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Ford v. McKinney

United States District Court, Eighth Circuit

June 18, 2013

GARY CHRISTOPHER FORD, Petitioner,
v.
JAMES McKINNEY, Warden, Respondent.

ORDER

DONALD E. O'BRIEN, Senior District Judge.

Currently before the Court is the Plaintiff's Petition requesting habeas relief under 28 U.S.C. ยง 2254. The Plaintiff, Gary Christopher Ford [hereinafter Mr. Ford], is currently incarcerated at the Fort Dodge Correctional Facility pursuant to a conviction for first-degree robbery and felon in possession of a firearm. Docket No. 1. The parties appeared telephonically for a hearing on February 28, 2013. After listening to the parties' arguments, the Court took the matters under consideration and now enters the following:

I. FACTUAL BACKGROUND

As set forth in the Defendant's brief, the basic factual background of this case is as follows:

Mr. Ford and Adibey Habhab were staying at the Fort Dodge Quality Inn the night of April 18, 2007, in a room rented by "Gene Smith." Trial Tr. p. 152, line 1 - p. 158, line 17; p. 170, lines 14-23; PCR Appendix Citation [hereinafter "App."] 22-28, 40. A security tape showed Petitioner leaving room 135 at 8:31 p.m. wearing a long brown shirt and white shoes. Trial Tr. p. 281, line 14 - p. 289, line 22; App. 53-61; see also State's Trial Ex. 47. At 8:50 p.m., an armed man robbed "Karen's Wine and Spirits" while wearing a nylon-stocking mask; knee-length brown T-shirt; long, cuffed blue jeans; and white Nike flat-bottomed tennis shoes with brown laces. Trial Tr. p. 124, line 1 - p. 128, line 16; App. 15-19; State's Exs. 1, 2, 3, 4, 5, 6. See also, Ford v. State, 2010 WL 4105619, 1 (Iowa Ct. App. 2010). He left in a dark, mid-size car. Trial Tr. p. 129, line 24 - p. 130, line 22; App. 20-21. There was trial testimony that it takes two minutes and fifteen seconds driving at legal speeds to get from the liquor store to the Quality Inn. Trial Tr. p. 301, lines 5-24; App. 71.

The Quality Inn security tape shows Mr. Ford returning to his room at approximately 8:53 p.m. to 8:55 p.m., in a long brown shirt, jeans and white shoes. Trial Tr. p. 289, line 23 - p. 293, line 5; App. 61-65. See also State's Trial Ex. 47. The hotel security tape shows that at 9:00 p.m., Adibey Habhab returns, and at 9:25 p.m. both she and Mr. Ford depart the hotel. Trial Tr. 295, line 12 - p. 299, line 12; App. 66-70. See State's Trial Ex. 47.

The following morning, a security camera at a convenience store next door to the Quality Inn shows Mr. Ford wearing white shoes with a Nike "swoosh, " knee-length brown t-shirt, and a brown hooded sweatshirt. Trial Tr. p. 178, line 4 - p. 182, line 13; App. 41-45.

Fort Dodge police detective Brad Wilkins viewed security camera footage taken at the liquor store that had been robbed. Officer Wilkins thought he recognized Mr. Ford as the suspect shown robbing the liquor store. Trial Tr. 159, line 11 - p. 161, line 18; App. 29-31. He took particular note of the assailant's oversized brown t-shirt, baggy blue jeans, and white shoes with a "swoosh" and brown laces. Trial Tr. p. 162, lines 6-24; App. 32. He located Adibey Habhab's black Monte Carlo at the Quality Inn and eventually went into the hotel. Trial Tr. p. 164, line 8 - p. 165, line 12, p. 167, lines 10-22; App. 34-35, 37.

Inside, he spotted Mr. Ford, wearing a hooded sweatshirt, knee-length brown t-shirt, and brown-laced Nike shoes. Trial Tr. p. 167, line 5 - p. 168, line 13; p. 214, lines 13-22; App. 37-38, 47. Officer Wilkins called Mr. Ford, who rushed into his room, locked the door behind him, and remained there for about ten minutes (though he did peek out another exit door). Trial Tr. p. 168, line 14 - p. 170, line 2; App. 38-40. A subsequent search yielded a black handgun. Trial Tr. p. 183, lines 10-23; App. 46. Officer Wilkins reported Mr. Ford told police he had been at a "lady's" house with Adibey all day and all night and had never left. Trial Tr. p. 216, line 19 - p. 217, line 6; App. 48-49. In an offer of proof, Officer Wilkins reported that Adibey Habhab said she and Mr. Ford had been at the hotel the entire night and had not left until after the time of the robbery. Trial Tr. p. 239, line 3 - p. 240, line 12; App. 51-52.

II. PROCEDURAL HISTORY

On May 31, 2007, Mr. Ford was charged by the State of Iowa with Robbery in the First Degree, Possession of a Firearm as a Felon, and as a Habitual Felon. From the time of the Mr. Ford's initial appearance until August 8, 2009, he was represented by attorney Jim Koll of the State Public Defender's Office. However, a conflict of interest arose between Mr. Ford and another one of the Mr. Koll's clients. Mr. Koll had to withdraw as the defendant's counsel.[1] On August 8, 2009, attorney Wendy Samuelson was appointed to represent Mr. Ford.

On August 28, 2007, ten days after Ms. Samuelson was appointed to Mr. Ford's case, a jury trial commenced.[2] On August 29, 2007, the jury found Mr. Ford guilty of Robbery in the First Degree. Following his conviction for robbery, Mr. Ford plead guilty to Possession of a Firearm by a Felon pursuant to an Alford plea. The Iowa Court sentenced Mr. Ford to 25 years on the Robbery charge, and five years on the firearm charge, with the sentences to run concurrent with each other.

On October 4, 2007, Mr. Ford filed a notice of appeal. The Iowa Supreme Court dismissed his appeal as frivolous on May 1, 2008. Order, Iowa Supreme Court, No. 07-1739, May 1, 2008.[3]

On July 30, 2008, Mr. Ford filed an application for post conviction relief, the Iowa state court precursor to a habeas appeal. Judge Bice, an Iowa state court judge sitting in Webster County, Iowa, heard arguments on Mr. Ford's post conviction relief case July 16, 2009. Attorney James McCarthy represented Mr. Ford.

At the time of hearing, Mr. McCarthy narrowed the scope of the post conviction application to two primary arguments. Mr. McCarthy argued that Mr. Ford had ineffective assistance of counsel because his trial counsel failed to file and present a perceived alibi defense, and trial counsel failed to follow up and investigate the perceived alibi defense.

On July 17, 2009, Judge Bice denied Mr. Ford's application for post conviction relief. Judge Bice stated:

The record in the underlying case indicates that Mr. Ford was competently represented by Jim Koll of the Public Defender's Office from the time of initial appearance (4/20/07) until the time of this counsel's withdrawal from this case on August 8, 2007. Mr. Koll testified in the present postconviction relief matter by deposition. Mr. Koll testified that he considered the proposed alibi defense and the giving notice of same but that he was not convinced that, because of inconsistencies and time line problems, this defensive tactic was valid. He shared these concerns with Wendy Samuelson, who was eventually appointed to represent Mr. Ford at trial. Ms. Samuelson's appointment was made on August 20, 2007. The matter proceeded to trial on August 28, 2007. Ms. Samuelson also testified at the hearing of Applicant's claim for postconviction relief. Although pressed for time due to her appointment as ...

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