Young v. Secretary, Department of Corrections et al

Filing 21

ORDER denying Young's application for the writ of habeas corpus; directing the clerk to enter a judgment against Young and CLOSE this case; denying a certificate of appealability; denying leave to appeal in forma pauperis. Signed by Judge Steven D. Merryday on 3/7/2018. (GSO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

ANDRE YOUNG,
Applicant,
v.

CASE NO. 8:14-cv-2544-T-23MAP

SECRETARY, Department of Corrections,
Respondent.
/
ORDER
Young applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1)
and challenges his convictions for robbery, for which convictions he is imprisoned
for twenty years. Numerous exhibits (“Respondent’s Exhibit __”) support the
response. (Doc. 12) The respondent admits the application’s timeliness. (Response
at 6 n.4, Doc. 6) The respondent correctly argues that Young’s guilty plea bars the
grounds for relief from federal review.
FACTS
Young was charged with robbery, grand theft of a motor vehicle, and fleeing
or eluding, each a felony, and was charged with two misdemeanors — obstructing or
resisting an officer without violence and operating a motor vehicle without a license.
On the morning of trial, Young chose to plead guilty to all charges in exchange (1)
for his testifying truthfully in another case and (2) for his receiving a sentence of

twenty years with a mandatory minimum of fifteen years, a sentencing structure that
avoided a possible sentence of life imprisonment.
According to the facts recited when he pleaded guilty, Young and two
co-defendants robbed the victim inside the victim’s motel room. One of the
co-defendant’s pointed a gun at the victim and struck him in the head with the gun.
The assailants took the victim’s pants and wallet before fleeing the room and stealing
the victim’s car. A police officer pursued the fleeing vehicle. Young was
apprehended after a prolonged pursuit. The victim was transported to the site of the
arrest, where he identified Young as one of the robbers. (Respondent’s Exhibit 1 at
113–15)
Before his sentencing Young moved to dismiss counsel and to withdraw his
plea. The state court both appointed Young new counsel, who filed a separate
motion to withdraw the plea, and denied the motion after an evidentiary hearing.
(Respondent’s Exhibit 1A at 229) A second motion to withdraw the plea was
unsuccessful, as was both the subsequent direct appeal and the motion for postconviction relief under Rule 3.850, Florida Rules of Criminal Procedure.
GUILTY PLEA
Young pleaded guilty under the favorable terms of a plea agreement. The
state court thoroughly canvassed Young to ensure that he was pleading voluntarily,
knowingly, and intelligently. (Respondent’s Exhibit 1 at 111–17). The state court
confirmed the validity of the plea after hearing testimony from Young’s former
-2-

counsel during an evidentiary hearing on the motion to withdraw plea, at which
Young was represented by new counsel. Young’s admission of the truth of the facts
and his admission of guilt “constitute a formidable barrier in any subsequent
collateral proceedings. Solemn declarations in open court carry a strong
presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 73S74 (1977). Accord Saldo
v. Crosby, 162 Fed. App’x 915, 917 (11th Cir. 2006) (applying Allison).
Young contends that his trial counsel rendered ineffective assistance by both
waiving speedy trial and failing to advise him about an “independent act” defense.
Neither issue challenges the validity of the plea. Tollett v. Henderson, 411 U.S. 258,
267 (1973), holds that a guilty plea1 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. See e.g., 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

1

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).
-3-

of the conviction, and only an attack on the voluntary and knowing nature of the
plea can be sustained.”). As explained in Hutchins v. Sec’y, Dep’t of Corr., 273 Fed.
App’x 777, 778 (11th Cir.), cert. denied, 555 U.S. 857 (2008), a guilty plea waives a
claim of ineffective assistance of counsel based on a pre-plea event.
In his habeas petition, Hutchins alleges that his trial counsel
was ineffective for failing to explicitly define and advise him of
a statute of limitations defense prior to advising him to waive
that defense and plead guilty. Hutchins’s voluntary guilty plea,
however, waived any ineffective assistance of counsel claim.

Consequently, the entry of a guilty plea waives a claim (other than a challenge to the
court’s jurisdiction or a challenge to the voluntariness of the plea), including both a
substantive claim and a purported failing of counsel that occurred before entry of the
plea. Young’s two grounds for relief challenge neither the court’s jurisdiction nor the
voluntariness of the plea. Moreover, even if not waived by the plea, both grounds
lack merit.
Young asserted his two grounds of ineffective assistance of counsel in his
motion for post-conviction relief under Rule 3.850, Florida Rules of Criminal
Procedure. The post-conviction court both recognized that Strickland v. Washington,
466 U.S. 668 (1984), governs and determined that Young failed to prove that
counsel’s performance was both deficient and prejudicial. (Respondent’s Exhibit 16
at 41) To prove entitlement to relief by a federal district court, Section 2254(d)
requires an applicant to prove that the state court decision either “(1) resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
-4-

established Federal law, as determined by the Supreme Court of the United States; or
(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.” The state
court’s rejection of Young’s post-conviction claims warrants deference in this case.
(Order Denying Motion for Post-Conviction Relief, Respondent’s Exhibit 16 at
39–51)
In ground one of his federal application Young alleges that counsel rendered
ineffective assistance by waiving speedy trial. The state court rejected this claim with
the following analysis (Respondent’s Exhibit 16 at 43):
The Defendant claims that trial counsel was ineffective for
waiving the Defendant’s speedy trial rights even though the
Defendant specifically told counsel to file a demand for speedy
trial. The Defendant asserts that had counsel not waived speedy
trial, he would not have entered into a plea but would have
insisted on going to trial. The Defendant appears to be arguing
that because the victim was unavailable for multiple subpoenas,
had counsel filed a demand for speedy trial the State would
have been unable to meet the 15-day recapture period without
having the victim’s testimony.
This claim is without merit. Counsel may waive speedy trial
even against a defendant’s wishes. See Randall v. State, 938 So.
2d 542, 544 (Fla lst DCA 2006); see also State v. Earnest, 265 So.
2d 397, 401 (Fla. 1st DCA 1972) (holding that right to a speedy
trial is a “procedural right as distinguished from a substantive
right, and may be waived by [a defendant’s] attorney without
the necessity of securing his prior informed consent.”).
Therefore, Defendant has not satisfied the first prong of
Strickland because counsel cannot be deemed deficient for
waiving speedy trial. Accordingly, this claim is denied.

The state court correctly determined that Young was bound by his counsel’s waiver
of speedy trial, a decision that is left to the discretion of trial counsel. “An attorney,
-5-

acting without consent from his client, may waive his client's right to a speedy trial
because ‘[s]cheduling matters are plainly among those [decisions] for which
agreement by counsel generally controls.’ New York v. Hill, 528 U.S. 110, 115,
120 S. Ct. 659, 664, 145 L. Ed. 2d 560 (2000) (regarding waiver of the right to speedy
trial in the Interstate Agreement on Detainers).” Fayson v. Sec’y, Fla. Dep’t of Corr.,
568 Fed. App’x 771, 773 (11th Cir. 2014) (brackets original), cert. denied, 135 S. Ct.
2866 (2015). Consequently, the state court’s application of Strickland was not
unreasonable.
In ground two of his federal application Young alleges that counsel rendered
ineffective assistance by failing to advise him about the “independent act” defense.
The state court rejected this claim with the following analysis (Respondent’s Exhibit
16 at 42–43) (references to exhibits omitted):
The Defendant argues that trial counsel was ineffective for
failing to plan or discuss an “independent act” defense to the
robbery and grand theft motor vehicle charges . . . . The
“independent act” doctrine applies when a defendant who
previously participated in a common plan, does not participate
in acts committed by his co-felon, “which fall outside of, and
are foreign to, the common design of the original collaboration.
Bradley v. State, 33 So. 3d 664, 675 (Fla. 2010), quoting Willacy
v. State, 967 So. 2d 131, 141 (Fla. 2007); see also Jackson v. State,
18 So. 3d 1016, 1026 (Fla. 2009) (citing Rax v. State, 755 So. 2d
604, 609 (Fla. 2000); Fla. Std. Jury Instr. (Crim.) 3.6(l))
(holding that an independent act of a co-defendant occurs when
a person other than the defendant commits a crime (1) which
the defendant did not intend to occur, (2) in which the
defendant did not participate, and (3) which was outside of, and
not a reasonably foreseeable consequence of, the common
design or unlawful act contemplated by the defendant). Where
a defendant “was a willing participant in the underlying felony
-6-

and the [crime in question] resulted from forces which they set
in motion, independent act instruction is appropriate. Ray, 755
So. 2d at 609, citing Lovette v. State, 636 So. 2d 1304 (Fla. 1994).
According to the Defendant’s version of the facts . . . he and a
co-defendant Trenton Herron had gone to the robbery victim’s
hotel room with the common plan of simply picking up another
co-defendant, Trisha Ledger, from the victim’s hotel room. The
Defendant claims that he did not know that Mr. Herron had a
gun or that Mr. Herron was going to rob the victim, and that
Mr. Herron acted alone in committing the robbery. The
Defendant further claims that after the robbery occurred, Mr.
Herron turned the gun on him and forced him to drive the
victim’s vehicle and flee from law enforcement at gunpoint.
The Defendant asserts that an independent act defense would
have been successful at trial because Mr. Herron’s actions fell
outside of the common design of the original collaboration, and
that had counsel planned or discussed such a defense with him,
he would not have pled guilty.
The Court finds that the Defendant is not entitled to relief on
this claim. The Defendant has not shown that counsel’s failure
to pursue and discuss such a defense with him constitutes
deficient performance, as such a defense would have been
unlikely to succeed at trial. See Panagiotakis v. State, 619 So. 2d
345 (Fla. 2d DCA 1993) (holding that defense counsel was not
ineffective for failing to raise the defense of entrapment because
the defendant did not establish that the defense was viable).
During their depositions, former co-defendant Trisha Ledger
and eyewitness Renita Rayner both made statements indicating
that the Defendant participated in robbing the victim and
searching his car for additional items to rob. Ms. Ledger’s
statements make it clear that the Defendant robb[ed] the victim
of his keys and money in the hotel room as well as look[ed]
through the victim’s car for money. Ms. Rayner’s statements
also make it clear that the Defendant was yelling at the victim
to get down on the bed, participated in taking the victim’s pants
off of him, participated in robbing the victim, and participated
in searching the victim’s car for additional items to rob. Because
this testimony does not support an independent act defense,
which would necessarily involve asserting that the Defendant
played no role whatsoever in the actual robbery, it is unlikely
that such a defense would [have been] viable and counsel
cannot be said to have been deficient for failing to raise it prior
-7-

to the Defendant entering his plea. See Pasagiotakis, 619 So. 2d
at 346. Accordingly, this claim is denied.

Young bears the burden of overcoming by clear and convincing evidence a
state court factual determination. “[A] determination of a factual issue made by a
State court shall be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1). The state court found that an “independent act” defense was
not supported by the facts. Young shows that the state court’s decision is based on
neither an unreasonable determination of fact nor an unreasonable application of
law. Consequently, the state court’s application of Strickland was not unreasonable,
and Young’s application lacks merit even if his grounds were not waived the guilty
plea.
Accordingly, Young’s application for the writ of habeas corpus (Doc. 1) is
DENIED. The clerk must enter a judgment against Young and close this case.
DENIAL OF BOTH
A CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Young is not entitled to a certificate of appealability (“COA”). A prisoner
seeking a writ of habeas corpus has no absolute entitlement to appeal a district
court’s denial of his application. 28 U.S.C. § 2253(c)(1). Rather, a district court
must first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the
applicant has made a substantial showing of the denial of a constitutional right.”

-8-

To merit a COA, Young must show that reasonable jurists would find debatable both
the merits of the underlying claims and the procedural issues he seeks to raise.
See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v.
Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to show that reasonable
jurists would debate either the merits of the claims or the procedural issues, Young is
entitled to neither a COA nor leave to appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. Young must obtain permission from the circuit court to
appeal in forma pauperis.
ORDERED in Tampa, Florida, on March 7, 2018.

-9-