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Brandon S. Ware v. Secretary

November 14, 2011

BRANDON S. WARE, PETITIONER,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, RESPONDENT.



ORDER

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.

BACKGROUND

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. (Exhibit 1, 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).

Direct Appeal

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 ...


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