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IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT IN
AND FOR BAY COUNTY, FLORIDA
CLIFFORD H. WASHBURN
Petitioner, Case No.: \3 - 32 -Ch
v. Fshek
JULIE JONES, SECRETARY
FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent,
/
GS3 is
PETITION FOR WRIT OF HABEAS CORPU;
LIES Vv Ol Nye giz
COMES NOW Petitioner, Clifford H. Washburn, in proper person and without assistance
of counsel, pursuant to Florida Rule of Appellate Procedure 9.100 and petitions this Honorable
Court for a writ of habeas corpus directed to the Respondent, Julie Jones, Secretary, Florida
Department of Corrections and shows the Court as follows.
I. BASIS FOR INVOKING JURISDICTION
This Court has jurisdiction to issue a writ of habeas corpus under Article V § 5(b) of the
Florida Constitution, Rule 1.630 of the Florida Rules of Civil Procedure and Rule 9.030(c)(3) of
the Florida Rules of Appellate Procedure. Habeas Corpus is the proper remedy to challenge the
unlawful confinement of Petitioner. Henry v. Santana, 62 So.3d 1122(FLA. 2011), Habeas
Corpus also lies to prevent a manifest injustice. No remedy other than habeas corpus would be
adequate to prevent the Petitioner’s unlawful confinement.II. STATEMENT OF THE FACTS
Petitioner is currently incarcerated in the Florida Department of Corrections and is
housed at Holmes Correctional Institution in Holmes County, Florida. The sentence under attack
occurred in the Fourteenth Judicial Circuit in Bay County, Florida.
On May 28, 2013 Petitioner entered into a plea agreement with the State and pursuant to
that agreement, pled no contest to charges brought against him in six(6) different cases. Those
six cases are subject of this petition and are: 11-1678-H; 11-1679-H; 11-1687-H; 11-1709-H; 11-
1775-H; 11-1902-H. The cases collectively resulted in felony charges: Six (6) counts of Burglary
of a Structure or Conveyance; four (4) counts of Grand Theft; one (1) count of Possession of
Burglary Tools; and, one (1) count of Criminal mischief more than $1,000.00. The result of the
plea, a ten (10) year prison sentence in exchange for a no contest plea (consecutive to an
unrelated sentence of ten (10) years) was imposed by this Court on May 28, 2013.
No direct appeal of the judgment of conviction and sentence was taken by the Petitioner
and it became final June 27, 2013.
On March 5, 2015 Petitioner timely filed a Motion for Post-Conviction Relief pursuant to
Fla.R.Crim.P. 3.850. The motion alleged two grounds. Ground Two, that trial counsel was
ineffective for failing to file a motion to suppress evidence obtained as a result of an illegal
search of two cell phones, was summarily denied by this court. The subject matter of Ground
Two is the subject of this Petition, consequently the other grounds are not discussed herein.
This Court, in denying Ground Two stated:
“ The Defendant alleges that the cell phones were illegally searched because the law
enforcement officer did not have a warrant and there was no danger that any evidence contained
in the phones would be lost, stolen, or damaged. The Defendant claims that had his Attorneyfiled a Motion to Suppress the evidence, there is a reasonable probability that the motion would
have been successful, and the Defendant would not have entered a plea. However, at the time of
the search, the law in Florida permitted the warrantless search of a cell phone under the good
faith exception to the exclusionary Rule. Smallwood v. State, 61 So.3d 448(Fla. 1* DCA 2011).
Because the search in the present case “was conducted in objectively reasonable reliance on
binding Appellate precedent, it falls under the good-faith exception to the exclusionary Rule.”
State v. Carpenter, 158 So.3d 693, 694(Fla. 1* DCA 2015). Because it is likely that a Motion to
Suppress on this issue would have failed, the Defendant has failed to establish that his Attorney's
performance was deficient as required by Strickland. Accordingly, the Defendants first ground is
due to be denied.
To summarize the facts of the 3.850 claim:
Petitioner was arrested on May 25, 2011 on a burglary charge unrelated to the cases
subject of this Petition. During a search of Petitioners vehicle incident to the arrest, Petitioners
cell phone was seized and searched by investigators without a warrant and against Petitioners
request to the investigators not to search the phone. Evidence was obtained that led investigators
to locate and interview Petitioners fiancé, Ms. Theall and law enforcement searched her phone
without Ms. Thealls’ permission. As a result of these cell phone searches and the evidence
obtained illegally, the investigators were able to induce a statement from Ms. Theall, implicating
the Petitioner in the crimes subject of this Petition.
The chronology of the rapidly developing law on cell phone searches is significant in this
case when intertwined with the facts and circumstances of Petitioners efforts to obtain relief on
his claim of an illegal search and seizure of two cell phones. That chronology follows:April 29, 2011 — Smallwood v. State, 61 So.3d 448 (Fla. 1* DCA 2011) is decided
(Smallwood I), which permitted the warrantless search of a cell phone under good faith
exception to the exclusionary rule. The court certified a question to the Florida Supreme
Court with regard to the new subject of cell phone searches as one of great public
importance, thus placing law enforcement officers on actual notice that the case was
subject to further consideration on the face of the opinion.
May 25, 2011 — Petitioner, arrested on a charge unrelated to the instant case, was
subjected to a search incident to the arrest, of his cell phone, and a short time later, a
search of Petitioners fiancés cell phone. Evidence was obtained from the searches that led
to the charges in the instant case. Investigators relied on Smallwood I to conduct the
searches.
May 13, 2013 — Smallwood | is overturned by Smallwood v. State, 113 So.3d 724 (Fla.
2013) (Smallwood II). The certified question in Smallwood | is answered in the negative.
The Florida Supreme Court quashed the appellate court decision. The case was remanded
for further proceedings, holding that during the search incident to arrest a warrant was
required before information, data and content of the cell phone could be accessed and
searched by law enforcement.
May 28, 2013 — Petitioner accepts plea offer for 10 years without knowledge of the
decision in Smallwood II and without effective assistance of counsel. Counsel failed to
advise Petitioner of the decision in Smallwood I, which was decided just 15 days before
the plea hearing.
June 24, 2014 — Riley v. California, 134 S. Ct. 2473; 189 L. Ed. 2d 430 is decided by the
U.S. Supreme Court. The court unanimously held that law enforcement could not,without a warrant, search digital information on the cell phones seized from the defendant
as incident to the defendant’s arrest. While the officers could examine the phones
physical aspects to ensure the phone could not be used as a weapon to harm the officers
or effectuate and escape, the data could not be searched. The judgment suppressing
evidence from a cell phone was affirmed and the judgment affirming the conviction was
reversed and remanded for further proceedings. Citing to Gant v. Arizona, 129 S. Ct.
1710; 173 L. Ed 2d 485 (decided April 21, 2009).
¢ February 5, 2015 — State v. Carpenter, 158 So.3d 693 (Fla 1" DCA 2015) (Carpenter II)
is decided, because the officers were relying in good faith on the holding in Smallwood L
the appellate precedence at the time of the search, the evidence recovered from
Carpenters phone was not subject to the exclusionary rule because the good faith
exception applied. Carpenter sought review of the Florida Supreme Court because the
decision expressly and directly conflicts with the decision of the Second District Court of
Appeal in Willis v. State, 148 So.3d 480 (Fla 2™ DCA 2014), ona question of law.!
© March 5, 2015 — Petitioner files a Rule 3.850 Motion for Post-Conviction Relief
Claiming ineffective assistance of counsel for failing to suppress the search of the cell
phones and evidence obtained from them. Motion cites to Riley. The trial court strikes the
motion with leave to amend.
e May 7, 2015 — Petitioner files an amended Rule 3.850 Motion for Post Conviction Relief.
The amended motion again cites to Riley in relation to claim two of the motion.
' Willis also involved a warrantless cell phone search conducted after Smallwood I but before Smallwood II. The
Second District found that the warrantless search at issue was permitted at the time because Smallwood I was a
decision then binding in Florida under Pardo v. State, 596 So.2d 665 (Fla. 1992). Willis, 148 So.3d at 482.
The Second District expressed its doubts that the rule announced in Pardo was intended to establish that
“one recent decision from another Florida district court of appeal on such a controversial issue [was sufficient] to
create binding precedent, “At least in other districts, for purposes of the good-faith exception as announced in Davis
v. United States, 564 U.S. 229 (2011). Thus, the Second District in Willis found that the good-faith exception to the
exclusionary rule did not apply. Ide January 11, 2016 — Petitioners Rule 3.850 Motion denied by trial court, citing to
Smallwood I and Carpenter I. The Florida Supreme Court had already overturned
Smallwood I with Smallwood II but this is not mentioned in the order. Carpenter I is
pending review in the Florida Supreme Court because of a conflict with Willis in the
Second District. This in not mentioned in the order either. Petitioner appeals the order.
e June 29, 2016 — The appeal of the denial of Petitioners Rule 3.850 motion is per curiam
affirmed and a Motion for Rehearing pointing out Riley is denied.
¢ November 2, 2016 — Carpenter | overturned by State v. Carpenter, 42 Fla. L. Weekly
5885 (Fla. 2017). The Florida Supreme Court quashes the First Districts decision below
in Carpenter I and holds that the good-faith exception to the exclusionary rule does not
apply to law enforcement’s warrantless search of a cell phone. The court also does not
adopt the reasoning in Willis, although the Willis court rendered the correct result.
e This Petition for Writ of Habeas Corpus follows.
Ill. THE NATURE OF THE RELIEF SOUGHT
The nature of the relief sought by this Petition is a writ of habeas corpus commanding the
Respondent to release Petitioner from custody, without delay, from the judgment of conviction
and sentences from the Fourteenth Judicial Circuit, Bay County, Florida Case numbers 1 1-1678-
H; 11-1679-H; 11-1687-H; 11-1775-H; and 11-1902-H.
Petitioner comes before this Honorable Court in proper person and without assistance of
counsel and is unlearned in the law. Petitioner requests this Court treat this Petition and
entreaties as any proper vehicle necessary for relief under the Florida Constitution effectuate a
fair and proper review of Petitioners claim.IV. ARGUMENT
Petitioner asserts that his conviction and imprisonment is unlawful because it is based
upon the admission of evidence that the Florida Supreme Court, in Smallwood II and Carpenter
Il and the United States Supreme Court in Riley have held is a violation of the Fourth
Amendment of the U.S. Constitution.
At the time of Petitioners arrest, just 26 days before the search and seizure of Petitioners
cell phone, Smallwood I had been decided by the First District. The Smallwood I decision
contained a question of great pubic importance that was pending at the time of the reliance on
Smallwood I by law enforcement when they conducted the search of the cell phones. Twenty-six
days before Petitioner accepted a plea bargain, the Florida Supreme Court decided Smallwood I
which answered questions in Smallwood | in the negative. The court ruled that the good-faith
exception to the exclusionary rule did not apply to Smallwoods cell phone search. The
Smallwood issue was in the pipeline of cases during the pre-trial phase of Petitioners case, and is
significantly similar to Petitioners case. Petitioners counsel never informed him of the existence
of the Smallwood cases and in fact, advised Petitioner to enter into a plea agreement and not
proceed to trial. Had Petitioner known of the existence of the decisions in Smallwood | and II, he
would not have taken the plea and instead proceeded to suppress the cell phone search. The
evidence obtained as a result of the illegal search is dispositive of the case and suppression
would have led to a Motion to Dismiss which would have had a high probability of success.
Petitioner, acting pro se and unlearned in the law, unaware of the Smallwood decisions,
made a claim in his Rule 3.850 motion, based on Riley, that his counsel failed to file a Motion to
Suppress the cell phone searches, This Court summarily denied the claim, citing to Smallwood Iand Carpenter I to support the denial. Smallwood I had been overturned by Smallwood II and
Carpenter I_ was pending review in the Florida Supreme Court. Smallwood II supported the
Petitioners claim of an illegal search of his cell phone. This Court failed to recognize the
decision in Smallwood II nor did this court take into consideration the pipeline status of
Carpenter I. The outcome of the summary denial of claim one of the Rule 3.850 motion would
have been different had the current substantive law in Smallwood II been considered by this
Court.
Moreover, Smallwood II was a First District decision and Carpenter I was already
pending review in the First District, The First District court failed to consider their own
substantive law in Smallwood II or recognize that Carpenter I was under review in their own
court when they per curiam affirmed the trial courts order denying claim one of the motion. That
order clearly relied on Smallwood I and Carpenter I, cases that had been reviewed or were in the
pipeline of cases being considered by its own court.
Both the Smallwood II and Carpenter II decisions are substantive law and would have
effected the outcome of the post conviction motion had the proper analysis and decisions been
made either at the trial court level or the appellate level.
As it stands today, the search of Petitioners cell phone incident to his arrest would have
been deemed illegal without a search warrant, absent the erroneous application of substantive
law applied by the trial and appellate courts in Petitioners Rule 3.850 motion and subsequent
appeal.
The adoption of the substantive law in Smallwood II and Carpenter II by the Florida
Supreme Court and the adoption of Riley by the U.S. Supreme Court is sufficient to advance
Petitioners habeas corpus challenge to his unlawful detention. Petitioner is seeking the correctapplication of these decisions that establishes his fundamental constitutional right to be free of an
illegal search and seizure of his person or property as guaranteed by the Fourth and Fourteenth
Amendments under the U.S. Constitution. This right was either established before the erroneous
application of substantive law or was within the pipeline of cases that established the rights of
Petitioner and would have changed the outcome of the instant case.
Petitioner invokes this writ to protect a fundamental right, demand equal protection under
the law as other similarly situated defendants have been afforded, and to correct a manifest
injustice. Given the facts and circumstances in this case and the citations of authority herein and
considering the fundamental fairness due to Petitioners post conviction relief claim, this Writ
should issue, or otherwise hold an evidentiary hearing to resolve the Petitioners unlawful
detention.
V. CONCLUSION
The trial courts denial, in the first instance, of Petitioners ineffective assistance of counsel
claim, in that counsel failed to file a motion to suppress the search of Petitioners cell phones, and
the First District Court of Appeals per curiam affirmed decision is contrary to and involved an
unreasonable application of State and Federal law. The search was a violation of Petitioners
Fourth and Fourteenth Amendment right s under the U.S. Constitution. The actions of Petitioners
attorney at a critical stage of Petitioners case and the decisions of the trail and appellate courts
during Petitioners post conviction challenge to his conviction were unreasonable and erroneous
applications of law given the fact that Smallwood I had been overturned by the First District by
Smallwood II before Petitioners plea and before the trial court relied on Smallwood I to deny the
post conviction claim. Furthermore, the trial court relied on Carpenter I to further support thedenial of the post conviction claim and that decision has recently been overturned by the Florida
Supreme Court.
Given the decision in Smallwood II and Carpenter II, at the time of the search of
Petitioners cell phones, the investigators, counsel, and the court were on actual notice that
Smallwood I was subject to further consideration and until the First District issued an order
deciding review or an opinion deciding the issue, Smallwood I was not final. When Smallwood
Il was decided just days before Petitioners plea, the decision substantially impacted the
dispositive evidence in Petitioners case. Petitioner, unlearned in the law and represented by
counsel was never informed of the decision and its impact on the admissibility of the cell phone
search.
This ineffectiveness was then exacerbated when the post conviction court relied on the
stale decision in Smallwood I to deny Petitioners post conviction claim of an illegal search and
seizure, and not recognizing that Smallwood I had been overturned by the Florida Supreme
Court, or that Carpenter I was subject to further consideration and not yet final. Carpenter I has
since been overturned by the Florida Supreme Court. Because Petitioners post conviction claims
denial relied on the erroneous application in Smallwood I and Carpenter | this case deserves
retrospective application. Petitioner has provided a proper basis for invocation of this writ to
protect a fundamental right and to correct a miscarriage justice.
Ina “concurring” specially opinion of Justice anstead in Chandler v. Crosby, 916 So.2d
728, 735, 736 (Fla. 2005) he stated:
“[bJoth simplicity and fairness are equally promoted by the right to habeas corpus relief that
emanates from the Florida Constitution and has been partially embodied within Rule 3.850, Art.
1 § 13, Fla. Const.; [State v.] Boylea, 520 So.2d [526] at 563 [Fla. 1998]. The fundamentalguarantees enumerated in Florida’s Declaration of Rights should be available to all through
simple and direct means, without needless complication or impediment, and should be fairly
administered in favor of justice and not bound by technicality. Haag, 591 So.2d At 616.
Although the right, ‘like any other constitutional right, is subject to certain reasonable limitations
consistent with the full and fair exercise of the right.’ The limitations must not be ‘applied
harshly or contrary to the fundamental principle of fairness’. Petitioner prays this Court will
issue the extraordinary Writ of Habeas Corpus.
OATH
I HEREBY DECLARE under penalties of perjury and administrative sanctions from the
Department of Corrections, including forfeiture of gain time if this motion is found to be
frivolous or made in bad faith, I certify that I understand the contents of the foregoing motion,
that the facts contained in the motion are true and correct, and that I have a reasonable belief that
the motion is timely filed. I certify that this motion does not duplicate previous motions that have
been disposed of by the court. I further certify that I understand English and have read the
foregoing motion.
Is\Xee tz
ifford H. Washburn
DC# 692684
Holmes Correctional Institution
3142 Thomas Drive
Bonifay, FL 32425CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing document has been
handed over to prison officials for further processing via: U.S. Mail on the ___ day of December,
2017 to: (1) Clerk of Courts, 300 E. 4" St., Panama City FL, 32401; (2) Julie Jones, Secretary,
Florida Department of Corrections, 591 S. Calhoun St., Tallahassee FL, 32399; (3) Office of the
Attorney General, The Capitol PL-01, Tallahassee FL, 32399; (4) Office of the State Attorney,
P.O. Box 1040, Panama City FL, 32402.
EZ
ifford H. Washburn
DC# 692684
Holmes Correctional Institution
3142 Thomas Drive
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IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT IN AND FOR BAY COUNTY, FLORIDA CLIFFORD H. WASHBURN Petitioner, Case No.: \3 - 32 -Ch v. Fshek JULIE JONES, SECRETARY FLORIDA DEPARTMENT OF CORRECTIONS, Respondent, / GS3 is PETITION FOR WRIT OF HABEAS CORPU; LIES Vv Ol Nye giz COMES NOW Petitioner, Clifford H. Washburn, in proper person and without assistance of counsel, pursuant to Florida Rule of Appellate Procedure 9.100 and petitions this Honorable Court for a writ of habeas corpus directed to the Respondent, Julie Jones, Secretary, Florida Department of Corrections and shows the Court as follows. I. BASIS FOR INVOKING JURISDICTION This Court has jurisdiction to issue a writ of habeas corpus under Article V § 5(b) of the Florida Constitution, Rule 1.630 of the Florida Rules of Civil Procedure and Rule 9.030(c)(3) of the Florida Rules of Appellate Procedure. Habeas Corpus is the proper remedy to challenge the unlawful confinement of Petitioner. Henry v. Santana, 62 So.3d 1122(FLA. 2011), Habeas Corpus also lies to prevent a manifest injustice. No remedy other than habeas corpus would be adequate to prevent the Petitioner’s unlawful confinement.II. STATEMENT OF THE FACTS Petitioner is currently incarcerated in the Florida Department of Corrections and is housed at Holmes Correctional Institution in Holmes County, Florida. The sentence under attack occurred in the Fourteenth Judicial Circuit in Bay County, Florida. On May 28, 2013 Petitioner entered into a plea agreement with the State and pursuant to that agreement, pled no contest to charges brought against him in six(6) different cases. Those six cases are subject of this petition and are: 11-1678-H; 11-1679-H; 11-1687-H; 11-1709-H; 11- 1775-H; 11-1902-H. The cases collectively resulted in felony charges: Six (6) counts of Burglary of a Structure or Conveyance; four (4) counts of Grand Theft; one (1) count of Possession of Burglary Tools; and, one (1) count of Criminal mischief more than $1,000.00. The result of the plea, a ten (10) year prison sentence in exchange for a no contest plea (consecutive to an unrelated sentence of ten (10) years) was imposed by this Court on May 28, 2013. No direct appeal of the judgment of conviction and sentence was taken by the Petitioner and it became final June 27, 2013. On March 5, 2015 Petitioner timely filed a Motion for Post-Conviction Relief pursuant to Fla.R.Crim.P. 3.850. The motion alleged two grounds. Ground Two, that trial counsel was ineffective for failing to file a motion to suppress evidence obtained as a result of an illegal search of two cell phones, was summarily denied by this court. The subject matter of Ground Two is the subject of this Petition, consequently the other grounds are not discussed herein. This Court, in denying Ground Two stated: “ The Defendant alleges that the cell phones were illegally searched because the law enforcement officer did not have a warrant and there was no danger that any evidence contained in the phones would be lost, stolen, or damaged. The Defendant claims that had his Attorneyfiled a Motion to Suppress the evidence, there is a reasonable probability that the motion would have been successful, and the Defendant would not have entered a plea. However, at the time of the search, the law in Florida permitted the warrantless search of a cell phone under the good faith exception to the exclusionary Rule. Smallwood v. State, 61 So.3d 448(Fla. 1* DCA 2011). Because the search in the present case “was conducted in objectively reasonable reliance on binding Appellate precedent, it falls under the good-faith exception to the exclusionary Rule.” State v. Carpenter, 158 So.3d 693, 694(Fla. 1* DCA 2015). Because it is likely that a Motion to Suppress on this issue would have failed, the Defendant has failed to establish that his Attorney's performance was deficient as required by Strickland. Accordingly, the Defendants first ground is due to be denied. To summarize the facts of the 3.850 claim: Petitioner was arrested on May 25, 2011 on a burglary charge unrelated to the cases subject of this Petition. During a search of Petitioners vehicle incident to the arrest, Petitioners cell phone was seized and searched by investigators without a warrant and against Petitioners request to the investigators not to search the phone. Evidence was obtained that led investigators to locate and interview Petitioners fiancé, Ms. Theall and law enforcement searched her phone without Ms. Thealls’ permission. As a result of these cell phone searches and the evidence obtained illegally, the investigators were able to induce a statement from Ms. Theall, implicating the Petitioner in the crimes subject of this Petition. The chronology of the rapidly developing law on cell phone searches is significant in this case when intertwined with the facts and circumstances of Petitioners efforts to obtain relief on his claim of an illegal search and seizure of two cell phones. That chronology follows:April 29, 2011 — Smallwood v. State, 61 So.3d 448 (Fla. 1* DCA 2011) is decided (Smallwood I), which permitted the warrantless search of a cell phone under good faith exception to the exclusionary rule. The court certified a question to the Florida Supreme Court with regard to the new subject of cell phone searches as one of great public importance, thus placing law enforcement officers on actual notice that the case was subject to further consideration on the face of the opinion. May 25, 2011 — Petitioner, arrested on a charge unrelated to the instant case, was subjected to a search incident to the arrest, of his cell phone, and a short time later, a search of Petitioners fiancés cell phone. Evidence was obtained from the searches that led to the charges in the instant case. Investigators relied on Smallwood I to conduct the searches. May 13, 2013 — Smallwood | is overturned by Smallwood v. State, 113 So.3d 724 (Fla. 2013) (Smallwood II). The certified question in Smallwood | is answered in the negative. The Florida Supreme Court quashed the appellate court decision. The case was remanded for further proceedings, holding that during the search incident to arrest a warrant was required before information, data and content of the cell phone could be accessed and searched by law enforcement. May 28, 2013 — Petitioner accepts plea offer for 10 years without knowledge of the decision in Smallwood II and without effective assistance of counsel. Counsel failed to advise Petitioner of the decision in Smallwood I, which was decided just 15 days before the plea hearing. June 24, 2014 — Riley v. California, 134 S. Ct. 2473; 189 L. Ed. 2d 430 is decided by the U.S. Supreme Court. The court unanimously held that law enforcement could not,without a warrant, search digital information on the cell phones seized from the defendant as incident to the defendant’s arrest. While the officers could examine the phones physical aspects to ensure the phone could not be used as a weapon to harm the officers or effectuate and escape, the data could not be searched. The judgment suppressing evidence from a cell phone was affirmed and the judgment affirming the conviction was reversed and remanded for further proceedings. Citing to Gant v. Arizona, 129 S. Ct. 1710; 173 L. Ed 2d 485 (decided April 21, 2009). ¢ February 5, 2015 — State v. Carpenter, 158 So.3d 693 (Fla 1" DCA 2015) (Carpenter II) is decided, because the officers were relying in good faith on the holding in Smallwood L the appellate precedence at the time of the search, the evidence recovered from Carpenters phone was not subject to the exclusionary rule because the good faith exception applied. Carpenter sought review of the Florida Supreme Court because the decision expressly and directly conflicts with the decision of the Second District Court of Appeal in Willis v. State, 148 So.3d 480 (Fla 2™ DCA 2014), ona question of law.! © March 5, 2015 — Petitioner files a Rule 3.850 Motion for Post-Conviction Relief Claiming ineffective assistance of counsel for failing to suppress the search of the cell phones and evidence obtained from them. Motion cites to Riley. The trial court strikes the motion with leave to amend. e May 7, 2015 — Petitioner files an amended Rule 3.850 Motion for Post Conviction Relief. The amended motion again cites to Riley in relation to claim two of the motion. ' Willis also involved a warrantless cell phone search conducted after Smallwood I but before Smallwood II. The Second District found that the warrantless search at issue was permitted at the time because Smallwood I was a decision then binding in Florida under Pardo v. State, 596 So.2d 665 (Fla. 1992). Willis, 148 So.3d at 482. The Second District expressed its doubts that the rule announced in Pardo was intended to establish that “one recent decision from another Florida district court of appeal on such a controversial issue [was sufficient] to create binding precedent, “At least in other districts, for purposes of the good-faith exception as announced in Davis v. United States, 564 U.S. 229 (2011). Thus, the Second District in Willis found that the good-faith exception to the exclusionary rule did not apply. Ide January 11, 2016 — Petitioners Rule 3.850 Motion denied by trial court, citing to Smallwood I and Carpenter I. The Florida Supreme Court had already overturned Smallwood I with Smallwood II but this is not mentioned in the order. Carpenter I is pending review in the Florida Supreme Court because of a conflict with Willis in the Second District. This in not mentioned in the order either. Petitioner appeals the order. e June 29, 2016 — The appeal of the denial of Petitioners Rule 3.850 motion is per curiam affirmed and a Motion for Rehearing pointing out Riley is denied. ¢ November 2, 2016 — Carpenter | overturned by State v. Carpenter, 42 Fla. L. Weekly 5885 (Fla. 2017). The Florida Supreme Court quashes the First Districts decision below in Carpenter I and holds that the good-faith exception to the exclusionary rule does not apply to law enforcement’s warrantless search of a cell phone. The court also does not adopt the reasoning in Willis, although the Willis court rendered the correct result. e This Petition for Writ of Habeas Corpus follows. Ill. THE NATURE OF THE RELIEF SOUGHT The nature of the relief sought by this Petition is a writ of habeas corpus commanding the Respondent to release Petitioner from custody, without delay, from the judgment of conviction and sentences from the Fourteenth Judicial Circuit, Bay County, Florida Case numbers 1 1-1678- H; 11-1679-H; 11-1687-H; 11-1775-H; and 11-1902-H. Petitioner comes before this Honorable Court in proper person and without assistance of counsel and is unlearned in the law. Petitioner requests this Court treat this Petition and entreaties as any proper vehicle necessary for relief under the Florida Constitution effectuate a fair and proper review of Petitioners claim.IV. ARGUMENT Petitioner asserts that his conviction and imprisonment is unlawful because it is based upon the admission of evidence that the Florida Supreme Court, in Smallwood II and Carpenter Il and the United States Supreme Court in Riley have held is a violation of the Fourth Amendment of the U.S. Constitution. At the time of Petitioners arrest, just 26 days before the search and seizure of Petitioners cell phone, Smallwood I had been decided by the First District. The Smallwood I decision contained a question of great pubic importance that was pending at the time of the reliance on Smallwood I by law enforcement when they conducted the search of the cell phones. Twenty-six days before Petitioner accepted a plea bargain, the Florida Supreme Court decided Smallwood I which answered questions in Smallwood | in the negative. The court ruled that the good-faith exception to the exclusionary rule did not apply to Smallwoods cell phone search. The Smallwood issue was in the pipeline of cases during the pre-trial phase of Petitioners case, and is significantly similar to Petitioners case. Petitioners counsel never informed him of the existence of the Smallwood cases and in fact, advised Petitioner to enter into a plea agreement and not proceed to trial. Had Petitioner known of the existence of the decisions in Smallwood | and II, he would not have taken the plea and instead proceeded to suppress the cell phone search. The evidence obtained as a result of the illegal search is dispositive of the case and suppression would have led to a Motion to Dismiss which would have had a high probability of success. Petitioner, acting pro se and unlearned in the law, unaware of the Smallwood decisions, made a claim in his Rule 3.850 motion, based on Riley, that his counsel failed to file a Motion to Suppress the cell phone searches, This Court summarily denied the claim, citing to Smallwood Iand Carpenter I to support the denial. Smallwood I had been overturned by Smallwood II and Carpenter I_ was pending review in the Florida Supreme Court. Smallwood II supported the Petitioners claim of an illegal search of his cell phone. This Court failed to recognize the decision in Smallwood II nor did this court take into consideration the pipeline status of Carpenter I. The outcome of the summary denial of claim one of the Rule 3.850 motion would have been different had the current substantive law in Smallwood II been considered by this Court. Moreover, Smallwood II was a First District decision and Carpenter I was already pending review in the First District, The First District court failed to consider their own substantive law in Smallwood II or recognize that Carpenter I was under review in their own court when they per curiam affirmed the trial courts order denying claim one of the motion. That order clearly relied on Smallwood I and Carpenter I, cases that had been reviewed or were in the pipeline of cases being considered by its own court. Both the Smallwood II and Carpenter II decisions are substantive law and would have effected the outcome of the post conviction motion had the proper analysis and decisions been made either at the trial court level or the appellate level. As it stands today, the search of Petitioners cell phone incident to his arrest would have been deemed illegal without a search warrant, absent the erroneous application of substantive law applied by the trial and appellate courts in Petitioners Rule 3.850 motion and subsequent appeal. The adoption of the substantive law in Smallwood II and Carpenter II by the Florida Supreme Court and the adoption of Riley by the U.S. Supreme Court is sufficient to advance Petitioners habeas corpus challenge to his unlawful detention. Petitioner is seeking the correctapplication of these decisions that establishes his fundamental constitutional right to be free of an illegal search and seizure of his person or property as guaranteed by the Fourth and Fourteenth Amendments under the U.S. Constitution. This right was either established before the erroneous application of substantive law or was within the pipeline of cases that established the rights of Petitioner and would have changed the outcome of the instant case. Petitioner invokes this writ to protect a fundamental right, demand equal protection under the law as other similarly situated defendants have been afforded, and to correct a manifest injustice. Given the facts and circumstances in this case and the citations of authority herein and considering the fundamental fairness due to Petitioners post conviction relief claim, this Writ should issue, or otherwise hold an evidentiary hearing to resolve the Petitioners unlawful detention. V. CONCLUSION The trial courts denial, in the first instance, of Petitioners ineffective assistance of counsel claim, in that counsel failed to file a motion to suppress the search of Petitioners cell phones, and the First District Court of Appeals per curiam affirmed decision is contrary to and involved an unreasonable application of State and Federal law. The search was a violation of Petitioners Fourth and Fourteenth Amendment right s under the U.S. Constitution. The actions of Petitioners attorney at a critical stage of Petitioners case and the decisions of the trail and appellate courts during Petitioners post conviction challenge to his conviction were unreasonable and erroneous applications of law given the fact that Smallwood I had been overturned by the First District by Smallwood II before Petitioners plea and before the trial court relied on Smallwood I to deny the post conviction claim. Furthermore, the trial court relied on Carpenter I to further support thedenial of the post conviction claim and that decision has recently been overturned by the Florida Supreme Court. Given the decision in Smallwood II and Carpenter II, at the time of the search of Petitioners cell phones, the investigators, counsel, and the court were on actual notice that Smallwood I was subject to further consideration and until the First District issued an order deciding review or an opinion deciding the issue, Smallwood I was not final. When Smallwood Il was decided just days before Petitioners plea, the decision substantially impacted the dispositive evidence in Petitioners case. Petitioner, unlearned in the law and represented by counsel was never informed of the decision and its impact on the admissibility of the cell phone search. This ineffectiveness was then exacerbated when the post conviction court relied on the stale decision in Smallwood I to deny Petitioners post conviction claim of an illegal search and seizure, and not recognizing that Smallwood I had been overturned by the Florida Supreme Court, or that Carpenter I was subject to further consideration and not yet final. Carpenter I has since been overturned by the Florida Supreme Court. Because Petitioners post conviction claims denial relied on the erroneous application in Smallwood I and Carpenter | this case deserves retrospective application. Petitioner has provided a proper basis for invocation of this writ to protect a fundamental right and to correct a miscarriage justice. Ina “concurring” specially opinion of Justice anstead in Chandler v. Crosby, 916 So.2d 728, 735, 736 (Fla. 2005) he stated: “[bJoth simplicity and fairness are equally promoted by the right to habeas corpus relief that emanates from the Florida Constitution and has been partially embodied within Rule 3.850, Art. 1 § 13, Fla. Const.; [State v.] Boylea, 520 So.2d [526] at 563 [Fla. 1998]. The fundamentalguarantees enumerated in Florida’s Declaration of Rights should be available to all through simple and direct means, without needless complication or impediment, and should be fairly administered in favor of justice and not bound by technicality. Haag, 591 So.2d At 616. Although the right, ‘like any other constitutional right, is subject to certain reasonable limitations consistent with the full and fair exercise of the right.’ The limitations must not be ‘applied harshly or contrary to the fundamental principle of fairness’. Petitioner prays this Court will issue the extraordinary Writ of Habeas Corpus. OATH I HEREBY DECLARE under penalties of perjury and administrative sanctions from the Department of Corrections, including forfeiture of gain time if this motion is found to be frivolous or made in bad faith, I certify that I understand the contents of the foregoing motion, that the facts contained in the motion are true and correct, and that I have a reasonable belief that the motion is timely filed. I certify that this motion does not duplicate previous motions that have been disposed of by the court. I further certify that I understand English and have read the foregoing motion. Is\Xee tz ifford H. Washburn DC# 692684 Holmes Correctional Institution 3142 Thomas Drive Bonifay, FL 32425CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document has been handed over to prison officials for further processing via: U.S. Mail on the ___ day of December, 2017 to: (1) Clerk of Courts, 300 E. 4" St., Panama City FL, 32401; (2) Julie Jones, Secretary, Florida Department of Corrections, 591 S. Calhoun St., Tallahassee FL, 32399; (3) Office of the Attorney General, The Capitol PL-01, Tallahassee FL, 32399; (4) Office of the State Attorney, P.O. Box 1040, Panama City FL, 32402. EZ ifford H. Washburn DC# 692684 Holmes Correctional Institution 3142 Thomas Drive Bonifay FL, 32425CufArce UWIHP AW 36 HawrlS Co COO EN Gta 4 B42 Haat gr. BOM VET, ECIMALIA Bre is 6F CeVaAT $00 FL Yt sx Pd A cat curt, fv, 3270-3007