Fernandez v. Secretary, Department of Corrections

646 F. App'x 899
CourtCourt of Appeals for the Eleventh Circuit
DecidedApril 1, 2016
DocketNo. 14-10653
StatusPublished

This text of 646 F. App'x 899 (Fernandez v. Secretary, Department of Corrections) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fernandez v. Secretary, Department of Corrections, 646 F. App'x 899 (11th Cir. 2016).

Opinion

PER CURIAM:

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.

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 Blockburger2 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 Block-burger 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, 130 Fla. 479, 178 So. 153, 156 (1938). The court explained:

[901]*901The 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 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 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 ha-beas relief only if the decision of the state court (1) “was contrary to, or involved an unreasonable application of, clearly established [flederal 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 on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court’s decision is an unreasonable application of clearly established federal [902]*902law only if the state court’s application of the law was objectively unreasonable. Id. at 409, 120 S.Ct. 1495. 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, 130 S.Ct. 841, 175 L.Ed.2d 738 (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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which articulated the constitutional right to effective assistance of counsel in a criminal case.

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Related

Wood v. Allen
558 U.S. 290 (Supreme Court, 2010)
Freeman v. Attorney General
536 F.3d 1225 (Eleventh Circuit, 2008)
Ward v. Hall
592 F.3d 1144 (Eleventh Circuit, 2010)
Blockburger v. United States
284 U.S. 299 (Supreme Court, 1931)
Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Smith v. Robbins
528 U.S. 259 (Supreme Court, 2000)
Williams v. Taylor
529 U.S. 362 (Supreme Court, 2000)
Harrington v. Richter
131 S. Ct. 770 (Supreme Court, 2011)
William Howard Cross, Sr. v. United States
893 F.2d 1287 (Eleventh Circuit, 1990)
Larry Gene Heath v. Charlie Jones, Warden
941 F.2d 1126 (Eleventh Circuit, 1991)
Fernandez v. State
21 So. 3d 155 (District Court of Appeal of Florida, 2009)
Durden v. State
901 So. 2d 967 (District Court of Appeal of Florida, 2005)
Negron Gil De Rubio v. State
987 So. 2d 217 (District Court of Appeal of Florida, 2008)
Brown v. State
178 So. 153 (Supreme Court of Florida, 1938)
Mathes v. State
106 So. 3d 73 (District Court of Appeal of Florida, 2013)
Cullen v. Pinholster
179 L. Ed. 2d 557 (Supreme Court, 2011)

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Bluebook (online)
646 F. App'x 899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fernandez-v-secretary-department-of-corrections-ca11-2016.