Eduardo Gonzalez v. Secretary, Florida Department of Corrections ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14357
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-20645-FAM
EDUARDO GONZALEZ,
Petitioner-Appellee,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellant,
FLORIDA ATTORNEY GENERAL,
Respondent.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 8, 2017)
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Before MARTIN, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
The State of Florida appeals the district court’s grant of Eduardo Gonzalez’s
petition for writ of habeas corpus filed under 28 U.S.C. § 2254. On appeal, the
State argues the district court erred in finding Gonzalez’s two convictions for lewd
and lascivious molestation violated double jeopardy. After careful review, we
affirm.
I.
Gonzlez was charged on January 27, 2006, with one count of sexual battery
on a victim under 12 years old in violation of Fla. Stat. § 794.011(2) and two
counts of lewd and lascivious molestation on a child under 12 years old in
violation of Fla. Stat. § 800.04(5)(B). Counts 2 and 3 of the Information charged
Gonzalez identically, saying:
EDUARDO GONZALEZ, on or about December 21, 2005, . . . being
a person of the age of eighteen (18) years or older, did unlawfully and
intentionally touch the breasts, genitals, genital area, or buttocks, or
the clothing covering the breasts, genitals, genital area, or buttocks of
R.C. (A MINOR), a person less than 12 years of age in a lewd or
lascivious manner, in violation of 800.04(5)(B), Fla. Stat., contrary to
the form of the Statute in such cases made and provided, and against
the peace and dignity of the State of Florida.
At the end of Gonzalez’s trial, the jury’s verdict form allowed the jury to find
Gonzalez “Guilty as charged in the Information” for Counts 2 and 3, but did not
provide any factual or legal distinction between the two counts. The jury
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convicted Gonzalez of all three counts. The Florida trial court imposed a life
sentence for each count, all to run consecutively. These convictions were affirmed
by the Florida Third District Court of Appeal. See Gonzalez v. State, 35 So. 3d
984 (Fla. Dist. Ct. App. 2010).
On June 3, 2011, Gonzalez filed a motion for postconviction relief in Florida
under Florida Rule of Criminal Procedure 3.850. Gonzalez raised thirteen grounds
for relief. Only one is relevant to this appeal. In it, Gonzalez said his convictions
in Counts 2 and 3 for lewd and lascivious molestation violated the prohibition
against double jeopardy. The Florida trial court denied Gonzalez’s postconviction
motion on every ground raised by Gonzalez. In denying his double jeopardy
claim, the court said: “This is a claim that could have or should have been raised
on direct appeal and therefore is not cognizable under a motion for post conviction
relief. See Florida Rule of Criminal Procedure 3.850(c). Therefore, this claim will
also be summarily rejected by the Court.”
Gonzalez appealed this denial. The State conceded in its response “that the
post-conviction court erred because double jeopardy claims may be raised in a rule
3.850 motion.” But the State went on to argue the claim lacked merit for other
reasons. The Florida Third District Court of Appeal affirmed the denial of
Gonzalez’s Rule 3.850 motion in a per curiam summary affirmance that said only:
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“Affirmed.” See Gonzalez v. State, 129 So. 3d 1077 (Fla. 3d DCA 2013) (per
curiam).
Gonzalez then timely filed a federal habeas petition under 28 U.S.C. § 2254,
raising fourteen grounds including his double jeopardy claim. In that claim, he
said his two convictions for lewd and lascivious molestation were double jeopardy
violations. The magistrate judge agreed with Gonzalez and recommended that the
district court grant relief on this ground. On September 2, 2015, over the State’s
objections, the district court adopted the magistrate’s report and recommendation,
and granted Gonzalez’s petition on the double jeopardy claim.
II.
We review de novo the district court’s grant of a habeas petition under 28
U.S.C. § 2254. Muhammad v. Sec’y, Fla. Dep’t of Corr., 733 F.3d 1065, 1071
(11th Cir. 2013). The State makes three arguments on appeal. First, the State says
we should apply the “hypothesize” analysis from Hittson v. GDCP Warden, 759
F.3d 1210 (11th Cir. 2014). 1 Second, the State argues that even if the “look
through” analysis presumption from Ylst v. Nunnemaker, 501 U.S. 797, 111 S. Ct.
1This means that a petitioner can only obtain federal habeas relief after a summary
affirmance “by showing there was no reasonable basis for the state court to deny relief,”
regardless of what any lower court said before the summary affirmance. Hittson, 759 F.3d at
1233 (quotation omitted).
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2590 (1991) applies, 2 the district court erred by not affording deference to the
Florida postconviction appellate court’s summary affirmance. Finally, the State
says that even if this deference does not apply, there was no double jeopardy
violation in Gonzalez’s case.
A.
The State’s first argument is foreclosed by the Supreme Court’s decision in
Ylst, as this Court recently confirmed in Wilson v. Warden, Ga. Diagnostic Prison,
834 F.3d 1227 (11th Cir. 2016) (en banc). In Wilson, this Court held that the
Georgia Supreme Court’s summary denial of a certificate of probable cause to
appeal after a superior court denied habeas relief on the merits was an adjudication
on the merits. Id. at 1232–35. In such a case, the reviewing federal court was
instructed to determine what possible arguments or theories supported the state
decision, or in other words, if any reasonable basis existed for the state decision.
See id. at 1235. However, Wilson specifically pointed out “[i]f ‘the last reasoned
opinion on the claim explicitly imposes a procedural default, we will presume that
a later decision rejecting the claim did not silently disregard that bar and consider
the merits.’” Id. (quoting Ylst, 501 U.S. at 803, 111 S. Ct. at 2594). In this type of
2
This means that the court reviewing a petitioner’s federal habeas claim after a summary
affirmance looks to the last reasoned decision to find the basis for a summary affirmance. Ylst,
501 U.S. at 806, 111 S. Ct. at 2596.
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case, we “look through” the summary opinions to the last reasoned opinion to find
the state court’s basis for a decision. Ylst, 501 U.S. at 806, 111 S. Ct. at 2596.
In Gonzalez’s case, the Florida postconviction court held that his double
jeopardy claim was barred by a procedural default. The Florida appellate court’s
summary affirmance is therefore governed by Ylst, and we must presume that the
court affirmed based on the procedural bar, not the merits. See id.; Wilson, 834
F.3d at 1235.
B.
The State next argues that, even under Ylst, the district court erred by not
giving appropriate deference to the Florida appellate court’s summary affirmance.
The State correctly points out that the presumption in Ylst is rebuttable, and if the
presumption is rebutted then deference applies under 28 U.S.C. § 2254(d). But the
burden to rebut this presumption is high. Only “strong evidence can refute it.”
Ylst, 501 U.S. at 804, 111 S. Ct. at 2595.
The State has not met this high burden. The State says because it conceded
to the appellate court that the trial court erred in its procedural-bar ruling, the
appellate court’s summary affirmance was on the merits. But this is the same
argument that the Supreme Court rejected in Ylst. The State has shown here only
that the Florida appellate court “could do so[, not] that they did do so—much less
[] prove that, having done so, they decided the [] point on the merits rather than on
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the basis of the procedural default relied upon.” Id. at 806, 111 S. Ct. at 2596. The
Supreme Court rejected the notion that the respondent in Ylst had pointed to
anything to show that any “court actually reached the merits of [the] federal
claim.” Id.The same result follows here. Although there is some possibility that the
Florida appellate court took the State’s concession into account in its summary
affirmance, the State cannot point to any “strong evidence” that it did. See id. As
a result, because the Florida state court did not reach the merits of Gonzalez’s
double jeopardy claim, we review it de novo.3 See Muhammad, 733 F.3d at 1071.
C.
Finally, the State argues the district court erred in its determination that a
double jeopardy violation occurred. It points to the fact that under Florida law, a
defendant may be punished multiple times under the same statute so long as each
offense is based on a distinct criminal act. Fla. Stat. § 775.021(4)(a). The State
says even though the Information and jury verdict were duplicative, the trial record
shows that the two counts were for two different touchings that Gonzalez
committed during the same criminal episode.
3
The exception to this rule is that an independent and adequate state bar to relief
forecloses our review. Muhammad, 733 F.3d at 1072. However, as the State concedes, the
Florida trial court applied the procedural bar in error. See Plowman v. State, 586 So. 2d 454,
455 (Fla. 2d DCA 1991) (per curiam) (“[D]ouble jeopardy violations may be raised for the first
time in a postconviction proceeding . . . except where a knowing waiver of the right has
occurred.”).
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“The Double Jeopardy Clause protects against a second prosecution for the
same offense,” including “multiple punishments for the same offense.” Brown v.
Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225 (1977) (quotation omitted). “Where
consecutive sentences are imposed at a single criminal trial, the role of the
constitutional guarantee is limited to assuring that the court does not exceed its
legislative authorization by imposing multiple punishments for the same offense.”
Id.; see also Jones v. Thomas, 491 U.S. 376, 381, 109 S. Ct. 2522, 2525–26 (1989).
We determine whether a double jeopardy violation has occurred by applying
the Supreme Court’s test established in Blockburger v. United States, 284 U.S.
299, 52 S. Ct. 180 (1932). “The applicable rule 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. at 304, 52 S. Ct.
at 182. In other words, the test “inquires whether each offense contains an element
not contained in the other; if not, they are the ‘same offence’ and double jeopardy
bars additional punishment and successive prosecution.” United States v. Dixon,
509 U.S. 688, 696, 113 S. Ct. 2849, 2856 (1993).
Applying Blockburger, we affirm the district court. Gonzalez was charged
in the Information with two separate counts that used identical language and
contained identical elements. There were no different elements, nor factual
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distinctions described, in either the Information or jury verdict, to distinguish these
two counts. The State points to United States v. Marable, 578 F.2d 151 (5th Cir.
1978), 4 and Ward v. United States, 694 F.2d 654 (11th Cir. 1983), to argue “we are
free to look beyond the face of the indictment and examine the trial record.” Ward,
694 F.2d at 662. But Marable and Ward said conspiracy cases, and only
conspiracy cases, could deviate from the general test that the Supreme Court
established in Blockburger. See id.; United States v. Hassoun, 476 F.3d 1181,
1187 n.7 (11th Cir. 2007) (“As we hope to make clear in this opinion, the district
court’s fact-based analysis is inapplicable here; our precedent has since
distinguished Marable, limiting its holding to, at most, cases in which two counts
are charged under the same conspiracy statute.”). We decline to extend Ward and
Marable to the state-law context presented in Gonzalez’s case. Because Gonzalez
was charged and convicted of two counts with identical elements and identical
alleged facts, his convictions under Counts 2 and 3 are thus barred by the Double
Jeopardy Clause.
AFFIRMED.
4
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
Id. at 1209.
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