Case: 17-12054 Date Filed: 03/01/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12054
Non-Argument Calendar
________________________
D.C. Docket No. 1:15-cv-23896-MGC
JAVIER SOLIS,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
DEPARTMENT OF LEGAL AFFAIRS FOR THE STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 1, 2018)
Before WILLIAM PRYOR, JILL PRYOR and FAY, Circuit Judges.
PER CURIAM:
Case: 17-12054 Date Filed: 03/01/2018 Page: 2 of 7
Javier Solis, a Florida prisoner, appeals pro se the denial of his petition for a
writ of habeas corpus.
28 U.S.C. § 2254. Solis argues that the state trial and
postconviction courts violated his right to due process and that both his trial and
his appellate counsel were ineffective. Because the decisions of the Florida courts
rejecting Solis’s arguments reasonably applied clearly established federal law, we
affirm.
Solis raised nine issues to invalidate his convictions and sentence for
burglary with assault and for sexual battery. Solis contested the denial of his
motion for a mistrial based on the state allegedly shifting the burden to him to
present an alibi defense. Solis also alleged that trial counsel was ineffective for
failing to object to Detective Castaneda’s authentication of photographs; for failing
to object to the detective’s testimony about a warning to be on the lookout and
about his arrival at the crime scene; for conceding that Solis was guilty of assault;
and for failing to object to Solis’s sentence as being based on his arrests for two
similar offenses. Solis also alleged that the postconviction court had an ex parte
communication with the state. Finally, Solis alleged that his appellate counsel was
ineffective for failing to challenge Solis’s sentence and to challenge a hearsay
statement made by Castaneda. The Florida court summarily rejected all of Solis’s
postconviction arguments.
2
Case: 17-12054 Date Filed: 03/01/2018 Page: 3 of 7
We review de novo the denial of a petition for a writ of habeas corpus.
Borden v. Allen,
646 F.3d 785, 808 (11th Cir. 2011). The Antiterrorism and
Effective Death Penalty Act of 1996 prohibits granting “[a]n application for a writ
of habeas corpus on behalf of a person in custody pursuant to the judgment of a
State court . . . with respect to any claim that was adjudicated on the merits in State
court unless the adjudication of the claim . . . was contrary to, or involved an
unreasonable application of, clearly established Federal law.”
28 U.S.C.
§ 2254(d)(1). “By its terms, Section 2254(d) bars relitigation of any claim
‘adjudicated on the merits,’” even if the “state court’s decision is unaccompanied
by an explanation,” Harrington v. Richter,
562 U.S. 86, 98 (2011), unless the
petitioner can “show that the state court’s ruling on the claim . . . was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement,”
id. at 103. And because
the factual findings of the state court are “presumed to be correct,” the petitioner
bears “the burden of rebutting the presumption of correctness by clear and
convincing evidence.”
28 U.S.C. § 2254(e)(1). The relevant state decision for
federal review is the last adjudication on the merits. Wilson v. Warden, Ga.
Diagnostic Prison,
834 F.3d 1227, 1235 (11th Cir. 2016) (en banc).
The state court did not unreasonably apply clearly established federal law
when it rejected Solis’s argument that he was denied a fair trial because the state
3
Case: 17-12054 Date Filed: 03/01/2018 Page: 4 of 7
shifted the burden to him to prove his innocence with alibi evidence when it
inquired whether he had given a statement about being with his brother and
submitted rebuttal testimony about his statement. See United States v. Simon,
964
F.2d 1082, 1086 (11th Cir. 1992). Solis testified that he was unsure of his
whereabouts at the time of the crimes and that he could have been with the victim
if she were one of 20 prostitutes he had paid for sex. The prosecutor asked Solis
about giving a statement “that he remembered the day because [he] [was] with
[his] brother,” Solis responded, “I told [Castaneda] it’s possible.” Later, the
detective testified that Solis said he had worked on a bathroom in his brother’s
house when the crimes occurred. Because Solis’s trial testimony conflicted with
his prior statement to the detective, the prosecutor could use Solis’s statement for
impeachment on rebuttal. The trial court commented that the prosecutor never
alluded to the absence of Solis’s brother during the trial, which might have
suggested to the jury that Solis should have called his brother as a witness. See
Simon,
964 F.2d at 1086. The state court could have reasonably concluded that
Solis’s statement was used for the permissible purpose of testing his credibility.
The state postconviction court could have also reasonably concluded that
Solis’s trial counsel was not ineffective. The state court could have reasonably
concluded that trial counsel had no reason to object to Castaneda’s testimony or to
Solis’s sentence. See Freeman v. Att’y Gen.,
536 F.3d 1225, 1233 (11th Cir. 2008).
4
Case: 17-12054 Date Filed: 03/01/2018 Page: 5 of 7
Castaneda could authenticate photographs of the crime scene that he witnessed the
photographer take. See Fed. R. Evid. 901. Castaneda’s testimony about receiving a
warning to be on the lookout “with a description of the person [they were] looking
for” and about the purpose of a lookout warning was unobjectionable and was
devoid of any incriminating hearsay information that might have been in the actual
warning. See Fed. R. Evid. 801(c); United States v. Cain,
587 F.2d 678, 680 (5th
Cir. 1979). It would have been futile to challenge Castaneda’s testimony about
being at the crime scene based solely on Solis’s conjecture that the testimony was
false. See Tejada v. Dugger,
941 F.2d 1551, 1559 (11th Cir. 1991). The state court
also could have reasonably determined that trial counsel, faced with the victim’s
positive identification and biological evidence connecting Solis to the crimes,
made a strategic decision to concede that Solis was guilty of assault and to focus
on the failure of the state to produce direct evidence that he had burgled her
vehicle. See Strickland v. Washington,
466 U.S. 668, 690 (1984). And after trial
counsel objected at sentencing to evidence of Solis’s arrests, the trial court stated
that it was “not considering the facts” of nor would Solis “be punished” for other
bad acts.
Solis was entitled to no relief on his claim about an ex parte communication
between the postconviction court and the state. A district court may summarily
dismiss a petition that fails “to state facts that point to a ‘real possibility of
5
Case: 17-12054 Date Filed: 03/01/2018 Page: 6 of 7
constitutional error,’” Advisory Committee Notes to Rule 4 Governing Section
2254 Cases, and Solis offered no evidence beyond his speculation that an ex parte
communication occurred before the trial court ruled on his postconviction motion.
The state postconviction court also could have reasonably concluded that
appellate counsel was not ineffective. The state court could have reasonably
determined that appellate counsel had no reason to pursue the meritless claim that
Solis’s sentence was based on his arrests. See Chandler v. Moore,
240 F.3d 907,
917 (11th Cir. 2001). And the state court could have ruled that appellate counsel
could not argue for the first time on appeal that the trial court violated the
Confrontation Clause or that Solis was punished for maintaining that he was
innocent and proceeding to trial. See Diaz v. Sec’y for the Dep’t of Corr.,
402 F.3d
1136, 1142 (11th Cir. 2005) (“Under Florida law, an error that passed without
objection cannot be raised on appeal; appellate counsel, therefore, is not ineffective
for failure to raise a meritless argument.”). And, even if Solis’s claims had been
preserved for appeal, the state court could have reasonably determined that the
claims lacked merit. Solis contended that Castaneda testified about a statement that
Solis’s brother made to Detective Espana, but Solis failed to explain where
Castaneda made the alleged hearsay statement or to respond to the argument of the
state that Espana was not mentioned during Solis’s trial. See Chavez v. Sec’y Fla.
Dep’t of Corr.,
647 F.3d 1057, 1061 (11th Cir. 2011). Solis argues he was
6
Case: 17-12054 Date Filed: 03/01/2018 Page: 7 of 7
punished for maintaining his innocence, as evidenced by the trial judge’s remark
that he had “a serious problem with Mr. Solis’ testimony.” But the state court
could have reasonably concluded that the trial judge’s remark referred to Solis’s
lack of credibility and lack of remorse. See Duke v. Allen,
641 F.3d 1289, 1294–95
(11th Cir. 2011).
We AFFIRM the denial of Solis’s petition for a writ of habeas corpus.
7
