Gonzalez v. Secretary, Florida Department of Corrections

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JAN 3, 2011

No. 09-15599

JOHN LEY

________________________ CLERK

D. C. Docket No. 08-22909-CV-WPD

RICARDO GONZALEZ,

Petitioner-Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(January 3, 2011)

Before EDMONDSON, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

Ricardo Gonzalez, a Florida prisoner on death row, appeals from the district

court’s denial of his petition for a writ of habeas corpus, brought pursuant to 28

U.S.C. § 2254. In 1994, a jury found Gonzalez guilty of first-degree murder of a

law enforcement officer and lesser offenses in connection with an armed bank

robbery. The Florida Supreme Court affirmed Gonzalez’s convictions on direct

appeal, but vacated his death sentence and remanded for a new sentencing hearing.

Gonzalez v. State, 700 So. 2d 1217 (Fla. 1997) (“Gonzalez I”), cert. denied,

Gonzalez v. Florida, 523 U.S. 1062 (1998). On remand, the trial court re-imposed

the death penalty, and the Florida Supreme Court affirmed. Gonzalez v. State, 786

So. 2d 559 (Fla. 2001).

Twenty days before the one-year federal habeas statute of limitations was

set to expire, see 28 U.S.C. § 2244(d)(1), Gonzalez filed an incomplete “shell”

motion for post-conviction relief in state court, pursuant to Fla. R. Crim. P. 3.850.

Gonzalez acknowledged that he filed this motion in order to toll the federal

limitations period under 28 U.S.C. § 2244(d)(2). Although the trial court struck

the “shell” motion, the Florida Supreme Court granted Gonzalez leave to amend,

and he subsequently filed an amended Rule 3.850 motion after the expiration of

the federal limitations period. The trial court ultimately denied Gonzalez’s

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amended motion on the merits, and the Florida Supreme Court affirmed. Gonzalez

v. State, 990 So. 2d 1017 (Fla. 2008).

Shortly thereafter, Gonzalez filed the instant federal habeas petition. The

district court denied the petition, but granted a certificate of appealability on three

issues: 1) whether Gonzalez’s federal habeas petition was timely; 2) whether the

admission of Gonzalez’s co-defendants’ confessions at his trial was harmful with

respect to his guilt; and 3) whether the trial court erroneously denied two of his

peremptory challenges. Upon review of the record and the parties’ briefs, and

having the benefit of oral argument, we affirm the district court’s denial of

Gonzalez’s federal habeas petition.

“When examining a district court’s denial of a § 2254 habeas petition, we

review questions of law and mixed questions of law and fact de novo, and findings

of fact for clear error.” Rhode v. Hall, 582 F.3d 1273, 1279 (11th Cir. 2009)

(citation omitted), cert. denied, 130 S. Ct. 3399 (2010). Under the Antiterrorism

and Effective Death Penalty Act (“AEDPA”), we may grant habeas relief to a state

prisoner on any claim adjudicated on the merits in state court if that adjudication

“resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States . . . .” 28 U.S.C. § 2254(d)(1).

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The first issue of whether Gonzalez’s federal habeas petition was timely

turns on whether his “shell” motion was “properly filed” so as to toll the federal

limitations period under § 2244(d)(2). Gonzalez argues that, although his “shell”

motion was stricken by the trial court, his amended Rule 3.850 motion was

deemed to have “related back” and thus rendered his “shell” motion “properly

filed.” Gonzalez relies on Gore v. State, where the Florida Supreme Court

indicated that the relation back doctrine rendered an initially-stricken state

post-conviction motion “properly filed” under Florida law for purposes of

§ 2244(d)(2). 24 So. 3d 1, 15-16 (Fla. 2009). The state responds that this

argument is foreclosed by our case law. See Melson v. Allen, 548 F.3d 993, 998

(11th Cir. 2008), vacated on other grounds, 130 S. Ct. 3491 (2010); Sibley v.

Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004). Gonzalez suggests that our cases

are inapplicable because none of them involved a situation where the state’s own

filing rules incorporated the relation back doctrine. We need not address this issue

here, however, because we find Gonzalez’s two substantive claims to be without

merit. See Holland v. Florida, 130 S. Ct. 2549, 2560 (2010) (“[T]he AEDPA

statute of limitations defense is not jurisdictional.”) (alteration, citation, and

quotation marks omitted). Thus, even if Gonzalez’s federal habeas petition was

timely filed, he is not entitled to relief.

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Gonzalez’s first substantive claim is that the Florida Supreme Court erred

by concluding on direct appeal that the admission of Gonzalez’s co-defendants’

confessions was harmless with respect to his guilt. Specifically, the Florida

Supreme Court found that the admission of the confessions of Leonardo Franqui

and Pablo San Martin—two of Gonzalez’s non-testifying co-defendants—violated

Gonzalez’s rights under the Confrontation Clause of the Sixth Amendment.1 See

Gonzalez I, 700 So. 2d at 1218-19. The Court concluded that, although this error

was harmful with respect to Gonzalez’s sentence, it was harmless with respect to

his guilt:

[W]ith respect to guilt, we conclude that the error was harmless

beyond a reasonable doubt. Not only did Gonzalez confess to

participating in the robbery, he also admitted shooting the victim. He

does not contest the legality of his confession in this appeal. In

addition, it was determined that the fatal bullet came from the gun

that Gonzalez was carrying. Gonzalez admitted being with Franqui,

and an eyewitness identified Franqui as the driver of one of the stolen

cars leaving the scene of the crime. Further, Franqui’s fingerprints

were found on one of the stolen vehicles. Moreover, Gonzalez

consented to a search of his apartment which revealed $1200 of the

stolen money in his bedroom closet. Thus, we conclude that there is

no reasonable possibility that the erroneous admission of the

confessions of Franqui and San Martin contributed to Gonzalez’s

conviction for felony murder.

....

1

Only Franqui’s confession is relevant here.

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We agree, however, that Gonzalez’s sentence must be reversed. In

Franqui’s confession, he said that upon approaching the bank,

Gonzalez pulled out a gun and told the security guard not to move.

Thereafter, he heard a shot, so he also shot his gun. He said he did not

know if the shot he heard was fired by Gonzalez or the security guard,

but the evidence later developed that the security guard never fired

his gun. On the other hand, Gonzalez said it was Franqui who told the

security guard not to move and that Franqui shot the security guard

before Gonzalez shot him. He said Franqui fired three or four shots

and that he only shot once. Consequently, in determining whether or

not Gonzalez should be sentenced to death, we cannot say that the

erroneous admission of Franqui’s confession which portrayed

Gonzalez as the aggressor who had precipitated the shooting was

harmless beyond a reasonable doubt. Accordingly, we affirm

Gonzalez’s convictions but vacate the sentence of death and remand

for a new penalty phase proceeding consistent with this opinion.

Id. at 1219 (emphasis in original).

Gonzalez has not shown that the Florida Supreme Court’s harmless error

analysis was contrary to, or an unreasonable application of, Supreme Court

precedent.2 He argues that the admission of Franqui’s confession was harmful

with respect to his guilt for the same reason it was harmful with respect to his

sentence. But as the Florida Supreme Court explained, whether or not Gonzalez

was the “aggressor who had precipitated the shooting” was legally irrelevant to his

first-degree murder conviction. So long as Gonzalez participated in the

2

Our conclusion is unaffected by whether we apply Chapman v. California, 386 U.S. 18,

24 (1967) (imposing a “harmless beyond a reasonable doubt” standard), or Brecht v.

Abrahamson, 507 U.S. 619, 637-38 (1993) (imposing an “actual prejudice” standard).

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robbery—which, in this case, directly resulted in the officer’s death—he would

remain liable for first-degree murder under the felony murder doctrine. See Fla.

Stat. § 782.04(1)(a)2.d; Lovette v. State, 636 So. 2d 1304, 1307 (Fla. 1994). And

the evidence properly admitted at trial—including Gonzalez’s own confession, in

which he admitted to shooting the victim—established his participation in the

robbery. Thus, we find no error in the district court’s denial of this claim.

Gonzalez’s second substantive claim is that the state courts erroneously

disallowed two of his peremptory challenges on the ground that he failed to justify

them with a non-discriminatory reason. Gonzalez I, 700 So. 2d at 1218.

Gonzalez’s claim fails at the threshold, however, because the Supreme Court has

held that the erroneous denial of a defendant’s peremptory challenge presents only

an issue of state law:

If a defendant is tried before a qualified jury composed of individuals

not challengeable for cause, the loss of a peremptory challenge due to

a state court’s good-faith error is not a matter of federal constitutional

concern. Rather, it is a matter for the State to address under its own

laws.

. . . [T]his Court has consistently held that there is no freestanding

constitutional right to peremptory challenges. We have characterized

peremptory challenges as a creature of statute, and have made clear

that a State may decline to offer them at all. When States provide

peremptory challenges (as all do in some form), they confer a benefit

beyond the minimum requirements of fair jury selection, and thus

retain discretion to design and implement their own systems.

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Because peremptory challenges are within the States’ province to

grant or withhold, the mistaken denial of a state-provided peremptory

challenge does not, without more, violate the Federal Constitution.

Rivera v. Illinois, 129 S. Ct. 1446, 1453-54 (2009) (alterations, footnote, citations,

and quotation marks omitted). At oral argument, counsel for Gonzalez

acknowledged Rivera, but suggested that it was inconsistent with Batson v.

Kentucky, 476 U.S. 79 (1986). Even if that were true, we are bound by decisions

of the Supreme Court, and Gonzalez’s claim falls squarely under Rivera. As a

result, we find no error in the district court’s denial of this claim. See Pulley v.

Harris, 465 U.S. 37, 41 (1984) (“A federal court may not issue the writ on the

basis of a perceived error of state law.”). Accordingly, we affirm the district

court’s denial of Gonzalez’s federal habeas corpus petition.

AFFIRMED.

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