Chadwick v. Secretary, Florida Department of Corrections, et al.
Filing
22
ORDER denying 7 amended petition, dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 6/29/2017. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JAMES HAROLD CHADWICK, II,
Petitioner,
vs.
Case No. 3:14-cv-1488-J-39MCR
SECRETARY, DOC, et al.,
Respondents.
ORDER
I.
STATUS
Petitioner James Harold Chadwick, II, an inmate of the Florida
penal system, challenges a 2008 (Baker County) conviction for DUI
manslaughter (count one), DUI resulting in serious bodily injury
(counts two and three), driving while license suspended or revoked
with death or serious bodily injury (count four), and felony DUI fourth or subsequent violation (count five).
He filed a Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1).
He is proceeding on an Amended Petition (Doc. 7).
He also relies
on an Amended Memorandum to Petition for Writ of Habeas Corpus
Pursuant to Title 28 U.S.C. § 2254 (Amended Memorandum) (Doc. 8).
He raises three grounds in the Amended Petition.
The Court will
address these grounds, see Long v. United States, 626 F.3d 1167,
1169 (11th Cir. 2010) ("The district court must resolve all claims
for relief raised on collateral review, regardless of whether
relief is granted or denied.") (citing Clisby v. Jones,
960 F.2d
925, 936 (11th Cir. 1992) and Rhode v. United States, 583 F.3d
1289, 1291 (11th Cir. 2009)), but no evidentiary proceedings are
required in this Court.
Respondents filed a Response to Amended Petition for Habeas
Corpus (Response) (Doc. 18).
In support of their Response, they
provide Exhibits (Doc. 18).1
Petitioner filed a Reply Brief to
State's
Response
(Reply)
(Doc.
19).
See
Order
Respondents calculate that the Petition is timely.
(Doc.
15).
Response at 4-
5. Respondents provide a comprehensive rendition of the procedural
history of the case, and it will not be repeated here.
II.
Id. at 1-5.
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act (AEDPA)
governs this Court's review of the Petition; therefore, this
Court's
review
circumscribed.
2011).
is
highly
deferential
and
certainly
greatly
Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir.
See generally 28 U.S.C. § 2254.
Since AEDPA governs the
petition and limits the scope of this Court's review, the statecourt decisions must be given the benefit of the doubt:
Under
AEDPA,
when
a
state
court
has
adjudicated the petitioner's claim on the
merits, a federal court may not grant habeas
1
The Court hereinafter refers to the Exhibits as "Ex." Where
provided, the page numbers referenced in this opinion are the Bates
stamp numbers at the bottom of each page of the Appendix.
Otherwise, the page number on the particular document will be
referenced.
Also, the Court will reference the page numbers
assigned by the electronic docketing system where applicable.
- 2 -
relief unless the state court's decision was
"contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of the
United States," 28 U.S.C. § 2254(d)(1), or
"was based on an unreasonable determination of
the facts in light of the evidence presented
in the State court proceeding," id. §
2254(d)(2). A state court's factual findings
are presumed correct unless rebutted by clear
and convincing evidence.[2] Id. § 2254(e)(1);
Ferrell v. Hall, 640 F.3d 1199, 1223 (11th
Cir. 2011). . . . .
"It bears repeating that even a strong case
for relief does not mean the state court's
contrary
conclusion
was
unreasonable."
[Harrington v. Richter, 562 U.S. 86, 102
(2011)] (citing Lockyer v. Andrade, 538 U.S.
63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144
(2003)). The Supreme Court has repeatedly
instructed lower federal courts that an
unreasonable application of law requires more
than mere error or even clear error. See,
e.g., Mitchell v. Esparza, 540 U.S. 12, 18,
124 S.Ct. 7, 157 L.Ed.2d 263 (2003); Lockyer,
538 U.S. at 75, 123 S.Ct. 1166 ("The gloss of
clear error fails to give proper deference to
state courts by conflating error (even clear
error) with unreasonableness."); Williams v.
Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146
L.Ed.2d
389
(2000)
("[A]n
unreasonable
application of federal law is different from
an incorrect application of federal law.").
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253–54 (11th Cir. 2013),
cert. denied, 135 S.Ct. 67 (2014).
2
"This presumption of correctness applies equally to factual
determinations made by the state trial and appellate courts." Pope
v. Sec'y for the Dep't of Corr., 680 F.3d 1271, 1284 (11th Cir.
2012) (quoting Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003)),
cert. denied, 133 S.Ct. 1625 (2013).
- 3 -
The first step in applying AEDPA deference is to identify the
last state court decision that evaluated the claim on its merits.
Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th
Cir. 2016).3
Regardless of whether the last state court provided
a reasoned opinion, "it may be presumed that the state court
adjudicated
the
claim
on
the
merits
in
the
absence
of
any
indication or state-law procedural principles to the contrary."
Harrington v. Richter, 562 U.S. 86, 99 (2011).
If there is reason
to believe some other explanation for the state court's decision is
more likely, the presumption, in limited circumstances, may be
rebutted.
Richter, 562 U.S. at 99-100 (citing Ylst v. Nunnemaker,
501 U.S. 797, 803 (1991)); see also Johnson v. Williams, 133 S.Ct.
1088, 1096 (2013) (finding the Richter presumption strong, but not
irrebuttable).
If
the
last
state
court's
merit-based
decision
is
unaccompanied by an explanation, the petitioner must show there was
no reasonable basis for the state court to deny relief.
562 U.S. at 98.
Richter,
This is not an easy task; "even a strong case for
relief does not mean the state court's contrary conclusion was
unreasonable."
Id. at 102.
Applying AEDPA deference, it is this
3
As suggested in Butts v. GDCP Warden, 850 F.3d 1201, 1204
(11th Cir. 2017), in order to avoid any complications if the United
States Supreme Court decides to overturn Eleventh Circuit precedent
as pronounced in Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d
1227 (11th Cir. 2016) (en banc), cert. granted, 137 S.Ct. 1203
(2017), this Court, will employ "the more state-trial-court focused
approach in applying § 2254(d)[,]" where applicable.
- 4 -
Court's duty to "determine what arguments or theories supported or,
as here, could have supported, the state court's decision;" and
then the Court "must ask whether it is possible fairminded jurists
could disagree that those arguments or theories are inconsistent
with the holding in a prior decision of this Court." Richter, 562
U.S. at 102.
The § 2254(d) standard is difficult to meet, serving as a
guard against extreme malfunctions in the state criminal process,
but
not
as
a
means
of
error
correction
that
are
adequately
addressed through the state appellate review process.
This high
hurdle to obtain issuance of the writ is overcome if a state
prisoner shows 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 fairminded disagreement."
U.S.
at
103.
See
Ledford
v.
Warden,
Ga.
Richter, 562
Diagnostic
&
Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert.
denied,
137
S.Ct.
1432
(2017)
(recognizing
the
foundational
principle of the federal system that state courts are considered
adequate
forums
to
seek
vindication
of
federal
rights,
thus
limiting federal habeas relief to extreme malfunctions in the state
system) (quotations and citations omitted).
III. INEFFECTIVE ASSISTANCE OF COUNSEL
- 5 -
Petitioner claims he received the ineffective assistance of
counsel in violation of the Sixth Amendment to the United States
Constitution.
In order to prevail on this Sixth Amendment claim,
he must satisfy the two-pronged test set forth in Strickland v.
Washington, 466 U.S. 668, 688 (1984), requiring that he show both
deficient performance (counsel's representation fell below an
objective standard of reasonableness) and prejudice (there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different).
With respect to an ineffective assistance challenge to the
voluntariness of a guilty or no contest plea, a petitioner must
show 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, 59 (1985).
Of
note, ineffective assistance of counsel may also require that a
plea be set aside on the ground that it was involuntary because
voluntariness implicates not only threats and inducements but also
ignorance and incomprehension.
See id. at 56 (quoting North
Carolina v. Alford, 400 U.S. 25, 31 (1970)) (noting that the
"longstanding test 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.'").
This Court recognizes that,
in a post conviction challenge to a guilty
plea:
- 6 -
[T]he
representations
of
the
defendant, his lawyer, and the
prosecutor at [the plea] hearing, as
well as any findings made by the
judge accepting the plea, constitute
a
formidable
barrier
in
any
subsequent collateral proceedings.
Solemn declarations in open court
carry a strong presumption of
verity. The subsequent presentation
of
conclusory
allegations
unsupported by specifics is subject
to
summary
dismissal,
as
are
contentions that in the face of the
record are wholly incredible.
Blackledge v. Allison, 431 U.S. 63, 73–74, 97
S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977)
(citations omitted); see also United States v.
Gonzalez–Mercado, 808 F.2d 796, 799–800 and n.
8 (11th Cir. 1987) (while not insurmountable,
there is a strong presumption that statements
made during a plea colloquy are true, citing
Blackledge and other cases).
Bryant v. McNeil, No. 4:09CV22-SPM/WCS, 2011 WL 2446370, at *2
(N.D. Fla. May 17, 2011) (Report and Recommendation), report and
recommendation adopted by Bryant v. McNeil, No. 4:09CV22-SPM/WCS,
2011 WL 2434087 (N.D. Fla. June 16, 2011).
IV.
THE PLEA
To provide historical context to Petitioner's three grounds
for habeas relief, the Court provides an extensive summary of the
plea proceeding and its aftermath.
amended
information
with
DUI
Petitioner was charged by an
manslaughter
(count
one),
DUI
resulting in serious bodily injury (counts two and three), driving
while license suspended or revoked with death or serious bodily
injury
(count
four),
and
felony
- 7 -
DUI
-
fourth
or
subsequent
violation (count five).
Ex. A at 6-8.
On the day of jury
selection, October 13, 2008, Petitioner tendered a plea of nolo
contendere to all of the counts as charged, except count four, to
which he pled to the lesser-included offense of misdemeanor level
driving with a suspended license.
Ex. B at 2-15.
The plea
agreement included an agreed term of imprisonment of twenty years,
with a scoresheet range of 241 months (twenty years and one month),
to a maximum sentence of thirty-one years.4
Ex. A at 9-15; Ex. B
at 5-7.
After an extended plea colloquy, the court accepted the plea,
finding the plea freely and voluntarily rendered.
Ex. B at 11.
The state presented a factual basis for the plea, with the defense
not conceding as to every allegation, but admitting that there is
enough evidence, if believed by a jury, to support each count. Id.
at 11-14.
The prosecutor provided the following factual basis for the
plea:
The state is prepared to prove beyond a
reasonable doubt that on the evening –approximately 9:30 p.m. on June 2, 2007, Mr.
Chadwick operated a motor vehicle in Baker
County. He was going westbound on 228 near
the area of Deerfield Road. Coming the other
way was another vehicle. It was occupied by
three young women. They are the victims in
this case.
4
In addition to Petitioner, the defense attorney, the
prosecutor, and the judge signed the plea form. Ex. A at 12-13.
- 8 -
As the young women approached that
intersection, Mr. Chadwick swerved into their
lane, causing a collision.
That collision
resulted directly in the death of Jessalyn
Combs, a 19-year-old human being, and the
serious bodily injury of the driver, Angelica
Nobles, and the rear seat passenger, Summer
Heirs. Without going into the nature of their
injuries, let it suffice that each suffered
either
permanent
scarring,
permanent
disability, permanent pain, or all of those
things, and still do.
The State would present evidence in a
number of forms.
One would be the sworn
Mirandized statement of Mr. Chadwick, in which
he admits a number of things: One, that he was
consuming alcohol shortly prior to the crash;
that he had had beer; that he had had three to
four beers, which may be in some respects
refuted by our expert witness from FDLE, who
would say his blood alcohol content of .129 is
more consist[ent] with five drinks or five
beers; that he was operating the motor
vehicle; that he was alone in the motor
vehicle, and even that shortly prior to the
crash, his attention was distracted to the
power lines on the –- from his point of view,
the left-hand side of 228 as he was proceeding
westbound.
We would further prove, both through
documentation, business records, his driving
record, that his drivers license was at the
time suspended or revoked for a number of
reasons, one of which is his prior DUI
history. And we would prove beyond any doubt
that he had three prior DUI convictions in
that period of time, which makes this offense
a felony DUI as the fourth or subsequent
violation. We would prove with regard to the
driving license charge as well not only that
he admitted he knew his drivers license was
suspended, but that he had received the
required statutory notice of that suspension.
So in summary, we would prove Counts I,
II, and III, the DUI both, by proving his
blood alcohol level substantially over .08.
- 9 -
We would show his impairment due to the
testimony of various witnesses, as well as
photographs that show beyond any doubt that
the crash occurred in the eastbound lane; not
his lane, but the girls' lane of travel; that
he had to have been in their lane; not his;
that he almost surely misjudged the girls'
rate of speed, as well as their location, and
tried to make it into the –- the intersecting
road and misjudged and thereby caused the
crash. And I think I've covered Counts IV and
V sufficient for the record. Thank you very
much.
Id. at 11-13.
The court found the plea freely and voluntarily submitted to
the court and determined there was a factual basis for the plea.
Id. at 14. With that, the court adjudicated Petitioner guilty, but
delayed the sentencing until afternoon to accommodate the victim
impact witnesses and Petitioner's needs.
Id. at 14, 31.
In
conclusion, the court said: "That that's what you wanted me to do.
So at this time, I have taken your plea.
I have adjudicated you.
I've qualified your plea.
I will tell you, Mr. Chadwick, in doing
that, that it closes the door on your right to a jury trial."
Id.
Petitioner confirmed that he understood that, and he accepted it.
Id. at 14-15.
This Court first looks to the plea colloquy. Upon review, the
state court swore Petitioner in and allowed defense counsel to ask
Petitioner a series of questions.
Id. at 3.
Defense counsel
initially inquired about Petitioner's education and ability to read
and write the English language.
Id.
Petitioner assured the court
that he could read and write the English language.
- 10 -
Id.
He
responded affirmatively to initialing and signing the plea form
after his attorneys had gone over each paragraph with him.
3-4.
Id. at
Defense counsel asked: "I have gone over with you and
provided you police reports, the transcript of depositions, we've
watched some DVDs together, we've looked at photographs together,
listened to statements together.
5.
Is that all correct?"
Petitioner responded in the affirmative.
Id. at 4-
Id. at 5.
After
acknowledging the maximum prison sentence of thirty-one years,
Petitioner expressed his satisfaction with counsel.
Id. at 5-6.
Petitioner confirmed that he was not under the influence of any
drugs,
alcohol
or
medication,
he
did
not
have
any
physical
limitations, and he had adequate time to consider the plea offer.
Id.
The court asked Petitioner if he was comfortable with his
decision, making sure that "what you're doing is freely and
voluntarily done."
Id.
Id. at 8.
Petitioner confirmed that it was.
The court reminded Petitioner that it was prepared to offer
him a jury trial, if he so desired, and there was a jury waiting in
the hallway
not
under
the
medication.
possible.
Id. at 8-9.
Petitioner confirmed again that he was
influence
Id. at 9.
Id. at 10.
of
any
intoxicants,
including
any
He asked to be sentenced as quickly as
The court asked if there had been any other
promises made, other than the plea agreement, and Petitioner
responded in the negative.
Id. at 10-11.
- 11 -
Upon
returning
to
the
courtroom
for
sentencing,
counsel made an ore tenus motion to withdraw the plea.
defense
Id. at 17.
Petitioner told the court: "I just felt like that I was pressured
into signing that this morning with Mr. Nelson, Mr. Maguire.
They
just, you know constantly wanting me to sign it, wanting to plea
out to it.
something.
19.
And I was wondering if –- if I can appeal this or
Id.
Petitioner said he was "all confused up."
Id. at
Petitioner admitted that his mother was present before he
signed the plea agreement and he had an opportunity to speak with
her.
Id. at 19-20.
After asking Petitioner's mother a series of
questions, the court found that nothing changed from the morning to
the afternoon.
Id. at 23-24.
Accepted at Petitioner's request,
the court found the plea freely and voluntarily entered.
Id. at
24.
Defense
counsel
asked
the
court
to
appoint
counsel
to
represent Petitioner on his motion prior to sentencing as his
lawyers ethically could not argue the motion.
Id. at 32.
The
court entered an order appointing conflict counsel to reduce the
motion to written form.
Id. at 33.
Conflict counsel filed a Motion to Withdraw Plea.
27-28, 32-38.
Id. at 29-31.
Ex. A at
Petitioner filed a pro se Motion to Withdraw Plea.
The state responded.
dismissed the pro se motion.
Id. at 39-43.
Id. at 44.
- 12 -
The court
After conducting an
evidentiary hearing,5 the court denied the Motion to Withdraw Plea.
Id. at 45-48.
After noting that the record showed no indication
that Petitioner had "anything other than a willingness to go
forward with the plea[,]" the court found that the testimony at the
evidentiary hearing supported this assessment of the plea.
46.
Id. at
Defense counsel testified that Petitioner "had no hesitation
about entering the plea."
Id.
The court concluded that any
pressure Petitioner felt was "completely internal." Id. The court
recognized that although defense counsel advised Petitioner to
accept the plea offer, counsel was prepared for trial and never
threatened to withdraw.
Id.
After assessing the record and the
evidentiary hearing testimony, the court found that "advising a
defendant of his chances at trial and the possible sentence that he
could face if he lost is not coercion."
Id. at 46-47.
The court
was convinced that defense counsel did not misadvise, threaten, or
coerce Petitioner into entering the plea.
V.
Id. at 47.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.
Ground One
In his first ground, Petitioner claims that the blood draw was
not conducted in conformity with the rules governing the collection
of blood specimens. Amended Petition at 5. He bases this argument
on the fact that the Emergency Medical Technician (EMT) stated he
used an alcohol swab on Petitioner before drawing blood.
5
Id.
The evidentiary hearing transcript for the motion to set
aside the plea is found in the record. Ex. C at 16-54; Ex. D.
- 13 -
In their Response, Respondents counter that ground one is not
cognizable in a federal habeas corpus proceeding because it is a
state law issue, not a federal claim.
the
province
of
a
this
Court
Response at 5.
to
reexamine
It is not
state-court
determinations on issues of state law. See Estelle v. McGuire, 502
U.S. 62, 67-68 (1991).
Upon
review,
this
ground
certainly
involves
statutory
interpretation of a state law by state courts, but the writ of
habeas corpus under 28 U.S.C. § 2254 "was not enacted to enforce
State-created rights."
Cabberiza v. Moore, 217 F.3d 1329, 1333
(11th Cir. 2000) (citing Branan v. Booth, 861 F.2d 1507, 1508 (11th
Cir. 1988)), cert. denied, 531 U.S. 1170 (2001).
The Eleventh
Circuit allows that only in cases of federal constitutional error
will a federal writ of habeas corpus be available.
See Jones v.
Goodwin, 982 F.2d 464, 471 (11th Cir. 1993); Krasnow v. Navarro,
909 F.2d 451, 452 (11th Cir. 1990).
As noted by a sister federal court when addressing a similar
claim concerning the admission of blood alcohol and toxicology test
results:
to the extent [Petitioner's] claim here rests
on state law grounds concerning the trial
court's admission of evidence, it is not
sufficient to warrant review or relief by a
federal court. See, e.g., Estelle v. McGuire,
502 U.S. 62, 67–68, 112 S.Ct. 475, 116 L.Ed.2d
385 (1991); see also Link v. Tucker, 870
F.Supp.2d 1309, 1325 (N.D. Fla. 2012) (Order
adopting Report and Recommendation to deny §
2254 petition: "It is well established that a
challenge to a state trial court's ruling on a
- 14 -
question of state law, for example, an
evidentiary ruling, is cognizable on federal
habeas only to determine whether the alleged
error was so critical or important to the
outcome of the trial to render the trial
fundamentally unfair."); Jones v. McNeil, No.
4:09cv54–RH/WCS, 2013 WL 5504371, at *7 (N.D.
Fla. Oct. 1, 2013) ("A federal petitioner
cannot pursue a Due Process claim when the
underlying issue was raised in state court
only as a state evidentiary issue without
asserting a federal constitutional issue.").
Berry v. Buss, No. 4:11-CV-00340-MP-CAS, 2014 WL 3867590, at *7
(N.D. Fla. Aug. 6, 2014). As such, the federal habeas corpus court
will be bound by the Florida court's interpretation of its own laws
unless
that
mandate.
interpretation
breaches
a
federal
constitutional
McCoy v. Newsome, 953 F.2d 1252, 1264 (11th Cir. 1992)
(per curiam), cert. denied, 504 U.S. 944 (1992).
Because ground one presents an issue that is not cognizable in
this habeas proceeding, this ground cannot provide a basis for
federal habeas corpus relief.
Here, there is no breach of a
federal constitutional mandate.
Therefore, Petitioner is not
entitled to habeas relief.
Alternatively, Respondents assert that the claim raised in
ground one was waived by the plea.
Response at 6.
In considering
this ground, the Court's scope of review is quite restricted
because of the finality of the plea proceeding:
The Supreme Court has given finality to guilty
pleas by precluding claims of constitutional
deprivations occurring prior to entry of the
plea. See Tollett v. Henderson, 411 U.S. 258,
267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).
Following the entering of a guilty plea on the
- 15 -
advice of counsel, the scope of a federal
habeas corpus inquiry is limited to whether
the plea was voluntarily and intelligently
made; an independent inquiry as to the
existence
as
such
of
any
antecedent
constitutional
infirmity
is
improper.
Tollett, supra at 266. Only an attack on the
voluntary and knowing nature of the plea can
be sustained.
United States v. Broce, 488
U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927,
(1989) ("when 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.)
Middleton v. Sec'y, Dep't of Corr., No. 8:06-cv-217-T-17TBM, 2008
WL 450007, at *4 (M.D. Fla. Feb. 15, 2008) (footnote omitted). See
Carter v. Collins, 918 F.2d 1198, 1220 n.1 (5th Cir. 1990) (finding
the law applicable to a guilty plea applicable to a nolo contendere
plea since a nolo plea is treated as an admission of guilt); see
also Harley v. Sec'y, Dep't of Corr., No. 8:08-cv-854-T-23TBM, 2012
WL 682744, at *8 n.7 (M.D. Fla. Mar. 2, 2012) (finding same).
It is axiomatic that, and
[a]ccording to Tollett v. Henderson, 411 U.S.
258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235
(1973),
a
guilty
plea
waives
a[ll]
non-jurisdictional defects:
[A] 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
- 16 -
prior to the entry of the guilty
plea.
United States v. Winslow, Nos. 8:05-cr-377-T-23EAJ, 8:07-cv-683-T23EAJ, 2007 WL 2302277, at *2 (M.D. Fla. Aug. 8, 2007).
Here, this pre-plea non-jurisdictional claim is waived and
precluded by entry of the plea. Lipscomb v. Sec'y, Dep't of Corr.,
No. 8:06-cv-58-T-17EAJ, 2008 WL 434881, at *4 (M.D. Fla. Feb. 14,
2008). "Because a guilty [or nolo] plea forfeits all claims (other
than jurisdictional challenges), including both substantive claims
and purported failings of counsel that occurred before entry of the
plea,"
United
States
v.
Winslow,
2007
WL
2302277,
at
*2,
Petitioner's claim concerning the statutorily non-compliant blood
draw raised in ground one is due to be denied.
Finally and alternatively, even if this claim were cognizable
on federal review, Petitioner is not entitled to habeas relief. To
the extent this issue was addressed by the state courts, the
circuit court found that the state complied with Florida law.
Ex.
K at 421 ("Because the blood was properly drawn, counsel did not
err by failing to challenge its admissibility.").
court affirmed.
Ex. N.
The appellate
The state court's adjudication of this
claim was not contrary to clearly established federal law, did not
involve an unreasonable application of clearly established federal
law, and was not based on an unreasonable determination of the
facts in the light of the evidence presented in state court
proceedings.
Thus, Petitioner is not entitled to habeas relief on
- 17 -
ground one.
Deference under AEDPA should be given to the state
court's decision.
B.
Ground Two
In his second ground, Petitioner asserts that he received the
ineffective assistance of counsel because his counsel failed to
move to suppress the blood alcohol test results, and even failed to
investigate the facts and circumstances of the blood draw. Amended
Petition at 6; Amended Memorandum at 19.
Petitioner claims that
but for this ineffectiveness, the state would have been left with
only the driver's license violations.
Amended Petition at 6.
Petitioner exhausted this ground by raising it in his Rule 3.850
motion, the circuit court denied relief, and the First District
Court of Appeal (1st DCA) per curiam affirmed.
Ex. K; Ex. N.
Upon review of the circuit court's order, it set forth the
applicable
two-pronged
Strickland
standard
as
a
preface
addressing the claims of ineffective assistance of counsel.
to
Ex. K
at 419. After setting forth the applicable standard of review, the
court provided this explanation for denying the claim of trial
counsel's ineffectiveness:
As to ground (B), Defendant alleges his
counsel was ineffective for failing to
challenge the sufficiency of blood drawn from
Defendant at the scene of the accident.
Specifically, Defendant alleges that the
paramedic did not follow the proper procedure
set out in Florida Administrative Code
Regulation
11D-8.012(1),
and
that
consequently, counsel should have moved to
suppress the results of the blood draw. This
claim is both conclusory and speculative.
- 18 -
And, the underlying premise regarding the
sufficiency of the blood draw is conclusively
refuted
by
the
paramedic's
deposition
testimony. See Exhibits K and M (attached to
Defendant's amended motion filed September 9,
2011). Because the blood was properly drawn,
counsel did not err by failing to challenge
its admissibility. Therefore, Defendant fails
to show either error by counsel or prejudice.
This claim is without merit.
Ex. K at 420-21.
The
circuit
court
rejected
this
claim
of
ineffective
assistance of trial counsel. The 1st DCA affirmed. Thus, there is
a qualifying state court decision under AEDPA. This Court presumes
that the 1st DCA adjudicated the claim on its merits, as there is
an absence of any indication or state-law procedural principles to
the contrary. Also of note, the last adjudication on the merits is
unaccompanied by an explanation.
Thus, it is Petitioner's burden
to show there was no reasonable basis for the state court to deny
relief.
He has not accomplished that task.
Indeed, if there is any reasonable basis for the court to deny
relief, the denial must be given deference.
Here, deference under
AEDPA should be given to the 1st DCA's adjudication.
is
not
inconsistent
with
Stickland and its progeny.
claim
is
not
contrary
to
Supreme
Court
Its decision
precedent,
including
The state court's adjudication of this
or
an
unreasonable
application
of
Strickland, or based on an unreasonable determination of the facts.
Ground two is due to be denied.
See Response at 9-10.
- 19 -
Even assuming entitlement to AEDPA deference is not warranted,
the claim is still without merit.
The trial court's conclusion
that the blood was properly drawn is fully supported by the record.
Florida
Administrative
Code
Rule
11D8.012(1),
titled,
"Blood
Samples–Labeling and Collection" provides that "[b]efore collecting
a sample of blood, the skin puncture area must be cleansed with an
antiseptic that does not contain alcohol."
Brief (Doc. 19-2 at 9).
Reply, Appendix to
However, Rule 11D–8.012(7) states:
"[n]otwithstanding any requirements in Chapter 11D–8, F.A.C., any
blood analysis results obtained, if proved to be reliable, shall be
acceptable as a valid blood alcohol level."
Brief (Doc. 19-2 at 9).
Reply, Appendix to
See Gulliver v. Sec'y, Fla. Dep't of
Corr., No. 3:10-cv-251-J-34JRK, 2013 WL 57714, at *17 (M.D. Fla.
Jan. 4, 2013) (finding no basis for exclusion of the blood tests
results under the circumstances presented).
The record demonstrates that defense counsel was well-aware of
the paramedic's testimony as defense counsel took the deposition
"Pursuant to Notice Instance of the Defendant." Reply, Appendix to
Brief (Doc. 19-2 at 1).
circuit
court
found
Relying on the paramedic's testimony, the
the
blood
properly
drawn.6
Upon
due
consideration, the paramedic testified that he already had an IV in
place when the highway patrolman asked him to use the blood draw
kit.
Ex. J at 199.
6
Although the paramedic had used a normal
See Exhibit J at 199.
- 20 -
alcohol swab, he was already running saline when asked to draw
blood with the kit.
Id.
kit, using the IV site.
The paramedic had to resort to a second
Id. at 203.
to get "a good, clean sample."
sample
was
not
contaminated
Id.
by
The paramedic said he wanted
In order to ensure that the
the
alcohol
used
to
prepare
Petitioner's arm before the request for the blood draw, the
paramedic threw out the original 10 cc's of blood and drew another
sample of blood.
Id. at 199.
Therefore, Petitioner is not entitled to habeas relief on
ground two as the claim has no merit.7
Ground two is due to be
denied.
C.
Ground Three
Petitioner claims he received the ineffective assistance of
counsel, resulting in an involuntary plea.
Amended Petition at 3.
He asserts that his counsel was ineffective for failing to advise
him that there was a factual defense based on the inadmissibility
of the blood test results.
Id.
The two-pronged Strickland standard for reviewing claims of
ineffective assistance of counsel is applicable to this ground. In
7
Also of note, there existed a wealth of additional evidence
against Petitioner, including the paramedic's detecting the strong
odor of beer and hearing Petitioner's
slurred speech.
Reply,
Appendix to Brief (Doc. 19-2 at 3). Also, there were photographs
showing that Petitioner's car crossed the lane into the oncoming
vehicle, Petitioner's post-Mirandized statement in which he
admitted to drinking several beers prior to driving, and finally,
Petitioner's horrific driving record, including three previous
DUI's and a suspended license. See Ex. A at 14.
- 21 -
order to satisfy the prejudice prong of the two-part Strickland
test
in
a
plea
case,
Petitioner
must
show
that
there
is
a
reasonable probability that, but for his counsel's error, he would
not have pleaded guilty and would have insisted on proceeding to
trial.
See Hill v. Lockhart.
It is also noteworthy that this claim hinges on the assertion
that the blood alcohol test would have proved to be inadmissible if
counsel had developed and pursued the defense strategy of attacking
the blood draw.
Of import, the circuit court concluded otherwise.
It found the blood properly drawn; therefore, "counsel did not err
by failing to challenge its admissibility."
Ex. K at 421.
As to
the claim that counsel failed to investigate and develop this
defense strategy, the circuit court referenced the plea colloquy
and Petitioner's expressed satisfaction with counsel's advice and
representation. Id. Here, it appears that Petitioner is trying to
go behind his sworn plea representations.
This he cannot do.
It also evident that Petitioner is attempting to challenge a
matter that did not occur contemporaneously with the plea.
The
existence of an alleged antecedent constitutional infirmity is not
a proper subject for federal habeas corpus review and is foreclosed
by the voluntary plea of nolo contendere:
Petitioner raises matters occurring prior
to entry of his nolo contendere plea, rather
than matters occurring contemporaneously with
the plea. The scope of federal habeas inquiry
in Petitioner's case is limited to whether his
plea was voluntarily and intelligently made,
and this Court is precluded from inquiring
- 22 -
into
any
antecedent
constitutional
infirmities. See Tollett,[8] 411 U.S. at 266.
Thus, Petitioner's ineffective assistance of
counsel claims are not reviewable by this
Court.
However, even if Petitioner did not waive
any aspect of Ground One when he entered his
nolo contendere plea, he still would not be
entitled to the relief he seeks. He fails to
meet his burden under the AEDPA standards
governing review of the state decision. The
state record conclusively establishes that
Petitioner understood the charges against him
and the consequences of his plea, including
the waiver of his constitutional rights, and
that he voluntarily chose to plead without
being coerced to do so.
Harter v. Sec'y, Dep't of Corr., No. 8:08-CV-202-T-27EAJ, 2011 WL
761546, at *16 (M.D. Fla. Feb. 24, 2011) (finding the petitioner's
claims
of
ineffective
petitioner's
decision
assistance
of
to
nolo
plead
counsel
with
regard
contendere
to
reasonably
rejected).
Finally, and alternatively, even if Petitioner did not waive
his claim by pleading nolo contendere, he would still not be
entitled
to
habeas
relief.
The
circuit
court
found
that
Petitioner's "underlying premise regarding the sufficiency of the
blood draw is conclusively refuted by the paramedic's deposition
testimony."
Ex. K at 420.
See Ex. J at 199 (concerned about the
use of the alcohol wipe, the paramedic attested that in order to
avoid contamination of the blood, he drew 10 cc's of blood and
threw it out, and then drew another 10 cc's of blood).
8
Tollett v. Henderson, 411 U.S. 258, 266 (1973).
- 23 -
With the
circuit
court
finding
the
blood-draw
evidence
reliable
and
admissible, any objection made by Petitioner would have gone to
weight, not admissibility.
See Response at 11.
Under these circumstances, Petitioner has failed to establish
that the state court's denial of these claims was either contrary
to, or an unreasonable application of federal law, or was based on
an unreasonable determination of the facts.
Based on the record
before the Court, Petitioner has failed to show that his counsel's
performance was deficient or that he entered an involuntary plea.
Even assuming deficient performance, Petitioner has not shown
prejudice.9
Thus, he has not shown that a reasonable probability
exists that the outcome of the proceeding would have been different
if his lawyer had given the assistance that Petitioner has alleged
should
have
been
provided.
Accordingly,
Petitioner's
ineffectiveness claim is without merit since he has neither shown
deficient performance or prejudice.
Petitioner is not entitled to relief on ground three of the
Amended Petition, the claim of ineffective assistance of trial
counsel resulting in an involuntary plea.
should be given.
Deference, under AEDPA,
Petitioner claimed he received the ineffective
assistance of trial counsel in his Rule 3.850 motion.
The circuit
court denied this contention, and the appellate court affirmed the
9
Of import, Petitioner was facing substantial time - thirtyone years. Also, he was charged with his fourth DUI, a felony.
- 24 -
circuit court's decision.
claim
is
not
contrary
The state court's adjudication of this
to
or
an
unreasonable
application
of
Strickland and Hill, or based on an unreasonable determination of
the facts.
In conclusion, ground three, Petitioner's claim of
ineffective assistance of counsel resulting in an involuntary plea,
is due to be denied.
Accordingly, it is now
ORDERED AND ADJUDGED:
1.
The Amended Petition (Doc. 7) is DENIED, and this action
is DISMISSED WITH PREJUDICE.
2.
The Clerk of the Court shall enter judgment accordingly
and close this case.
3.
If Petitioner appeals the denial of his Amended Petition,
the Court denies a certificate of appealability.10
Because this
Court has determined that a certificate of appealability is not
warranted, the Clerk shall terminate from the pending motions
report any motion to proceed on appeal as a pauper that may be
10
This Court should issue a certificate of appealability only
if a petitioner makes "a substantial showing of the denial of a
constitutional right."
28 U.S.C. § 2253(c)(2).
To make this
substantial showing, Petitioner "must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Upon due consideration, this Court will deny a
certificate of appealability.
- 25 -
filed in this case.
Such termination shall serve as a denial of
the motion.
DONE AND ORDERED at Jacksonville, Florida, this 29th day of
June, 2017.
sa 6/20
c:
James Harold Chadwick, II
Counsel of Record
- 26 -
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