Cade v. Inch
| Decision Date | 23 July 2021 |
| Docket Number | 18-10068-CV-MARTINEZ |
| Parties | HORKENE T. CADE, Petitioner, v. MARK S. INCH, [1] Respondent. |
| Court | U.S. District Court — Southern District of Florida |
T Cade, Pro Se Zephyrhills Correctional Institution.
Michael W. Mervine, Ass't Atty Gen'l.
REPORT OF MAGISTRATE JUDGE RE STATE AMENDED HABEAS CORPUS PETITION - 28 U.S.C. § 2254
Petitioner, Horkene T. Cade, this pro se Amended Petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his convictions and sentences, entered following consolidated guilty pleas in Monroe County Circuit Court, Nos. 2014-CF-61-AM, 2014-CF-149-AM, and 2014-CF-158-AM. This case has been referred to the Undersigned pursuant to 28 U.S.C. § 636(b)(1)(B)-(C) and S.D. Fla. Admin. Order 2019-02. [ECF No. 25].
The Undersigned has reviewed the Amended Petition [ECF No. 8], Respondent's Response [ECF No. 18], along with its supporting appendices [ECF Nos. 18-1, 18-2, 18-3, 19], and Petitioner's Reply [ECF No. 23]. For the reasons discussed below, the Undersigned RECOMMENDS that the Amended Petition be DENIED.
Construing the pro se Petitioner's arguments liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), he raises the following eight grounds for relief:
1. Attorney Heffernan (Withdraw of Plea Counsel) was ineffective for failing to properly argue that Petitioner's pleas were not knowing and voluntary because the court erred in advising Petitioner that he faced a minimum mandatory term of imprisonment. [ECF No. 8 at 5].
2. Assistant Public Defender Dale Coburn (“APD Coburn”) (Plea Counsel) was ineffective for failing to object to the overly broad Information used to establish the factual basis for the charged offenses in No. 2014-CF-149-AM. [Id. at 7].
3. APD Coburn was ineffective for failing to file a motion to suppress evidence in No. 2014-CF-158-AM, on the basis that the search following Petitioner's vehicular traffic stop was unlawful. [Id. at 8].
4. APD Coburn was ineffective for failing to advise Petitioner of viable affirmative defenses related to carrying or possessing “a pocketknife, brass knuckles, and a collapsible baton” in No. 2014-CF-158-AM. [Id. at 10].
5. APD Coburn was ineffective for failing to file a motion to dismiss the Information in No. 2014-CF-149-AM, following alleged substantial assistance provided by Petitioner to the Monroe County Sheriff's Department. [Id. at 12].
6. APD Coburn was ineffective for failing to advise Petitioner of purported viable defenses related to No. 2014-CF-158-AM. [Id. at 14].
7. APD Coburn was ineffective for failing to seek dismissal of No. 2014-CF-149-AM on the basis that Detective Paul Bean was not a material witness to the allegations contained in the Information, and Petitioner's arrest was based on hearsay statements made by Deputy G. Bragg and Sergeant J. Slough. [Id. at 15].
8. Attorney Heffernan was ineffective during the hearing on Petitioner's motion to withdraw for failing to impeach former trial counsel, APD Coburn, with his prior inconsistent statements. [Id. at 16].
Petitioner was charged by Information in three separate Monroe County cases on three separate dates, as follows: (1) No. 2014-CF-61-AM, failing to register as a career offender, in violation of Fla. Stat. § 775.261(4)2(c) (April 29, 2014) [ECF No. 18-2, Ex. E at 20]; (2) No. 2014-CF-149-AM, carrying a concealed weapon by a convicted felon, in violation of Fla. Stat. § 790.23(1)(b) (Count 1) and possession of cocaine, in violation of Fla. Stat. § 893.13(6)(a) (Count 2) (July 29, 2014) [ECF No. 18-2, Ex. G at 29]; and, (3) No. 2014-CF-158-AM, carrying a concealed weapon by a convicted felon, in violation of Fla. Stat. § 790.23(1)(b)[2](September 2, 2014) [ECF No. 18-2, Ex. I at 37].
On November 12, 2014, Petitioner executed a global, written plea agreement, agreeing to plead no contest to the charges in all three cases. [ECF No. 18-2, Ex. J at 40]. Pursuant to the terms of the plea, the prosecution agreed that Petitioner be adjudicated guilty and sentenced to a total combined term of 15 years of imprisonment as follows: (1) 5 years of imprisonment in No. 2014-CF-61-AM; (2) 15 years of imprisonment on Count 1 and a concurrent 5 years of imprisonment on Count 2 in No. 2014-CF-149-AM; and, (3) 15 years of imprisonment in No. 2014-CF-158-AM. [Id. at 41]. All cases and counts, i.e., sentences were to run concurrently. [Id.]. The prosecutor agreed Petitioner could be released on furlough and could surrender to commence his incarceration on November 17, 2014. [Id.]. The prosecution also agreed, upon Petitioner's timely surrender, to reduce Petitioner's total sentence to a total term of 37.275 months of imprisonment. [Id.].
On the same day, at a change of plea proceeding, the court accepted Petitioner's plea, adjudicated Petitioner guilty, and imposed Petitioner's sentence in accordance with the written plea. [ECF No. 19-1, Ex. XX at 21-22].[3] The agreed-upon sentence and the furlough was granted. [Id.]. After being asked whether he had any questions, Petitioner responded that he did not. [Id. at 24].
On November 17, 2014, at 8:22 p.m., a Jail Incident Report was prepared by the Monroe County Sheriff's Office, indicating that Petitioner had failed to surrender as ordered by the court. [ECF No. 18-2, Ex. M at 49]. A bench warrant was issued, and Petitioner was arrested on November 26, 2014. ].
On December 2, 2014, Petitioner filed a pro se motion to withdraw his guilty pleas in all three cases, pursuant to Fla. R. Crim. P. 3.170. [ECF No. 18-2, Ex. U at 74-77]. A status hearing was held on December 18, 2014. [ECF No. 19-1, Ex. YY at 12-26]. Both Petitioner and APD Coburn were present. [Id.]. The court noted that Petitioner had been sentenced to the maximum on each count concurrently, to be mitigated upon his surrender, and that because Petitioner had not returned, he would have to serve the full unmitigated sentence. [Id. at 29]. The court also advised Petitioner that he was entitled to have conflict-free counsel represent him with regard to his pro se motion to withdraw his guilty pleas. [Id. at 29-30]. The court ordered that Attorney Heffernan be appointed to represent him. [Id.].
Subsequently, on January 5, 2015, in accordance with Petitioner's plea, separate written Judgments and sentences totaling 15 years were entered in the cases, nunc pro tunc to November 12, 2014. ].
Next, Petitioner, represented by Attorney Heffernan, filed a counseled motion to withdraw his guilty plea pursuant to Fla. R. Crim. P. 3.170. [ECF No. 18-2, Ex. T at 79-80]. After an August 17, 2015 evidentiary hearing, the court entered an Order denying Petitioner's motion to withdraw his guilty plea, finding the plea was knowing and voluntary, and not the result of former counsel's erroneous advice. [ECF No. 18-2, Ex. U at 84-88].
Petitioner appealed, but counsel filed an Anders[4] brief and moved to withdraw. [ECF No. 18-2, Ex. W at 92-110]. In response to the appellate court's order, Petitioner filed a pro se brief, raising seven claims of trial court error. [ECF No. 18-2, Ex. X at 111-114]. On July 20, 2016, the Florida Third District Court of Appeal per curiam concluded the appeal was wholly frivolous and granted counsel's motion to withdraw in a decision without written opinion. See Cade v. State, No. 3D15-2201, 199 So.3d 271 (Fla. 3rd DCA 2016). (unpublished table decision); [ECF No. 18-2; Ex. Y at 116]. Rehearing was denied on August 17, 2016. [ECF No. 18-2, Ex. Z at 118].
Petitioner was not permitted to seek discretionary review with the Florida Supreme Court because the affirmance on direct appeal was without a written explanation and did not cite to any decision for which the Florida Supreme Court had accepted review. See Wells v. State, 132 So.3d 1110, 1113 (Fla. 2014). Therefore, Petitioner's convictions became final, and the federal limitations period, under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), as amended, began on Friday, November 15, 2016, ninety days after the state appellate court issued its order denying rehearing, when the period for seeking discretionary review with the Supreme Court of the United States expired. See Sup. Ct. R. 13; Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).
However, before Petitioner's conviction became final, he filed a motion to correct illegal sentence, pursuant to Fla. R. Crim. P. 3.800(a) and 3.703(d) on August 31, 2015. [ECF No. 18-3, Ex. GG at 19]. Petitioner claims the sentencing court failed to orally articulate and then file a written statement to support the upward departure from the 37.275 months of imprisonment reflected in the Criminal Punishment Code Scoresheet. [Id.].
It appears that, as of October 29, 2019, Petitioner's Rule 3.800(a) motion was not ruled on by the trial court. . This motion, now pending for over four years, cannot be deemed denied if not ruled upon within sixty days. See Jones v. State, 207 So.3d 230 (Fla. 2nd DCA Jul. 16, 2015) (unpub.) (); Edwards v. State, 951 So.2d 45, 46 (Fla. 1st DCA 2007) ().
After further proceedings not relevant to the issues before this court, Petitioner filed a pro se consolidated motion for post-conviction relief, pursuant to Fla. R. Crim. P 3.850, raising numerous grounds for relief,...
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