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Robert Consalvo v. Secretary For the Department of Corrections

December 12, 2011

ROBERT CONSALVO, PETITIONER-APPELLANT,
v.
SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, WALTER A. MCNEIL ATTORNEY GENERAL, CHARLIE CRIST, RESPONDENTS-APPELLEES.



Appeal from the United States District Court for the Southern District of Florida D. C. Docket No. 0:06-cv-61179-UU

Per curiam.

[PUBLISH]

U.S. COURT OFAPPEALS ELEVENTH CIRCUIT

JOHN LEY CLERK

(December 12, 2011)

Before DUBINA, Chief Judge, TJOFLAT, and EDMONDSON, Circuit Judges.

Petitioner was convicted in Florida state court of armed burglary and first-degree murder. A sentence of death was imposed. The Florida Supreme Court affirmed Petitioner's conviction and sentence and later denied post-conviction relief. Petitioner then filed this petition in federal court seeking a writ of habeas corpus. The District Court denied habeas relief but granted a certificate of appealability on two issues, and this appeal commenced.

BACKGROUND

Petitioner was convicted in Florida state court for armed burglary and the murder of his neighbor, who before her death had been pursuing charges against Petitioner for the theft of $140 from her car. The Victim was stabbed to death in her home, which showed signs of a break-in. After the Victim was last seen alive and before her body discovered, video recordings showed Petitioner using her ATM card and driving a car similar to hers. Petitioner was also found with checkbooks belonging to the Victim.

While in jail, Petitioner made various inculpatory statements to fellow inmates Mark DaCosta ("DaCosta") and William Palmer ("Palmer"). DaCosta and Palmer later testified against Petitioner at the Grand Jury hearing resulting in Petitioner's indictment; Palmer also testified at trial.

Following Petitioner's conviction for armed burglary and first-degree murder, the trial judge -- consistent with the jury's earlier recommendation --imposed a capital sentence. On direct appeal, the Florida Supreme Court affirmed both Petitioner's convictions and death sentence. Consalvo v. State, 697 So. 2d 805 (Fla. 1996) ("Consalvo I").

Petitioner next challenged his convictions and death sentence by filing a motion for post-conviction relief in state trial court. The state trial court held an evidentiary hearing and considered Petitioner's many claims for relief, including recent recantations of testimony by several witnesses. The state trial court determined that the witnesses' recantation testimony was incredible. Instead, the state trial court credited the testimony of the state attorneys, who refuted the testimony of the recanting witnesses. The state trial court entered a final order denying Petitioner's amended motion for post-conviction relief. And the Florida Supreme Court affirmed the state trial court's denial of the post-conviction motion. Consalvo v. State, 937 So. 2d 555 (Fla. 2006) ("Consalvo II").

Petitioner next turned to the federal courts for post-conviction relief, filing this habeas petition and raising many claims for relief. The District Court denied Petitioner's habeas petition and later denied Petitioner's motion to amend or alter its judgment. But the District Court granted a certificate of appealability on two issues: (1) Whether the state supreme court unreasonably applied federal law in affirming the trial court's rejection of Petitioner's constitutional claims under Brady v. Maryland, 83 S. Ct. 1194 (1963) and Giglio v. United States, 92 S. Ct. 763 (1972); and (2) Whether the state supreme court unreasonably applied clearly established federal law in rejecting Petitioner's claim that reference to evidence ...


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