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Terry S. Conner v. Secretary

January 17, 2012

TERRY S. CONNER, PETITIONER,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS AND ATTORNEY GENERAL, STATE OF FLORIDA, RESPONDENTS.



ORDER

Petitioner, an inmate in the Florida penal system proceeding pro se, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. #1). The Court has considered the petition, Respondents' response (Dkt. #10) and Petitioner's reply (Dkt. #14). Upon review, the Court determines that the petition should be denied.

BACKGROUND

Conner was charged with two counts of robbery and one count of attempted robbery in Pinellas County, Florida for the robbery of the Colonial Bank in St. Petersburg on October 9, 2007. The factual background was described by the state in open court during pre-trial proceedings as follows:

THE COURT: So what are the facts of these cases?

MR. KOSKINAS: Judge, as to these cases - - let's see. The defendant committed the robberies on October 9th of 2007. Essentially, Judge, what had happened is defendant entered a Colonial Bank wearing a green mask, carrying a plastic gun. The three tellers, at that time, approached the defendant. The defendant demanded money. They knew the gun apparently was not real and two of them thought - - or one of the tellers thought the gun was not real, two of them thought that the gun, in fact, was real. The defendant goes to the first teller, her name is Sharon Green, demands money. She was in fear. He pointed this item at her chest. She in turn hands the defendant U. S. currency that she'd received from the bank. The defendant then goes to a different teller, Erica Bush. She didn't have any money in her register and he was not able to successfully demand or force any money from her. The defendant then throw the key on the floor when he doesn't receive the money and the teller then hits the alarm for the bank. The defendant then goes to a third teller, her name was Melissa Mauer. She produces currency and part of which includes a dye pack. Defendant exits the bank; he's seen by various patrons of the bank that he had been at the drive-thru window. The dye packs then go off. The law enforcement, Saint Petersburg Police Department immediately responds and K-9 locates the defendant hiding in the bushes very close proximity to the bank. Inside the bushes with the defendant is $3,900 in U.S. currency that in which he had taken from the bank in addition to the mask, it was a green goblin mask that he'd been wearing throughout the course of the robbery. That was in the bushes with the defendant as well in addition to the dye pack and the results would have been produced from the dye pack on the defendant as well as the items that he had received. And post-Miranda the defendant invokes so there were no statements. But he was, Judge, identified multiple - - by multiple parties in association with the items that were discovered with him at the time he was ultimately located. And I believe, Judge, there is surveillance video of the offense as well, although I haven't personally viewed it. I know that we've ordered it and it does exist. The money was returned to the bank, Judge.

Exhibit A to Petition (Dkt. #1), pp. 22-24.

After Conner's arrest on October 9, 2007, the Public Defender's office was appointed to represent him. The state filed notices of enhanced penalty based on Conner's qualification as a prison releasee reoffender (PRR) subjecting Conner to a minimum mandatory sentence of thirty years on the two robbery charges.

The state court held hearings on April 21, 2008, July 31, 2008, and set trial for August 13, 2008. At the April 21st hearing, Defendant Conner's counsel made a plea negotiation offer to the state. The state asked that it be put in writing and defense counsel agreed. Defense counsel acknowledged that she had waived speedy trial on Conner's behalf. Even though Conner had approved the plea negotiation offer to the state, he objected to his counsel's waiver of speedy trial and demanded that a speedy trial be set.

On May 12, 2008, Conner filed pro se a motion to discharge his counsel, motion to dismiss under the Florida speedy trial rule, and Notice of the expiration of the speedy trial time period. On July 31, 2008, the trial court ruled that, since Conner was represented by counsel, his pro se motions were a nullity except for his motion to discharge counsel. The judge appointed a psychologist to examine Conner for competency and, upon receipt of the report of competency, discharged counsel and allowed Conner to proceed pro se.

On August 13, 2008, the day of trial, Conner entered a written plea of no contest in exchange for a sentence of thirty years incarceration and reserved "the right to appeal all issues." The Public Defender's office filed a timely notice of appeal followed by an Anders*fn1 brief raising two issues:

Issue One: Whether the trial judge erred in regard to the motions to discharge counsel, and

Issue Two: Whether the trial judge erred in denying Conner's motions regarding the expiration of speedy trial.

Conner was invited to file his own brief to supplement the Public Defender's Anders brief but he failed to do so. The state appellate court affirmed without written decision. Conner v. State, 25 So.3d 1232 (Fla. 2d DCA 2009) [table]. Conner did not seek rehearing or petition for certiorari review.

Conner timely filed his § 2254 habeas petition with this Court on January 24, 2011, raising three issues which, in his words, are:

Ground One: Violation of U.S. Constitution Right to Speedy trial 180 Days and Violation of fast and Speedy Trial 60 days.

Ground Two: Ineffective Assistance of Counsel by violation U. S. Const. Rights.

Ground Three: Trial Judge threatened the Plaintiff in open Court. In his Reply, Conner withdrew ground two.

STANDARD OF REVIEW

Conner has filed his petition under 28 U.S.C. § 2254. That statute provides this Court shall not entertain an application for writ of habeas corpus unless the petitioner is in state custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). And, before bringing his federal petition, a state prisoner must exhaust all state court remedies that are available. 28 U.S.C. § 2254(b), (c). That is, a petitioner must fairly present the U. S. Constitutional nature of each issue to the state's highest court either on direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346 (1989). Failure to do so results in the Petitioner being procedurally barred from filing the issue with this Court. The only exception is through a showing of caus for and actual prejudice from the ...


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