Mitchell A. Insignares v. Secretary, Florida Department of Corrections , 755 F.3d 1273 ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12378
________________________
D.C. Docket No. 1:11-cv-20858-MGC
MITCHEL A. INSIGNARES,
Petitioner–Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent–Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 23, 2014)
Before MARCUS and FAY, Circuit Judges, and HODGES, * District Judge.
PER CURIAM:
*
Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of Florida,
sitting by designation.
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Mitchel A. Insignares, a Florida prisoner, appeals the district judge’s denial
of his pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. 1 Because
resentencing by the state judge resulted in a new judgment, making this the first
challenge to that new judgment, we conclude Insignares’s petition is not
successive. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Underlying Conviction
In the early morning hours of July 5, 2000, Antonio Houed left the Pink
Pony, a Miami strip club, to return to his house. When he arrived home, he noticed
a man, later identified as Insignares, had followed him in a red car. Insignares
confronted Houed, ordered him to get on the ground, and threatened him with a
gun. When Houed did not comply, Insignares shot at him four times. Houed took
refuge behind a car, and Insignares fired another six or seven shots. Houed
eventually was able to escape, while Insignares left to commit crimes against other
victims. 2
Houed testified that he had described the attacker to police as weighing
between 250 and 300 pounds, being 6 feet, 1 inch to 6 feet, 2 inches tall, and
having a goatee and gold teeth. He also told police the attacker was wearing a
1
Insignares’s petition and initial appeal were pro se, but we appointed counsel for this appeal to
assist in determining whether his petition is “second or successive.” 28 U.S.C. § 2244(b).
2
The charges for the other crimes were severed and are not concerned in this habeas petition.
2
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white shirt, black shorts, and a hood. Based on that description, police contacted
Houed to identify the attacker later that morning. He identified Insignares on sight.
Houed also recognized a red Mitsubishi Galant owned by Gloria Insignares,
Insignares’s mother, as the car the attacker had used.
Houed’s description was not the only evidence identifying Insignares. Luis
Correa was working as a bouncer at the Pink Pony on the morning of July 5, 2000.
The manager told Correa to keep an eye on a suspicious man at the club. Correa
testified that the man was wearing a white t-shirt and dark shorts, and he appeared
to be more interested in the patrons of the club than the dancers. At his manager’s
direction, Correa recorded the license-plate number for the car in which the man
left. Correa testified to the license-plate number, which police later determined
was registered to Gloria Insignares’s car; he further stated the car he saw at the
Pink Pony was a red or burgundy Mitsubishi Galant.
Insignares’s defense at trial was mistaken identity. He contended there was
insufficient evidence linking him to the crimes. He challenged the testimony of
Correa and argued Correa’s recall of the license-plate number from memory at
trial, fourteen months later, was not credible. He also questioned why the victim
did not tell police immediately the make and model of the car, and he suggested
Houed’s testimony was biased by anger.
3
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The jury found Insignares guilty on all counts. He was convicted of (1)
attempted first-degree murder with a firearm, Fla. Stat. §§ 775.087, 777.04(1),
777.011, 782.04(1), resulting in a sentence of 40 years of imprisonment, including
a 20-year mandatory minimum; (2) criminal mischief, Fla. Stat. § 806.13(1)(b)3,
resulting in a sentence of 5 years of imprisonment; and (3) discharging a firearm in
public, Fla. Stat. §§ 775.087, 790.15(1), resulting in a sentence of 1 year of
imprisonment. These sentences ran concurrently.
B. State Direct and Post-Conviction Review
On February 14, 2002, Insignares filed a post-conviction motion to correct
his sentence under Florida Rule of Criminal Procedure 3.800. The state judge
resentenced Insignares by reducing his 40-year imprisonment sentence for
attempted murder to 27 years and replacing his 1-year imprisonment sentence for
discharging a firearm with a 5-year suspended imprisonment sentence. These
sentences remained concurrent.
On direct appeal, the state appellate court reversed Insignares’s criminal-
mischief conviction but otherwise affirmed. Insignares v. State, 847 So. 2d 1063,
1064 (Fla. Dist. Ct. App. 2003) (per curiam). The appellate court’s mandate issued
on July 14, 2003. On August 18, 2003, the state judge vacated the criminal-
mischief conviction.
4
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On May 25, 2004, Insignares filed a collateral challenge to his conviction
under Florida Rule of Criminal Procedure 3.850 and alleged ineffective assistance
of trial counsel. Relevant to this appeal, Insignares alleged his trial counsel was
ineffective for failing to (1) depose Correa, (2) colloquy a sleeping juror, and (3)
object or move for a mistrial after improper statements by the prosecutor during his
closing argument. He additionally alleged cumulative error. On post-conviction
review, the state judge held an evidentiary hearing and denied the motion. The
appellate court affirmed. Insignares v. State, 957 So. 2d 680 (Fla. Dist. Ct. App.
2007). The appellate court’s mandate issued on May 18, 2007.
C. First Federal Habeas Petition and Additional State Review
On December 12, 2007, Insignares filed his first federal habeas petition
under § 2254 in the Southern District of Florida. Notably, he alleged the same
errors in his 2007 petition as he has in his second federal habeas petition, the
subject of this appeal. The district judge dismissed his petition as untimely.
Without seeking a Certificate of Appealability (“COA”), Insignares appealed the
dismissal. We dismissed that appeal for failure to prosecute. Insignares v. Fla.
Dep’t of Corr., No. 08-15529 (11th Cir. Oct. 22, 2008).
On April 1, 2009, Insignares filed a second Florida Rule 3.800 motion to
correct his sentence. The state judge granted the motion and reduced the
mandatory-minimum imprisonment sentence for his attempted-murder conviction
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from 20 years to 10 years, but he otherwise left his conviction and sentence intact.
The judge entered the corrected sentence and new judgment on May 22, 2009.
On June 15, 2009, Insignares filed a second Florida Rule 3.850 motion
challenging his conviction and alleged actual innocence. The state judge denied
the petition; the appellate court affirmed without opinion. Insignares v. State, 50
So. 3d 1146 (Fla. Dist. Ct. App. 2010) (per curiam). The mandate issued on
January 24, 2011.
D. Second Federal Habeas Petition
On March 10, 2011, Insignares filed the § 2254 habeas petition at issue in
this appeal. The petition was referred to a magistrate judge, who construed the
petition as raising ten claims, which he rejected in a Report and Recommendation
(“R&R”). The magistrate judge concluded the habeas petition was not “second or
successive” under Magwood v. Patterson, 561 U.S. 320, 130 S. Ct. 2788 (2010),
because it was Insignares’s first petition to challenge the new judgment entered
after resentencing. R&R at 27. The district judge adopted the R&R and issued a
COA as to whether (1) counsel was ineffective for failing to investigate, depose,
and adequately impeach Luis Correa; (2) counsel was ineffective for failing to
colloquy and remove a sleeping juror pursuant to Insignares’s request; (3) counsel
was ineffective for failing to object to the prosecutor’s misrepresentation of facts
crucial to the issue of identification and move for mistrial after the prosecutor
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commented on his opinion of the evidence; and (4) cumulative error deprived
Insignares of a fair trial.
II. JURISDICTION
Before addressing the merits of Insignares’s habeas petition, we first must
decide whether the district judge had jurisdiction to decide it. Under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.
No.104-132, 110 Stat. 1214, a prisoner “in custody pursuant to the judgment of a
State court,” 28 U.S.C. § 2254(a), “shall move in the appropriate court of appeals
for an order authorizing the district court to consider” a “second or successive”
federal habeas petition. 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S.
147, 152, 127 S. Ct. 793, 796 (2007). Subject to exceptions not present in this
case, a district judge lacks jurisdiction to decide a second or successive petition
filed without our authorization.3 Insignares did not seek permission to file a
successive petition. Therefore, the district judge had jurisdiction to hear his
petition only if Insignares’s application was not second or successive.
Because Insignares had filed a federal habeas petition in 2007 challenging
his conviction and raising the same issues as his 2011 federal habeas petition, the
state argues his second petition is successive. Insignares responds that, although
he filed a 2007 federal petition, the reduction of his mandatory-minimum sentence
3
See, e.g., Panetti v. Quarterman, 551 U.S. 930, 945, 127 S. Ct. 2842, 2853 (2007) (describing
an exception to AEDPA’s bar on claims in successive petitions).
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in 2009 resulted in a new judgment. He contends the 2011 federal habeas petition
is his first challenge to that new judgment; consequently, it is not “second or
successive.” Appellant’s Br. at 3-5. We agree with Insignares.
In Magwood, the Supreme Court decided whether a habeas petition
challenging a state prisoner’s sentence after intervening resentencing was “second
or successive.” 561 U.S. 320, 130 S. Ct. 2788. The state prisoner in Magwood had
been convicted of murder and sentenced to death. Id. at 324, 130 S. Ct. at 2792.
On initial federal habeas review, the district judge did not disturb the conviction
but conditionally granted the petition concerning the death sentence. Id. at 326,
130 S. Ct. at 2793. The state trial judge resentenced the prisoner and imposed
another death sentence. Id. The prisoner again sought federal review of his
sentence, but he brought a new claim that alleged his sentence was unlawful,
because he did not have fair warning he could be sentenced to death. Id. at 327,
130 S. Ct. at 2794. The district judge conditionally granted the new petition, but
this court determined his petition should have been dismissed as second or
successive, because the fair-warning claim could have been raised in his first
federal habeas petition. Id. at 329, 130 S. Ct. at 2794–95. The Supreme Court
granted certiorari to decide whether resentencing in response to a conditional
habeas writ subjects petitions challenging the new sentence to AEDPA’s
restrictions on successive federal habeas petitions. Id. at 330, 130 S. Ct. at 2795.
8
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Based on AEDPA’s language and context, the Court concluded that courts
must look to the judgment challenged to determine whether a petition is second or
successive. AEDPA does not define the phrase “second or successive.” Id. at 331-
32, 130 S. Ct. at 2796. Although § 2244(b) prohibits certain claims from being
heard in a second or successive application, that provision does not define what it
means for an application to be second or successive.4 To determine the meaning of
this “term of art,” the Court looked instead to § 2254(b)(1). Id. at 332, 130 S. Ct.
at 2797 (citation and internal quotation marks omitted). Quoting the statute, the
Court noted that “[t]he limitations imposed by § 2244(b) apply only to a ‘habeas
corpus application under § 2254,’ that is, an ‘application for a writ of habeas
corpus on behalf of a person in custody pursuant to the judgment of a State court,’
§ 2254(b)(1).” Id. 5 In accordance with AEDPA, the Court recognized a habeas
application seeks invalidation “‘of the judgment authorizing the prisoner’s
confinement,’” and, even if the application is successful, “‘the State may seek a
new judgment.’” Id. (quoting Wilkinson v. Dotson, 544 U.S. 74, 83, 125 S. Ct.
1242, 1248 (2005)). Therefore, the judgment is the center of the analysis, “both
4
Subject to two exceptions, § 2244(b) provides that “[a] claim presented in a second or
successive habeas corpus application under section 2254 . . . shall be dismissed.” 28 U.S.C.
§ 2244(b).
5
Section 2254(b)(1) provides that “[a]n application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not be granted unless it appears
that” the applicant has exhausted the remedies available in the state courts, there is an absence of
available state corrective process, or circumstances exist that make the process ineffective to
protect the applicant’s rights. 28 U.S.C. § 2254(b)(1) (emphasis added).
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§ 2254(b)’s text and the relief it provides indicate that the phrase ‘second or
successive’ must be interpreted with respect to the judgment challenged.” Id. at
332-33, 130 S. Ct. at 2797.
The Supreme Court also clarified that the phrase “second or successive”
applies to habeas petitions, not to the claims they raise. On appellate habeas
review in Magwood, this court had “concluded that the first step in determining
whether § 2244(b) applies is to ‘separate the new claims challenging the
resentencing from the old claims that were or should have been presented in the
prior application.’” Id. at 329, 130 S. Ct. at 2795 (quoting Magwood v. Culliver,
555 F.3d 968, 975 (11th Cir. 2009)). The Supreme Court interpreted our decision
as stating that “any claim that ‘challenge[s] the new, amended component of the
sentence’ should be ‘regarded as part of a first petition,’ and any claim that
‘challenge[s] any component of the original sentence that was not amended’ should
be ‘regarded as part of a second petition.’” Id. (quoting Culliver, 555 F.3d at 975)
(alterations in original). Since Magwood’s fair-warning claim could have been
raised in his previous petition, we concluded that the claim was governed by
AEDPA’s bar on second or successive habeas applications. Id. Rejecting this
claim-based approach, the Court reversed. Id. at 334-35, 130 S. Ct. at 2798. It
stated that “although we agree with the State that many of the rules under
§ 2244(b) focus on claims, that does not entitle us to rewrite the statute to make the
10
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phrase ‘second or successive’ modify claims as well.” Id. Therefore, the Court
explained that “the phrase ‘second or successive’ applies to an application as a
whole” and rejected the argument that there are “second or successive” claims
under § 2244(b). Id. at 334-35 & n.10, 130 S. Ct. at 2798 & n.10.
Based on this analysis, the Court concluded that “AEDPA’s text commands
a more straight-forward rule: where . . . there is a new judgment intervening
between the two habeas petitions, an application challenging the resulting new
judgment is not second or successive.” Id. at 341-42, 130 S. Ct. at 2802 (citation
and internal quotation marks omitted). Throughout its opinion, the Court
emphasized the effect of a new judgment. “Because Magwood’s habeas
application challenge[d] a new judgment for the first time, it [was] not ‘second or
successive’ under § 2244(b).” Id. at 323-24, 130 S. Ct. at 2792 (footnote omitted).
The Court agreed with Magwood that § 2244(b) “appl[ies] only to a ‘second or
successive’ application challenging the same state-court judgment.” Id. at 331, 130
S. Ct. at 2796. Since his petition was his “first application challenging [an]
intervening judgment,” it was not “second or successive,” regardless of whether he
had raised the claims before. Id. at 336, 339, 130 S. Ct. at 2799, 2801. Put simply,
the first application to challenge a judgment is not subject to AEDPA’s restrictions
on successive petitions—“the existence of a new judgment is dispositive.” Id. at
338, 130 S. Ct. at 2800.
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The wrinkle in Magwood is that the Court expressly reserved the question
of whether a subsequent petition challenging the undisturbed conviction would be
“second or successive” after the state imposes only a new sentence. Id. at 342, 130
S. Ct. at 2802. That is the question we must decide.
Our sister circuits have addressed variations of this issue. The Second, Fifth,
and Ninth Circuits have considered whether vacating one count of a multi-count
conviction results in a new judgment that allows a renewed challenge to the other
counts. The Second and Ninth Circuits held it does result in a new judgment, 6 but
the Fifth Circuit held it does not. 7 In addition, the Second and Ninth Circuits
concluded that the petitions were not successive even though they challenged
unamended portions of the judgment. Those cases, however, involved different
facts from those we have in this case.
The only circuit that has addressed the precise question we confront is the
Seventh Circuit. Suggs v. United States, 705 F.3d 279 (7th Cir. 2013). That court
concluded resentencing in district court did not allow the prisoner to challenge his
6
See Johnson v. United States, 623 F.3d 41, 46 (2d Cir. 2010) (“Johnson’s proposed § 2255
motion [is] not . . . successive because it is his first § 2255 motion challenging the amended
judgment of conviction. A different result is not warranted by the fact . . . that he effectively
challenges an unamended component of the judgment.” (footnote omitted)); Wentzell v. Neven,
674 F.3d 1124, 1127 (9th Cir. 2012) (“Although the Court had ‘no occasion to address’ the
precise scenario this case presents, we conclude, as a matter of first impression, that the basic
holding of Magwood applies here: the latter of two petitions is not ‘second or successive’ if there
is a ‘new judgment intervening between the two habeas petitions.’” (citations omitted)).
7
See In re Lampton, 667 F.3d 585, 589–90 (5th Cir. 2012) (“The district court did not enter an
amended judgment of conviction in this case. No new sentence was imposed. The less
fundamental change made to Lampton’s judgment of conviction is not enough to allow him to
bypass AEDPA’s restrictions on piecemeal habeas litigation.”).
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underlying conviction again without first seeking authorization to file a second
petition. Id. at 280–81. But the Seventh Circuit did not reach this conclusion by
writing on a clean slate. The court instead looked to pre-Magwood precedent,
which held habeas petitions “are not second or successive when they allege errors
made during the resentencing, but they are second or successive when they
challenge the underlying conviction.” Id. at 282 (citing Dahler v. United States,
259 F.3d 763 (7th Cir. 2001)). The Seventh Circuit further reasoned that, because
Magwood expressly declined to decide the issue, its prior precedent was not
overruled. Id. at 284. 8
Neither do we write on a clean slate. We have addressed the effect of
resentencing on AEDPA’s statute of limitations. Ferreira v. Sec’y, Dep’t of Corr.,
494 F.3d 1286 (11th Cir. 2007). The prisoner in Ferreira had been resentenced by
the state trial judge and sought federal review of his underlying conviction. Id. at
1288. The issue was whether resentencing rendered timely his otherwise untimely
challenge to the conviction. Id. Prior to Ferreira, we viewed the conviction and
sentence as two separate judgments, each with its own statute of limitations.
Responding to the Supreme Court’s decision in Burton, which ruled AEDPA’s
statute of limitations “[does] not begin until both [the] conviction and sentence
8
A vigorous dissent contended that, although Magwood did not answer the precise question in
Suggs, it expressly rejected the claims-based approach of the circuit precedent. See Suggs, 705
F.3d at 287 (Sykes, J., dissenting).
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‘bec[o]me final,’” Burton, 549 U.S. at 156, 127 S. Ct. at 799, we overruled our
incorrect understanding of separate judgments of conviction and sentence.
Ferreira, 494 F.3d at 1293.
In Ferreira, we explained there is one judgment, comprised of both the
sentence and conviction. Id. at 1292 (“[T]he judgment to which AEDPA refers is
the underlying conviction and most recent sentence that authorizes the petitioner’s
current detention.”); cf. Deal v. United States, 508 U.S. 129, 132, 113 S. Ct. 1993,
1996 (1993) (“A judgment of conviction includes both the adjudication of guilt and
the sentence.”). Applying that rule, we held “that AEDPA’s statute of limitations
runs from the date the judgment pursuant to which the petitioner is in custody
becomes final, which is the date both the conviction and sentence the petitioner is
serving become final.” Ferreira, 494 F.3d at 1288. The limitations provisions of
AEDPA “are specifically focused on the judgment which holds the petitioner in
confinement,” and resentencing results in a new judgment that restarts the statute
of limitations. Id. at 1292–93. Since there was a new judgment, we saw no reason
to differentiate between a claim challenging a conviction and one challenging the
sentence.
Having reviewed Magwood and the cases of other circuits, we return to the
basic proposition underlying Burton and Ferreira: there is only one judgment, and
it is comprised of both the sentence and the conviction. In Ferreira, resentencing
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by the state judge resulted in a new judgment. Magwood explains, the “existence
of a new judgment is dispositive” in determining whether a petition is successive.
561 U.S. at 338, 130 S. Ct. at 2800. Based on these cases, we conclude that when
a habeas petition is the first to challenge a new judgment, it is not “second or
successive,” regardless of whether its claims challenge the sentence or the
underlying conviction. 9
Insignares’s first federal habeas petition was decided in 2008. In 2009, the
state judge granted a motion to reduce Insignares’s mandatory-minimum
imprisonment sentence from 20 years to 10 years but retained his 27-year
imprisonment sentence. The 2009 resentencing by the state judge resulted in a
new judgment, and the 2011 petition is his first federal challenge to that 2009
judgment. Therefore, Insignares’s 2011 petition is not “second or successive,” and
the district judge had jurisdiction to decide it.
9
While such a petition is not subject to AEDPA’s restrictions on “second or successive”
petitions, AEDPA’s other limitations still apply. For example, “[a] petitioner may not raise in
federal court an error that he failed to raise properly in state court in a challenge to the judgment
reflecting the error.” Magwood, 561 U.S. at 340, 130 S. Ct. at 2801. Moreover, previously
decided claims may be foreclosed by the law-of-the-case doctrine. See Transamerica Leasing,
Inc. v. Inst. of London Underwriters, 430 F.3d 1326, 1331 (11th Cir. 2005) (“‘Under the “law of
the case” doctrine, the findings of fact and conclusions of law by an appellate court are generally
binding in all subsequent proceedings in the same case in the trial court or on a later appeal.’”
(quoting Heathcoat v. Potts, 905 F.2d 367, 370 (11th Cir. 1990) (per curiam)).
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III. DISCUSSION
Because Insignares’s petition is not second or successive, we progress to the
merits of the COA: his Sixth Amendment claims of ineffective assistance of
counsel and his claim of cumulative error. Insignares argues his trial counsel was
ineffective for failing to: (1) investigate, depose, and adequately impeach Correa;
(2) colloquy and remove a sleeping juror; and (3) object to the prosecutor’s
misrepresentation of facts in his closing argument.
To establish ineffective assistance of counsel, Insignares must show (1) trial
“counsel’s performance was deficient,” and (2) “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984). Trial counsel’s performance is deficient if it is incompetent
“under prevailing professional norms.” Id. at 688, 104 S. Ct. at 2065. There is a
strong presumption that counsel’s performance may be considered trial strategy;
strategic choices are “virtually unchallengeable.” Id. at 689–90, 104 S. Ct. at
2065–66. Prejudice is the reasonable likelihood of a different result. Id. at 696,
104 S. Ct. at 2069. But “[t]he likelihood of a different result must be substantial,
not just conceivable.” Harrington v. Richter, 131 S. Ct. 770, 792 (2011).
We must review with considerable deference the state judge’s determination
regarding whether counsel was ineffective. Ferrell v. Hall, 640 F.3d 1199, 1224
(11th Cir. 2011). Under AEPDA, when a claim previously has been adjudicated
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by a state judge, we may grant relief only if the adjudication “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 if the
decision “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). When a
claim implicates both AEDPA and Strickland’s highly deferential standards, our
review is “doubly” deferential. Harrington, 131 S. Ct. at 788. “The question is
whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id. Even if a state judge’s decision is unaccompanied by an
explanation, the habeas petitioner can meet his burden only if there was “no
reasonable basis” for the judge’s denial of relief. Id. at 784.
A. Failure to Investigate, Depose, and Adequately Impeach Correa
Correa provided evidence identifying Insignares and the car he used for his
crimes on July 5, 2000. Insignares alleges Correa had pending criminal cases at
the time of the trial. 10 He claims defense counsel’s failure to depose and
investigate Correa left this information undiscovered and could have been used to
show motive, interest, or bias in testifying for the state.
10
Insignares also claimed Correa was a new employee at the Pink Pony. Even if this were true,
we do not see how that could have affected Correa’s ability to identify Insignares or the car
accurately and credibly.
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Based on the record, the state judge reasonably could have concluded that
counsel’s efforts with regard to Correa were not deficient. Defense counsel
testified at the evidentiary hearing that he does not depose every possible witness
prior to trial and that he did not believe Correa was a particularly important
witness. Despite foregoing a pre-trial deposition, defense counsel adequately
cross-examined Correa at trial about the circumstances of his employment, his
opportunity to observe Insignares at the Pink Pony, and his ability to describe
accurately the events he witnessed. Insignares has not explained why his counsel’s
choice was deficient, other than to emphasize Correa was an important witness.
See Boyd v. Comm’r, Ala. Dep’t of Corr., 697 F.3d 1320, 1332–1334 (11th Cir.
2012) (denying a claim for insufficiently detailed allegations). He also has not
provided convincing evidence showing that Correa had charges pending during
Insignares’s trial,11 nor has he shown that his counsel would have discovered such
charges with further investigation.
Even assuming defense counsel was deficient, the state judge reasonably
could have found that his performance did not result in prejudice. If Correa’s
testimony had been discredited, the link between Insignares, the red vehicle, and
the offense—merely corroborated by Correa’s testimony—was supported by ample
other evidence. See United States v. Andrews, 953 F.2d 1312, 1327 (11th Cir.
11
The only evidence in the record is vague testimony from a private investigator, who believed
Correa may have had an open case at the time of Insignares’s trial.
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1992) (concluding that defendant failed to show prejudice, when other evidence
was sufficient to support the verdict). Insignares’s mother testified that, on the
night in question, her son was driving a car of the same make and color as that
used in the attack. In addition, Houed described Insignares’s clothing, distinctive
physical characteristics, and facial features as well as identified both Insignares
and his mother’s red car at a show-up and at trial. We conclude the state judge had
a reasonable basis to deny Insignares’s claim that his trial counsel was ineffective
for failing to investigate, depose, and adequately impeach Correa.
B. Alleged Sleeping Juror
Insignares alleges a juror slept during parts of his trial, including closing
arguments and jury instructions. He contends defense counsel was ineffective for
failing to question and remove the sleeping juror.
Defense counsel notified the trial judge that he believed a juror was sleeping
during trial. He also moved for a mistrial. The judge found that the juror was
“nodding,” but was still awake, and denied the motion for a mistrial. Insignares,
957 So. 2d at 682. While Insignares maintains the juror was sleeping, he has not
provided clear and convincing evidence rebutting the trial judge’s contrary factual
finding. Therefore, we adopt the trial judge’s finding that the juror was awake.
See Hunter v. Sec’y, Dep’t of Corr., 395 F.3d 1196, 1200 (11th Cir. 2005) (“Under
. . . AEDPA, state court factual determinations are presumed correct and a federal
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habeas petitioner is stuck with them unless he can rebut their presumed correctness
with clear and convincing evidence to the contrary.”). Because the juror was
awake, the state judge did not apply Strickland unreasonably in rejecting
Insignares’s claim that counsel was ineffective for failing to question or remove
the juror, especially when the trial judge already had denied defense counsel’s
motion for a mistrial. Moreover, Insignares has not shown that the state judge’s
decision was based on an unreasonable determination of the facts in view of the
evidence presented.
C. Failure to Object to the Prosecutor’s Alleged Misrepresentation of Facts
Insignares argues defense counsel was ineffective for failing to object to
questionable remarks made by the prosecutor in his closing argument. We address
the three remarks in turn.
First, the prosecutor said: “Luis [Correa] was told to get the tag number. He
got the tag number . . . it’s the only tag number in Dade County that comes back to
a Mitsubishi, and he got it.” R&R at 45 (quoting Trial Tr. at 434) (alteration in
original). Insignares alleges this statement is false, but he has not supported his
claim by explaining why the statement is incorrect or why counsel should have
objected. See Boyd, 697 F.3d at 1332. Construing his argument liberally,
Insignares argues the prosecutor falsely told the jury the license-plate number
belonged to the only Mitsubishi in Miami-Dade County. But it would have been
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plainly clear to a jury from Miami-Dade County that there is more than one
Mitsubishi in the county, and the prosecutor simply meant the license-plate number
Correa provided was on the Mitsubishi owned by Insignares’s mother. Given the
absurdity of a different interpretation, the state judge reasonably could have
concluded that defense counsel was not ineffective for failing to object. See Duren
v. Hopper, 161 F.3d 655, 662–63 (11th Cir. 1998) (concluding failure to object to
prosecutor’s allegedly improper comments was not ineffective assistance of
counsel, given the context of those comments).
Second, the prosecutor stated: “[Insignares] follows [Houed] out, and that is
the home of his first prey.” R&R at 45 (quoting Trial Tr. at 434). This statement
was a reference to the multiple victims of Insignares’s subsequent crimes. The
reference was improper, because those other charges were severed. At the post-
conviction evidentiary hearing, however, defense counsel testified he did not
object, because it is not prudent to raise every objection at trial. The state judge
reasonably could have concluded that defense counsel’s strategic decision not to
object did not result in ineffective assistance of counsel. See Strickland, 466 U.S.
at 689, 104 S. Ct. at 2065; Hunt v. Comm’r, Ala. Dep’t of Corr., 666 F.3d 708, 726
(11th Cir. 2012). As the magistrate judge determined, there are many reasons why
defense counsel might not object to such a statement, including the objection may
draw attention to the statement. Even assuming the failure to object was deficient,
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the state judge reasonably could have found that Insignares suffered no prejudice,
because an objection to this single statement during the prosecutor’s closing
argument is not reasonably likely to have changed the outcome.
Third, the prosecutor said: “[Correa] came here. He told you, I saw
[Insignares] and I saw what he did, because this is what happened. . . . [Insignares]
did it. He did it.” R&R at 46 (quoting Trial Tr. at 443, 450) (first alteration in
original). The first statement simply describes Correa’s testimony as viewed by
the prosecutor, while the second invites the jury to conclude Insignares is guilty.
The state judge had a reasonable basis to decide that counsel was not deficient for
failing to raise non-meritorious objections. See Chandler v. Moore, 240 F.3d 907,
917 (11th Cir. 2001) (finding counsel was not ineffective for failing to object to an
accurate statement). These statements to the jury by the prosecutor during his
closing argument were not improper.
D. Cumulative Error
Insignares claims cumulative error deprived him of a fair trial. Under the
cumulative-error doctrine, a sufficient agglomeration of otherwise harmless or
nonreversible errors can warrant reversal if their aggregate effect is to deprive the
defendant of a fair trial. Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132
(11th Cir. 2012). “This court has made clear that where ‘[t]here [is] no error in any
of the [trial] court’s rulings, the argument that cumulative trial error requires that
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this Court reverse [the defendant’s] convictions is without merit.’” Id. (quoting
United States v. Taylor, 417 F.3d 1176, 1182 (11th Cir. 2005) (per curiam))
(alterations in original). Because we have found no error in the issues on appeal,
Insignares has failed to show that the state judge lacked a reasonable basis to deny
his cumulative-error claim. 12
AFFIRMED.
12
Insignares argues errors not specified in the COA contributed to the cumulative error. We do
not consider issues outside the COA. Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351, 1356 (11th
Cir. 2007).
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FAY, Circuit Judge, concurring specially:
Although I concur in the court’s opinion, I write separately to express some
doubt and concern about how we should interpret the opinion of the Supreme
Court in Magwood v. Patterson, 561 U.S. 320, 130 S. Ct. 2788 (2010). It is clear
that Magwood does not alter our opinion and holding in Ferreira v. Secretary,
Department of Corrections, 494 F.3d 1286 (11th Cir. 2007). However, there is
language in Magwood that indicates to me that the Supreme Court may well take a
different tack should it deal with a case like this one. In response to the dissenters,
Justice Thomas goes to some lengths to emphasize: “This is Magwood’s first
application challenging that intervening judgment. The errors he alleges are new.
It is obvious to us—and the State does not dispute—that his claim of ineffective
assistance at resentencing turns upon new errors.” Magwood, 561 U.S. at 339, 130
S. Ct. at 2801. That is not the situation with Insignares. There is nothing new in
his petition attacking his new judgment. Instead, he raises exactly the same issues
he raised in his earlier application. Consequently, except for the intervening “new
judgment,” we are dealing in this case with an otherwise clear abuse of the writ.
When the Supreme Court has a case exactly like this one, we will know the
answer. Until then, we are bound by our precedent in Ferreira.
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