Robinson v. Inch

• Court: U.S. District Court — Southern District of Florida
• Writing for the Court: MAGISTRATE JUDGE REID
• Decision Date: 18 February 2021
• Docket Number: CASE NO. 18-81294-CV-ROSENBERG
• Citation: Robinson v. Inch, CASE NO. 18-81294-CV-ROSENBERG (S.D. Fla. Feb 18, 2021)
• Parties: CARLOS ELTON ROBINSON, Petitioner, v. MARK S. INCH, SEC'Y FLA. DEP'T OF CORR., Respondent.

CARLOS ELTON ROBINSON, Petitioner, v. MARK S. INCH,¹ SEC'Y FLA. DEP'T OF CORR., Respondent.

CASE NO. 18-81294-CV-ROSENBERG

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

February 18, 2021

MAGISTRATE JUDGE REID

REPORT OF MAGISTRATE JUDGE

I. Introduction

This matter is before the Court upon a Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254. [ECF No. 1]. Pro se Petitioner, Carlos Elton Robinson, is a convicted state felon challenging the constitutionality of his conviction and sentence for robbery with a firearm, a first-degree felony, in violation of Fla. Stat. § 775.087(2)(a), following a jury trial in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Case No. 2008CF011591A. [Id.]. This cause has been referred to the Undersigned for consideration and report pursuant to 28 U.S.C. § 636(b)(1)(B), (C); S.D. Fla. Admin. Order 2019-2; and Rules 8 and 10 of the Rules Governing Section 2254 Cases. [ECF No. 11].

For its consideration of the Petition [ECF No. 1], the Undersigned reviewed the State's Response to the Court's Order to Show Cause along with its supporting exhibits, consisting of allpertinent portions of the underlying criminal file in the State's case against Petitioner and transcripts of the relevant proceedings [ECF Nos. 7, 8, 9], and Petitioner's Reply. [ECF No. 10].

Upon review, and as further discussed below, the Undersigned recommends that the Petition be DENIED.

II. Claims

Construing the Petition liberally as afforded pro se litigants, pursuant to Haines v. Kerner, 404 U.S. 519, 520-21 (1972), Petitioner raises nine claims as follows:

1. The trial court abused its discretion in denying counsel's request for a continuance on June 10, 2010, where counsel stated he was not ready for trial because he had only been appointed in May 2010. [ECF No. 1 at 5]. This court error violated Petitioner's right to Due Process. [Id.].

2. The trial court erred in denying Petitioner's motion to suppress evidence because there was no probable cause for the search, in violation of Petitioner's Fourth Amendment rights. [Id. at 6].

3. Counsel was ineffective for failing to file a motion in accordance with Fla. R. Crim. P. 3.575 requesting a juror interview based on allegations of misconduct where Juror Michael Kennedy made impermissible contact with Petitioner during trial. [Id. at 6-7].

4. Counsel was ineffective for failing to object to the court's jury instruction that if the co-defendant was guilty then the jury had to answer "no" to actual possession of the firearm. [Id. at 8, 10].

5. Counsel was ineffective because during plea negotiations he advised Petitioner that if he was found guilty at trial, the judge would more than likely impose the 10-year mandatory minimum sentence. [Id. at 9]. Because of counsel's misadvice, Petitioner rejected an eight-year plea deal and was sentenced to 20 years in prison with a 10-year mandatory minimum sentence. [Id.].

6. Counsel was ineffective for failing to sever Petitioner's case prior to trial. [Id. at 10]. Petitioner was tried with his co-defendant pursuant to an information that did not identify which defendant actually possessed the firearm or if both possessed the firearm. [Id.].

7. Counsel was ineffective for failing to request a Richardson² hearing upon learning the State committed a discovery violation where the victim told the prosecutor there was another "show up" identification. [Id. at 11-12].

8. Counsel was ineffective for failing to object to the vindictive sentence imposed by the trial court. [Id. at 13]. The court knew Petitioner rejected an eight-year plea offer but sentenced him to 20 years with a 10-year minimum, which was higher than the plea offer, and did not explain the significant increase. [Id.].

9. Counsel was ineffective for failing to argue in the motion to suppress that police did not follow standardized criteria or procedure in finding the firearm in the car trunk. [Id. at 14].

In addition, Petitioner seeks an evidentiary hearing, a new trial, and any other relief to which he may be entitled. [Id. at 18.].

III. Relevant Procedural History

A. Information, Trial, and Direct Appeal

Petitioner, along with his co-defendant, was charged by an amended Information with robbery with a firearm and actual possession of the firearm. [ECF No. 8-1 at 4].

1. Motion for a Continuance of Trial and Motion to Suppress

On several occasions, counsel moved for a continuance of Petitioner's trial because he was appointed on May 3, 2010, approximately six weeks before trial. [ECF No. 9-1 at 3, 24-27]. The state court denied the motion because the case had been pending more than two years, Petitioner's prior counsel represented him for a long period of time, all depositions were taken, the case had been continued multiple times over the years for various reasons, and Petitioner was now represented by his third counsel in the case. [Id. at 3, 5-6, 24-27]. Just prior to trial, on June 22,2010, counsel renewed the motion for a continuance to find additional witnesses and to depose the officers involved in the first "show up." [ECF No. 9-3 at 15].

At the same time, counsel alleged that the State had committed a Brady³ violation by failing to inform counsel that the victim had only identified Petitioner during a second "show-up." [ECF No. 9-3 at 3]. The State confirmed that the victim had volunteered new information that he was involved in two "show ups" and identified Petitioner after viewing the second group of males the police had detained. [Id. at 5]. Counsel filed a motion to suppress, challenging the admissibility of out-of-court identifications where the victim had traveled more than an hour for a second "show up" to identify Petitioner, who had been detained without a warrant. [ECF No. 8-1 at 7-13; see also ECF No. 9-3 at 5-6]. Counsel argued the late disclosure was prejudicial to Petitioner's case, and, again, sought a continuance in order to further investigate. [ECF No. 9-3 at 3-16]. The state agreed with the court that defense counsel conducted a full inquiry of the victim prior to trial. [Id. at 16]. The court determined the appropriate remedy was to permit an inquiry of the victim prior to trial and grant Petitioner a suppression hearing to permit the questioning of the officers outside the jury's presence. [Id. at 16, 81-82].

The victim testified that shortly after the robbery, he provided a description to police which included, among certain details, that the suspects were two thin, black males with dreads; one wearing shorts, one wearing pants. [Id. at 18]. According to the victim, the suspects presented to him at the first "show up" did not meet the initial description he gave police, as the suspects were heavier set and did not have dreads. [Id. at 19-21]. Trial commenced shortly thereafter.

During a bench conference, counsel objected to the presentation of firearm evidence and moved to suppress the firearm because Petitioner was not stopped for a traffic violation, there wasno arrest warrant nor consent to search the vehicle or a search warrant. [ECF No. 9-3 at 74-78]. The court sustained the objection and granted the motion to suppress the stop, everything that flowed from the stop, and second "show up" (when the victim identified Petitioner) throughout the course of trial. [Id. at 81, 168-191; ECF No. 9-4 at 34-84].

With regard to the events leading to Petitioner's detention, Deputy Weiss testified he initiated a BOLO pursuant to a probable cause affidavit based on the victim's statement to police that the suspects were two black males with dread locks, wearing black tee-shirts and shorts, and one, who was approximately 5'10'' tall, carried a firearm. [Id. at 168-172]. Weiss admitted to errors in the police report regarding the registration of the vehicle. [Id. at 175-177]. Weiss admitted there was no warrant for Petitioner's arrest. [Id. at 182].

Officer Waters testified he received a BOLO about an armed robbery which provided a tag number, a description of a maroon Dodge Charger, and a description of a suspect. [ECF No. 9-4 at 41-42]. Waters confirmed that the BOLO described the suspects as two black males, wearing dreads, dark tee-shirts, shorts, with "a large caliber semi-automatic." [Id. at 43]. Waters also testified that he recognized the description of the vehicle and he had previous encounters with Petitioner, knew where Petitioner lived, and drove by Petitioner's home to investigate further finding the car parked and empty. [Id. at 45-47]. Waters testified that he waited a few minutes until Petitioner left in the vehicle, followed the vehicle and effected a "traffic stop" per direct orders. [Id. at 48-49]. The "traffic stop" is alternatively called a "felony stop" based on the BOLO alerting a robbery with a firearm. [Id. at 49-50]. Because the vehicle was being towed, Waters conducted a "vehicle inventory" according to police procedure and found the firearm in the trunk. [Id. at 51-52]. According to Waters, the victim arrived and identified Petitioner. [Id. at 52-53]. Petitioner's counsel vigorously argued that there was no probable cause for the stop other than the hunch of apolice officer, the "show up" should be suppressed because Petitioner was handcuffed at the time, there was insufficient evidence for a felony traffic stop, Petitioner's detention was unlawful where officers detained him without a warrant or probable cause for more than an hour and a half for the "show up," and that the firearm should be suppressed as fruit of the illegal detention and search. [Id. at 67-71]. Counsel reminded the trial court that the motions to suppress were not in writing because the court had denied a motion to continue even though he was appointed to the case just 49 days earlier. [Id. at 71, 76].

The court determined there was reasonable suspicion for the stop based on a "very specific" vehicle and suspect description. [Id. at 77-78]. In addition, the court found the detention was not unreasonable and...