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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10332
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-20907-MGC
LEVI JESSIE MEDINA,
a.k.a. Juan Perez,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 7, 2018)
Before WILSON, JORDAN, and HULL, Circuit Judges.
PER CURIAM:
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Levi Jessie Medina, a Florida prisoner, appeals pro se the district court’s
denial of his
28 U.S.C. § 2254 petition for a writ of habeas corpus. After a jury
trial, Medina was convicted of: (1) attempted first-degree murder without
discharging a firearm; (2) criminal mischief over $1,000.00; (3) tampering with
physical evidence; and (4) display, use, threat, or attempted use of a firearm while
committing a felony. Based on the prosecution’s closing arguments at his trial,
Medina moved for a new trial, which the state court denied. In his § 2254 petition,
Medina claims the prosecution’s comments in closing argument denied his
constitutional right to a fair trial under the Due Process Clause.
After careful review, we conclude that the state trial court’s denial of
Medina’s claim that he was denied a fair trial was not contrary to, or an
unreasonable application of, clearly established federal law, nor was it based on an
unreasonable determination of the facts. Accordingly, we must affirm the district
court’s denial of Medina’s § 2254 petition.
I. BACKGROUND
A. Offense Conduct
This case involves the murder of a young man named Victor Espejo. After
work on April 10, 2001, Espejo left his grandmother’s house with plans to go to a
birthday party for a girl who petitioner Levi Medina knew. Driving his 1998 white
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Pontiac Sunfire, Espejo met up with petitioner Medina and another man, Floyd
Ruel, at Medina’s house.
Espejo drove for the group. On their way to the party, they picked up a
fourth man, Modesto Guzman—who brought along a .22 caliber pistol in a black
purse—and the four purchased some alcohol.
The party ended just after midnight, and the group proceeded to Miami
Beach. They parked in South Beach, met some girls, and stayed until 2:00 or
3:00 a.m. As they left the beach, Medina complained that there were too many
people in Espejo’s Pontiac car, pulled out the .22 caliber pistol from underneath his
seat, and fired four or five shots out of his window. Ruel asked to be taken home
and was dropped off around 3:30 a.m.
The next morning, Espejo’s grandmother, Graciela Garcia, noticed that
Espejo had not come home and decided to call the police. In an effort to find her
grandson, Garcia contacted several of Espejo’s friends and acquaintances,
including Medina. Medina admitted that he was out with Espejo that night.
Medina told Garcia that, at the end of the night, Espejo went to the Homestead
neighborhood with “some little black guy” and that “they stayed on 27th Avenue
and 14th or something like that.”
Also the next morning, Ruel called Medina to talk about the girls they had
met at the beach. Ruel later drove to Medina’s house and noticed that Medina was
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acting strangely. When questioned about his behavior, Medina asked Ruel if he
was wearing a wire and then admitted that he had done something bad.
A few days later, Medina confided in Ruel that Espejo was missing and that
police found Espejo’s car, which had been set on fire. Medina claimed that he
learned this information from the news. Medina also told Ruel that after dropping
him off, Medina, Guzman, and Espejo were at a gas station when “some black guy
approached the car and was asking [Espejo] for a ride” in exchange for $40.
Medina claimed that Espejo “sold him out” and decided to give the “black guy” a
ride, while Medina and Guzman were left to walk home. In a conversation about
two weeks later, Medina told Ruel that police were looking for Espejo and that,
when they contacted him, Ruel should tell the “black guy story” but not mention
the firearm they had had in the vehicle that night.
When Medina was interviewed by police, he gave three different stories of
what happened on the evening that Espejo disappeared.
In the first story, consistent with what he told Ruel and Garcia, Medina
claimed that he and Guzman went into a gas station and that an unknown black
male approached Espejo at the pump for a ride. Medina described this black man
to police as 18–19 years old with two or three gold teeth, of average height, a thin
build, and braided hair. In this first story, Medina and Guzman were forced to
walk home.
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In a second story, the three still went to a gas station, but Medina and
Guzman showed the .22 caliber pistol to the unknown black male, who then stole
the firearm and ran away with it. Medina claimed that, after buying gas, Espejo
dropped Medina off at home and left with Guzman. Guzman came over to
Medina’s house the next morning and was driving Espejo’s car. Presumably,
Guzman had killed Espejo the night before, and so Medina and Guzman drove to
the Everglades to retrieve Espejo’s body.
As the police interview continued, Medina told a third story, where he
confessed and admitted that the first and second stories involving an unknown
black male were lies. In his verbal confession, Medina said that he, Guzman, and
Espejo were headed to Miccosukee, Florida and stopped off to urinate. At this
time, Medina pointed the .22 caliber pistol gun at Espejo’s head and squeezed the
trigger twice. The gun jammed, so Guzman took it, cleared the chamber, and
Guzman then shot Espejo in the head two times. Medina and Guzman later
discarded Espejo’s body in a dumpster and lit his car on fire. Espejo’s body was
never found.
B. Indictment
A Florida grand jury charged Medina with (1) first degree murder (Count 1),
(2) criminal mischief over $1,000.00 (Count 2), (3) tampering with physical
evidence (Count 3), and (4) display, use, threat, or attempted use of a firearm while
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committing a felony (Count 4).1 The case proceeded to trial on November 28,
2007.
C. Closing Argument, the Jury’s Verdict, and Sentencing
During closing arguments, the prosecution walked through what occurred on
the night of April 10, 2001 and the events that followed, eventually arriving at the
story told initially by Medina. The prosecutor recounted Medina’s initial story
about “this black guy,” stating:
He’s got that story that he made up. That we went to this Amoco
station and this black guy came out and he needed a ride and
something about 40 dollars and I got dropped off and I had to walk
home. First of all, it’s an ugly story because it’s sort of a racist --.
Defense counsel objected to this characterization, and the state trial court overruled
the objection. The prosecution continued that Medina had made up an initial story
that involved racial stereotyping:
So it’s a racist stereotype, maybe that’s why he said, you know, some
young black guy, and eventually gets a full description, body height,
gold teeth, all sorts of stuff. But he admits that the same story is a
complete, complete lie when the cops talk to him. He tells them I
made that all up, it never happened, there was no such stuff. But
that’s the story he sort of weaves through all of his conversations with
everybody.
In his closing argument, Medina’s defense counsel later responded that there
was nothing racial about the fact that his client had initially referred to a black guy:
1
Co-defendant Modesto Guzman was charged in Counts 2 and 3 of this indictment, which
also charged Guzman alone in a fifth count.
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But one thing we do know, ladies and gentlemen, that [Espejo] was
the driver of the vehicle and [Espejo] dropped [Ruel] at home. But
once [Espejo] left the gas station, there was nothing racial about the
fact that there was a black guy. There was nothing racial. I’m black.
I’m his lawyer, so there’s no big deal there ladies and gentlemen, but
that black guy left after that. So who did it, that guy who left with
[Espejo].
Defense counsel also moved for a new trial based on the prosecution’s comments,
which the state trial court denied. After deliberations, the jury returned a verdict
finding Medina guilty on all four counts, but as to Count 1 only for a lesser-
included offense of attempted first degree murder without discharging a firearm.
The state trial court imposed concurrent prison sentences of 30 years on Count 1,
5 years on Counts 2 and 3, and 15 years on Count 4.
D. Procedural History
Medina appealed his convictions to the District Court of Appeal of Florida,
Third District (“Third DCA”), which summarily affirmed on May 13, 2009. See
Medina v. State,
8 So. 3d 1275 (Fla. Dist. Ct. App. 2009). Medina did not raise the
present issue in his direct criminal appeal.
On May 25, 2010, Medina filed with the Third DCA a petition alleging
ineffective assistance of his appellate counsel under Florida Rule of Appellate
Procedure 9.141(d), which the Third DCA later denied in an unpublished summary
disposition. See Medina v. State,
51 So. 3d 469 (Fla. Dist. Ct. App. 2010).
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On January 4, 2011, Medina filed a petition for rehearing, which was denied.
On March 16, 2011, Medina filed the present § 2254 petition.
In his § 2254 petition, Medina argued inter alia that “the State
inappropriately referred to [him] as a ‘racist’ by elaborating to the jury the story
that he had originally presented to the authorities regarding the ‘black male’
involved in the possible offense.”2 The district court held an evidentiary hearing
on Medina’s § 2254 petition. At that hearing, Medina’s counsel argued that,
although the prosecution’s comment did not “outright call [Medina] a racist,” it
inferred that Medina’s story involved stereotyping a black male and that this
prejudiced Medina. The government argued that the comment was appropriate to
rebut Medina’s defense that an unknown black male killed Espejo and that defense
counsel cured any prejudice by arguing that Medina could not be racist because his
counsel was also a black male.
After the hearing, the district court issued an order denying Medina’s § 2254
petition in its entirety and declining to grant a certificate of appealability (“COA”)
on any of Medina’s claims. As to the prosecution’s comments characterizing
Medina’s story as racist, the district court found that they “were [not] made with
2
Medina’s petition asserted five claims: (1) due process violations for failure to prove that
Espejo’s disappearance was the result of murder; (2) prosecutorial misconduct for appealing to
the sympathy of the jury; (3) Sixth Amendment violations for the introduction of an arrest form
containing hearsay statements about Guzman’s involvement in the crime; (4) prosecutorial
misconduct for shifting the burden during closing argument; and (5) prosecutorial misconduct for
allegedly calling Medina a racist during closing argument.
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the intent of categorizing [Medina] as a racist” and that “any damage that may
have resulted . . . was ameliorated soon thereafter by defense counsel’s closing
statement, wherein he directly addressed the issue.” The district court concluded
that the state trial court’s decision to deny Medina a new trial was not contrary to,
or an unreasonable application of, clearly established law and that it did not
involve an unreasonable determination of the facts in light of the evidence.
Medina appealed. This Court issued a COA as to the single issue of
whether, during closing arguments, the prosecutor improperly inferred that Medina
was a racist and thereby prejudiced Medina’s substantial rights.
II. DISCUSSION
A. § 2254 Review
Under
28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), federal courts may only grant habeas relief
on claims previously adjudicated in state court if the 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; 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.
28 U.S.C. § 2254(d). Clearly established federal law “refers to the holdings, as
opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the
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relevant state-court decision.” Lockyer v. Andrade,
538 U.S. 63, 71,
123 S. Ct.
1166, 1172 (2003) (quoting Williams v. Taylor,
529 U.S. 362, 412,
120 S. Ct.
1495, 1499 (2000)); see Parker v. Matthews,
567 U.S. 37, 47–49,
132 S. Ct. 2148,
2155 (2012) (holding that the Sixth Circuit erred by applying its precedent on
prosecutorial misconduct instead of the Supreme Court’s standard in Darden v.
Wainwright,
477 U.S. 168, 181,
106 S. Ct. 2464, 2471 (1986)).
We review de novo the district court’s decisions about whether the state
court acted contrary to clearly established law, unreasonably applied federal law,
or made an unreasonable determination of fact. Trepal v. Sec’y, Fla. Dep’t of
Corr.,
684 F.3d 1088, 1107 (11th Cir. 2012). However, AEDPA “imposes a highly
deferential standard for evaluating state-court rulings and demands that state-court
decisions be given the benefit of the doubt.”
Id. (quoting Hardy v. Cross,
565 U.S.
65, 66,
132 S. Ct. 490, 491 (2011) (per curiam)).
B. Clearly Established Law on Prosecutorial Misconduct
The “clearly established Federal law” for purposes of prosecutorial
misconduct was set forth in Darden v. Wainwright,
477 U.S. 168, 181,
106 S. Ct.
2464, 2471 (1986). See Parker v. Matthews,
567 U.S. 37, 45–49,
132 S. Ct. 2148,
2155 (2012) (stating that Darden was the “clearly established Federal law” for
purposes of prosecutorial misconduct). In Darden, the Supreme Court held that
improper comments by a prosecutor require a new trial only if they “so infected the
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[original] trial with unfairness as to make the resulting conviction a denial of due
process.” 488 U.S. at 181,
106 S. Ct. at 2471 (quoting Donnelly v. DeChristoforo,
416 U.S. 637,
94 S. Ct. 1868 (1974)); see Parker,
567 U.S. at 48–49, 132 S. Ct. at
2155 (noting that Darden provides a “highly generalized” approach to be applied
flexibly on a case-by-case basis). It is not enough that the prosecutor’s comments
were “improper,” “offensive,” “undesirable[,] or even universally
condemned.” Darden,
477 U.S. at 181,
106 S. Ct. at 2471. Rather, the
prosecutor’s misconduct must render the defendant’s conviction “fundamentally
unfair.”
Id. at 183,
106 S. Ct. at 2472.
C. Arguments and Analysis
On appeal, as he did before the district court, Medina argues that his
constitutional right to a fair trial was violated when, during closing argument, the
prosecution twice characterized Medina’s story about “some black guy” driving
away with Espejo as “racist” or based on a “racist stereotype.” Medina argues that
these comments were improper to the point of justifying a new trial because they
effectively inferred that Medina himself was a racist and race was not an issue.
The problem for Medina is that when quoted in context, the prosecutor was
recounting how Medina had first told a complete lie that was an ugly, made-up
story about victim Espejo in his car at the gas station leaving with an unknown
black man with gold teeth and braided hair and making Medina walk.
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Furthermore, the prosecution did not call Medina a racist during closing arguments
but fairly characterized Medina’s made-up story as based on a “racial stereotype”
to imply that this “black guy” was the one who left with Espejo, and thus must be
who killed him, not Medina. The prosecution did not err in characterizing
Medina’s lie about who left with Espejo at the gas station.
Even assuming that the remarks were improper, there is no evidence that
they “so infected the trial with unfairness as to make the resulting conviction[s] a
denial of due process.” Darden,
477 U.S. at 181,
106 S. Ct. at 2471. These two
isolated comments made during closing argument were insufficient to render
Medina’s convictions “fundamentally unfair” or to justify a new trial.
Id. at 183,
106 S. Ct. at 2472. Moreover, defense counsel was able to, and did, directly rebut
these contentions during his closing argument. In any event, Medina points to no
Supreme Court authority indicating that the prosecution’s arguments based on
Medina’s made-up story warrant relief under § 2254.3
In light of these considerations, Medina has not shown that the state trial
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
3
In his brief, Medina also argues that the state trial court should have given a curative
jury instruction, but we cannot find in the record where Medina’s defense counsel requested one.
Rather, Medina’s counsel asked for a mistrial. Even so, Medina has not shown the state trial
court’s denial of his motion for a new trial was an unreasonable application of clearly established
federal law, and thus no curative instruction was required.
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States, or that it was based on an unreasonable determination of the facts in light of
the evidence presented to the state court.
III. CONCLUSION
For all of these reasons, we affirm the district court’s denial of Medina’s
§ 2254 petition.
AFFIRMED.
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