Cannon v. Jones, Case No. 3:15cv213/MCR/CJK

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
Writing for the CourtCHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE
PartiesKIMBERLY M. CANNON, Petitioner, v. JULIE L. JONES, Respondent.
Docket NumberCase No. 3:15cv213/MCR/CJK
Decision Date07 February 2017

KIMBERLY M. CANNON, Petitioner,
v.
JULIE L. JONES, Respondent.

Case No. 3:15cv213/MCR/CJK

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

February 7, 2017


REPORT AND RECOMMENDATION

Before the court is a petition for writ of habeas corpus filed under 28 U.S.C. § 2254, with supporting memorandum. (Docs. 1, 2). Respondent filed an answer, submitting relevant portions of the state court record. (Doc. 22). Petitioner replied. (Doc. 25). The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration of all issues raised by petitioner, the undersigned concludes that no evidentiary hearing is required for the disposition of this matter. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts. The undersigned further concludes that the pleadings and attachments before the court show that petitioner is not entitled to habeas relief, and that the petition should be denied.

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BACKGROUND AND PROCEDURAL HISTORY

On March 2, 2011, petitioner was charged by information filed in Santa Rosa County Circuit Court Case No. 11-CF-249, with one count of introducing or possessing upon, or sending from the grounds of a county detention facility, a contraband article in violation of section 951.22, Florida Statutes. (Doc. 11, Ex. A2).1 The charge arose from these facts. On or about July 4, 2010, and between then and August 3, 2010, petitioner, while incarcerated at the Santa Rosa County Jail awaiting trial for manslaughter and violation of probation charges in other cases, hand-delivered a manila envelope to Tim Grantham (an investigator with the Office of the Public Defender) while Grantham was visiting another inmate at the jail. The manila envelope was addressed in handwriting to "Tim Grantham, Public Defender's Office, Tony Henderson". At the time, petitioner was represented by Assistant Public Defender Tony Henderson on the manslaughter charge. The manila envelope contained nine sealed, stamped, standard-sized mail envelopes pre-addressed to persons not employed by the Public Defender's Office. Also included in the manila envelope was an additional letter addressed to Mr. Grantham and Mr. Henderson. When learning that the manila envelope contained pre-addressed non-

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legal mail, which is contraband, Mr. Henderson directed Mr. Grantham to return the manila envelope and its contents to the county jail. Once returned, the contents of the manila envelope were examined by jail staff and it was discovered that the letters inside the pre-addressed envelopes requested individuals to assist petitioner in escaping from her incarceration by aiding in an escape plan when she made an appearance at the Santa Rosa County Courthouse. The manila envelope and its contents were determined to be contraband originated by petitioner. (Exs. A1-A3 (arrest report, charging information and manila envelope), Ex. G, pp. 14-15 (factual basis described at plea hearing); Ex. K, pp. 51-54 (transcript of sentencing hearing)).

Also on March 2, 2011, petitioner was charged by information filed in Santa Rosa County Circuit Court Case No. 11-CF-250, with a separate count of possessing in, and sending from the grounds of, the Santa Rosa County Jail a different article of contraband. (Ex. B2). That charge arose from these facts. Between June 1, and June 30, 2010, petitioner mailed from the Santa Rosa County Jail a different manila envelope to Tony Henderson at the Public Defender's Office. Plaintiff addressed the envelope to "Tina, for: Tony Henderson, Atty, 190 Governmental Center, Pensacola, FL 32502" and marked the manila envelope "Attorney/Client Privileged Mail". The manila envelope contained sixteen sealed, stamped, standard-sized mail envelopes pre-addressed to persons not employed by the Public Defender's Office.

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The manila envelope was seized from the Public Defender's Office pursuant to a search warrant obtained after the State Attorney's Office became aware of the first incident (described above) and learned, through interviews of employees of the Public Defender's Office, that there was another manila envelope with similar contents. Upon examination, jail staff discovered that the letters inside the pre-addressed envelopes requested individuals to assist petitioner in escaping from the custody of the jail during transport to and from court hearings at the Santa Rosa County Courthouse. This manila envelope and its contents were determined to be contraband sent by petitioner. (Exs. B1-B3 (arrest report, charging information and manila envelope), Ex. G, pp. 15-16 (factual basis described at plea hearing); Ex. K, pp. 51-54 (transcript of sentencing hearing)).

In both Case Numbers 11-CF-249 and 11-CF-250, the State filed notices of intent to seek sentencing as an Habitual Felony offender (HFO) pursuant to section 775.084(1)(a), Florida Statutes, (Ex. C), and notices of intent to offer "similar fact evidence of other crimes, wrongs, or acts" ("Williams Rule" evidence) pursuant to section 90.404, Florida Statutes. (Ex. D). On June 15, 2011, petitioner filed a pro se motion to dismiss the charges on equal protection and double jeopardy grounds. (Ex. E1). With regard to double jeopardy, petitioner argued that because the conduct giving rise to the contraband charges also gave rise to two probation violation

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charges to which petitioner pleaded guilty and was sentenced to 15 years in prison in Escambia County Circuit Court Case No. 02-CF-404, and to 10 years in prison in Escambia County Circuit Court Case No. 04-CF-707, her prosecutions in the Santa Rosa County criminal cases violated double jeopardy principles. (Ex. E1). The state circuit court struck the motion to dismiss on June 17, 2011, as a nullity due to petitioner's representation by counsel. (Ex. E2).

A pretrial hearing took place on October 7, 2011. The hearing initially commenced on the State's Williams Rule notice; however, discussion turned to petitioner's sentence exposure based on the felony offense degrees, the guidelines scoresheet, petitioner's qualification as an HFO and her eligibility for consecutive sentencing in Case Nos. 11-CF-249 and 11-CF-250 with sentences she was serving in other cases. The prosecutor, Robert Elmore, stated that the guidelines scoresheet provided for a lowest permissible prison sentence of 56.5 months. (Ex. G, p. 4). As to petitioner's qualification for HFO sentencing, Mr. Elmore explained:

MR. ELMORE: Basically it [HFO] just doubles the exposure. And here's my understanding of the law, Judge. She is charged right now with two third-degree felonies. If we try one of those and then she's sentenced after being found guilty, the Court would have available 10 years sentencing as a habitual felony offender. Then if we tried the other one and she is found guilty and sentenced her on that one, the Court could sentence her to an additional 10 years as a habitual felony offender.

THE COURT: Where they would have been five it just doubles.

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MR. ELMORE: Basically it doubles the exposure. Now Judge the other thing is if she enters a plea as charged to both counts, the State cannot seek consecutive sentencing because any sentencing as a habitual felony offender must be concurrent if they are sentenced at the same time.

So basically Judge, if she goes to trial my intention is to seek 20 years as a habitual felony offender.

THE COURT: You would 20 years consecutive.

MR. ELMORE: Yes.

THE COURT: To whatever she is severing [sic].

MR. ELMORE: Yes, sir.

THE COURT: And obviously the Judge gets to impose the sentence.

MR. ELMORE: Absolutely, Judge. You have the discretion to sentence her. If we - if you find her as a habitual felony offender, you have basically unbridled discretion between zero and 10 years on each count.

. . . .

MR. RUSSELL [Defense counsel]: As far as her sentences, Judge, but let me just clarify something for the [r]ecord.

Did the State say that if she was to plead at one time to both cases then the Court would be limited to concurrent HFO in both cases?

MR. ELMORE: That's my belief, is the law is that we cannot double enhance. . . . [W]hen you're being sentenced as an HFO you cannot receive consecutive sentences.

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(Ex. G, pp. 4-6, 7). Following a recess, petitioner executed a plea form titled "Sentence Recommendation", in which she indicated she understood the nature of the charges and the consequences of pleading guilty, and that it was her desire to plead guilty to both charges. (Ex. F). The plea form reflected that the maximum possible sentence for each count was five years in prison, that there was no agreement by the State and petitioner as to sentence and that: "State will seek maximum HFO sentence of 10 years prison concurrent each case. Defendant will seek lesser sentence." (Ex. F, p. 1). Following a plea colloquy with the court, petitioner entered a "straight-up" plea of guilty to the contraband charge in each of Case Nos. 11-CF-249 and 11-CF-250. (Ex. G). Prior to the court accepting petitioner's plea, the prosecutor confirmed that whether or not petitioner was sentenced as an HFO, he would "ask for 10 years either way." (Ex. G, p. 19). Immediately prior to accepting petitioner's plea, the court inquired:

THE COURT: [I] just want to make sure there's no appeal and I want to make sure that if you want to go to trial if you think somehow that these letters were not contraband, I want you to be able to have the opportunity. So basically before I accept your plea I just want to make sure you and I have had this frank discussion.

THE DEFENDANT: Yes, sir.

THE COURT: Is there anything else that I need to know?

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THE DEFENDANT: I did have a motion to dismiss that I wanted to enter into the Court which my attorney declined, saying he thought there was no legal merit, and I felt the Court should have a say in that.

THE COURT: And I know we're getting into the attorney-client
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