In the
United States Court of Appeals
For the Seventh Circuit
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No. 04-4051
JAMES GOMEZ,
Petitioner-Appellant,
v.
GERALD A. BERGE, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04 C 17—Barbara B. Crabb, Chief Judge.
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ARGUED NOVEMBER 8, 2005—DECIDED JANUARY 12, 2006
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Before BAUER, MANION, and EVANS, Circuit Judges.
BAUER, Circuit Judge. James Gomez was indicted in the
state court on charges of first degree reckless homicide
in connection with the death of his infant son. Gomez
elected to represent himself, a course of action the court
allowed after it determined Gomez was competent to act pro
se. On the third day of trial, the judge reversed his decision,
and determined that Gomez in fact lacked the capacity to
conduct his own defense. A mistrial was declared. Gomez
subsequently entered a plea of no contest, and was sen-
tenced to a forty-year prison term. By petition for habeas
corpus relief, Gomez now asks this Court to set aside his
plea and sentence, claiming that the state court proceed-
ings violated both his Sixth Amendment right to self-
2 No. 04-4051
representation and the Double Jeopardy Clause of the Fifth
Amendment. We refuse this invitation, finding that Gomez
waived his right to challenge any constitutional depriva-
tions that may have occurred at trial by pleading no contest
to the charges against him.
I. Background
Gomez pleaded no contest to first-degree reckless homi-
cide after entering into a plea agreement with the govern-
ment. In exchange for his plea, additional charges relating
to an assault of the infant’s mother were dismissed. Shortly
thereafter, Gomez attempted to withdraw his plea as he
claimed it was involuntary. That motion was denied.
On direct appeal from his conviction, Gomez contended
that the trial court had violated his right to represent
himself by basing its decision to terminate that right on the
court’s disagreement with Gomez’s trial strategy. For this
same reason, Gomez argued, the trial court’s decision to
grant a mistrial was not justified by manifest necessity, and
therefore the state unconstitutionally placed him in jeop-
ardy twice when it brought him to trial the second time.
The appellate court affirmed Gomez’s conviction in an
unpublished order. The court concluded that the trial
transcripts revealed that Gomez was incompetent to
conduct his own defense, and the trial court acted prop-
erly when it declared a mistrial over Gomez’s objections.
The appellate court reasoned that manifest necessity to
declare a mistrial existed because Gomez had, by his
incompetence, so botched his defense that a fair trial was
only possible if the proceedings began anew with the
assistance of defense counsel. Gomez appealed this decision
to the Wisconsin Supreme Court, which denied his petition
for review. State v. Gomez, 260 Wis. 2d 753 (Wis. 2003).
Gomez next filed a petition for a writ of habeas corpus
which is the subject of this appeal. The same arguments
No. 04-4051 3
were made. The district court determined that Gomez’s
ability to raise any constitutional claims on collateral attack
was likely barred by his no contest plea. The
court, however, did not decide this issue because it found
that Gomez’s claims failed on their merits. A certificate
of appealability was nonetheless granted to determine
whether Gomez was denied his Sixth Amendment right
to self-representation and protection against double jeop-
ardy.
II. Analysis
We review the district court’s decision to deny a habeas
petition de novo. Schaf v. Snyder, 190 F.3d 513, 522 (7th
Cir. 1999). Because Gomez filed his habeas petition after
the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254, its
standard of review governs his claims. Under the AEDPA,
habeas relief is only available if Gomez may prove that the
state court proceedings “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” or “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.” 28 U.S.C. § 2254(d).
It is well established that an unconditional plea of guilty
operates as a waiver of all formal defects in the proceedings,
including any constitutional violations that occurred before
the plea was entered. See Brady v. United States, 397 U.S.
742 (1970) (guilty plea waives right to chal-
lenge constitutionality of statute underlying the charge);
McMann v. Richardson, 397 U.S. 759 (1970) (review of
allegations of coerced confessions foreclosed). A plea of no
contest invokes the same waiver principle. United States v.
Michigan Carton Company, 552 F.2d 198, 202 (7th Cir.
4 No. 04-4051
1977). By pleading no contest, a defendant impliedly admits
all allegations in the indictment. In this way, a no contest
plea is indistinguishable from a guilty plea, in that it
forecloses any opportunity to contest any alleged antecedent
constitutional deprivations. As the Supreme Court ex-
plained in Tollett,
[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 many not thereafter raise independent
claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea.
Tollett v. Henderson, 411 U.S. 258, 267 (1973).
However, a defendant does not necessarily waive all
constitutional claims when he enters a plea of guilty or
no contest. Double jeopardy claims are one example. A
plea of guilty or no contest does not forgive the uncon-
stitutionality of an indictment. Menna v. New York, 423
U.S. 61, 63 (1975). In Menna, the Supreme Court stated
that a defendant’s guilty plea did not constitute a waiver of
his right to claim that the double jeopardy clause barred
prosecution on the indictment. Id. at 62. The Court ex-
plained that where the government is precluded from
“haling a defendant into court on a charge, federal law
requires that a conviction on that charge be set aside even
if the conviction was entered pursuant to a counseled
plea of guilty.” Id. We have recognized this exception in our
own cases. See United States v. Seybold, 979 F.2d 582
(1992).
But the Supreme Court in Menna did not hold that a
double jeopardy claim may never be validly waived. Menna,
423 U.S. at 63 n.2. In fact, double jeopardy rights may be
waived by failing to preserve the issue for appeal. Peretz v.
United States, 501 U.S. 923, 936 (1991) (citing with ap-
No. 04-4051 5
proval United States v. Bascaro, 742 F.2d 1335, 1364-65
(11th Cir. 1984) (holding that failure to raise the issue of
double jeopardy at trial results in a waiver of that claim)).
Here, when Gomez entered his plea, he did not preserve the
double jeopardy issue for appeal. Rather, he entered an
unconditional plea of no contest. His double jeopardy claim
was waived.
Likewise, by pleading no contest to the charges against
him, Gomez waived his right to challenge any other alleged
constitutional violations that preceded his plea. This
includes contesting the trial court’s determination that
he was not competent to represent himself at trial.
III. Conclusion
Accordingly, the decision of the district court denying
Gomez’s petition for habeas relief is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-12-06