United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE.
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
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. 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.
Procedural and Factual Background.
March 1, 2010, Freddie Demond Heard, in exchange for the
dismissal of four associated cases,  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).
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. (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
(Id. at 68, 72).
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).
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
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).
appealed the Circuit Court's decision and asserted the
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
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).
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. 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).
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.” (Doc. 14-19 at 2-14).
petition was denied and a certificate of judgment was issued
on August 7, 2015. (Doc. 14-20).
Claims for Relief.
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 ...