Ware v. Sec'y, Dep't of Corr., Case No. 8:11-cv-418-T-33AEP
| Decision Date | 14 November 2011 |
| Docket Number | Case No. 8:11-cv-418-T-33AEP |
| Parties | BRANDON S. WARE, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
This cause is before the Court on Petitioner Brandon Ware's 28 U.S.C. § 2254 petition for writ of habeas corpus. Ware challenges his conviction and sentence entered by the Circuit Court for the Sixth Judicial Circuit, Pinellas County, Florida.
A review of the record demonstrates that, for the following reasons, the petition must be denied.
On December 18, 2002, Ware was charged by Information with Murder in the First Degree and Home Invasion Robbery. (Exhibit 1, vol. 1, pg. 7-8). The facts of this case are found in the Initial Brief filed in Ware's direct appeal (Exhibit 2), which are summarized as follows:
The State's evidence showed that the victim, eighty-eight year old Vernon Gilbert, resided with his wife of sixty years, Helen Gilbert, who was eighty-seven years old at the time of the offense. (Exhibit 1, vol. 7, T. 395). The couple lived in their third-floor apartment in the Townarms Apartments at 911 Washington in Largo, Florida, where they had lived for thirty-two years. (Exhibit 1, vol. 7, T. 395).
The Gilberts shopped weekly at a Publix grocery store directly across the street from their apartment building, following a pattern developed over many years. (Exhibit 1, vol. 8, T. 402, 421). Ware was employed as a cook by a Beef O'Brady's restaurant located next to the Publix the Gilberts frequented.
On November 26, 2002, a Publix employee, Catherine Beck, observed the Gilberts shopping and noted Ware was "around them often." (Exhibit 1, vol. 8, T. 433). Beck testified she saw the Gilberts leave the store and Ware "walked out like a couple of minutes afterwards." (Exhibit 1, vol. 8, T. 436-37). A short time after the Gilberts had been seen in the Publix store, Vernon Gilbert called 911 from his home phone and stated, "Send the police quick...I just shot a guy in here robbing us."
The police officer who responded to the Gilberts' apartment found a Publix shopping cart with groceries in it outside the front door of the Gilberts' apartment. (Exhibit 1, vol. 8, T. 418). After entering the apartment, the officers found Ware lying on his back with blood on his face and a revolver in his hand. (Exhibit 1, vol. 8, T. 452- 4). The officers saw that Ware had been shot in his back and on the right side of his face. (Exhibit 1, vol. 8, T. 455). The officers saw groceries on the floor and on the kitchen counter. (Exhibit 1, vol. 10, T. 759).
The officers found Mr. Gilbert's body "down the hallway" of the apartment. (Exhibit1, vol. 8, T. 480). The autopsy report established that the 113-pound man died from a gunshot wound located two inches behind his ear. (Exhibit 1, vol. 10, T. 716-18).
The officers found a disoriented, dysfunctional, and blood covered, Mrs. Gilbert in the apartment. (Exhibit 1, vol. 8, T. 480). Mrs. Gilbert suffers from advanced Alzheimers and could not assist in the investigation. (Exhibit 1, vol. 8, T. 404-05, 480). Mrs. Gilbert had also suffered a head injury during the offense. (Exhibit 1, vol. 10, T. 747).
The police found that Ware's pockets contained jewelry, keys, chains, and knives. (Exhibit 1, vol. 8, T. 455). The police found a Publix bag containing jewelry and other items of value on the floor near Ware. (Exhibit 1, vol. 10, T. 752).
The revolver, which had been found by the police in Ware's hand at the scene of the offenses, contained four fired rounds and two unfired shells. (Exhibit 1, vol. 9, T. 536). The bullets recovered from both Mr. and Mrs. Gilbert had been fired by the revolver found in Ware's hand. (Exhibit 1, vol. 10, T. 752). DNA analysis established the existence of Ware's DNA on the weapon, throughout the Gilbert's apartment, and on both Mr. and Mrs. Gilbert's bodies. (Exhibit 1, vol. 10, T. 730-41).
After a six day hospitalization, Ware was arrested, He made no statements to the police. (Exhibit 1, vol. 10, T. 808). On October 21, 2004, after a four-day jury trial, Ware was found guilty as charged. (Exhibit 1, R. 145-47). On March 23, 2005, Ware was sentenced to life imprisonment on the charge of Murder in the First Degree and thirty years imprisonment on the charge of Home Invasion Robbery, to run concurrent with Ware's life sentence. (Exhibit 1, vol. 2, pg. 340-51).
Ware timely filed his Notice of Appeal on March 31, 2005. (Exhibit 1, vol. 2, pg. 352).On July 15, 2005, Ware's appellate attorney filed an Anders brief. Anders v. California, 386 U.S. 738 (1967). (Exhibit 2). The attorney stated he could not find any "meritorious argument to support the contention the trial court committed significant reversible error." (Exhibit 2, p. 4). Ware did not file a pro se brief. On August 25, 2005, the State filed its Anders brief. (Exhibit 3).
The second district court of appeal per curiam affirmed Ware's convictions and sentences on December 9, 2005. Ware v. State, 916 So. 2d 804 (Fla. 2nd DCA 2005)(Table). (Exhibit 4). The Mandate issued December 30, 2005. (Exhibit 5). Ware did not file a petition for writ of certiorari in the United States Supreme Court, but pursuant to case law, was allowed 90 days following December 9, 2005, or until March 9, 2006, before his conviction became final on direct appeal.
Ware filed a timely rule 3.850 motion for postconviction relief on October 31, 2006, raising six grounds for relief: 1) Ware was deprived of his right to effective assistance of trial counsel when trial counsel failed to object to improper comments made during opening and closing arguments; 2) Ware was deprived of his right to effective assistance of trial counsel when trial counsel failed to object to irrelevant and unduly prejudicial evidence; 3) Ware was deprived of his right to effective assistance of trial counsel when trial counsel failed to object to hearsay testimony concerning the alleged "alibi" of another suspect and the alleged verification of the fingerprint analysis; 4) Ware was deprived of his right to effective assistance of trial counsel when trial counsel was rendered ill during the trial; 5) Ware was deprived of his right to effective assistance of trial counsel based on the cumulative errors; 6) Ware was deprived of his right to a fair trial where the trial judge wasengaging in misconduct during the trial. (Exhibit 6).
The state trial court denied the rule 3.850 motion on February 19, 2008. (Exhibit 10). Ware filed a Notice of Appeal on March 17, 2008. (Exhibit 11). The state district court of appeal per curiam affirmed the denial of postconviction relief on July 25, 2008. Ware v. State, 988 So.2d 1104 (Fla 2nd DCA 2008)(Table). (Exhibit 13). On August 11, 2008, Ware filed a Motion for Rehearing or Clarification. (Exhibit 14). On August 22, 2008, the state district court of appeal denied the motion. (Exhibit 15). On September 9, 2008, the Mandate issued. (Exhibit 15).
On November 17, 2008, Ware filed a Petition for Writ of Habeas Corpus in the state trial court. This petition, filed pursuant to Chapter 79, Florida Statutes, Florida Rule of Criminal Procedure 3.850(h),1 and Florida Rule of Civil Procedure 1.630(d)(5) was filedmore than two years after March 9, 2006, the date Ware's conviction was final on direct appeal. (Exhibit 16). On February 14, 2009, the state trial court dismissed the filing in a written order, as an untimely, successive motion for postconviction relief. (Exhibit 17). The trial court stated: "Defendant has failed to demonstrate how the allegations in his petition meet any of the exceptions which would allow a defendant to file a motion for post-conviction relief outside the two-year time limitation imposed by rule 3.850(b)." (Exhibit 17). Ware filed a Notice of Appeal on April 15, 2009. (Exhibit 18). The state district court of appeal per curiam affirmed the denial of postconviction relief on March 3, 2010. Ware v. State, 29 So.3d 305 (Fla 2nd DCA 2010)(Table). (Exhibit 20). The Mandate issued March 29, 2010. (Exhibit 21).
On August 24, 2009, Ware filed a Motion to Vacate, Set Aside, or Correct Sentence, alleging the discovery of new evidence. (Exhibit 22). The state trial court found Ware's motion to be a successive postconviction motion which was untimely filed, as the two-year time limitation imposed by rule 3.850(b) had expired in December 2007. (Exhibit 23). The state trial court only considered the motion because Ware claimed newly discovered evidence. (Exhibit 23). On January 15, 2010, the state trial court denied Ware's untimely, successive motion for postconviction relief finding that Ware failed to show: 1) the evidence could not have been ascertained by use of due diligence at the time of his trial; 2) the evidence was insufficient to establish he would probably be acquitted in light of the evidence; and/or, 3) Ware failed to establish how his claim met any of the exceptions forextending the two-year limitation imposed by rule 3.850. (Exhibit 23).
On February 9, 2010, Ware filed a Notice of Appeal. (Exhibit 24). On November 5, 2010, the second district court of appeal per curiam affirmed the denial of postconviction relief. Ware v. State, 52 So.3d 671 (Fla 2nd DCA 2010)(Table). (Exhibit 26). Ware filed a Motion for Rehearing on November 12, 2010. (Exhibit 27). The state district court of appeal denied the motion for rehearing on January 19, 2011. (Exhibit 28). The Mandate issued February 11, 2011. (Exhibit 29). Ware filed the present petition for writ of habeas corpus on February 25, 2011.
Ware's 28 U.S.C. § 2254 petition is governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA") effective April 24, 1996. The AEDPA established a one-year statute of limitations for...
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