June 22, 2008, the Court appointed CJA counsel to assist Petitioner

with his appeal. Id. at DE 138. As such, he was actually or constructively without

counsel for twenty-seven days.

During this period of time, the Petitioner desperately needed counsel in order

to counsel him about the appropriate course of action, given the myriad of issues he

was facing, including the unresolved conflict of interest of his former attorneys, his

monstrous 270-month sentence, and his unquestioned mental incapacity to process

information in times of stress. Given the constitutional violations facing the

Petitioner, the better course of action would have been to file his motion pursuant to

section 2255, as his various complaints immediately post-sentencing sound more in

constitutions violations than court errors appealable under his binding appellate

waiver. Id. at DE 38, pp. 23-24.

Given these factors, the Petitioner was denied counsel during a critical stage

of the proceedings. A COA must issue.

D. ACTUAL INNOCENCE

The United States Supreme Court has pronounced that a bona fide claim of

actual innocence serves as a gateway through either a procedural impediment or a

statute of limitations, which would otherwise prevent the filing of a habeas petition.

McQuiggin v. Perkins, 133 S.Ct. 1924 (2013). A habeas petitioner asserting actual

innocence to avoid a procedural bar must show that his conviction “probably


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resulted” from a constitutional violation. Arthur v. Allen, 452 F.3d 1234, 1245 (11th

Cir. 2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Finally, to

demonstrate actual innocence, a petitioner must show that “it is more likely than not

that no reasonable juror would have found petitioner guilty beyond a reasonable

doubt.” Schlup, 513 U.S. at 327.

In the months before Amodeo’s guilty plea, he was subjected to at least three

polygraph examinations by Richard Keifer, a noted polygrapher who was an FBI

polygraph examiner for fifteen years and the FBI’s Polygraph Program Coordinator

in 1987 and 1988. These examinations asked questions at the heart of the Amodeo’s

alleged offenses, as detailed in the factual recitation of Amodeo’s alleged offenses

in his Amended Plea Agreement. Case No. 6:08-cr-176, DE 38, at 26-36.

The Plea Agreement specifies that one of Amodeo’s companies, Wellington,

acquired Presidion Solutions, Inc. (PSI) in or about July of 2005, and consequently

acquired control of PSI’s subsidiaries and remaining PEOs (professional employee

organizations), Paradyme and PBS. The Plea Agreement further states that

“between June and December of 2005, Amodeo directed that payroll taxes collected

from the clients not to be paid over to the Internal Revenue Service, but instead be

used to pay secured creditors (both arm’s length third parties and entities Amodeo

controlled), critical vendors of PBS and Paradyme and to purchase commercial and

business assets for the benefit of Amodeo, and the other co-conspirators.” Id. at 30.


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However, on April 24, 2008, Amodeo took part in a polygraph examination,

administered by Richard Keifer. The following questions were asked and answers

elicited.

Q: During the period between June 2005 and December 2005 were you aware of a plan by Presidion Corporation or any of Presidion’s subsidiaries to defraud the IRS or evade payment of taxes? A: No.

Q: Are you aware of any plan whether through fraudulent representations, promises or premises to deprive any customer of the Presidion PEO’s of property, money or services? A: No.

Keifer’s scoring system deduced that there was a .038 probability that the

reactions observed were produced by a deceptive person, and in Keifer’s opinion,

Amodeo was truthful. Case No. 6:12-cv-641, DE 56-1, at 6-7.

Amodeo took at least two other polygraph examinations and was found to be

truthful in each by Keifer. Id. at DE 56-1.

In sum, mere months before his sentencing hearing, the Petitioner answered

questions at the very heart of the government’s case, and, indeed, at the heart of the

facts supporting the Petitioner’s guilty plea. He was found to be truthful without

exception.


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As such, a reasonable jurist would find it debatable that Amodeo’s convictions

probably resulted from a constitutional violation. Again, this Court must issue its

certificate of appealability in this matter.

CONCLUSION

Based on the foregoing, Mr. Amodeo respectfully requests that this Court

issue its certificate of appealability in this matter.

Respectfully Submitted,

s/ Jonathan Rose, Esq.___________ JONATHAN ROSE, ESQ. Florida Bar No. 0188832 JONATHAN ROSE, P.A. 337 North Ferncreek Avenue Orlando, FL 32803 Telephone: 407-894-4555 Facsimile: 407-893-8151 [email protected] [email protected]

CERTIFICATE OF COMPLIANCE

The undersigned certifies that this brief complies with the type-volume limitation set

forth in Federal Rule of Appellate Procedure 32(a)(7)(B). The brief contains 4,954

words.


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on April 29, 2016, undersigned counsel filed the foregoing

with the Clerk of the Court by CM/ECF, which will serve a copy on Assistant United

States Attorney Linda Julin McNamara, 400 North Tampa Street, Suite 3200, Tampa,

Florida, 33602, by email.

I FURTHER CERTIFY that on April 29, 2016, a copy of the foregoing was sent to

Frank L. Amodeo, Fed. Reg. No. 48883-019, Federal Correction Complex-Low,

P.O. Box 1031 Unit B-3, Coleman, Florida 33521-1031, by U.S. Mail.

s/ Jonathan Rose, Esq.________________ JONATHAN ROSE, ESQ.


23

No. 15-15280-F Frank Amodeo v. United States of America

AMENDED CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT

The persons listed below are interested in the outcome of this case: Frank L. Amodeo, Defendant/Appellant Honorable John Antoon, III, United States District Judge Honorable David A. Baker, United States Magistrate Judge A. Lee Bentley, III, United States Attorney Robert Edward Bodnar, Jr., Assistant United States Attorney Roger Bernard Handberg, III, Assistant United States Attorney A. Brian Phillips, Former Counsel for Petitioner/Appellant Charles Rahn, Legal Guardian for Petitioner/Appellant Frank Amodeo Jonathan E. Rose, Appellate Counsel for Petitioner/Appellant Frank Amodeo Harrison T. Slaughter, Jr., Former Counsel for Petitioner/Appellant Dated this 23rd day of February, 2016. Respectfully submitted, /s/ Jonathan Rose, Esq._______ JONATHAN ROSE, ESQ. Florida Bar No. 0188832 337 N. Ferncreek Avenue Orlando, FL 32803 Telephone: (407) 894-4555 Facsimile: (407) 893-8151 [email protected] [email protected]


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