Mitchell A. Insignares v. Secretary, Florida Department of Corrections

755 F.3d 1273, 2014 WL 2809410, 2014 U.S. App. LEXIS 11788
CourtCourt of Appeals for the Eleventh Circuit
DecidedJune 23, 2014
Docket12-12378
StatusPublished
Cited by140 cases

This text of 755 F.3d 1273 (Mitchell A. Insignares v. Secretary, Florida 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.

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Mitchell A. Insignares v. Secretary, Florida Department of Corrections, 755 F.3d 1273, 2014 WL 2809410, 2014 U.S. App. LEXIS 11788 (11th Cir. 2014).

Opinions

PER CURIAM:

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 resen-tencing 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. [1276]*1276When 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 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 Cor-rea 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.

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(l)(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 PosNConviction 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 [1277]*1277judge vacated the criminal-mischief conviction.

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, Insig-nares 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”), In-signares 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 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 habe-as petition was not “second or successive” under Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (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 &

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755 F.3d 1273, 2014 WL 2809410, 2014 U.S. App. LEXIS 11788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-a-insignares-v-secretary-florida-department-of-corrections-ca11-2014.