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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 15-15170 Non-Argument Calendar ________________________
D.C. Docket No. 1:12-cv-21894-JIC
MARBEL MENDOZA,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(August 11, 2016)
Before TJOFLAT, HULL and JORDAN, Circuit Judges.
HULL, Circuit Judge: Case: 15-15170 Date Filed: 08/11/2016 Page: 2 of 17
Marbel Mendoza appeals the district court’s denial of his pro se motion to
substitute counsel for the purpose of assisting him in filing an original habeas
petition to the U.S. Supreme Court. After careful review of the record and the
briefs, we affirm.
I. BACKGROUND
A. Mendoza’s 1994 Florida Convictions
Following a 1994 jury trial, Mendoza was convicted of six Florida offenses:
(1) first-degree felony murder; (2) conspiracy to commit robbery; (3) attempt to
commit armed robbery; (4) armed burglary of a dwelling; (5) use of a firearm
during the commission of a felony; and (6) possession of a firearm by a convicted
felon. Mendoza v. Sec’y, Fla. Dep’t of Corr., 761 F.3d 1213, 1216 & n.2 (11th
Cir. 2014).
At trial, “the evidence overwhelmingly established that Mendoza planned
the robbery [of the victim Conrado Calderon], participated in it, and shot and killed
Calderon.” Id. at 1218. Mendoza recruited an acquaintance, Humberto Cuellar
(“Humberto”), to help him rob Calderon. Id. at 1215-16. Humberto, in turn,
recruited his brother Lazaro Cuellar to drive the getaway car. Id. at 1216.
Humberto testified as an eyewitness against Mendoza. Id. at 1218.
In addition to Humberto’s testimony, the evidence showed that police
discovered Mendoza’s finger and palm prints on the car parked in Calderon’s
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driveway. Id. at 1216. Further, Calderon died from four bullet wounds, all of
which came from the type of gun that Mendoza had. Id. Three shots were fired
from point-blank range, and the fourth was fired from less than six inches away.
Id.
On February 8, 1994, the jury found Mendoza guilty of all counts, including
first-degree felony murder. Id. at 1218. At the close of the penalty phase, the jury
recommended the death penalty by a vote of seven to five, and the Florida trial
court sentenced Mendoza to death for his first-degree murder conviction. Id. at
1225, 1228.
On direct appeal, the Florida Supreme Court affirmed Mendoza’s
convictions and death sentence. Mendoza v. State, 700 So. 2d 670, 679 (Fla.
1997). On October 5, 1998, the U.S. Supreme Court denied Mendoza’s petition
for certiorari. Mendoza v. Florida, 525 U.S. 839, 119 S. Ct. 101 (1998).
B. State Post-Conviction Proceedings
Mendoza challenged his Florida convictions in state post-conviction
proceedings, raising numerous claims. Capital Collateral Regional Counsel-South
(“CCRC-South”) was appointed to represent Mendoza. On July 8, 2011, the
Florida Supreme Court affirmed the denial of post-conviction relief. Mendoza v.
State, 87 So. 3d 644 (Fla. 2011).
C. 2012-2014 Federal Habeas Proceedings
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On May 21, 2012, the district court appointed CCRC-South to represent
Mendoza in his federal habeas proceedings. CCRC-South filed a comprehensive
28 U.S.C. § 2254 petition. In a 75-page, July 25, 2013 order, the district court
denied the § 2254 petition.
On July 31, 2014, after briefing and oral argument, this Court affirmed the
denial of Mendoza’s § 2254 petition. Mendoza, 761 F.3d 1213. The U.S.
Supreme Court denied certiorari. Mendoza v. Jones, ___ U.S. ___, 135 S. Ct. 1714
(2015).
D. 2015 Motion for Appointment of Substitute/Supplemental Counsel
On September 29, 2015, Mendoza filed a pro se motion in the district court
“for appointment of substitute counsel / supplemental counsel to prepare and file
original habeas corpus petition in the United States Supreme Court.”
In his pro se motion, Mendoza stated that he intended to file a petition for
writ of habeas corpus in the U.S. Supreme Court, invoking its original jurisdiction
and claiming “actual innocence of the death penalty.” Liberally construing his pro
se pleading, we consider these to be Mendoza’s “actual innocence” claims that he
wishes to file in the U.S. Supreme Court: (1) whether his death penalty
determination was proper, in light of Enmund v. Florida, 458 U.S. 782, 102 S. Ct.
3368 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676 (1987);
(2) whether his due process rights were violated when his counsel allegedly argued
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inconsistent defense theories at trial, in light of Bradshaw v. Stumpf, 545 U.S. 175,
125 S. Ct. 2398 (2005); and (3) whether the Florida Supreme Court engaged in a
“cursory or rubber-stamp review” rather than conducting a proper proportionality
review, consistent with Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960 (1976).
Mendoza’s pro se motion sought appointment of substitute or supplemental
counsel to assist in preparing and filing this original habeas petition in the U.S.
Supreme Court. Mendoza acknowledged that CCRC-South had already been
appointed to represent him in his post-conviction collateral proceedings, both in
state and federal court. However, Mendoza argued that substitution of federally
appointed counsel is warranted when it would serve the “interests of justice,” as
articulated by the U.S. Supreme Court in Martel v. Clair, 565 U.S. ___, 132 S. Ct.
1276 (2012). Mendoza argued that here substitution of counsel would serve the
interests of justice because a conflict of interest prevented CCRC-South from
raising the above-specified claims before the U.S. Supreme Court in an original
habeas petition. Mendoza argued CCRC-South’s conflict of interest was that it had
previously failed to raise these claims in earlier collateral proceedings and to raise
them now in an original habeas petition would require CCRC-South to admit its
own ineffectiveness.
After the government responded to Mendoza’s motion to substitute counsel,
in an October 14, 2015 order, the district court denied Mendoza’s motion. The
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district court explained that Mendoza’s motion should be evaluated in light of the
factors articulated by the U.S. Supreme Court in Clair. The district court
determined that Mendoza had failed to show that any conflict of interest prevented
CCRC-South from raising the claims he wanted to raise before the U.S. Supreme
Court in an original habeas petition. Additionally, the district court reasoned that,
to the extent Mendoza’s claim was that CCRC-South had been ineffective during
his state post-conviction proceedings, such a claim was futile because “there is no
freestanding claim of ineffective assistance of collateral counsel” that could
proceed in an original habeas petition before the U.S. Supreme Court (citing
Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546 (1991)).
On November 3, 2015, Mendoza filed a “motion for rehearing /
reconsideration.” After the government filed a response, the district court denied
Mendoza’s “motion for rehearing / reconsideration” in a November 17, 2015 order.
This appeal followed.
II. LEGAL STANDARDS
“In any post conviction proceeding under [28 U.S.C. § 2254],” an indigent
prisoner seeking to challenge a death sentence in federal court is “entitled to the
appointment of one or more attorneys.” 18 U.S.C. § 3599(a)(2). “[T]he right to
the appointment of counsel includes a right to legal assistance in the preparation of
a habeas corpus application and thus adheres prior to the filing of a formal, legally
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sufficient habeas corpus petition.” Chavez v. Sec’y, Fla. Dep’t of Corr., 742 F.3d
940, 944 (11th Cir. 2014) (quotation marks omitted). “Once federal habeas
counsel has been appointed to represent a state prisoner in a § 2254 proceeding,
counsel is required to represent the prisoner ‘throughout every subsequent stage of
available judicial proceedings,’ including ‘all available post-conviction process’ in
state and federal court . . . until he has been ‘replaced by similarly qualified
counsel upon the attorney’s own motion or upon motion of the defendant.’” Id.
(quoting 18 U.S.C. § 3599(e)).
In evaluating a prisoner’s motion to replace or substitute his counsel, a
district court must use the “interests of justice” standard. Clair, 565 U.S. at ___,
132 S. Ct. at 1281. Under this standard, the factors to be considered generally
include “the timeliness of the motion; the adequacy of the district court’s inquiry
into the defendant’s complaint; and the asserted cause for that complaint, including
the extent of the conflict or breakdown in communication between lawyer and
client (and the client’s own responsibility, if any, for that conflict).” Id. at ___,
132 S. Ct. at 1287.
The district court’s decision on a prisoner’s substitution of counsel motion
“deserves deference” because it is “so fact-specific.” Id. Accordingly, on review
this Court “may overturn it only for an abuse of discretion.” Id.
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Furthermore, a district court may act within its discretion in denying a
prisoner’s substitution of counsel motion, “even without the usually appropriate
inquiry,” where the claim a prisoner seeks to pursue with the help of substitute
counsel would be futile. See id. at ___, 132 S. Ct. at 1289.
III. DISCUSSION
In this case, a threshold issue is whether the district court erred in
concluding Mendoza had not shown a conflict of interest. But we need not decide
this issue because the claims Mendoza seeks to pursue in an original habeas
petition to the U.S. Supreme Court would be futile.1 See id.
A. Enmund/Tison
Enmund and Tison both addressed whether and when a defendant can be
sentenced to death for his involvement in a crime during which another took a life.
In Enmund, the Supreme Court held that the Eighth Amendment prohibits the
imposition of the death penalty on one who participates in a crime but “who does
not himself kill, attempt to kill, or intend that a killing take place or that lethal
force will be employed.” Enmund, 458 U.S. at 797, 102 S. Ct. at 3376.
In Tison, the Supreme Court reviewed a state’s application of the Enmund
rule and clarified its definition of “inten[t] that a killing take place or that lethal
1 In his appellate briefs, Mendoza, pro se, mentions only his Enmund/Tison claim and his actual innocence claim. However, out of an abundance of caution in this death-penalty context, we evaluate each claim stated in Mendoza’s motion for substitution of counsel in the district court, applying the principles of liberal construction. 8 Case: 15-15170 Date Filed: 08/11/2016 Page: 9 of 17
force [ ] be employed.” The Supreme Court held that a showing that the defendant
anticipated or foresaw a killing or use of lethal force is insufficient to establish the
“intent” required by Enmund. Tison, 481 U.S. at 150-51, 107 S. Ct. at 1684.
However, the Supreme Court determined that a defendant who engages “in
criminal activities known to carry a grave risk of death,” and whose participation
in those activities is “major and whose mental state is one of reckless indifference
to the value of human life,” may be subject to capital punishment. Id. at 152, 157-
58, 107 S. Ct. at 1685, 1688.
Here, Mendoza seeks to argue in an original habeas petition to the U.S.
Supreme Court that there was never a reliable determination that he killed,
attempted to kill, intended to kill, or committed a crime with reckless indifference
to the value of human life. Thus, his death sentence violates the Eighth
Amendment, as interpreted by Enmund and Tison.
Mendoza’s claim, however, is meritless. During the penalty phase of his
trial, the court instructed the jury that it could not recommend the death penalty
unless it found that:
One, the defendant killed, or;
Two, attempted to kill, or:
Three, intended that a killing take place, or;
Four, intended that lethal force be employed, or;
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Five, the defendant was a major participant in a felony that resulted in the victim’s death and his mental state was one of reckless indifference.
The jury therefore heard an Enmund/Tison instruction, and we presume that the
jury followed the instruction. Jamerson v. Sec’y Fla. Dep’t of Corr., 410 F.3d 682,
690 (11th Cir. 2005). Moreover, the district court made an explicit finding in its
sentencing order that the trial evidence “established that the defendant
[Mendoza] . . . fired the fatal shots.”
Both the judge and jury determined that Mendoza met the Enmund/Tison
standard, and Mendoza has pointed to no evidence to overcome their factual
findings or show that the findings were not reliable in light of the trial evidence.
See Cabana v. Bullock, 474 U.S. 376, 387-88, 106 S. Ct. 689, 697-98 (1986)
(instructing that, if the state court or jury made a factual finding about the
defendant’s Enmund/Tison culpability, “the finding must be presumed correct . . .
unless the habeas petitioner can bear the heavy burden of overcoming the
presumption”), abrogated on other grounds by Pope v. Illinois, 481 U.S. 497, 107
S. Ct. 1918 (1987). Accordingly, Mendoza’s claim is futile.
B. Stumpf
Stumpf was a capital case in which it was unclear whether Stumpf or one of
his partners in a robbery killed the victim. Stumpf, 545 U.S. at 178-79, 125 S. Ct.
at 2402-03. Stumpf pled guilty to capital aggravated murder, and during the
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sentencing hearing, the state argued that Stumpf fired the fatal shots. Id. at 179,
125 S. Ct. at 2403. Later, during one of the co-defendant’s trials, and after new
evidence emerged, the state argued that the co-defendant was the triggerman, not
Stumpf. Id. at 180, 125 S. Ct. at 2403-04.
As a result, Stumpf claimed during his post-conviction proceedings that the
prosecutor presented inconsistent theories of the case, in violation of his due
process rights. See id. at 182, 125 S. Ct. at 2405. The Supreme Court, however,
did not resolve whether there was a due process violation in sentencing Stumpf to
the death penalty. Id. at 187-88, 125 S. Ct. at 2407-08. The Supreme Court
remanded the issue to the federal appeals court for clarification of its opinion on
that subject. Id. The Supreme Court “express[ed] no opinion on whether the
prosecutor’s actions amounted to a due process violation, or whether any such
violation would have been prejudicial.” Id. at 187, 125 S. Ct. at 2408.
Mendoza wishes to argue in an original habeas petition to the U.S. Supreme
Court that his due process rights were violated when “trial counsel” presented
inconsistent theories as to who shot Calderon. Mendoza asserts that Stumpf is the
basis for this claim. However, Stumpf did not definitively determine that a
petitioner’s due process rights are violated by the state’s presentation of
inconsistent positions. Nor did it comment at all on the effect of a defense
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attorney—which seems to be what Mendoza’s claim is about—making inconsistent
claims about whether the defendant was a principal or accessory to the crime. 2
More importantly, the facts of Mendoza’s case are materially distinguishable
from Stumpf. In Stumpf, there was a lack of evidence tying any particular robbery
defendant to the death. See generally id. In Mendoza’s case, however, there was
overwhelming eyewitness and forensic evidence that Mendoza was the triggerman.
Thus, even assuming arguendo that a petitioner may be entitled to habeas relief for
an attorney taking inconsistent positions at trial or sentencing, Mendoza would not
be able to show that he was prejudiced by that occurrence. See id. at 187, 125 S.
Ct. at 2408 (declining to determine whether the alleged due process violation
“would have been prejudicial”); see also Brecht v. Abrahamson, 507 U.S. 619, 113
S. Ct. 1710 (1993) (applying harmless error review to non-structural claims on
collateral review). This claim, too, is futile.
C. Proffitt
In Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726 (1972), the Supreme
Court established that states cannot impose the death penalty arbitrarily and
capriciously. See Johnson v. Singletary, 938 F.2d 1166, 1179 (11th Cir. 1991). In
response to Furman, Florida recast its capital punishment statutes and required the 2 Mendoza argued in a state post-conviction motion and his § 2254 petition that defense counsel was ineffective for taking inconsistent positions about which Cuellar brother shot the victim. See Mendoza, 87 So. 3d at 652-55. If this is the issue that Mendoza seeks to revive in his original habeas petition to the U.S. Supreme Court, it bears even fewer similarities to a Stumpf due process claim, as defense counsel never argued that Mendoza was the shooter. 12 Case: 15-15170 Date Filed: 08/11/2016 Page: 13 of 17
trial court to weigh enumerated aggravating and mitigating factors before
sentencing a defendant to death. Proffitt, 428 U.S. at 247-48, 96 S. Ct. at 2964-65.
The Florida Supreme Court then imposed upon itself, through case law, a duty to
ensure on direct review that the result reached in a particular capital case was
similar to the results reached in other capital cases that presented comparable
circumstances. Id. at 251, 96 S. Ct. at 2966 (citing State v. Dixon, 238 So. 2d 1, 10
(1973)).
In Proffitt, the Supreme Court determined that this capital sentencing
scheme, on its face, complied with Furman. Id. at 253, 96 S. Ct. at 2967. The
Supreme Court also concluded that there was no evidence that the Florida appellate
review process was ineffective or arbitrary in practice. Id. at 258-59, 96 S. Ct. at
2969. The Supreme Court stated that “any suggestion that the Florida court
engages in only cursory or rubber-stamp review of death penalty cases is totally
controverted” by its cumulative record of review. Id.
Mendoza relies on Proffitt to argue that an appellate court violates the
Constitution when it conducts “only [a] cursory or rubber-stamp review of death
penalty cases,” and that he received only this minimal, constitutionally infirm level
of review. However, Proffitt never held that capital punishment violates the
Constitution if the appellate court does not review, as Medoza puts it, whether
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death was the appropriate penalty for the particular defendant and the death
sentence was consistent or proportional with other cases.
The Supreme Court has clarified Proffitt and stated that just because “some
schemes providing proportionality review are constitutional does not mean that
such review is indispensable.” Pulley v. Harris, 465 U.S. 37, 44-45, 104 S. Ct.
871, 876 (1984). It concluded that Proffitt and companion cases “did not establish
a constitutional requirement of proportionality review.” Id. at 48, 104 S. Ct. at
878. “Proportionality review” is simply an “additional safeguard against arbitrarily
imposed death sentences,” not a constitutional necessity. See id. at 50, 104 S. Ct.
at 879.
As there is no constitutional right to Proffitt-style appellate review, Mendoza
does not have a viable claim to habeas relief under Proffitt. In any event, we also
note that the sentencing court made an explicit finding that Mendoza’s death
sentence was proportional to sentences in other capital cases, and when Mendoza
raised a proportionality claim on direct review, the Florida Supreme Court
explained and resolved the claim in a thorough opinion. Mendoza, 700 So. 2d at
678-79. For both of these reasons, Mendoza’s proposed Proffitt claim is futile.3
3 If Mendoza is attempting to argue that the Florida Supreme Court failed to provide the level of review promised by its own case law, that claim is also futile. A state court’s misapplication of state law is not a ground for habeas relief. See McCullough v. Singletary, 967 F.2d 530, 535 (11th Cir. 1992) (“A state’s interpretation of its own laws or rules provides no basis for federal habeas corpus relief, since no question of a constitutional nature is involved.”). 14 Case: 15-15170 Date Filed: 08/11/2016 Page: 15 of 17
D. Freestanding Actual Innocence
It is unclear whether Mendoza plans to raise a separate, freestanding claim
of actual innocence in his original habeas petition to the U.S. Supreme Court, or if
he plans to demonstrate his “innocence of the death penalty” by succeeding on the
above-discussed legal claims. While it remains an open question whether a
freestanding actual innocence claim is even cognizable in a capital habeas case,
Johnson v. Ga. Diagnostic & Classification Prison, 805 F.3d 1317, 1324 (11th Cir.
2015), it is clear that what Mendoza is proposing, even liberally construed, will not
contain the requisite showing under any articulation of the actual innocence
standard.
“‘[A]ctual innocence’ means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 623, 118 S. Ct. 1604, 1611
(1998). Mendoza does not plan to claim that he did not kill Calderon; rather, he
wishes to argue in his original petition that the evidence was insufficient to convict
him, or there were other procedural defects in his criminal and post-conviction
proceedings. Because those claims relate to the legal sufficiency of his conviction
and sentence, not his factual innocence of capital murder, he will not be able to
obtain relief. See id.
Relatedly, actual innocence generally requires the presentation of new
evidence showing the petitioner’s innocence. Mendoza has not stated that he
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intends to put forth any new evidence to show that he did not kill Calderon.
Accordingly, he cannot demonstrate his actual innocence, and his claim would be
futile.
E. Ineffective Assistance of Collateral Counsel
Finally, to any extent Mendoza arguably wishes to raise a claim that his state
post-conviction counsel was ineffective, such a claim would be futile because it is
not cognizable. The Supreme Court has explicitly held that “[t]here is no
constitutional right to an attorney in state post-conviction proceedings.” Coleman,
501 U.S. at 752, 111 S. Ct. at 2566, abrogated in part by Martinez v. Ryan, 566
U.S. ___, 132 S. Ct. 1309 (2012) (creating a narrow exception that allows
petitioners’ to claim ineffective assistance of post-conviction counsel as a means of
overcoming the procedural default of ineffective-assistance-of-trial/appellate-
counsel claims). Therefore, “a petitioner cannot claim constitutionally ineffective
assistance of counsel in such proceedings” as a substantive ground for relief. Id.
IV. CONCLUSION
Because each of the claims Mendoza seeks to raise in an original habeas
petition to the U.S. Supreme Court would be futile, the district court did not abuse
its discretion by denying his motion for appointment of substitute counsel for
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drafting and filing the proposed petition. See Clair, 565 U.S. at ___, 132 S. Ct. at
1289. We affirm the judgment of the district court. 4
AFFIRMED.
4 In the alternative and for the first time on appeal, Mendoza argues that the district court had the inherent authority “to appoint him independent ‘supplemental’ counsel without regard to the need to discharge and/or substitute” his current CCRC-South counsel. Mendoza makes this argument on the basis that under 18 U.S.C. § 3599, indigent prisoners are “entitled to the appointment of one or more attorneys.” 18 U.S.C. § 3599(a)(2) (emphasis added). Even had Mendoza made this argument before the district court, the argument is nevertheless without merit. Because the claims Mendoza seeks to pursue are futile, new counsel would be unable to assist Mendoza with his claims regardless of whether his CCRC-South counsel were discharged.