So far my son’s Habeas Corpus is about appellate counsel. Next he delves into ineffectiveness of trial counsel.
Please note that by far, my son has not exhausted all the claims of ineffective of appellate counsel
What do habeas corpus petitions involve?
The petitions are challenges from prisoners primarily convicted of violent offenses and given correspondingly severe sentences. The issue most frequently raised is that the prisoner received ineffective assistance of counsel (such as the defense counsel’s not cross-examining a prosecution witness or not objecting to a denial of the court’s continuance motion); fewer issues claim constitutional violations by the trial court, prosecutor, or the police. (http://www.bjs.gov/content/pub/pdf/FHCRCSCC.PDF)
The problem that my son is encountering is that all of the above took place in my son’s case. Here we go.
Trial counsel’s performance was deficient because he did not cross examine the deputy who arrived at the scene of the attempted robbery; nor did defense attorney object when the prosecutor was allow to display the deputy’s personal gun.
The state was not in possession of the alleged gun used and showcasing the deputy’s gun was a violation of appellate constitutional right of due process. The deputy also described the victim’s emotional state without objection; nor did the deputy mention her emotional state in his report.
Defense attorney was in possession of the original police report, yet did not cross examine the deputy about his police report.
Defense attorney was deficient by not questioning the deputy about his statement about victim not being able to identify suspect. The police report says that the victim said the suspect was around 5’11”. At trial, the deputy agreed when the prosecutor says that the victim said the suspect was 5’7-5’11. So the suspect was short and tall.
Appellate argues that his lawyer’s failure to meaningfully challenge the deputy’s testimony violated his Sixth Amendment right to the effective assistance of counsel.
Trial counsel’s deficiency prejudiced the defendant because there was a reasonable probability that had the deputy been properly cross-examined, there was a reasonable probability that this error affected the outcome of the trial
Original Police Report of Deputy Followed by Trial Transcript of Testimony Given at Trial by Deputy
Trial Counsel did not cross-examine
Original Police Report
On April16, 2011 at 2352 hours, I responded to 2XXX Summer Wind Drive, Orlando, Florida (Sxxx Wxxx Apartments), in reference to an Attempted Robbery with a firearm. Upon arrival I met with the victim, Jenna Slater, who advised the following information.
On April 16, 2011 at approximately 2350 hours, Ms. Slxxx was in the parking lot of the above stated address waiting for her friend to come down, at which time an unknown black male approached her and pointed a black semi-automatic handgun as he demanded all her money. Ms. Slxxx told the suspect she did not have any money as she opened her purse showing the suspect that her purse was empty. The unknown suspect immediately left the scene on foot in an unknown direction. Ms. Slxxx immediately called the Orange County Sheriffs Office.
Ms. Slxxx described the unknown suspect as an average built black male, approximately 5’11”, wearing a dark colored hooded sweatshirt and blue jeans and a blue and white bandana covering his face*** leaving only his eyes exposed****.
Ms. Slxxx stated she felt in fear for her life when the suspect pointed the handgun at her.
Ms. Slxxx stated she would not be able to identify the suspect if she was to see him again. Ms. Slxxx stated she did not give the suspect permission to point a gun at her in the attempts to take her property, she further stated she wanted to prosecute and testify in court.
K9 handler D/S Leonard Pxxx (Kxxx) arrived on scene and conducted his investigation. The K9 track ended at
Hanging Moss Road and North Semoran Boulevard.
I obtained a sworn written statement from Ms. Slxxx detailing the incident. I gave Ms. Slater a business card and a case number.
The following is taken directly from trial transcript. Q- Prosecutor – A. Deputy
Q Good morning. Would you please state your name for the record?
A Deputy Fredy XXXX
Q Can you spell your last name?
Q What agency do your work for?
A Orange County Sheriff’s Office.
Q How long have you been with the sheriff’s office?
A Five years.
Q Were you working on April 16th of 2011?
A Yes, I was.
Q Did you have the opportunity at approximately 11:47
p.m. on April 16th of 2011, to respond to 2605 Sxxxxxx Wind
Drive in Orlando?
A Yes, I did.
Q And the Axxxe Apartment complex, where is that
A On Semoran.
Q Is that in Orange County?
Q Okay. And you responded to an armed robbery?
Q And you met with Ms. Slxxx when you responded?
Q Can you describe to the jury her emotional state
when you came to the scene?
A She was emotional. I don’t remember if she was
crying or not, but just seemed as a person that had just gone
passed something emotional, something dramatic, and was kind
of processing still everything that was going on.
Q Did she appear to be — to you to be in fear and
Q Okay. When — you were taking a statement from her
and you got the description of the person who robbed her,
A Uh-huh. Yes. I’m sorry.
Q And the description that she gave you was black
male, young, between 5’7 and 5’11, average built, et cetera?
Q Did she also tell you what firearm or what type of
firearm this person had?
A Correct. She was trying to describe it. Normally,
what I do when they’re not able to describe because,
obviously, not everybody knows about handguns, I show her
mine and to see if it’s similar. And she said, yes, it was
like my handgun.
Q Do you have your handgun on you today?
A Yes, I do.
- QUADRI: Your Honor, may he please remove it
and show the jury what it looks like?
THE COURT: You may.
THE WITNESS: (Complying.)
BY MR. QUADRI:
Q Okay. Put it in front of you.
Is that handgun the same handgun you had back on
April 16, 2011?
Q What kind of handgun is that?
A It’s a Glock, .40 Glock.
Q What caliber is it?
Q Did you show that handgun to Ms. Slater back in
April of 2011?
Q And when you showed it to her, what exactly did you
say to her?
A It — normally, I showed her that one, is it
similar to this one or would it have a revolver, because a
lot of times — and she said, no, exactly like this one.
Q So the jury — in case someone’s not familiar with guns, a revolver is the —
A Correct, it has —
Q Okay. And you showed her your actual firearm, the
Q And what did she say when she — when you showed
A It was like this one, yes.
Q Okay. And then you turned the case over to a
Q All right. Thank you.
- QUADRI: No other questions.
THE COURT: Thank you.
- SCHWARTZ: No cross, Your Honor.
THE COURT: May this witness be excused from
- QADRI: Yes, Your Honor.
THE COURT: Thank you, sir. You may step down.
Next witness, State?
Please write me at:
Justice For My Son 2
PO Box 70111
Tuscaloosa, Alabama 35407