Howard v. Inch
| Docket Number | 21-21270-CIV-COOKE/OSULLIVAN |
| Decision Date | 18 October 2021 |
| Parties | LEANDRE HOWARD, Petitioner, v. MARK INCH, SECRETARY FLORIDA DEPARTMENT OF CORRECTIONS Respondent. |
| Court | U.S. District Court — Southern District of Florida |
REPORT AND RECOMMENDATION
THIS MATTER came before the Court on the Amended Motion to Vacate [Judgment] and Sentence and Incorporated Memorandum of Law (DE# 9, 5/3/21) (footnote omitted). This matter was referred to Chief United States Magistrate Judge John J O'Sullivan by the Honorable Marcia G. Cooke, United States District Judge, for a Report and Recommendation in accordance with 28 U.S.C. § 636(b). (DE# 6, 4/21/21). Having carefully considered the Amended Petition, the Response to Order to Show Cause (DE# 12, 6/19/21), and the Petitioner's Reply to Response to Order to Show Cause (DE# 16, 8/15/21), the exhibits thereto, the court file, and applicable law, the undersigned respectfully recommends that the petitioner's Amended Motion to Vacate [Judgment] and Sentence and Incorporated Memorandum of Law (DE# 9, 5/3/21) be DENIED.
On June 26, 2008, the petitioner was charged in state court under Florida law with attempted second degree murder (Count 1) fleeing and eluding a law enforcement officer (Count 2), and resisting an officer without violence (Count 3). See Fla. Stat. §§ 782.04(2), 316.1935(1), and 843.02, respectively.
On May 2, 2011, the petitioner accepted a guilty plea and was sentenced to six years in prison for Count 1 to be followed by four years of probation and one year of community control five years in prison for Count 2 and 364 days in jail, followed by four years of probation for Count 3, with all counts to run concurrently.
On October 8, 2013, the petitioner was released from prison and began serving the community control and probation portion of his sentence.
On January 28, 2017, the petitioner was arrested in M17-2925 for possession of marijuana and given a “promise to appear” in court.
On January 31, 2017, the petitioner was arrested in F17-001990 for possession of ethylpentylone (a/k/a “MDMA”).
On June 21, 2017, an amended affidavit of violation of probation was filed which listed as a violation of his probation, the petitioner's two arrests for possession of marijuana and MDMA.
On June 30, 2017, a probation violation affidavit was filed following the petitioner's arrest for possession of marijuana on January 28, 2017, and possession of MDMA on January 31, 2017. In addition to the new law violations, the petitioner was charged with violating probation for failing to pay the $5 monthly cost of probation supervision.
On June 30, 2017, Judge Stacy Glick held a probation violation hearing. The petitioner, Officer Suarez and Officer Cao testified during the probation violation hearing. The probation officer also testified that the petitioner failed to pay his five dollar a month probation fee. Judge Glick found that the petitioner violated the terms of his probation for his non-payment of the monthly probation fee as well as willfully violated his probation for the two incidents involving possession of marijuana and MDMA. The state trial court revoked the petitioner's probation and sentenced him to twenty years with credit for time served. The trial court filed the judgment and sentence on June 30, 2017.
On July 20, 2017, the trial court filed its order revoking the petitioner's probation.
On July 24, 2017, the public defender filed a Notice of Appeal on the Judgment and Sentence in 3D17-1699.
On April 4, 2018, the Third District Court of Appeal concluded that the appeal was wholly frivolous and granted the public defender's motion to withdraw as counsel for the petitioner. That same day, the Third District Court of Appeal per curiam affirmed the Judgment and Sentence in 3D17-1699. The Mandate was issued on April 30, 2018.
On May 4, 2018, the petitioner filed his initial Motion for Post-Conviction Relief and raised the following five arguments: (1) ineffective assistance of counsel when counsel failed to move to disqualify the trial judge during the probation revocation hearing; (2) ineffective assistance of counsel when counsel failed to file a motion to suppress the marijuana; (3) ineffective assistance of counsel when counsel failed to file a motion to suppress the MDMA; (4) ineffective assistance of counsel when counsel failed to conduct adequate pre-trial investigations and call exculpatory witnesses to the probation hearing; and (5) ineffective assistance of counsel when counsel failed to argue lack of jurisdiction in his original F08020775A case when an amended information was filed in 2010.
On May 4, 2018, the petitioner filed his Petition for a Writ of Habeas Corpus in the Third District Court of Appeal, Case No. 3D:18-942. On May 14, 2018, the Third District Court of Appeal in Case No. 3D:18-942 denied the petition for writ of habeas corpus.
On June 1, 2018, the petitioner filed his Amended Motion for Post-Conviction Relief in which he raised the following five grounds for relief: (1) ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution for failing to move to disqualify the trial judge during the probation revocation hearing; (2) ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution for failing to file a motion to suppress the marijuana; (3) ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution for failing to file a motion to suppress the MDMA; (4) ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution for failing to conduct adequate pre-trial investigations and call exculpatory witnesses to the probation hearing; and (5) ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution for failing to argue lack of jurisdiction in his original F08020775A case when an amended information was filed in 2010.
On July 12, 2018, while his amended post-conviction motion was pending in the trial court, the petitioner filed a petition for writ of habeas corpus in the Third District Court of Appeal, Case. No. 3D18-1451. On July 20, 2018, the Third District Court of Appeal, in Case. No. 3D18-1451, denied the writ of habeas corpus, but did not issue a mandate.
On August 29, 2018, the petitioner filed a motion for appointment of counsel in the trial court. During a hearing on October 5, 2018, the trial court denied the petitioner's request for appointment of counsel for the post-conviction proceeding and set an evidentiary hearing on the petitioner's Amended Motion for Post-Conviction Relief. The trial court ruled that the petitioner would have to represent himself because the trial court did not find any complex issues within the motion that would entitle the petitioner to an attorney for the evidentiary hearing on the post-conviction motion.
On December 14, 2018, the trial court held an evidentiary hearing on the petitioner's Amended Motion for Post-Conviction Relief. The petitioner represented himself at the evidentiary hearing and questioned his former defense counsel.
On January 11, 2019, the trial court issued its order denying the Amended Motion for Post-Conviction Relief.
On January 3, 2019, the petitioner filed an appeal of the denial of his Amended Motion for Post-Conviction Relief.
On July 8, 2020, the Third District Court of Appeal issued a Mandate on its per curiam affirmance of the trial court's denial of the petitioner's Amended Motion for Post-Conviction Relief.
On May 3, 2021, the petitioner filed the Amended Motion to Vacate [Judgment] and Sentence and Incorporated Memorandum of Law (DE# 9, 5/3/21) (footnote omitted).
On June 19, 2021, the respondent filed the Response to Order to Show Cause (DE# 12, 6/19/21) and attached exhibits.
On August 15, 2021, the petitioner filed the Petitioner's Reply to Response to Order to Show Cause (DE# 16, 8/15/21).
The motion is ripe for disposition.
During the June 30, 2017 probation violation hearing, Officer Cao testified that on the night of January 28, 2017, at approximately 7:32 p.m., he observed the petitioner, on a bicycle circling a four-way intersection. Probation Violation Hearing (“PVH”) Transcript at 62 (DE# 12-2, 6/19/21).[1] Officer Cao testifed that the petitioner's bicycle did not have a front or rear light on it and that he conducted a consensual encounter to tell the petitioner the importance of having a rear light. Id. at 65 . Officer Cao further testified that the petitioner told the officer that the petitioner had rolling paper and a bag of weed. Id. Office Cao explained that the petitioner was not in custody at the time he made the statement. Id. at 66. The petitioner retrieved a “nickel” bag of marijuana from one his pockets, which was introduced as State's Exhibit 2. Id. at 66-69.
During the probation violation hearing, the petitioner provided conflicting facts and testified that three police unit cars pulled in front of him, stopped him and grabbed him. Id. at 127. The arrest affidavit does not reflect these alleged facts. Id. The petitioner further testified that Officer Williams and Officer Cao checked him without consent and handcuffed him and picked up some paraphernalia, from the ground, not on the petitioner's person. Id. at 127-28. The petitioner testified that he begged the officers not to charge him and they gave him a promise to appear. Id. at 128. On cross-examination, the petitioner testified that the marijuana was planted on him by the police. Id. at 137.
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