Cassidy v. McNeil
| Decision Date | 24 June 2008 |
| Docket Number | No. 3:05-cv-1316-J-33MCR.,3:05-cv-1316-J-33MCR. |
| Citation | 621 F.Supp.2d 1222 |
| Parties | Roger C. CASSIDY, Petitioner, v. Walter A. McNEIL,<SMALL><SUP>1</SUP></SMALL> et al., Respondents. |
| Court | U.S. District Court — Middle District of Florida |
Michael Robert Ufferman, Michael Ufferman, PA, Richard Adam Greenberg, Rumberger, Kirk & Caldwell, PA, Tallahassee, FL, for Petitioner.
Bonnie Jean Parrish, Office of the Attorney General, Daytona Beach, FL., for Respondents.
Petitioner Roger C. Cassidy, an inmate of the Florida penal system who is represented by counsel, initiated this action by filing a Petition for Writ of Habeas Corpus (Doc. # 1) (hereinafter Petition) and an Amended Memorandum of Law and Fact (Doc. # 12) pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2002 state court (Seminole County, Florida) judgment of conviction for robbery with a deadly weapon and tampering with evidence on the following grounds: (1) the state court erroneously allowed the jury to determine whether a pocketknife is a deadly weapon when a common pocketknife is excluded from the definition of weapon set forth in the Florida Statutes; (2) the state court erred by ordering the use of visible shackles on Petitioner during trial, thereby violating his fundamental rights to a presumption of innocence, to be present at trial, to consult with counsel and to participate in his own defense; trial counsel was ineffective for failure to object to the use of the restraints at trial; (3) the state court erred by denying Petitioner's claim of ineffective assistance of counsel for failing to object that allowing both the robbery victim and another employee witness to sit together and confer in a sheriff's vehicle during a show-up identification was impermissibly suggestive; (4) the state court erred by not finding that Petitioner was denied effective assistance of counsel for failing to properly object to the prosecutor's use of an impermissibly suggestive single mug shot of Petitioner to refresh the victim's recollection when the victim was unable to positively identify Petitioner during trial as the perpetrator of the crime; (5) the state court erred by not finding that Petitioner was denied effective assistance of appellate counsel for failing to raise on direct appeal the unduly prejudicial markings on evidence bags, which were introduced into evidence and permitted to go into the jury room during deliberations; (6) the state court erred by denying Petitioner's motion for judgment of acquittal on the tampering with evidence count when the prosecution failed to prove beyond a reasonable doubt that the alleged evidence that was purportedly tampered with was cocaine; (7) the state court erred in not finding that Petitioner was denied effective assistance of appellate counsel for failing to raise on direct appeal that Petitioner was subjected to an illegal stop and seizure in violation of his Fourth Amendment right; and (8) the state court erroneously sentenced Petitioner to a mandatory life sentence pursuant to the Prison Releasee Reoffender Act when the prosecution failed to notify the victim of the possible sentence and thereafter failed to determine whether the victim wanted the prosecution to pursue such a sentence, and the sentence violated his right to a trial by jury as set forth in the Sixth Amendment and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
Respondents have responded to the Petition. See Respondents' Response to Petition (Doc. #16) (hereinafter Response). In support of their contentions, they have submitted exhibits.2 Petitioner, through counsel, has replied. See Petitioner's Reply to Respondents' Response to Petition (Doc. #27) (hereinafter Reply). This case is now ripe for review.
On February 12, 2002, Petitioner Cassidy was charged by an Amended Information in Seminole County, Florida, with one count of robbery with a deadly weapon and one count of tampering with physical evidence. Ex. A at 105, Amended Information. The State filed a Notice of Election to Prosecute as a Prison Releasee Reoffender and a Notice of Intention to Seek Sentencing as a Habitual Felony Offender. Id. at 36, 37.
On December 6, 2001, Petitioner filed a Motion to Suppress, claiming that there was no reasonable suspicion or probable cause to support the stop of his vehicle and therefore all evidence seized after the traffic stop should be suppressed. Id. at 45-46. A hearing was conducted on the Motion to Suppress, and the trial judge, on February 1, 2002, denied the Motion to Suppress. Ex. C at 1-73; Ex. A at 99-100. The trial judge concluded that there was reasonable suspicion to stop Petitioner's vehicle based upon a "be on the lookout" (BOLO) call issued after he committed the robbery. Ex. A at 99-100.
On March 3-4, 2002, a jury trial was held. Ex. B, Transcript of the Jury Trial (hereinafter Tr.) at 1-448. Petitioner was found guilty of robbery with a deadly weapon (count one) and tampering with physical evidence (count two), as charged in the Amended Information. Ex. A at 166, 167; Tr. at 438. Petitioner was adjudicated guilty and sentenced to a term of life imprisonment for count one and five years of imprisonment for count two, to run concurrently to count one. Ex. A at 187-93.
On appeal, Petitioner, through counsel, raised the following claims: (1) the trial court erroneously allowed the jury to determine whether a pocketknife is a deadly weapon when a pocketknife is not defined as a weapon or used in a manner to produce death or great bodily harm, and (2) the trial court erred by denying Petitioner's motion for judgment of acquittal without more than a suspicion that the substance was cocaine. Ex. D at 22-39, Corrected Initial Brief of Appellant. The State filed an Answer Brief. Id. at 40-52. On September 5, 2003, the appellate court, in a written opinion, stated in pertinent part:
Cassidy claims that the pocketknife he carried could not have been a deadly weapon. The jury was instructed that "[a] weapon is a `deadly weapon' if it is used or threatened to be used in a way likely to produce death or great bodily harm." Cassidy displayed the open pocketknife to the store clerk and threatened to cut her throat. Compare Durden v. State, 743 So.2d 77 (Fla. 1st DCA 1999) (). We conclude that there was sufficient evidence to make it a jury question whether the pocketknife wielded by Cassidy was a deadly weapon. See Dale v. State, 703 So.2d 1045, 1047 (Fla.1997) ().
Cassidy was also convicted of tampering with evidence, and he claims that the court should have granted his motion for judgment of acquittal. We disagree. Cassidy was charged in one count with hiding a piece of crack, a bag of marijuana, and a soda can modified so that it could be used as a pipe. A police officer testified that he saw Cassidy put the bag of marijuana under the seat, the soda can between the seats, and what looked like a piece of crack into his mouth. The soda can had what appeared to be crack residue on it and the contents of the bag field tested to be marijuana. Although the object Cassidy put in his mouth was never recovered and the can was never tested, there was enough evidence for the jury to infer that Cassidy was tampering with evidence when he disposed of the crack-like object and hid the other two items.
Cassidy v. State, 853 So.2d 594, 594-95 (Fla. 5th DCA 2003); Ex. D at 53-54. The mandate was issued on September 24, 2003. Ex. D at 56.
Petitioner sought review from the Florida Supreme Court, and the parties filed briefs. Ex. E at 1-2, 3-18, 19-30. On January 6, 2004, the Florida Supreme Court declined to accept jurisdiction and denied the petition for review. Cassidy v. State, 865 So.2d 479 (Fla.2004); Ex. E at 31.
On August 5, 2004, Petitioner filed a pro se motion for post conviction relief pursuant to Fla. R.Crim. P. 3.850. Ex. F at 16-72. On August 23, 2004, the court denied the motion as facially insufficient, stating that Petitioner Cassidy did not swear to the truth of the facts of his motion as required by Fla. R.Crim. P. 3.850(c), which mandates that a motion under this section be filed under oath. Id. at 73-74. The court noted that Petitioner may file a properly attested motion within the time period set forth in the rule. Id.
On September 17, 2004, Petitioner filed a pro se motion for post conviction relief pursuant to Fla. R.Crim. P. 3.850, raising the following issues: (1) Petitioner was denied his Sixth Amendment right to confront the witnesses against him and to participate in his trial when he was made to appear in and wear leg irons and a stun belt during his trial; (2) ineffective assistance of trial counsel for failing to object to Petitioner's being required to wear both shackles and a stun belt; (3) ineffective assistance of trial counsel for failing to properly object and/or challenge the State's use of an unduly suggestive single mug shot of Petitioner to refresh the memory of the victim who was unable to positively identify Petitioner during the trial as the perpetrator of the alleged crime; (4) the trial court committed fundamental error by allowing the State to enter into evidence a single mug shot photograph of Petitioner and then use the said photograph to assist the victim in identifying the Petitioner after she had previously been unable to do so during the trial; (5) ineffective assistance of trial counsel for failing to argue at the motion to suppress hearing and during the trial that the show up identification Petitioner was subjected to was unduly suggestive, giving rise to irreparable misidentification and in violation of his right to have counsel present; (6) ineffective...
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