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Carroll v. Secretary, Department of Corrections

United States District Court, M.D. Florida, Tampa Division

December 21, 2017

SECRETARY, Department of Corrections, Respondent.



         James Carroll applies under 28 U.S.C. § 2254 (Doc. 1) for the writ of habeas corpus and challenges the validity of his state conviction for attempted second-degree murder with a weapon. Carroll alleges two grounds of ineffective assistance of trial counsel. The respondent admits the application's timeliness. (Doc. 7 at 14) Numerous exhibits (“Resp. Ex. ”) support the response. (Doc. 8)

         I. FACTS [1]

         On September 27, 2009, Carroll, Tracy Anderson (Carroll's girlfriend), and Anthony Thornton were at Lake Martha Park in Winter Haven. During an argument in the evening, Carroll stabbed Thornton. Thornton fled the area and summoned assistance from a passerby. Police located Carroll and Anderson several blocks from the scene. Anderson told police that she was present when Carroll argued with Thornton. Carroll denied stabbing Thornton. Carroll told police that he was not in the park after 2 p.m. that day. A police canine tracked a scent from Carroll's location back to the area of the attack.

         Carroll was charged with attempted second-degree murder with a weapon. Because of a conflict, the public defender's office withdrew from the case and the trial judge appointed conflict counsel (“trial counsel”). Carroll pleaded nolo contendere in exchange for a sentence of ten years' imprisonment, followed by fifteen years on probation. The trial court accepted the plea and imposed the negotiated split sentence.


         A conviction based on a plea of nolo contendere is reviewed the same as a conviction based on a guilty plea. Wallace v. Turner, 695 F.2d 545, 548 (11th Cir. 1982). Tollett v. Henderson, 411 U.S. 258, 267 (1973), holds that a guilty plea waives a non-jurisdictional defect:

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.

         This waiver of rights precludes most challenges to the conviction. “[W]hen the judgment of conviction upon a guilty plea has become final and the offender seeks to re-open the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary.” United States v. Broce, 488 U.S. 563, 569 (1989). See also United States v. Patti, 337 F.3d 1217, 1320 (11th Cir. 2003) (“Generally, a voluntary, unconditional guilty plea waives all non-jurisdictional defects in the proceedings.”) and Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992) (“A defendant who enters a plea of guilty waives all non-jurisdictional challenges to the constitutionality of the conviction, and only an attack on the voluntary and knowing nature of the plea can be sustained.”). A guilty plea waives a claim based on a pre-plea event, including a claim of ineffective assistance of counsel. Wilson, 962 F.2d at 997.

         In ground one Carroll alleges that his trial counsel rendered ineffective assistance by not advising him about a “viable” defense, specifically, a defense under Florida's “Stand Your Ground” law, codified in Chapter 776, Florida Statutes. (Doc. 1 at 5) In ground two Carroll alleges that his trial counsel rendered ineffective assistance by not moving to dismiss the attempted second-degree murder charge. (Doc. 1 at 7) By pleading nolo contendere, Carroll waived his second ground for relief but not his first.

         A. Ground Two Was Waived by Carroll's Nolo Contendere Plea

         Carroll's second ground alleges that trial counsel failed to “move to have [the] charge dropped.” (Doc. 1 at 7) Carroll contends that he acted in self-defense and that his counsel should have known that, if “a [p]etitioner acts in self-defense, ‘stand your ground, '” he could not be charged with a crime based on his actions. (Doc. 1 at 7) The ground is construed to allege that trial counsel rendered ineffective assistance by not pursuing dismissal of the attempted second-degree murder charge under Florida's “Stand Your Ground” law.[2] Carroll's claim of ineffective counsel involves an alleged omission of counsel occurring before the plea. Because Carroll does not contend that his plea was involuntary based on the alleged pre-plea failing of counsel, he waived ground two by pleading nolo contendere. See, e.g., Bullard v. Warden, Jenkins Corr. Center, 610 Fed. App'x. 821, 824 (11th Cir. 2015) (“Mr. Bullard does not contend that his plea was involuntary due to his counsel's failure to file a motion to suppress, so the ineffectiveness claim is waived by the plea.”).

         The record shows that Carroll knowingly, intelligently, and voluntarily pleaded nolo contendere. See Boykin v. Alabama, 395 U.S. 238, 242-44 (1969). Carroll executed a plea form certifying, among other things, that he understood he waived all rights appurtenant to a trial, that he discussed the charge and possible defenses with his counsel, and that he accepted counsel's representation as satisfactory. (Resp. Ex. A, R 34-35) At the plea hearing Carroll confirmed that he and counsel reviewed the plea form and the “overall” case. (Resp. Ex. A, R 19) Carroll affirmed that he understood he was waiving valuable constitutional rights by pleading nolo contendere. After the trial judge provided an explanation of the rights Carroll was waiving, Carroll entered his nolo contendere plea. (Resp. Ex. A, R 19-21) Carroll offers no facts or evidence to meet his “heavy burden” to rebut his sworn statements at the plea hearing. See United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988) (“[W]hen a defendant makes statements under oath at a plea colloquy, he bears a heavy burden to show his statements were false.”). Carroll waived ground two by entry of his voluntary plea and is not entitled to a review of the ground on the merits.

         B. Ground One Was Not Waived by Carroll's Nol ...

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