United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY, UNITED STATES DISTRICT JUDGE
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)
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.
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.
NOLO CONTENDERE PLEA
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
[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.
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.
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.
Ground Two Was Waived by Carroll's Nolo
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”
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
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.
Ground One Was Not Waived by Carroll's Nol ...