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Heard v. Davenport

United States District Court, S.D. Alabama, Southern Division

July 12, 2018

FREDDIE DEMOND HEARD, Petitioner,
v.
CARTER DAVENPORT, Respondent.

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE.

         Petitioner Freddie Demond Heard, a state prisoner presently in the custody of Respondent, has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Heard challenges the validity of his 2010 convictions and sentences for enticing a child and first-degree sexual abuse in the Circuit Court of Mobile County, Alabama. (Doc. 1). The case is now before the undersigned Magistrate Judge for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B), S.D. Ala. GenLR 72(a)(2)(R), and Rule 8 of the Rules Governing Section 2254 Cases. Following a thorough review of the petition and record, the undersigned finds that an evidentiary hearing is not warranted on the issues.[1]

         Having carefully considered Heard's petition (Doc. 1), Respondent's opposition (Doc. 14), and Heard's response (Doc. 17), the undersigned finds that Heard's petition is due to be DENIED and that judgment be entered in favor of Respondent and against Petitioner, Freddie Demond Heard.[2] Additionally, it is recommended that, should Heard file a certificate of appealability, it should be denied, along with any request to appeal in forma pauperis.

         I. Procedural and Factual Background.

         On March 1, 2010, Freddie Demond Heard, in exchange for the dismissal of four associated cases, [3] waived his right to a jury trial and entered a blind plea of guilty to one count of enticing a child (CC-08-3504), in violation of §13A-6-69, and one count of first degree sexual abuse (CC-08-3505), in violation of § 13A-6-69.1(a), as charged in the indictments against him. (See Doc. 14-1 at 8, 16, 19-20). At a sentencing hearing held on May 6, 2010, Heard was sentenced to ten (10) years in the state penitentiary for enticing a child and a consecutive 20 (twenty) year prison term for first degree sexual abuse. (Doc. 14-1 at 9, 17).

         Following his sentencing, Heard gave oral notice of appeal, and was appointed new counsel to handle his appeal. (Doc. 14-2 at 39). On May 28, 2010, Heard's appellate counsel filed a Motion for a New Trial and to Withdraw Plea of Guilty.[4] (Id. at 58-64). He argued that Heard was advised by his trial attorney that if he pleaded guilty to the two charges, the state would dismiss the four additional charges against him, and “the Court would likely sentence [] him to 15 years, with 5 years to serve, with the balance on probation. Defendant was also informed that he would be required to register as a sex offender.” (Id.). The motion further alleged that Heard would not have entered a guilty plea to the charges if he had known the trial court would not impose the 15-year split sentence discussed with his counsel. (Id. at 61). On July 5, 2010, Heard's requests for a new trial were denied by operation of law.[5] (Id. at 68, 72).

         On direct appeal, Heard's appellate counsel filed a “no-merit” brief, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In the brief, he noted no arguable reversible error and asserted that Heard timely filed a motion to set aside his guilty plea and was denied a hearing on the motion through no fault of his own. (Doc. 14-3). After the filing of the Anders brief by Heard's appellate counsel, Heard filed a pro se motion to voluntarily dismiss his appellate appeal so that he could pursue relief through a post-conviction Rule 32 petition (Doc. 14-4 at 1-2). Accordingly, a certificate of judgment was entered on October 28, 2010. (Doc. 14-6).

         On April 15, 2011, Heard filed a post-conviction Rule 32 petition with the Circuit Court of Mobile County. (Doc. 14-7 at 24-36, 53, 81). He asserted:

1) that he received ineffective assistance of counsel because trial counsel misrepresented the sentence to be imposed (doc. 14-7 at 32),
2) that his guilty plea was involuntary because the trial court incorrectly advised him of the applicable sentence range for first degree sexual abuse (id. at 33),
3) that the sentences imposed exceeded the maximum terms statutorily authorized at the time the offenses were committed (id. at 53),
4) that the trial court was without jurisdiction to render judgment or impose the sentences (id. at 81),
5) that the trial court was without jurisdiction to render the judgment or sentence him because his indictment for sexual abuse first degree failed to allege the date of the offense (Doc. 14-9 at 24-32), and
6) the trial court lacked jurisdiction to render judgment or impose sentences for the charge of enticement of a child due to the doctrine of collateral estoppel (id. at 32-36).

         On February 6, 2013, the Circuit Court summarily denied Heard's petition, finding, inter alia, that he did not meet the Strickland standard for ineffective assistance of counsel, that he was properly adjudged guilty pursuant to the statutes in effect at the time the offenses were committed, that he was sentenced within the statutory range authorized by law at the time the offenses were committed, that the challenge to the indictment was procedurally defaulted as the issue was raised and addressed at trial and could have been, but was not, raised on direct appeal, and his collateral estoppel claim was inapplicable to the case and without merit, as no relitigation of the same issues between the same parties had occurred in the case. (Doc. 14-13 at 5-17, 20).

         Heard appealed the Circuit Court's decision and asserted the following claims:

1) his guilty pleas were involuntary because the trial court incorrectly advised him of the applicable sentencing range (doc 14-14 at 19);
2) the trial court lacked jurisdiction to render judgment or sentence him because he was prosecuted pursuant to statutes enacted after the time the offense(s) occurred (id.);
3) the trial court erred by failing to hold an evidentiary hearing on the claims raised in his Rule 32 petition (doc. 14-14 at 21); and presented, for the first time,
4) “there existed a plea agreement” regarding the sentence to be imposed in exchange for Heard's agreement to plead guilty to two cases (doc. 14-14 at -58).

         The Alabama Court of Criminal Appeals issued an unpublished memorandum opinion on April 10, 2015. The appeals court determined that Heard had abandoned some of the claims he previously raised in the Circuit Court.[6] The Court also affirmed the trial court's dismissal of Heard's petition on the claims presented. (Doc. 14-16). On June 5, 2015, the appellate court overruled Heard's application for rehearing. (Doc. 14-18).

         Heard filed a petition for writ of certiorari with the Supreme Court of Alabama, and asserted only two claims:

1) that the state courts erred in failing to grant an evidentiary hearing on his Rule 32 petition; and
2) that the state courts erred in finding he “was properly sentenced under the statutes in effect at the time he committed his offenses.”[7] (Doc. 14-19 at 2-14).

         Heard's petition was denied and a certificate of judgment was issued on August 7, 2015. (Doc. 14-20).

         II. Claims for Relief.

         In the instant federal habeas petition, Heard raises six claims for relief, pursuant to the Due Process protections of the Sixth and Fourteenth Amendments. Heard contends that:

1) his pleas of guilty were unknowingly and involuntarily entered and he received ineffective assistance of counsel;
2) the trial court incorrectly advised him of the sentencing range when accepting his guilty plea;
3) the sentences imposed by the trial court are greater than the statutory maximum in violation of due ...

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