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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-10594
Non-Argument Calendar
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D.C. Docket No. 3:17-cv-01183-BJD-JBT
WILLIAM CARSON MERRILL,
Petitioner - Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents - Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 9, 2021)
Before JORDAN, GRANT, and ED CARNES, Circuit Judges.
PER CURIAM:
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William Carson Merrill, a Florida prisoner represented by counsel, appeals
the denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. This Court
granted a certificate of appealability on one issue: “Whether the state court’s denial
of Merrill’s claim, that trial counsel was ineffective for failing to fully inform
Merrill regarding entering a plea, was based on an unreasonable determination of
the facts, and thereafter, involved an unreasonable application of Strickland v.
Washington, 466 U.S. 668 (1984), to those facts.”
I.
The record shows that on the morning of February 21, 2012, Merrill shot and
killed his wife. He called 911, and when the police arrived, they found Stefanie
Merrill dead in the master bathroom. Her husband had shot her in the chest with
an AK-47. When he was interviewed later at the sheriff’s office, Merrill said that
he took his rifle out of the bathroom closet, activated its laser, and pointed it at his
wife’s chest. While the laser was activated, the weapon fired. The couple’s three-
year-old daughter was in the bathtub and saw her mother being shot and killed.
Merrill said that the shooting was an accident.
Merrill admitted that he owned “several” firearms, and officers later
recovered 20 firearms from his home. Merrill had been convicted of a felony in
2007 and could not lawfully possess a firearm, much less 20 of them. He also had
been previously arrested for domestic violence against his wife.
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Merrill was charged in state court with manslaughter with a firearm and
being a felon in possession of a firearm in violation of Florida law. The State did
not contend that he had intentionally shot his wife. He was appointed counsel, and
he later entered an “open plea,” meaning that the State did not agree to a specific
term of imprisonment, instead leaving the sentence determination for the state trial
court. In exchange for Merrill’s guilty plea to the manslaughter with a firearm
charge, the State agreed to drop the felon in possession charge. During his plea
hearing, the court noted that that Merrill was entering an open plea and explained
that for sentencing purposes, his “exposure was anywhere between zero and the
maximum of 30 years.” Merrill stated that he understood that, and it was what he
wanted to do. The court accepted his guilty plea.
At the sentence hearing, defense counsel presented 17 witnesses to testify on
Merrill’s behalf and asked for a downward departure from 125.85 months (about
10.5 years), which was Merrill’s “lowest permissible prison sentence” according to
his Florida Criminal Punishment Code Scoresheet. Stefanie Merrill’s brother
testified at the hearing and asked the court to impose the statutory maximum
sentence of 30 years. A letter from Stefanie Merrill’s mother, also asking for the
maximum sentence, was read into the record. The State argued for a sentence of 20
years. The State acknowledged that it did not contend Merrill had intentionally
killed his wife, but it introduced into evidence a photograph from Merrill’s cell
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phone that showed a laser scope on a gun pointed at Stefanie Merrill’s head. The
State argued that even before the “accident,” Merrill’s conduct with firearms had
been reckless.
The court imposed a sentence of 25 years, and it explained its sentencing
decision this way:
Clearly, this is a preventable and avoidable accident, if that’s what you
want to call it. Your -- your conduct is tantamount to nothing less than
reckless behavior.
When you were a convicted felon, you were not supposed to have a
firearm, but you had quite an arsenal in your home. But as if that wasn’t
enough, you violated probably one of the most basic tenets of firearm
ownership; that is whether loaded or unloaded, a firearm, it’s a
dangerous thing. And you pointed it at the person you claim to love the
most, and then you pulled the trigger, and then you took her life.
That conduct, however you want to describe it, whether it be an
accident, mistake, or whatever it may be, carries a tremendous amount
of ramifications.
We don’t blame people here for their mistakes; we just expect for them
to pay for them, and today you will begin paying for your mistake.
I’m going to adjudicate you guilty, sentence you to 25 years in the
custody of the Florida Department of Corrections state prison system,
with credit for the time you have already served.
Merrill’s conviction and sentence were affirmed on direct appeal.
Merrill later filed a motion for post-conviction relief under Florida Rule of
Criminal Procedure 3.850, asserting seven claims based on ineffective assistance
of counsel. The state post-conviction court summarily denied four of those claims,
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reserved ruling on one, and set an evidentiary hearing for the remaining two, which
included the claim at issue in this appeal: that his guilty plea was involuntary
because his counsel gave him incorrect advice. Merrill and his former defense
counsel both testified at the evidentiary hearing before the state post-conviction
court. That court denied relief, finding that counsel’s performance was not
deficient and that Merrill had not been prejudiced by counsel’s advice or actions.
The court found that the record evidence refuted Merrill’s claims that he
pleaded guilty only because counsel had misadvised him. First, the court rejected
Merrill’s assertion that, based on counsel’s advice, he believed that he would
receive a sentence of probation only. The court noted that Merrill’s counsel had
fifteen years of experience as a criminal defense attorney, and it credited his
testimony that he did not promise Merrill a sentence of probation and that he
viewed a probation-only sentence as an impossibility because of the seriousness of
the charges. The court also credited counsel’s testimony that from the beginning
of his representation Merrill had told him that he wanted to avoid a trial by taking a
plea so that he would not “put his family, including [his] in-laws, through a trial.”
The court found that the correspondence between Merrill and his counsel
corroborated the finding that Merrill did not plead guilty because counsel
misadvised him.
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The court also considered Merrill’s claim that counsel failed to inform him
about the photographs that the State had obtained from his cell phone, including
the one introduced at his sentence hearing, which showed the laser scope of a gun
pointed at Stefanie Merrill’s head. On that claim, the court found both Merrill’s
and defense counsel’s testimony to be credible. The court noted that Merrill had
testified at the evidentiary hearing that he told defense counsel not to show him
any discovery of the crime scene, including photographs of his deceased wife. But
Merrill admitted that he knew there were incriminating photographs on his phone,
including ones showing him (a convicted felon) holding a firearm. Defense
counsel testified that he provided discovery materials to Merrill, but he also
followed his client’s request not to provide any discovery related to Stefanie
Merrill, which included the photograph that the State introduced at the sentence
hearing.
The court determined that defense counsel’s performance in providing
discovery to Merrill was not deficient. It found that “there was a misunderstanding
as to what discovery [Merrill] requested he be provided.” In light of that, defense
counsel “provided [Merrill] with all of the discovery that he understood [Merrill
had] requested and discussed that discovery with [Merrill].” The court also found
that Merrill could not prove prejudice because he had “testified that he knew about
the incriminating photographs that were on his cell phone,” and the court did not
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“believe that [Merrill] would have insisted on going to trial had he specifically
known that the State was going to use the photographs from his phone.”
The court also rejected Merrill’s claim that defense counsel had failed to
confer with him about the elements of the charges. It credited counsel’s testimony
that it was his standard practice to review discovery and to go through each
element of the charged offense with his client and that he did so with Merrill
during a meeting at the jail. The court also pointed out that on cross-examination
Merrill admitted that he and defense counsel had discussed the charges. The court
denied relief on all remaining grounds.
Merrill appealed, and the state appellate court affirmed the denial of relief.
After that, Merrill filed a 28 U.S.C. § 2254 petition in federal district court, raising
seven claims. The district court denied relief on all of them. Among other things,
the court rejected Merrill’s claim that his counsel had provided ineffective
assistance by failing to inform him “of all pertinent matters” related to his decision
to enter a guilty plea.
The district court emphasized that the post-conviction court had heard the
witnesses’ testimony at the evidentiary hearing, had reviewed the record evidence,
and had found that defense counsel’s testimony was credible and corroborated by
other evidence. Based on its own review of the record, the district court concluded
that the state court had reasonably determined the facts and had reasonably applied
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federal law to those facts in rejecting Merrill’s claim of ineffective assistance of
counsel. As a result, the court denied relief on the claim.
II.
Merrill contends that his counsel’s performance was deficient because he:
(1) advised Merrill that he would likely be unsuccessful at trial because the State
could prove the culpable negligence element of manslaughter based solely on
Merrill’s status as a convicted felon in possession of a firearm; (2) failed to review
with Merrill discovery that was relevant to the case, including photographs from
Merrill’s cell phone; and (3) failed to review the elements of the charges with
Merrill. 1 Merrill also contends that he proved that he was prejudiced by counsel’s
deficient performance because he would not have chosen to plead guilty but for his
counsel’s incorrect advice that he was unlikely to succeed at trial.
We review de novo the denial of Merrill’s 28 U.S.C. § 2254 petition, but
under the Antiterrorism and Effective Death Penalty Act of 1996, our review is
“highly deferential” to the state court’s rulings on the merits of Merrill’s
constitutional claim. See Gissendaner v. Seaboldt, 735 F.3d 1311, 1316 (11th Cir.
2013). We are precluded from granting “federal habeas relief unless the state
court’s decision was (1) ‘contrary to, or involved an unreasonable application of,
1
Merrill has abandoned his contention that his counsel assured him that he would get a
probation-only sentence, which caused him to plead guilty. See Sapuppo v. Allstate Floridian
Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).
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clearly established Federal law, as determined by the Supreme Court,’ or (2)
‘based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.’” Id. (quoting 28 U.S.C. § 2254(d)); see
also Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 77, 786 (2011) (“A state
court’s determination that a claim lacks merit precludes federal habeas relief so
long as fairminded jurists could disagree on the correctness of the state court’s
decision.”) (quotation marks omitted).
When a petitioner claims that he received ineffective assistance of counsel in
the context of entering a plea bargain, “the familiar two-part test articulated in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), applies.”
Gissendaner, 735 F.3d at 1317 (citing Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct.
366, 370 (1985)). That means Merrill has the burden of showing that his counsel’s
performance “fell below an objective standard of reasonableness” and that “there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 688, 694, 104
S. Ct. at 2064, 2068.
Merrill must demonstrate that there was “a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” Lee v. United States, 137 S. Ct. 1958, 1965 (2017) (quotation
marks omitted). And he must show “that a decision to reject the plea bargain
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would have been rational under the circumstances.” Padilla v. Kentucky, 559 U.S.
356, 372, 130 S. Ct. 1473, 1485 (2010). The Supreme Court has cautioned that
“the strong societal interest in finality has special force with respect to convictions
based on guilty pleas,” and we are not free to “upset a plea solely because of post
hoc assertions from a defendant about how he would have pleaded but for his
attorney’s deficiencies.” Lee, 137 S. Ct. at 1967 (quotation marks omitted).
“Surmounting Strickland’s high bar is never an easy task.” Padilla, 559 U.S.
at 371. Merrill has not cleared that bar. As we have mentioned, he was charged
with manslaughter with a firearm and being a felon in possession of a firearm in
violation of Florida law. It is undisputed that: Merrill had a prior felony
conviction, and it was illegal for him to possess any firearms, and he admitted to
shooting his wife with a firearm, and he knew there were incriminating
photographs on his phone showing him holding various firearms, and one of those
photographs showed a laser scope on a gun pointed at his wife’s head. Merrill
cannot show that it would have been rational for him to reject a plea bargain on the
felon in possession charge regardless of any advice his counsel may or may not
have given him. See Padilla, 559 U.S. at 371.
On the manslaughter with a firearm charge, it is undisputed that Merrill
intentionally pointed the laser scope on his AK-47 at his wife’s chest, accidentally
discharged the firearm, and killed her. It is undisputed that as a convicted felon he
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did not possess that firearm lawfully and that he had a previous arrest for domestic
violence against his wife. If Merrill had opted to go to trial instead of pleading
guilty, the record establishes that there was more than enough evidence to prove
his guilt under Florida law.
Under Florida law, a defendant may be convicted of manslaughter if he kills
someone through “culpable negligence.” Fla. Stat. § 782.07(1). Culpable
negligence is “a gross and flagrant violation of a duty of care that causes injury,”
or a “course of conduct showing reckless disregard [for] human life.” Ramos v.
State, 89 So. 3d 1119, 1121 (Fla. 1st DCA 2012) (quotation marks omitted).
Culpable negligence may include accidentally shooting and killing someone. See,
e.g., Sapp v. State, 913 So. 2d 1220, 1224–26 (Fla. 4th DCA 2005); Navarro v.
State, 433 So. 2d 1011, 1012 (Fla. 3d DCA 1983) (affirming the defendant’s
conviction for manslaughter based on his culpable negligence after he accidentally
shot his girlfriend who had walked into the room while he was “test firing” his
weapon) (quotation marks omitted).
If Merrill had rejected the State’s offer and had opted for trial on both of the
charges against him, he would have faced a maximum sentence of 45 years, instead
of the 30-year maximum he faced as a result of the plea bargain. And in light of
the evidence, he has not shown that there was a “reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would have insisted on
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going to trial,” Lee, 137 S. Ct. at 1965, nor has he shown “that a decision to reject
the plea bargain would have been rational under the circumstances,” Padilla, 559
U.S. at 372. We will not upset his plea based on post hoc assertions about how he
would have pleaded but for his attorney’s alleged deficiencies. See Lee, 137 S. Ct.
at 1967.
The district court correctly applied the deferential standard to the state post-
conviction court’s finding that Merrill’s counsel’s performance was not deficient
and to its finding that Merrill was not prejudiced by the advice or actions of his
counsel. The state court reasonably determined the facts based on its credibility
findings which were also corroborated by the record evidence, and it reasonably
applied federal law to those facts.
AFFIRMED.2
2
After he filed his briefs in this appeal, Merrill filed a motion requesting oral argument.
That motion is DENIED.
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