Ford v. Secretary, Dept. of Corrections
| Decision Date | 04 April 2008 |
| Docket Number | No. 8:06-cv-1331-T-17MAP.,8:06-cv-1331-T-17MAP. |
| Citation | 558 F.Supp.2d 1220 |
| Parties | Edward FORD, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Edward Ford, pro se.
Pro se Petitioner Edward Ford petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is proceeding on his court-ordered timely filed amended petition (Doc. No. 7) (hereinafter "petition"). Ford challenges his convictions for armed burglary, attempted first degree murder, aggravated battery, possession of a firearm by a convicted felon, and aggravated stalking arising from the Tenth Judicial Circuit, Polk County, Florida in Case No. CV97-12694A-XX.
On June 3, 1997, the State filed a nine-count Information charging Ford with three counts of armed burglary and one count each of attempted first degree murder, aggravated battery, shooting into a building, grand theft, possession of a firearm by a convicted felon, and aggravated stalking. (Exh 39: R 3-10).1
On July 30, 1998, the parties appeared for trial before the Honorable Robert E. Pyle, Circuit Judge. (Exh 39: R 24-32). Ford was represented by Francis A. Solorzano, Esquire. Ford, through counsel, indicated a willingness to enter a "straight up" plea to the charges. At that time, the State orally noticed that it was not going to proceed with the charges of armed burglary, grand theft, and shooting into an occupied building (Counts III, IV, and VII of the Information). (Exh 39: R 25). Ford then entered a plea of guilty to the charges of armed burglary (2 counts), aggravated battery, attempted murder, possession of a firearm by a convicted felon, and aggravated stalking. (Exh 39: R 26). There was no agreement with the State as to a recommended sentence. After conducting a plea colloquy, the court accepted the guilty plea, stating, (Exh 39: R 30).
Prior to trial, defense counsel retained a confidential expert psychologist, Dr. Henry Dee, to examine Ford for purposes of determining sanity at the time of the offense. Dr. Dee provided the defense with a written report suggesting Ford was malingering. The written report compiled by Dr. Dee was entered in evidence at the postconviction evidentiary hearing on February 20, 2003. (Exh 10: State's Exhibit #1).
Later, during a pretrial court appearance, Ford removed his clothing.2 Because of Ford's behavior, an Order Appointing Committee to Evaluate Defendant's Sanity at the Time of Offense and Competence to Proceed was signed by the trial court on May 6, 1998. (Exh 39: R 18-19). Doctors Freid and Kremper were appointed to evaluate Ford for competence. There are no written reports from Dr. Freid or Dr. Kremper in the record. However, the Assistant State Attorney stated at sentencing, without objection by defense counsel, that the reports basically indicated Ford was "faking it." (Exh 39: R 43).
The sentencing hearing was held before Judge Pyle on October 9, 1998. (Exh 39: R 33-50). The court found that Ford met the statutory criteria for sentencing as a habitual offender and sentenced him to life imprisonment on the two armed burglary counts and the attempted first degree murder count. The court sentenced Ford to thirty years imprisonment on the aggravated battery and possession of a firearm by a convicted felon counts, and ten years on the aggravated stalking count. (Exh 39: R 51-61). All counts are running concurrently.
Ford appealed his judgment and sentence. Mary E. Harlan, Esquire, who was appointed to represent Ford on appeal, filed an Anders3 brief, stating that she could find no meritorious argument to support the contention that the trial court committed significant reversible error in this case. (Exhibit 1). Counsel invited the appellate court's attention to two potential issues for review:
Issue One
On February 16, 2000, in Case No. 2D98-4159, the Second District Court of Appeal filed an order stating that Ford had elected not to file a supplemental pro se brief. (Exhibit 2). The State then submitted its answer brief. (Exhibit 3). On August 25, 2000, the appellate court filed a per curiam unwritten opinion affirming Ford's judgment and sentence. (Exhibit 4). Ford v. State, 768 So.2d 1078 (Fla. 2d DCA 2000) [table]. The court issued the mandate on September 25, 2000. (Exhibit 5).
On March 19, 2001, Ford filed a pro se motion for postconviction relief pursuant to Fla. R.Crim. P. 3.850. (Exhibit 6). Ford raised four grounds for relief: (1) Ford was under the influence of psychotropic medication when he entered his plea and therefore did not understand the nature and consequences of his plea; (2) defense counsel was ineffective for failing to inform Ford of the availability of a voluntary intoxication defense; (3) defense counsel was ineffective for failing to advise Ford of favorable plea offers made by the State; (4) defense counsel was ineffective for erroneously advising Ford he would not receive the maximum sentence. Pursuant to the trial court's order to show cause, the State filed a response to the claims on May 29, 2001. (Exhibit 7). The State argued that grounds one and four were refuted by the record, but that Ford was entitled to an evidentiary hearing on grounds two and three of the motion. Ford filed a rebuttal to the State's response. (Exhibit 8). On June 13, 2001, the court issued an order summarily denying grounds one and four of the motion, and granting a hearing as to grounds two and three. (Exhibit 9). The court appointed attorney Rusty Franklin, Esquire, to represent Ford at the hearing. The evidentiary hearing was held before the Honorable Susan Roberts, Circuit Judge, on February 20, 2003. (Exhibit 10). The court heard the testimony of Ford and both trial attorneys, Robert Mack, Esquire, and Francis Solorzano, Esquire. On March 25, 2003, the trial court entered its final order denying relief. (Exhibit 11).
Ford appealed the adverse rulings. The court appointed Beth Harlan, Esquire, to represent Ford on appeal. Ford's counsel filed an initial brief challenging the trial court's rulings on grounds one, two, and three of the rule 3.850 motion. (Exhibit 12). The State filed an answer brief October, 2004. (Exhibit 13). On February 25, 2005, in Case No. 2D03-1659, the Second District Court of Appeal filed an unwritten per curiam opinion affirming the trial court's denial of Ford's motion for postconviction relief. (Exhibit 14). Ford v. State, 901 So.2d 124 (Fla. 2d DCA 2005) [table]. The court issued the mandate on March 22, 2005. (Exhibit 15).
On December 13, 2001, while the Rule 3.850 proceeding was still pending, Ford filed a motion to correct sentence pursuant to Rule 3.800(a) of the Florida Rules of Criminal Procedure. (Exhibit 16). He complained in the motion that he was sentenced in violation of State v. Thompson, 750 So.2d 643 (Fla.2000), and Heggs v. State, 759 So.2d 620 (Fla.2000), and that his habitual felony offender sentence was illegal. On January 11, 2002, the trial court issued an order summarily denying the third claim as successive, and directing the State to show cause on the two remaining sentencing claims. (Exhibit 17). The State filed its response on March 12, 2002. (Exhibit 18). On May 28, 2003, the court issued its final order summarily denying the remaining two sentencing claims. (Exhibit 19).
Ford appealed the adverse rulings, and filed a pro se amended initial brief. (Exhibit 20). Because of the summary nature of the proceeding, the State did not file an answer brief. On March 12, 2004, in Case No. 2D03-2687, the appellate court filed a written order affirming in part and reversing in part Ford's sentence. (Exhibit 21). Ford v. State, 868 So.2d 631 (Fla. 2d DCA 2004). The appellate court reversed the order of the trial court with regard to the habitual felony offender sentence imposed for count six, attempted first-degree murder, with directions for the trial court to vacate that sentence and resentence defendant. On remand, Ford had to be resentenced under the 1994 version of the sentencing guidelines. Id. at 632. The court's mandate was issued on April 12, 2004. (Exhibit 22). On June 11, 2004, the trial court resentenced Ford on the attempted first degree murder count to thirty years in prison.
On June 17, 2005, Ford filed a successive Rule 3.850 motion in which he attempted to avoid the Rule's two-year time limitation by claiming the existence of newly discovered evidence. (Exhibit 23). The evidence consisted of a statement by the victim to the police saying the victim was drinking a half gallon of gin with Ford on the date of the crimes. On August 11, 2005, the trial court issued an order summarily denying the motion for postconviction relief, finding the motion to be untimely. (Exhibit 24). The order states in pertinent part:
Defendant alleges that his trial attorneys were ineffective for not investigating a voluntary intoxication defense although having access to this statement from the victim, Defendant's claim does not constitute newly discovered evidence. Newly discovered evidence consists of facts which are unknown to the movant or the movant's attorney that could not have been ascertained by the exercise of due diligence. See Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002). Defendant admits in his Motion that his counsel had ready access to the victim's statement prior to the time the Defendant entered his plea. In accordance with Rule 3.850(b), Fla. Stat., Defendant's Motion is untimely filed. See Doctor v. State, 679 So.2d 76 (Fla. 4th DCA 1996).
In addition, the transcript of the...
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