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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10653
Non-Argument Calendar
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D.C. Docket No. 0:12-cv-62410-JIC
DENNIS FERNANDEZ,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 1, 2016)
Before TJOFLAT, WILSON and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Florida state prisoner Dennis Fernandez, represented by counsel, appeals the
district court’s denial of his petition for a writ of habeas corpus, pursuant to 28
U.S.C. § 2254, in which he sought to vacate, in relevant part, his convictions and
sentences for conspiracy to commit racketeering and conspiracy to submit false
and fraudulent insurance claims. On appeal, he argues that counsel in his direct
appeal was ineffective for failing to argue that these convictions violated double
jeopardy. Upon review of the record and consideration of the parties’ briefs, we
affirm.
I.
After a 41-day jury trial, Fernandez was convicted of 15 counts under
Florida law related to a criminal auto theft enterprise. Count 15 alleged that from
March 9 through March 28, 2004, Fernandez, Carlos Torres, and Luis Manuel
Planas conspired to submit false and fraudulent insurance claims. Count 2 alleged
that from December 2, 2003 through April 22, 2004, Fernandez and eight other
individuals, not including Planas, conspired to commit racketeering. Count 2
included the insurance fraud conspiracy from Count 15 as one of many “Predicate
Incident[s].” Doc. 19-1 at 183.1 Specifically, Count 2 alleged that from March 9
through March 28, 2004, Fernandez conspired with Torres and Planas to submit
false and fraudulent insurance claims.
1
Citations to “Doc.” refer to docket entries in the district court record in this case.
2
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Fernandez appealed. His counsel raised two arguments, both of which a
panel of Florida’s Fourth District Court of Appeals (“DCA”) rejected. Fernandez’s
counsel did not argue, however, that his convictions on Counts 2 and 15 violated
his right against double jeopardy. The Fourth DCA affirmed Fernandez’s
convictions and sentence. Fernandez v. State,
21 So. 3d 155 (Fla. 4th DCA 2009).
Fernandez then filed a pro se petition for writ of habeas corpus in Florida’s
Fourth DCA, alleging that his appellate counsel was ineffective. Fernandez
recognized that, generally, Florida applies the Blockburger 2 test for determining if
multiple convictions for offenses arising out of the same criminal conduct amount
to double jeopardy. Fernandez argued, however, that the Blockburger test does not
apply to a conspiracy case. Indeed, the Florida Supreme Court held after
Blockburger that “a single conspiracy may have for its object the violation of two
or more criminal laws or two or more substantive offenses.” Brown v. State,
178
So. 153, 156 (Fla. 1938). The court explained:
The conspiracy is one offense and a single offense, no matter how
many repeated violations of the law may have been the object of the
conspiracy. And so one may not be convicted or acquitted of a
conspiracy to accomplish a certain criminal act and again be put in
2
Blockburger v. United States,
284 U.S. 299, 304 (1932). In Blockburger, the Court
established the “same elements” test for determining if two convictions are the same offense for
double jeopardy purposes.
Id. “The applicable rule,” the Court explained, “is that, where the
same act or transaction constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not.”
Id.
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jeopardy for the trial for the offense of the same conspiracy to commit
a different criminal act.
Id. Relying on two recent cases from Florida’s Second DCA, Fernandez argued
that his convictions on Counts 2 and 15 violated the prohibition against double
jeopardy. See Negron Gil de Rubio v. State,
987 So. 2d 217, 219 (Fla. 2d DCA
2008) (citing
Brown, 178 So. at 156); Durden v. State,
901 So. 2d 967, 968 (Fla. 2d
DCA 2005).
The Fourth DCA denied Fernandez’s habeas petition. The court explained
that Fernandez’s case was “distinguishable from the situation presented in Negron
. . . and the other cases upon which [he] relie[d].” Doc. 22-6 at 603. “Unlike the
defendants in [those] cases,” the court continued, “Petitioner entered distinct
agreements to engage in distinct criminal offenses.”
Id. The court found that the
conspiracy to commit insurance fraud in Count 15 involved a separate and distinct
agreement from the conspiracy to commit racketeering charged in Count 2.
Fernandez next filed this pro se federal habeas petition, raising several
arguments including the double jeopardy ineffective assistance claim. The
magistrate judge recommended granting habeas relief on the double jeopardy
ineffective assistance basis only, but the district court disagreed. The district court
reasoned that because the Fourth DCA “addressed and rejected the same double-
jeopardy argument that Fernandez claims his counsel should have raised on direct
appeal [to the Fourth DCA,] . . . Fernandez cannot show that this argument ‘would
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have a reasonable probability of success on appeal.’” Doc. 28 at 5 (quoting Heath
v. Jones,
941 F.2d 1126, 1132 (11th Cir. 1991)). The court denied Fernandez’s
habeas petition and declined to issue a certificate of appealability (“COA”).
Fernandez filed a motion for a COA in this Court. We granted his motion to
address his claim that appellate counsel was ineffective in failing to raise the
double jeopardy issue. We subsequently appointed counsel.
II.
We review de novo a district court’s denial of a habeas petition. Ward v.
Hall,
592 F.3d 1144, 1155 (11th Cir. 2010). A district court’s findings of fact are
reviewed for clear error, and mixed questions of law and fact, such as an
ineffective assistance of counsel claim, are reviewed de novo.
Id.
III.
If a state court adjudicated a claim on the merits, a federal court may grant
habeas relief only if the decision of the state court (1) “was contrary to, or involved
an unreasonable application of, clearly established [f]ederal law, as determined by
the Supreme Court,” or (2) “was based on an unreasonable determination of the
facts in light of the evidence presented in the [s]tate court proceeding.” 28 U.S.C.
§ 2254(d). A state court’s decision is “contrary to” federal law if “the state court
arrives at a conclusion opposite to that reached by [the Supreme Court] on a
question of law or if the state court decides a case differently than th[e] Court has
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on a set of materially indistinguishable facts.” Williams v. Taylor,
529 U.S. 362,
412-13 (2000). A state court’s decision is an unreasonable application of clearly
established federal law only if the state court’s application of the law was
objectively unreasonable.
Id. at 409. Likewise, “a state-court factual
determination is not unreasonable merely because the federal habeas court would
have reached a different conclusion in the first instance.” Wood v. Allen,
558 U.S.
290, 301 (2010). “[E]ven if reasonable minds reviewing the record might disagree
about the finding in question . . . that does not suffice to supersede the [state]
court’s determination.”
Id. (alterations and internal quotation marks omitted).
Fernandez argues that Florida’s Fourth DCA’s denial of his habeas petition
was an unreasonable application of Strickland v. Washington,
466 U.S. 668 (1984),
which articulated the constitutional right to effective assistance of counsel in a
criminal case. See Cullen v. Pinholster,
563 U.S. 170, 189 (2011). To demonstrate
that counsel’s assistance was so defective that it requires reversal, a defendant must
allege facts showing that: (1) his counsel “made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment”; and (2) “the deficient performance prejudiced the defense.”
Strickland, 466 U.S. at 687. This standard applies to claims that counsel on direct
appeal was constitutionally ineffective. See Cross v. United States,
893 F.2d 1287,
1290 (11th Cir. 1990).
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Under the performance prong of Strickland, counsel’s representation is
judged by a standard of “reasonableness under prevailing professional norms,” and
there is a “strong presumption that counsel’s conduct [fell] within the wide range
of reasonable professional assistance.”
Id. at 688-89. The petitioner “must
establish that no competent counsel would have taken the action that his counsel
did take.” Callahan v. Campbell,
427 F.3d 897, 933 (11th Cir. 2005) (internal
quotation marks omitted). In the context of a direct appeal, our inquiry is whether
“counsel unreasonably failed to discover nonfrivolous issues and to file a merits
brief raising them.” Smith v. Robbins,
528 U.S. 259, 286 (2000). Because judicial
review of counsel’s performance is already “highly deferential,” a federal habeas
court’s review of a state court decision denying a Strickland claim on the deficient
performance prong is thus “doubly deferential.” See
Pinholster, 563 U.S. at 190
(internal quotation marks omitted). The pertinent inquiry under § 2254(d) “is
whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Harrington v. Richter,
562 U.S. 86, 105 (2011). If a court
determines that the defendant has failed to establish the performance prong, it need
not address the prejudice prong. See
Strickland, 466 U.S. at 697.
Fernandez’s appellate counsel was not constitutionally deficient for failing
to argue on direct appeal that Fernandez’s conspiracy convictions violated double
jeopardy. Fernandez argues that his appellate counsel could have persuaded the
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Fourth DCA to adopt the rule of the Second DCA, as articulated in Negron, that
Blockburger does not apply to conspiracy claims. But this argument misses the
mark. The Fourth DCA did not reject the rule articulated in Negron. Instead, the
court reasoned that cases like Negron simply do not apply to the facts in this case,
because unlike in Negron, here Fernandez entered into two separate agreements.
The Fourth’s DCA’s factual determination that Fernandez’s conspiracy
convictions arose out of separate and distinct agreements was not unreasonable in
the light of the evidence in the record. The two conspiracy counts charged in
Counts 2 and 15 involved a different span of time and different individuals.
Specifically, Count 2 included eight individuals in addition to Fernandez but not
Luis Manuel Planas, and charged conduct from December 2, 2003 through April
20 2004. Count 15, in contrast, alleged an agreement among Fernandez, Planas
and Torres to engage in insurance fraud during a much narrower window in March
2004. Thus, under Florida law, the two conspiracies charged separate offenses,
and a conviction on both counts did not violate Fernandez’s right against double
jeopardy. C.f. Mathes v. State,
106 So. 3d 73, 75 (Fla. 2d DCA 2013) (holding that
a conspiracy to deliver heroin was subsumed into a conspiracy to commit
racketeering because both charges named a conspiracy to commit heroine as an
objective, the same individuals were implicated in both offenses, and the two
conspiracies allegedly occurred during the same time frame).
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For these reasons, Fernandez’s double jeopardy argument was meritless. “A
lawyer cannot be deficient for failing to raise a meritless claim.” Freeman v. Att’y
Gen.,
536 F.3d 1225, 1233 (11th Cir. 2008). Accordingly, Fernandez cannot
demonstrate that the Fourth DCA’s determination that counsel’s performance was
constitutionally adequate was unreasonable. We thus affirm without addressing
prejudice. See
Strickland, 466 U.S. at 697.
AFFIRMED.
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