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Childress v. Jones

United States District Court, S.D. Florida

April 2, 2018

EDWARD CHILDRESS, Petitioner,
v.
JULIE L. JONES, Respondent.

          REPORT OF MAGISTRATE JUDGE

          P.A. WHITE JUDGE

         I. Introduction

         Edward Childress, who is presently confined at Union Correctional Institution in Raiford, Florida, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, attacking his conviction in case number F08-44267 from the Eleventh Judicial Circuit Court for Miami-Dade County.

         This cause has been referred to the undersigned for consideration and report pursuant to 28 U.S.C. § 636(b)(1)(B) and Rules 8 and 10 of the Rules Governing Section 2254 Cases in the United States District Courts.

         The Court has before it the petition for writ of habeas corpus, the Respondent's response to an order to show cause with appendix of exhibits, and the petitioner's reply.

         II. Procedural History

         The petitioner, along with four co-defendants, was charged with armed carjacking, attempted felony murder, robbery using a deadly weapon and possession of a firearm by a convicted felon. (DE# 13-2, p. 2-14). The charges arose out of the petitioner's involvement in an armed carjacking that occurred on December 3, 2008 where he and four others planned to commit a robbery. The petitioner was the driver of the car as the group was discussing the robbery of a bar. Three of the five men were armed with firearms. They first planned to steal a car to drive to the site of the planned robbery, however they changed their plans when they came upon a vehicle they wanted to steal. Three men exited the backseat of the petitioner's vehicle and proceeded to steal the car and drive away. The three men who stole the car followed the petitioner. A short time later the petitioner's car was stopped by the police. The petitioner provided a sworn statement setting forth the facts of the offense. (DE# 14-1, p. 2-27). After the petitioner provided the sworn statement, an amended information was filed. The amended information added two charges, conspiracy to commit carjacking and conspiracy to commit armed robbery.

         After the amended information was filed, the petitioner entered a guilty plea to one count of armed carjacking and one count of armed robbery. (DE# 13-2, p. 33-37). The remaining charges were dismissed by the state. The plea was accepted by the court and the petitioner was sentenced to ten years probation as a habitual violent offender. (DE# 13-2, p. 38-53).

         As part of the plea agreement the petitioner was required to cooperate in the prosecution of his co-defendants. The petitioner acknowledged that he was required to testify truthfully and consistently with his prior sworn statement. He also understood that his intentional failure to appear for any statement, conference, deposition, hearing or trial as required by the state would constitute a violation of the agreement and his probation. If the petitioner violated his agreement he agreed to be sentenced to a minimum of fifteen years up to a maximum of thirty years. During the plea colloquy the petitioner acknowledged his understanding of his obligations under the plea agreement. (DE# 14-1, p. 30-42). The written judgment of probation based on the plea agreement was entered on April 23, 2010. (DE# 13-2, p. 38).

         The petitioner was deposed on May 21, 2010 by counsel for his co-defendants, Antwan McCray. (DE# 14-1, p. 44-71). On May 22, 2012 and affidavit of violation of probation was filed. (DE# 13-2, p. 55-58). An amended affidavit was filed on June 5, 2012. (DE# 13-2, p. 60-61). The affidavit alleged that the movant had violated his probation by failing to answer inquiries truthfully, referring specifically to inconsistencies between his sworn statement and his deposition testimony. The affidavit further alleged that the movant had failed to return phone calls from the State Attorney's Office, failed to appear at a deposition and stated that he did not want the state attorney office to harass his family anymore. The petitioner denied the allegations.

         After an evidentiary hearing the trial court found that the petitioner willfully and substantially violated the terms of his probation by failing to cooperate with the prosecution, by failing to respond to the state attorney's attempts to set up meetings, by failing to answer questions truthfully and by failing to comply with the plea agreement by providing assistance in the prosecution of his co-defendants. As a result his probation was revoked and he was sentenced to twenty years imprisonment. (DE# 13-2, p. 74-75, DE# 13-2, p. 77-78).

         On appeal the petitioner argued that the violation of probation was not supported by competent substantial evidence. The appellate court affirmed on January 21, 2015. Childress v. State, 160 So.3d 436 (Fla. 3d DCA 2015). The petitioner's motion for rehearing was denied on February 16, 2015.

         On February 8, 2016, the petitioner filed a pro se motion for post conviction relief. He raised the following claims:

1. Counsel was ineffective for failing to object and argue at the violation of probation hearing that service of the subpoena was untimely.
2. Counsel was ineffective for failing to have the petitioner interpret the meaning of his statements that were mistaken to be inconsistent.
3. Counsel was ineffective for failing to investigate and call witnesses who would have established that the movant was unaware of being subpoenaed.
4. Counsel was ineffective for advising the petitioner that the alleged violations would not be sufficient to support a prison sentence.
5. The cumulative effect of counsel's deficient performance prejudiced the petitioner.

         On April 14, 2016, the motion was denied without an evidentiary hearing. The petitioner did not file a timely notice of appeal, however, on June 22, 2016, the petitioner filed a petition for belated appeal. The motion was granted and his appeal proceeded. The appellate court affirmed the denial of the motion on October 5, 2016. Childress v. State, 208 So.3d 712 (Fla. 3d DCA 2016). Mandate issued on October 31, 2016.

         On December 7, 2016, the petitioner filed a petition for writ of habeas corpus in the appellate court alleging that appellate counsel rendered ineffective assistance by failing to argue that the trial court committed fundamental error in failing to properly swear in witnesses. The petition was denied on December 16, 2016. Childress v. State, 229 So.3d 343 (Fla. 3d DCA 2016).

         The petitioner filed the instant petition on January 5, 2017.[1]He raises the following seven issues:

1. Counsel was ineffective for failing to object and argue at the violation of probation hearing that service of the subpoena was untimely.
2. Counsel was ineffective for failing to have the petitioner interpret the meaning of his statements that were ...

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