3rd and Final Claim for Motion for Rehearing/En Banc (His forehead which was not smooth like a very young child)(REALLY????)

C.     The Court’s Per Curiam Denial of the Petition Overlooks that it is Fundamental

Error for Appellate Counsel to Fail to Raise the Improper Out of Court and In-

Court Identification.

The procedures used to procure an out-of-court identification of petitioner were

unduly suggestive. *In the original police report and on the 911 call, the victim stated that

she would be unable to identify the suspect. The victim said that the suspect wore a mask

which covered his face, leaving only his eyes exposed. The victim was shown a full-face

photographic array on May 18, 2011, which included Petitioner’s full-face photograph, but

she did not identify anyone as the would-be robber. (Appendix I, Pages 132-33,161). The

victim did identify Petitioner in a second full-face photographic lineup conducted on June

7, 2011.2 (Appendix I, Page 133). She advised that she was only 60 percent sure that he was

the would-be robber at the time of the lineup and identified Petitioner in court. (Appendix

I, Pages 133- 34,145-46). When asked in court for specifics, the victim admitted Petitioner

looked a little bit older, and perhaps heavier, but asserted recognized his face, his cheeks,

his nose, his eyebrows, and his forehead which was not smooth like a very young

child”.

Of course this picture was not included in the rehearing. I never understood what his forehead was not smooth like a very young child meant.

 

The test for suppression of an out-of-court identification is two-fold: (1) whether the

police used an unnecessarily suggestive procedure to obtain the out-of-court

identification; and (2) if so, considering all the circumstances, whether the suggestive

procedure gave rise to a substantial likelihood of irreparable misidentification. (See

Rimmer v. State, 825 So. 2d 304, 315 (Fla. 2002), cert. denied, 537 U.S. 1034 (2002); Thomas

v. State, 748 So. 2d 970, 981 (Fla. 1999); Green v. State, 641 So. 2d 391, 394 (Fla. 1994), cert.

denied, 513 U.S. 1159 (1995); Grant v. State, 390 So. 2d 341, 343 (Fla. 1980), cert. denied, 451

U.S. 913 (1981).) Among the factors to be considered in evaluating the likelihood of

misidentification are: The opportunity of the witness to view the criminal at the time of

the crime, the witnesses’ degree of attention, the accuracy of the witnesses’ prior

description of the criminal, the level of certainty demonstrated by the witness at the

confrontation, and the length of time between the crime and the confrontation. (Grant,

supra, 390 So. 2d at 343

Appellate counsel provided ineffective assistance by failing to raise the issue of the

propriety and reliability of the victim’s identification of Petitioner.

*The 911 and original police report was not put in discovery. *

 

CONCLUSION AND REQUIRED CERTIFICATION

            Petitioner Ajoloko respectfully requests this Honorable Court either grant rehearing or rehearing en banc based on the authorities cited above, or alternatively, issue a written opinion explaining the per curiam denial of the petition for habeas corpus in the event it is predicated on a dispute with the above cited authorities and certify conflict to the Florida Supreme Court.

I HEREBY CERTIFY that a copy of this Motion for Written Opinion/ Rehearing En Banc was placed in the hands of Graceville Correctional Facility Official to be mailed to the following:

 

The Fifth District Court of Appeal is located at 300 South Beach Street Daytona Beach, FL 32114 on______________________


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