Gorham v. Inch

• Decision Date: 18 February 2020
• Docket Number: CASE NO. 17-CIV-14241-MARRA
• Parties: ROBERT EARL GORHAM, Petitioner, v. MARK S. INCH, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Southern District of Florida

ROBERT EARL GORHAM, Petitioner, v. MARK S. INCH, SECRETARY,FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.

CASE NO. 17-CIV-14241-MARRA

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

February 18, 2020

OPINION AND ORDER

Petitioner Robert Earl Gorham ("Gorham"), presently serving a life sentence at the Union Correctional Institution in Raiford, Florida, seeks issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254 [DE 1]. Petitioner argues, among other claims, that he was denied his Sixth Amendment right to effective assistance of counsel due to his trial attorney's failure to convey and advise him on the prosecution's five-year pre-trial plea offer. The matter was referred to the Magistrate Judge for proposed findings and a recommended disposition. On September 27, 2019, the Magistrate Judge filed a Report and Recommendation recommending that the petition be denied, without an evidentiary hearing and without issuance of a certificate of appealability [DE 49]. On November 27, 2019, the Petitioner filed timely objections to the entirety of the Magistrate Judge's Report [DE 52].

After a careful review of the Report, along with the transcript of the relevant state court hearing and articulated rationale of the state court trial judge who adjudicated the claim, this Court respectfully disagrees with the conclusions reached by the Magistrate Judge regarding the effectiveness of Gorham's representation as it relates to the alleged unconveyed plea offer. For reasons expressed below, the Court has determined that de novo review of this claim is appropriate, pursuant to 28 U.S.C. § 2254(d), and that an evidentiary hearing is required to discharge this function. As to the remaining claims, the Court agrees with the recommended disposition of the Magistrate Judge.

I. Factual Background and Procedural History

A. State Court Proceedings

On October 1, 2004, Robert Earl Gorham ("Gorham" or "Petitioner") was charged by information with two counts of battery, one count of aggravated assault, and one count of attempted aggravated battery. These charges grew out of Gorham's physical altercation with his wife, Melissa Gorham, and Constance ("Connie") Hill, a family friend who had recently moved into the Gorham home, during a car ride home from a nightclub in Okeechobee, Florida on September 16, 2004. Gorham had taken the women out for dinner that evening, followed by drinks at a nearby nightclub. Gorham became angry over a social interaction between Ms. Hill and one of the other club patrons and insisted on leaving the club with both women. He also insisted on driving over the protest of Connie, the owner of the vehicle in which they traveled.

During the ride home, Gorham began screaming at the women, and, turning to the rear seat, began pulling on Connie's hair, punching her in the face and attempting to choke her. When Melissa attempted to intervene, Gorham began beating her as well. He threatened to kill them both while driving at high speeds on dirt roads. After he pulled off the road, Melissa held Gorham down in a headlock, while Connie started running. When Gorham freed himself and exited thevehicle, Melissa jumped out and ran into a nearby field. The women alerted the police and Gorham was arrested.

Assistant Public Defender Mary Celidonio was originally assigned to represent Gorham. On October 18, 2004, the prosecutor sent an email to Celidonio offering a five-year plea on the two battery charges (Melissa (Count 1), Connie (Count 2)), and the aggravated assault charge (Connie (Count 3)), with the attempted aggravated battery charge to be dismissed (Connie (Count 4)). This plea offer was conditioned on its acceptance prior to the docket call with no depositions to be taken [DE 4, p. 18]. The following day, Celidonio met with Gorham at the county jail. As she later recalled, Gorham immediately confronted her with complaints and demanded her discharge, derailing the interview. She did not recall relaying the plea offer to Gorman.

During his pretrial detention, Gorham wrote a series of letters (9-26-04; 10-6-04;11-15-04; 11-18-04 ) to his assigned public defender asking to explore a plea deal involving between three to six months of jail time followed by three years of probation and various rehabilitation commitments (AA attendance and anger management counseling).¹ Three of the letters were addressed to Celidonio. Notably, neither of the letters which post-dated the October 19, 2004 jailhouse interview referenced the State's then extant 10-18-04 plea offer [DE 25-1, pp. 522-523].

After a hearing held December 10, 2004, Celidonio was discharged from representation and Assistant Public Defender Rebecca Bolt Hamilton was appointed in her stead. Shortly thereafter, at a March 31, 2005 pretrial hearing, Hamilton reported a ten-year plea offer extended by the State on the original information. This offer required Gorham to plead as an "habitual offender," and required immediate acceptance, failing which the information would be amended to add two counts of burglary of a conveyance with an assault or battery - a first-degree life felony. No mention was made of any prior plea offers at that time. Following reiteration of the plea terms and inquiry by the trial judge, Gorham confirmed his rejection of the ten-year plea offer, indicating that he was waiting for promised deposition discovery from Hamilton which he needed to assess the offer [DE 4, p. 52]. The State then volunteered to hold the ten-year offer open for a "reasonable time" to permit the completion and review of such discovery [DE 4, pp. 58-59].

On April 6, 2005, the State amended the information to charge Gorham with burglary of a conveyance with assault or battery on Connie Hill (Count 1); burglary of a conveyance with assault or battery on Melissa Gorham (Count 2); aggravated assault on Connie Hill (Count 3) and attempted aggravated battery on Connie Hill (Count 4).

In August, 2005, less than a week before the scheduled trial date, Attorney Hamilton moved to withdraw on the basis of a conflict of interest between Gorham and another client. The trial judge then appointed Attorney Jeffery Battista to represent Gorham. In October, 2005, Battista sought to withdraw based on a cited conflict of interest, and Attorney Edmond Alonzo was appointed as trial counsel.

Gorham's one-day trial was conducted on November 29, 2005. The jury returned a verdict of guilty on all counts [DE 4, pp. 101-102]. On February 13, 2006, Judge Sherwood Bauersentenced Gorham to life imprisonment as a prison releasee reoffender ("PRR") on the two counts of burglary of a conveyance with battery, and to concurrent five-year sentences on the two assault charges.

Gorham appealed his judgment of conviction to Florida's Fourth District Court of Appeal. On December 5, 2007, the Fourth District reversed the two burglary convictions as violative of the prohibition against double jeopardy, and remanded for a de novo sentencing. As to Gorham's ineffective assistance claim, arising from trial counsel's alleged failure to relay the state's five-year plea offer, the appellate court affirmed without discussion, holding simply that "the record of the hearing held by the trial court on this issue supports the trial court's finding that Gorham would not have taken the offer if conveyed." Gorham v. State, 968 So.2d 717 (Fla. 4^th DCA 2007), rev. den., 983 So.2d 1154 (Fla. 2008).

On resentencing, the trial judge imposed a single "PRR" life sentence for burglary of a conveyance with an assault or battery. In Gorham's direct appeal from this judgment, the Fourth District found the PRR sentencing designation erroneous, and again reversed and remanded for de novo sentencing. Gorham v. State, 988 So.2d 152 (Fla. 4^th DCA 2008). On remand, the state court imposed a life sentence for burglary of a conveyance with battery or assault (Connie Hill) without a PRR designation. No sentence was imposed on the three remaining counts.

After unsuccessfully seeking post-conviction relief under successive Fla. R. Crim. P. 3.850 motions, Gorham v. State, 126 So.3d 1066 (Fla. 4^th DCA 2013) (table); Gorham v. State, 224 So.3d 234 (Fla. 4^th DCA 2013) (table), Gorham filed a state habeas petition challenging the adequacy of the amended information on the burglary charge, and the sufficiency of the jury instructions on the burglary count. The state trial court dismissed his petition and the Fourth District Court of Appealaffirmed. Gorham v. State, 142 So.3d 905 (Fla. 4^th DCA 2014).

B. Federal Habeas Proceedings

After exhausting his state court remedies, Gorham filed the instant petition for habeas corpus under 28 U.S.C.§ 2254 raising the following claims:

Claim 1: Ineffective assistance of counsel for failing to convey a five-year pretrial plea offer that Petitioner would have accepted;

Claim 2: Illegality of the life sentence for enhanced first-degree felony burglary in light of the jury verdict which did not specify what crime was committed during the burglary;

Claim 3: Application of the incorrect standard of review in the state court's denial of Petitioner's post-conviction motion under Fla. R. Crim. P. 3.850;

Claim 4: Ineffective assistance of counsel for failing to develop and support a "rental defense" to the burglary count;

Claim 5: Ineffective assistance of counsel for failing to object to a state witness's recounting of Connie Hill's statements;

Claim 6: Ineffective assistance of counsel for failing to impeach Melissa Gorham and Connie Hill;

Claim 7: Ineffective assistance of counsel for failing to object to jury instructions;

Claim 8: Ineffective assistance of counsel for failing to advise on the lesser included offense of trespass with battery;

Claim 9: Invalidity of the Florida burglary statute, § 810.02 (1), Fla. Stat., as unconstitutionally vague;Claim 10: Erroneous advice from trial court on the sweep of the Sixth Amendment assistance clause;

Claim 11: Due process violation at resentencing due to the State's introduction

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