Edwards v. Sec'y

• Decision Date: 13 November 2013
• Docket Number: Case No. 3:11-cv-310-J-37JBT
• Parties: ROY JAMES EDWARDS, Petitioner, v. SECRETARY, DOC, et al., Respondents.
• Court: U.S. District Court — Middle District of Florida

ROY JAMES EDWARDS, Petitioner, v. SECRETARY, DOC, et al., Respondents.

Case No. 3:11-cv-310-J-37JBT

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

Dated: November 13, 2013

ORDER

Petitioner Roy James Edwards filed a pro se Petition for Writ of Habeas Corpus (Petition) (Doc. #1) pursuant to 28 U.S.C. § 2254 on March 30, 2011 pursuant to the mailbox rule. It challenges a 2007 state court (Duval County) conviction for possession of a firearm by a convicted felon and two counts of aggravated assault. Nine grounds for habeas relief are raised. Respondents filed a Response to Petition for Habeas Corpus (Response) (Doc. #15)¹ with Exhibits (Doc. #16) (Ex.).² Petitioner filed his Reply to Respondents' Response to Petition for Habeas Corpus (Doc. #20) (Reply) with Exhibits. See Order to Show Cause and Notice toPetitioner (Doc. #6). No evidentiary proceedings are required in this Court.

STANDARD OF REVIEW

The Court will analyze Petitioner's claim under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA). "By its terms [28 U.S.C.] § 2254(d) bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to th[re]e exceptions." Harrington v. Richter, 131 S.Ct. 770, 784 (2011). The exceptions are: (1) the state court's decision was contrary to clearly established federal law; or (2) there was an unreasonable application of clearly established federal law; or (3) the decision was based on an unreasonable determination of the facts. Id., at 785.

There is a presumption of correctness of state courts' factual findings unless rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). This presumption applies to the factual determinations of both trial and appellate courts. See Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003).

INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner claims he received the ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. In order to prevail on this Sixth Amendment claim, he must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 688 (1984), requiring that he show bothdeficient performance (counsel's representation fell below an objective standard of reasonableness) and prejudice (there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different).

PROCEDURAL HISTORY

Upon review of the record, the following transpired. Petitioner was charged by a Second Amended Information with two counts of possession of a firearm by a convicted felon, two counts of aggravated assault, and carrying a concealed weapon. Ex. A at 31-32. The Arrest and Booking Report, in pertinent part, contains the following description:

On 07/05/06 at 0150, myself and Ofc. G. Osilka responded to 3406 Rogero Rd in reference to an alleged assault involving a firearm.

Upon arrival, we found victim #1 (Ms. Foster) and victim #2 (Mr. Southall) standing inside the house with the door standing open. Ms. Foster began telling us that she and Mr. Southall (boyfriend) were threatened at gunpoint by a known drug dealer they called "Shorty" (suspect). They said he was also carrying brass knuckles in his other hand. She further stated that the suspect punched her on the left side of the face earlier in the night, while the suspect and the witness (Ms. Dinkins/roommate of victims) were arguing outside the house. About that time, both victims observed the listed vehicle drive by and shouted, "There he goes now . . . . and he has a gun!" They pointed to a blue mid-size car going northbound on Rogero Rd. The vehicle was stopped in the 5700 block of Ft. Caroline Rd without incident. The suspect was driving and Ms. Dinkins (witness) was the only passenger. I asked the suspect if he was at the victims' residence earlier and he replied.

"Yes . . . . I know what this is about". I then asked if there were any weapons in the car and he said, "No". When asked if he minded if I checked the car for weapons, he initially said, Why? . . . . not really". The suspect was detained outside the car, at which time a 9mm pistol was discovered by Ofc. Osilka behind a child's car seat located in the backseat. I located some brass knuckles in the pocket on the back side of the driver's seat, clearly reachable from the driver's position.

The suspect was read his Miranda warning via card, and he voluntarily signed a rights form. He said he was a convicted felon and knew he should not have a gun in the car, however, he said the gun belonged to his fiancee and it was kept there for safety reasons. As for the brass knuckles, the suspect said it was a gift from his wife and they have never been moved from the seat pocket.

ID/Records (Id. #64258) verified that the suspect was a convicted felon.

The suspect was taken back to the residence where both victims positively identified the suspect. Ms. Foster said the suspect approached her while she was standing in the doorway and said, "I'm gonna kill your f______ ass", while pointing a gun at her head. Mr. Southall said he was concerned for Ms. Foster's safety and begged the suspect to just leave. Mr. Southall said the suspect then turned the gun on him and said, 'If you f___ me one more time or call the police, I'll kill both you all!" Both victims said the suspect then left in a blue car with wire rims along with the witness, Ms. Dinkins.

The suspect denied ever threatening the victims, but admitted to having only an argument with Ms. Dinkins outside the residence.

The suspect's car was seized for forfeiture proceedings.

Id. at 2.

The state provided Notice of Intent to Classify Defendant as an Habitual Felony Offender. Id. at 88. Initially, Regina L. Wright, an Assistant Public Defender, represented Petitioner. Id. at 22. In the August 2, 2006, State's Discovery Exhibit and Demand for Reciprocal Discovery, Cynthia Gail Dinkins is listed as a Category A witness, with an address of 3604 Rogero Road, Jacksonville, Florida. Id. at 13. On September 1, 2006, the state filed Amended Discovery, listing Ms. Dinkins' address as 3707 St. Isbel [sic] Drive, Jacksonville, Florida. Id. at 20. Thereafter, on September 12, 2006, defense counsel filed a Motion for More Definite Address claiming that Gail Dinkins could not be located at 3707 St. Isabel [sic] Drive East.

In December, 2006, Katherine L. Littell, an Assistant Public Defender, filed three motions in limine: (1) Motion in Limine 1, concerning the 911 recording, id. at 39-40; (2) Motion in Limine II, concerning the brass knuckles, id. at 41-42; and (3) Motion in Limine III, concerning testimony with regard to Petitioner "screaming and yelling at his girlfriend, Cynthia Dinkins, inside the house, that he was standing over Ms. Dinkins threatening her[,]" and with respect to the threats to and/or assaults of the victims/witnesses, id. at 43. On December 7, 2006, the parties entered into a written stipulation that Petitioner was convicted of a felony on July 10, 1998. Id. at 45.

After a jury trial on count five, a charge of possession of a firearm by a convicted felon, the jury returned a guilty verdict, finding Petitioner's "possession was actual possession, and not only constructive possession." Id. at 73. Petitioner moved for a new trial, and among other issues, presented a claim that the officer who testified the firearm was operable was not qualified as an expert. Id. at 74. On February 15, 2007, the trial court denied the motion for new trial. Id. at 76. Judgment and sentence were entered on February 22, 2007. Id. at 89-94. The trial court sentenced Petitioner to twenty years as an habitual felony offender. Id. at 92-94. On March 8, 2007, Ms. Littell filed a notice of appeal on count five. Id. at 112.

In a proceeding on March 1, 2007, in discussing the up-coming trial on counts two and four of the information, Plaintiff announced a conflict with counsel and a desire to proceed pro se. Ex. F at 21-26. The trial court found no basis to conclude that counsel was rendering ineffective assistance, and scheduled a hearing on whether Petitioner would be allowed to proceed pro se. Id. at 26-28. On March 2, 2007, the trial court, after hearing sworn testimony from Petitioner, discharged that office of the Public Defender, and allowed Petitioner to represent himself on counts two and four. Id. at 30-39. Thereafter, on March 14, 2007, Petitioner signed a Plea of No Contest and Negotiated Sentence on counts two and four. Ex. A at 98-99. The trial court entered judgment and sentence on two counts of aggravated assault on March14, 2007, and sentenced Petitioner to concurrent four-year sentences.

On direct appeal (count five), M. Gene Stephens, and Assistant Public Defender, filed an Anders³ brief. Ex. G. On April 18, 2008, the First District Court of Appeal affirmed per curiam. Ex. I. The mandate issued on June 5, 2008. Ex. PD-2 at 2.

On June 17, 2008, pursuant to the mailbox rule, Petitioner filed a pro se Rule 3.850 motion in the trial court. Ex. K at 133. Through counsel, Petitioner filed a Supplemental Motion to Vacate/Set Aside Judgment and Sentence. Id. at 38-40. The trial court conducted an evidentiary hearing on August 19, 2009. Id. at 71-160. Jonathan Sacks, Esquire, represented Petitioner in the post conviction proceeding. Id. The trial court, in its order of January 8, 2010, denied post-conviction relief. Id. at 41-58. Petitioner appealed. Ex. L at 210. He filed a pro se appeal brief. Ex. M. The state filed a Notice that State Will Not File Answer Brief. Ex. N. The First District Court of Appeal per curiam affirmed on October 5, 2010. Ex. O. The mandate issued on November 3, 2010. Ex. R. On January 14, 2011, the appellate court denied rehearing en banc.⁴ Ex. PD-3 at 2.

On June 26, 2008, Petitioner submitted a petition for writ of certiorari to the Supreme Court of the United States. Ex. S. Thestate filed a notice that it did not intend to respond to...