United States District Court, M.D. Florida, Tampa Division
William F. Jung United States District Judge.
Abonza-Torres, a Florida prisoner, timely filed a pro
se petition for writ of habeas corpus under 28 U.S.C.
§ 2254 (Dkt. 1) challenging his Hillsborough County
convictions. The Court ordered Respondent Secretary,
Department of Corrections, to show cause why the relief
sought in the petition should not be granted. (Dkt. 4).
Respondent filed a response, along with the state court
record. (Dkts. 5, 7). The Court then granted Mr.
Abonza-Torres's motion to supplement his petition with an
additional claim (Dkts. 10, 11), and Respondent filed a
supplemental response. (Dkt. 12). Mr. Abonza-Torres filed a
reply. (Dkt. 16). After review, the petition will be denied.
Abonza-Torres entered an open plea of no contest to two
counts of robbery with a firearm, two counts of armed
burglary of a dwelling, and two counts of armed false
imprisonment. (Dkt. 7, Ex. 1, pp. 68, 116). He was sentenced
to an overall term of 40 years in prison, followed by 10
years on probation. (Id., pp. 85-90, 127-31). The
state appellate court per curiam affirmed the
convictions and sentences. (Dkt. 7, Ex. 6). Mr. Abonza-Torres
filed a motion for postconviction relief under Florida Rule
of Criminal Procedure 3.850. (Dkt. 7, Ex. 8, pp. 116-24). The
state court summarily denied the motion in part, and denied
the remaining claims after an evidentiary hearing. (Dkt. 7,
Ex. 8, pp. 162-70; Ex. 10, pp. 484-98). The state appellate
court per curiam affirmed the denial of relief.
(Dkt. 7, Ex. 14).
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") governs this proceeding. Carroll v.
Sec'y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009).
Habeas relief can only be granted if a petitioner is in
custody "in violation of the Constitution or laws or
treaties of the United States." 28 U.S.C. §
2254(a). Section 2254(d) provides that federal habeas relief
cannot be granted on a claim adjudicated on the merits in
state court unless the state court's adjudication:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
decision is "contrary to" clearly established
federal law "if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question
of law or if the state court decides a case differently than
[the Supreme] Court has on a set of materially
indistinguishable facts." Williams v.
Taylor, 529 U.S. 362, 413 (2000). A decision is an
"unreasonable application" of clearly established
federal law "if the state court identifies the correct
governing legal principle from [the Supreme] Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case." Id.
was meant "to prevent federal habeas 'retrials'
and to ensure that state-court convictions are given effect
to the extent possible under law." Bell v.
Cone, 535 U.S. 685, 693 (2002). Accordingly, "[t]he
focus ... is on whether the state court's application of
clearly established federal law is objectively unreasonable,
and... an unreasonable application is different from an
incorrect one." Id. at 694. See also
Harrington v. Richer, 562 U.S. 86, 103 (2011) ("As
a condition for obtaining habeas corpus from a federal court,
a state prisoner must show that the state court's ruling
on the claim being presented in federal court was so lacking
in justification that there was an error well understood and
comprehended in existing law beyond any possibility for
state appellate court affirmed the denial of postconviction
relief without discussion. This decision warrants deference
under § 2254(d)(1) because "the summary nature of a
state court's decision does not lessen the deference that
it is due." Wright v. Moore, 278 F.3d 1245,
1254 (11th Cir. 2002). When a state appellate court issues a
silent affirmance, "the federal court should 'look
through' the unexplained decision to the last related
state-court decision that does provide a relevant
rationale" and "presume that the unexplained
decision adopted the same reasoning." Wilson v.
Sellers, 138 S.Ct. 1188, 1192 (2018).
Ineffective Assistance of Counsel
of ineffective assistance of counsel are analyzed under the
test established in Strickland v. Washington, 466
U.S. 668 (1984). Strickland requires a showing of
deficient performance by counsel and resulting prejudice.
Id. at 687. To show deficient performance, a
petitioner must demonstrate that "counsel's
representation fell below an objective standard of
reasonableness." Id. at 687-88. A court must
consider whether, "in light of all the circumstances,
the identified acts or omissions [of counsel] were outside
the wide range of professionally competent assistance."
Id. at 690. However, "counsel is strongly
presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable
professional judgment." Id. Furthermore,
"counsel owes a lesser duty to a client who pleads
guilty than to one who decides to go to trial, and in the
former case counsel need only provide his client with an
understanding of the law in relation to the facts, so that
the accused may make an informed and conscious choice between
accepting the prosecution's offer and going to
trial." Wofford v. Wainwright, 748 F.2d 1505,
1508 (11th Cir. 1984).
Abonza-Torres must demonstrate that counsel's alleged
error prejudiced the defense because "[a]n error by
counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding
if the error had no effect on the judgment."
Strickland, 466 U.S. at 691. To establish prejudice,
a petitioner who pleaded guilty "must show that there is
a reasonable probability that, but for counsel's errors,
he would not have pleaded guilty and would have insisted on
going to trial." Hill v. Lockhart, 474 U.S. 52,
relief on a claim of ineffective assistance of counsel is
difficult on federal habeas review because "[t]he
standards created by Strickland and § 2254(d)
are both 'highly deferential,' and when the two apply
in tandem, review is 'doubly' so."
Richter, 562 U.S. at 105 (citations omitted).
See also Burt v. Tit low, 571 U.S. 12, 15 (2013)
(this doubly deferential standard of review "gives both
the state court and the defense attorney the benefit of the
Mr. Abonza-Torres 's Plea
Abonza-Torres's no contest plea is subject to the same
analysis as a guilty plea. See Wallace v. Turner,
695 F.2d 545, 548 (11th Cir. 1983) ("The fundamental
constitutional consideration when a petitioner challenges his
plea is whether it was voluntary. The rule is the same for
pleas of guilty or nolo contendere."). Since a
guilty plea waives non-jurisdictional defects, a petitioner
who enters a plea can only challenge the knowing and
voluntary nature of the plea. Entry of a plea, therefore,
precludes most challenges to the conviction. See Tollett
v. Henderson, 411 U.S. 258, 267 (1973) (holding that,
after a criminal defendant enters a guilty plea, he "may
not thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred prior to
the entry of the guilty plea. He may only attack the
voluntary and intelligent character of the guilty plea by
showing that the advice he received from counsel was not
within" the range of competence for criminal attorneys);
see also United States v. Broce, 488 U.S. 563, 569
(1989) ("[W]hen the judgment of conviction upon a guilty
plea has become final and the offender seeks to reopen the
proceeding, the inquiry is ordinarily confined to whether the
underlying plea was both counseled and voluntary.");
Wilson v. United States, 962 F.2d 996, 997 (11th
Cir. 1992) ("A defendant who enters a plea of guilty
waives all nonjurisdictional challenges to the
constitutionality of the conviction, and only an attack on
the voluntary and knowing nature of the plea can be
standard for determining the validity of a guilty plea is
"whether the plea represents a voluntary and intelligent
choice among the alternative courses of action open to the
defendant." North Carolina v. Alford, 400 U.S.
25, 31 (1970). "A reviewing federal court may set aside
a state court guilty plea only for failure to satisfy due
process: 'If a defendant understands the charges against
him, understands the consequences of a guilty plea, and
voluntarily chooses to plead guilty, without being coerced to
do so, the guilty plea . . . will be upheld on federal
review.'" Stano v. Dugger, 921 F.2d 1125,
1141 (11th Cir. 1991) (quoting Frank v. Blackburn,
646 F.2d 873, 882 (5th Cir. 1980)).
evaluating the voluntariness of a guilty plea, "the
representations of the defendant, his lawyer, and the
prosecutor at [a plea] hearing, as well as any findings made
by the judge accepting the plea, constitute a formidable
barrier in any subsequent collateral proceedings."
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). A
reviewing court applies a "strong presumption" that
statements made by a defendant during his plea colloquy are
true. United States v. Medlock, 12 F.3d 185, 187
(11th Cir. 1994). Accordingly, "when a defendant makes
statements under oath at a plea colloquy, he bears a heavy
burden to show his statements were false." United
States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988).
record demonstrates that Mr. Abonza-Torres's plea was
voluntary. The change of plea hearing transcript shows that
he understood what rights he gave up by pleading.
Specifically, Mr. Abonza-Torres said he understood that he
waived his right to a jury trial, to present evidence in his
defense, to confront the State's witnesses and evidence
against him, and to remain silent. (Dkt. 7, Ex. 1, pp.
138-39). Mr. Abonza-Torres understood that he was pleading
open and there was no agreement as to what sentence he would
receive. (Id., p. 139). He also stipulated to the
prosecution's factual bases for the charges.
(Id., pp. 140-42). Mr. Abonza-Torres stated that he
had sufficient time to talk to his attorney about his
decision to plead, and that his attorney reviewed the change
of plea forms with him. (Id., p. 139). Mr.
Abonza-Torres told the court that he signed and understood
the change of plea forms. (Id.). Those forms set out
the charges Mr. Abonza-Torres faced and the maximum sentence
that could be imposed. (Id., pp. 68, 116).
Accordingly, Mr. Abonza-Torres's plea "represented]
a voluntary and intelligent choice among the alternative
courses of action open to" him. See Alford, 400
U.S. at 31.
Abonza-Torres argues that the trial court erred in denying
his motion to suppress evidence obtained in violation of his
Fourth Amendment rights. As addressed above, Mr.
Abonza-Torres's voluntary plea waives any claims
involving non-jurisdictional defects that occurred prior to
entry of the plea. The question of whether the evidence
should have been suppressed is non-jurisdictional. See
United States v. Marshall, 453 Fed.Appx. 911, 913 (11th
Cir. 2011) ("A claim that the government illegally
obtained evidence is nonjurisdictional.") (citation
omitted); United States v. Hickman, 202 Fed.Appx.
419, 420 (11th Cir. 2006) ("A [trial] court's
refusal to suppress evidence is non-jurisdictional and is
waived by a guilty plea."). Accordingly, Mr.
Abonza-Torres's voluntary plea waives any challenge the
denial of his motion to suppress. Mr. Abonza-Torres cannot
obtain federal habeas relief on Ground One.
State and Mr. Abonza-Torres engaged in plea negotiations. The
State initially offered "to not seek more than 20
years" if Mr. Abonza-Torres abandoned his motion to
suppress and entered an open plea. (Dkt. 7, Ex. 2, p. 172).
Mr. Abonza-Torres rejected this offer. (Id., pp.
173-74). According to counsel, after the motion to suppress
was denied, the State presented a written offer of 25 years
if Mr. Abonza-Torres waived his right to appeal the denial of
the motion. (Dkt. 7, Ex. 10, p. 469). Mr. Abonza-Torres
rejected this offer as well. (Id., p. 470).
Abonza-Torres claims that trial counsel was ineffective for
misadvising him that if he entered an open plea, he would
receive a sentence of less than 20 years, consistent with the
State's original offer. Mr. Abonza-Torres claims that
this misadvice caused his plea to be involuntary. The state
court denied this claim after an evidentiary hearing:
In claim one, Defendant alleges ineffective assistance of
counsel when counsel advised Defendant that if he pled no
contest in open court, he would receive less than the twenty
years' prison the State offered during negotiations,
thereby rendering his plea involuntary. Specifically,
Defendant alleges his counsel ['s] misadvice and promises