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

FAY, Before MARCUS and Circuit HODGES,* Judges, Judge. District PER CURIAM: Insignares, prison- A. a Mitchel Florida er, appeals judge’s the district denial of his pro corpus se for writ of habeas under 28 2254.1 Because resen- U.S.C. in a tencing resulted judgment, making new this the first chal- lenge judgment, to that new we conclude not successive. Insignares’s petition is We affirm.

I. AND FACTUAL PROCEDURAL

BACKGROUND Underlying A. Conviction July early morning In the hours of Pony, Pink Antonio Houed left the club, strip Miami to return to his house. * appeal determining Hodges, States to assist in whether his Honorable Wm. Terrell Judge Middle District for the District Flori- 28 U.S.C. is "second or successive.” da, sitting by designation. 2244(b). Insignares’s petition appeal and initial were se, pro appointed but we counsel for this home, man, linking him to the sufficient evidence he noticed he arrived

When challenged testimony of Insignares, had followed crimes. He as later identified Insignares confronted argued him in a red car. Correa’s recall of Correa ground, Houed, get trial, him to ordered memory number from license-plate gun. him with a When and threatened later, not credible. fourteen months comply, Insignares shot Houed did not why the victim did not questioned He also refuge behind him four times. Houed took police immediately tell the make and mod- car, Insignares fired another six car, suggested Houed’s el of the eventually Houed was able seven shots. by anger. testimony was biased Insignares left to commit escape, while guilty all jury found against other victims.2 crimes (1) attempted counts. He was convicted of testified that he had described Houed firearm, Fla. first-degree murder with police weighing to as between the attacker 775.087, 777.04(1), 777.011, §§ Stat. feet, 1 to pounds, being and 300 6 inch 782.04(1), resulting a sentence of feet, tall, having goatee 2 inches and including 20-year years imprisonment, of gold police and teeth. He also told (2) minimum; criminal mandatory mis- shirt, wearing attacker was a white black 806.13(l)(b)3, chief, resulting Fla. Stat. shorts, descrip- a hood. Based on that years imprisonment; in a of 5 of sentence tion, identify to police contacted Houed (3) discharging public, a firearm in morning. He identified attacker later 775.087, 790.15(1), §§ resulting Fla. Stat. sight. recog- Houed also year imprisonment. in a of 1 sentence nized a red Mitsubishi Galant owned concurrently. These sentences ran mother, Insignares, Insignares’s Gloria as the car the attacker had used. B. Direct and PosNConviction Re- State description was not the Houed’s view identifying Insignares. evidence Luis Cor- February On filed a Pink working rea was as a bouncer at the motion to correct his sen- post-conviction Pony July 5, 2000. The morning tence under Florida Rule of Criminal Pro- manager keep eye to on a told Correa cedure 3.800. The state resentenced suspicious man at the club. Correa testi- Insignares by reducing 40-year impris- his wearing fied that the man was a white t- attempted onment sentence for murder to shorts, shirt appeared and dark and he years replacing 1-year impris- his patrons be more in the of the interested discharging a firearm onment sentence At manager’s club than the dancers. 5-year suspended imprisonment with a direction, Correa recorded license- These sentences remained con- sentence. plate number for the car in which the man current. license-plate left. Correa testified to the

number, police which later determined was appeal, appellate On direct the state car; registered Insignares’s Gloria Insignares’s court reversed criminal-mis- car Pink further stated the he saw the chief conviction but otherwise affirmed. Pony burgundy was a red or Mitsubishi State, 1063, Insignares v. 847 So.2d Galant. curiam). (Fla.Dist.Ct.App.2003) (per The July appellate court’s mandate issued on

Insignares’s defense at trial was mistak- 2003, 18, August in- the state identity. en He contended there was 2003. On charges petition. 2. The for the other crimes were sev- ered and are not concerned in this habeas Insignares filed a convic- On June criminal-mischief judge vacated challeng- second Rule 3.850 motion Florida tion. alleged actual ing his conviction and inno- a col- Insignares filed May On peti- denied the cence. The state under to his conviction challenge lateral tion; appellate court affirmed without 3.850 Procedure Rule of Criminal Florida State, opinion. 50 So.3d trial alleged ineffective assistance curiam). (Fla.Dist.Ct.App.2010) (per Insig- appeal, counsel. Relevant January mandate issued on The ineffec- trial counsel was alleged nares (2) Correa, depose tive for Habeas Petition D. Second Federal (3) object or juror, and colloquy sleeping 10, 2011, Insignares filed On March improper after state- for a mistrial move ap- in this petition issue habeas closing during his prosecutor ments mag- peal. petition The was referred to cumu- additionally alleged He argument. judge, istrate who construed the review, post-conviction error. On lative claims, raising rejected ten which he as hearing evidentiary held an R”). (“R and Recommendation & Report appellate the motion. The and denied concluded the State, magistrate judge The habe- Insignares v. court affirmed. as not “second successive” (Fla.Dist.Ct.App.2007). ap- So.2d 680 Patterson, Magwood under 561 U.S. May issued on mandate pellate court’s 2788, 177 S.Ct. L.Ed.2d 592 (2010), first Insignares’s it was because Habeas Petition Federal C. First challenge judgment to the new petition Review State Additional R R at 27. resentencing. after & entered R R judge adopted the & and The district 12, 2007, filed On December (1) a as to whether counsel issued COA petition under federal habeas his investigate, failing to was ineffective Florida. District of § 2254 in the Southern impeach Luis Cor- depose, adequately in alleged the Notably, he same errors (2) rea; failing ineffective for counsel in his second feder petition as he has sleeping juror colloquy remove to subject ap this of petition, al habeas (3) Insignares’s request; to coun- pursuant pe judge dismissed his peal. The district object to ineffective for to sel was seeking untimely. tition Without as of misrepresentation facts prosecutor’s (“COA”), In- Appealability Certificate of to issue of identification and crucial the dismissal. We dis signares appealed prosecutor after move for mistrial prosecute. to appeal for failure missed that evidence; opinion commented on Corr., 08- Dep’t No. Insignares v. Fla. Insig- deprived error cumulative 2008). Oct. Cir. a fair trial. nares of 1, 2009, Insignares filed a sec- April On correct Rule 3.800 motion to ond Florida II. JURISDICTION granted the judge The state his sentence. Insig- the merits of addressing Before mandatory-mini- and reduced the

motion petition, we first must at- nares’s sentence for his habeas imprisonment mum ju- judge had the district years decide whether conviction from tempted-murder it. Under the Anti- his con- risdiction decide years, but he otherwise left Penalty Effective Death judge terrorism and intact. The viction and sentence (“AEDPA”), Pub.L. No. Act of 1996 and new the corrected sentence entered “in 104-132, prisoner 110 Stat. 22, May judgment on custody pursuant granted petition to the of a concerning the death court,” 2254(a), State 28 U.S.C. “shall sentence. Id. at 130 S.Ct. at 2793. appropriate appeals move court of judge The state trial pris- resentenced the authorizing for an order the district imposed oner and another death sentence. court to consider” “second or succes- prisoner again sought Id. The federal re- petition. sive” federal habeas 28 U.S.C. sentence, brought view his but he a new 2244(b)(3)(A); Stewart, Burton v. alleged claim that his sentence was unlaw- 793, 796, U.S. 166 ful, because he did not fair warning have (2007). Subject excep- L.Ed.2d 628 he could be sentenced to death. Id. at case, present tions not a district at 2794. The district con- jurisdiction lacks decide sec- ditionally granted petition, the new but petition ond or successive filed without this court petition determined his should our authorization.3 did not have been dismissed as second or succes- permission seek to file a peti- successive sive, fair-warning because the claim could Therefore, tion. the district had have been raised in his first federal habeas jurisdiction to hear his if petition petition. 130 S.Ct. at 2794-95. Insignares’s application was not second Supreme granted certiorari to or successive. decide whether resentencing in response to a subjects conditional habeas writ peti-

Because had filed a federal tions challenging the new sentence to challenging habeas his con- AEDPA’s restrictions on successive feder- raising viction and the same issues as his petitions. al habeas Id. at 2011 federal petition, habeas the state ar- at 2795. gues his second is successive. In- signares that, responds although he filed a Based on language AEDPA’s and con 2007 federal petition, the reduction of his text, the Court concluded courts must

mandatory-minimum sentence 2009 re- look judgment challenged to deter judgment. sulted He contends mine whether a petition is second or suc the 2011 federal habeas is his first cessive. AEDPA does not define the challenge to that new judgment; conse- phrase “second or successive.” at Id. 331- quently, it is not “second or successive.” 32, 2244(b) § at Although S.Ct. 2796. Appellant’s Br. at agree 3-5. We with prohibits certain claims from being heard Insignares. in a second or application, successive that provision does not Magwood,

In define what it means for Supreme the Court decid- an application to be ed whether a habeas second or successive.4 challenging a state To determine the prisoner’s meaning sentence of this “term of intervening after art,” the resentencing was “second or Court looked successive.” instead to 2254(b)(1). § 561 U.S. 130 S.Ct. Id. at at 2788. The state S.Ct. (citation prisoner in Magwood quotation had been and internal convicted marks omitted). of murder statute, and sentenced to Quoting death. Id. at the the Court 324, 130 at S.Ct. 2792. On initial noted that federal limitations imposed “[t]he review, 2244(b) habeas the § district apply only did not to a corpus ‘habeas disturb the conviction conditionally 2254,’ is, § but application under that ‘appli an See, Quarterman, e.g., 3. 2244(b) Panetti Subject exceptions, pro- § 551 U.S. to two 930, 945, presented vides that claim "[a] S.Ct. in a second or 168 L.Ed.2d corpus application successive habeas under (describing exception an to AED- section 2254 ... shall be dismissed.” 28 PA’s petitions). bar on claims in successive 2244(b). § U.S.C. ha- on be AEDPA’s bar second successive corpus habeas a writ of cation for to the custody pursuant applications. Rejecting beas Id. this person half of 2254(b)(1).” court,’ § approach, of a State the Court reversed. judgment claim-based AEDPA, the Court 334-35, accordance with Id.5 In at It Id. at 130 S.Ct. stated in seeks application a habeas recognized “although agree that with the State “ authorizing judgment 2244(b) the validation § the rules under many that ‘of ” confinement,’ and, even if prisoner’s the claims, focus on that does not entitle us to “ successful, ‘the State application is the phrase to make the rewrite the statute ” Id. may judgment.’ seek a new modify ‘second or successive’ claims as Dotson, 74, 83, 125 544 U.S. Wilkinson Therefore, explained the well.” Id. Court (2005)). 161 L.Ed.2d S.Ct. phrase ap- that “the ‘second or successive’ Therefore, the center of judgment application an as a whole” and plies to 2254(b)’s § text and the analysis, “both that “sec- rejected argument there are phrase that the provides it indicate relief 2244(b). § ond or successive” claims under interpreted or successive’ must be ‘second Id. at 334-35 & n. 130 S.Ct. at 2798 & challenged.” respect judgment with n. 10. 332-33, 130 at 2797. at Id. analysis, Based on this Court con- also clarified that Supreme The Court that “AEDPA’s text cluded commands applies or successive” phrase “second straight-forward rule: where ... more they petitions, not to the claims to habeas judgment intervening a new be- there is Mag- appellate habeas review raise. On applica- petitions, tween the two habeas wood, that the court had “concluded resulting judg- new challenging tion determining whether step or successive.” Id. ment is not second 2244(b) the new ‘separate § is to applies (citation 341-42, at 2802 130 S.Ct. from challenging resentencing claims omitted). marks quotation internal that were or should have the old claims Throughout opinion, empha- its the Court ” application.’ in the presented prior been judgment. “Be- sized the effect of new (quoting Mag at 2795 Id. at chal- Magwood’s application cause habeas Culliver, wood v. time, for the first lenge^] Cir.2009)). interpret Supreme or successive’ under not ‘second [was] stating “any claim ed our decision as 2244(b).” 323-24, new, amended com ‘challenge^] omitted). (footnote The Court ‘regard the sentence’ should be ponent of 2244(b) agreed Magwood with petition,’ any a first claim part ed as only to a ‘second or successive’ “applies] any component of the ‘challenge^] the state- challenging same application original sentence that was not amended’ 331, at judgment.” court Id. ‘regarded part as of a second should be ” was his his 2796. Since Culliver, 555 F.3d petition.’ Id. “first intervening challenging application [an] 975) (alterations original). in Since it was not “second or succes- judgment,” fair-warning claim could have Magwood’s sive,” of whether he had raised regardless previous petition, been raised 339, -at 130 the claims before. governed by the claim concluded that was pro- 2254(b)(1) available state corrective provides appli- an absence of “[a]n 5. Section cess, corpus on behalf of that make the cation for a writ of habeas or circumstances exist judgment person custody pursuant to the applicant's protect the process ineffective to granted be unless it 2254(b)(1) of a State court shall not (emphasis § rights. 28 U.S.C. the appears applicant has exhausted that” added). courts, is in the state there remedies available Cir.2013). (7th That court con- the first F.3d simply, Put court did resentencing not district judgment is cluded challenge application to challenge prisoner on succes- allow the AEDPA’s restrictions subject to again existence of without underlying conviction petitions sive —“the peti- Id. at dispositive.” to file a second judgment seeking authorization at 2800. But the Cir- 5.Ct. at 280-81. Seventh tion. Id. conclusion writ- cuit did not reach this is that Magwood The wrinkle instead clean slate. The court ing on a question expressly reserved precedent, which pre-Magwood looked to challenging subsequent petition whether “are not second petitions held habeas be “sec- conviction would the undisturbed made they allege errors successive when imposes after the state or successive” ond they but are sec- resentencing, during Id. at only a new sentence. they challenge the when ond or successive question we must That is at 2802. (citing conviction.” Id. at 282 underlying decide. (7th States, 259 F.3d 763 Dahler v. United varia- circuits have addressed Our sister Cir.2001)). further The Circuit Seventh Fifth, Second, of this issue. The tions that, Magwood expressly because reasoned considered whether have Ninth Circuits issue, prior prec- to decide the its declined a multi-count convic- vacating one count of Id. at 284.8 edent not overruled. was judgment in a that allows tion results new counts. challenge to the other on a clean slate. a renewed do we write Neither held it does The and Ninth Circuits Second the effect of resentenc- We have addressed the Fifth judgment,6 in a new but result limitations. AEDPA’s statute of ing on addition, not.7 In held does Circuit Dep’t of Corr., 494 F.3d Sec’y, Ferreira v. and Ninth Circuits concluded Cir.2007). Second (11th in Fer- prisoner The not successive even petitions were by the state reira had been resentenced por- though they challenged unamended review of his sought trial federal cases, judgment. Those how- tions of the at 1288. The underlying conviction. Id. ever, facts from those involved different resentencing rendered issue was whether we have this case. untimely challenge to timely his otherwise Femira, we Id. Prior to the conviction. that has addressed the circuit as and sentence two viewed the conviction is the Sev- precise question we confront States, its own judgments, each with separate Suggs enth Circuit. v. United States, Lampton, 667 F.3d 589-90 F.3d 7. See In re v. United See Johnson (“Johnson’s (2d Cir.2010) (5th Cir.2012) ("The proposed court did not district not ... successive because [is] 2255 motion judgment of conviction in enter an amended challenging motion it is his first imposed. No new sentence this case. judgment A different amended of conviction. Lamp- change made to The less fundamental ... that he result not warranted the fact enough is not ton’s of conviction challenges compo- effectively an unamended bypass restrictions on him to AEDPA's allow (footnote omitted)); judgment.” nent of the litigation.”). piecemeal habeas Neven, Wentzell Cir.2012) ("Although had 'no occa- the Court that, although vigorous 8. A dissent contended precise scenario this case sion to address’ the precise question Magwood did not answer conclude, presents, we as a matter of first rejected claims- Suggs, expressly in holding Mag- impression, that the basic of precedent. See approach of the circuit based petitions applies here: the latter of two wood J., dissenting). Suggs, (Sykes, 705 F.3d at 287 is a 'new or successive’ if there is not 'second judgment intervening the two habeas between " (citations omitted)). petitions.’

1281 Responding proposition underlying limitations. basic Burton statute of Burton, in which Supreme Court’s decision judgment, Ferreira: there is one limitations ruled AEDPA’s statute of comprised it is of both the sentence and until both convic- begin [the] not “[does] Ferreira, the conviction. In resentencing ” final,’ Bur- tion and sentence ‘bec[o]me by in judg- resulted a new ton, 156, 799, 549 U.S. at we Magwood explains, ment. the “existence understanding our incorrect of overruled judgment of a new is in dispositive” deter- of and sen- separate judgments conviction mining a petition whether is successive. Ferreira, tence. 494 F.3d at 1293. U.S. 130 S.Ct. at 2800. Based Ferreira, explained In we there is one cases, on these we conclude that when a judgment, comprised of both the sentence petition habeas is the first to challenge (“[T]he judg- and conviction. Id. judgment, new it is not “second or succes- which AEDPA refers is the under- ment to sive,” regardless of whether its claims lying conviction and most recent sentence challenge the underlying sentence or the petitioner’s that authorizes the current de- conviction.9 States, tention.”); Deal v. cf. Insignares’s first federal habeas U.S. petition In was decided (“A (1993) judgment of convic- L.Ed.2d judge granted state a motion to reduce adjudication guilt tion includes both Insignares’s mandatory-minimum impris sentence.”). rule, Applying and the years years onment sentence from 20 to 10 we held “that AEDPA’s statute of limita- 27-year imprisonment but retained his judgment tions runs from the date the resentencing by sentence. The 2009 pursuant petitioner to which the cus- in a judgment, state resulted new final, tody becomes which is date both petition and the 2011 is his first federal petitioner the conviction sentence the Fefreira, challenge judgment. to that 2009 There serving become final.” fore, provisions Insignares’s F.3d at 1288. The limitations is not “sec AEDPA “are specifically successive,” focused ond or and the district judgment petitioner which holds the jurisdiction had it. decide confinement,” resentencing results III. DISCUSSION judgment that restarts the statute of limitations. Id. at there 1292-93. Since Insignares’s petition Because is not sec- judgment,

was a new we saw no reason to successive, progress ond or to the mer- challenging differentiate between claim of the his Sixth Amendment its COA: challenging conviction and one the sen- claims of ineffective assistance of counsel tence. Insig- and his claim of cumulative error. argues nares his trial counsel was ineffec-

Having Magwood reviewed and the circuits, investigate, depose, cases of other we return to the tive for to: Leasing, subject AED- Inc. v. Inst. Lon While such is not See Transamerica Underwriters, (11th PA’s restrictions on “second or successive” 430 F.3d don petitions, ap AEDPA's other limitations still Cir.2005) (" 'Under the "law of the case” doc example, petitioner may ply. For "[a] trine, findings of fact and conclusions of that he raise in federal court error failed generally appellate court are bind law an properly challenge court in a raise state ing subsequent proceedings in all in the same ” reflecting Mag the error.” appeal.’ a later case in the trial court or on wood, 561 U.S. at 130 S.Ct. at 2801. Potts, Heathcoat Moreover, previously may decided be claims 1990) curiam))). (per Cir. foreclosed the law-of-the-case doctrine. (2) question at 788. “The is Correa; rington, 131 S.Ct. collo- impeach adequately and (3) argument juror; any is reasonable and whether there sleeping quy and remove defer- misrepresenta- Strickland’s prosecutor’s that counsel satisfied object to closing argument. in his Even if a state tion of facts Id. ential standard.” by an unaccompanied is judge’s decision assistance of ineffective To establish petitioner can the habeas explanation, (1) trial counsel, must show Insignares only if there was “no meet his burden deficient,” and was performance “counsel’s judge’s for the denial reasonable basis” performance prejudiced “the deficient at 784. relief. Id. Washington, defense.” Strickland 2052, 2064, 104 S.Ct. 466 U.S. Investigate, Depose, and Failure to A. (1984). per- Trial counsel’s L.Ed.2d 674 Impeach Adequately Correa incompetent if formance is deficient norms.” professional prevailing identifying “under In- provided evidence Correa at 2065. There is 104 S.Ct. for his crimes signares and the car used per- that counsel’s strong presumption Insignares alleges Correa July strategy; trial may be considered formance time of criminal cases at the pending had “virtually are unchal- strategic choices claims defense counsel’s the trial.10 He 689-90, lengeable.” Id. investigate Correa depose failure to like- Prejudice the reasonable 2065-66. information undiscovered left 696, 104 result. Id. at lihood of different motive, in- have been used to show could likelihood of a at 2069. But “[t]he terest, testifying the state. or bias in substantial, be not different result must record, Based Richter, just Harrington conceivable.” reasonably could have concluded 770, 792, 178 562 U.S. regard to Cor that counsel’s efforts with (2011). L.Ed.2d not deficient. Defense counsel rea were defer- review with considerable We must evidentiary hearing that he at the testified re- judge’s ence the state determination depose every possible witness does counsel was ineffective. garding whether not believe to trial and he did prior Hall, 1199, 1224 Ferrell v. wit particularly important was a Correa Cir.2011). AEPDA, a claim when Under Despite foregoing pre-trial depo ness. adjudicated by a state previously has been sition, adequately defense counsel cross- may grant relief if the judge, we circum at trial about the examined Correa adjudication “resulted in a decision employment, opportunity of his stances to, an contrary was or involved unreason- Pony, Pink at the observe of, clearly established application able accurately the ability to describe law, Federal as determined the Su- Insignares has not events he witnessed. or if preme Court of the United States” de why his counsel’s choice was explained an the decision “was based on unreason- ficient, emphasize other than to Correa light facts in able determination of the Boyd v. important witness. See in the State court presented the evidence Comm’r, Corr., F.3d Dep’t Ala. 2254(d). When proceeding.” 28 U.S.C. (11th Cir.2012) (denying 1332-34 AEDPA and implicates a claim both insufficiently allega standards, claim for detailed highly Strickland’s deferential tions). eonvinc- provided He also has not “doubly” deferential. War- our review is ability identify affected Correa’s also claimed Correa was employee Pony. were credibly. at the Pink Even if this accurately the car true, have we do not see how that could at 682. While maintains had So.2d showing Correa ing evidence juror sleeping, provided the he has not was Insignares’s tri- during pending charges convincing rebutting evidence clear that his counsel al,11 he shown nor has contrary finding. factual judge’s the trial charges with such have discovered would Therefore, judge’s the trial find adopt investigation. further juror awake. Hunter ing that the was See de- counsel was assuming defense Even 1196, 1200 Sec’y, Dep’t of Corr., reasonably could ficient, judge (11th Cir.2005) (“Under AEDPA, ... state did not performance that his have found presumed are court factual determinations testimony If in Correa’s prejudice. result petitioner federal habeas is correct and a discredited, In- the link between had been unless he can rebut their stuck with them vehicle, offense— and the the red signares, with clear and con presumed correctness by Correa’s testimo- merely corroborated contrary.”). to the Be vincing evidence other evi- by ample ny supported —was awake, judge the juror cause the was state Andrews, 953 See United States dence. unreasonably in not Strickland apply did Cir.1992) (concluding 1312, 1327 F.2d Insignares’s claim that counsel rejecting prejudice, to show defendant failed failing question to or was ineffective for sup- was sufficient other evidence when the trial juror, especially remove the when verdict). mother tes- Insignares’s port the counsel’s judge already had denied defense that, her night question, tified Moreover, Insig- motion for a mistrial. make a car of the same driving was son judge’s not shown that the state nares has attack. In that used the and color as on an unreasonable decision was based addition, Insignares’s Houed described the facts in view of the determination of characteris- clothing, physical distinctive presented. evidence tics, as well as identi- and facial features and his mother’s red both Object fied Prosecutor’s Failure to C. at trial. con- show-up Misrepresentation We Alleged car at of Facts had a reasonable clude the state defense counsel was Insignares argues claim that his deny Insignares’s basis to object failing question- ineffective for failing to ineffective for trial counsel was prosecutor the able remarks made im- adequately investigate, depose, address the closing argument. We peach Correa. in turn. three remarks First, said: “Luis prosecutor the Sleeping Alleged Juror B. tag get told to number. was [Correa] juror slept during alleges a only ... it’s the tag number got He trial, including closing argu- of his parts comes County tag number Dade contends jury instructions. He ments and Mitsubishi, it.” R & got and he back to a counsel was ineffective defense 434) (altera Trial Tr. at R at 45 juror. sleeping question and remove Insignares alleges original). tion trial counsel notified the false, sup Defense but he has statement juror sleeping why was by explaining that he believed claim ported his why counsel He moved for mistrial. during trial. also statement incorrect F.3d juror objected. Boyd, “nod that the See found should have awake, Construing argument liberal was still denied ding,” but false- argues prosecutor ly, Insignares Insignares, 957 for a mistrial. motion open may case Correa have had vague believed in the record is 11. The evidence Insignares’s trial. investigator, at the time of testimony private who from a reasonably closing argument cutor’s is not license-plate number jury ly told likely changed to have the outcome. in Miami- the Mitsubishi belonged to it would have been County. But Dade Third, prosecutor the said: “[Cor- Miami-Dade jury from plainly clear to I you, [Insig- came here. He told saw rea] than one Mitsu- is more County that there did, I this and saw what because nares] prosecutor the county, and bishi in the happened.... [Insignares] did it. is what license-plate number the simply meant (quoting R R at 46 Trial Tr. He did it.” & on the Mitsubishi was provided Correa 450) (first 443, in original). at alteration mother. Given the by Insignares’s owned simply The first statement describes Cor- interpretation, the absurdity a different prosecu the testimony rea’s as viewed reasonably could have conclud- state tor, jury while the second invites the to not ineffective that defense counsel was ed guilty. conclude The state object. Hopper, Duren v. failing to See to decide that judge had reasonable basis (11th Cir.1998) (con- 655, 662-63 161 F.3d failing counsel was not deficient for object prosecutor’s cluding failure to objections. raise non-meritorious See comments was not inef- allegedly improper (11th Moore, v. 240 F.3d Chandler counsel, given the con- assistance of fective Cir.2001) (finding counsel was not ineffec comments). text of those object to an tive for accurate statement). jury These statements to the Second, prosecutor stated: prosecutor during closing argu out, that “[Insignares] follows [Houed] improper. ment were not prey.” his first R & R at 45 is the home of 434). Trial Tr. at This statement (quoting D. Cumulative Error multiple a reference to the victims of was Insignares claims cumulative error Insignares’s subsequent crimes. The ref deprived him of a fair trial. Under the improper, because those other erence was doctrine, ag a sufficient cumulative-error charges postconvic were severed. At the glomeration of otherwise harmless or non- however, evidentiary hearing, defense tion if reversible errors can warrant reversal object, he did not because counsel testified aggregate deprive their effect is to every objection to raise prudent is not trial. Sec’y, defendant of fair Morris v. judge reasonably trial. The state could Corr., (11th Dep’t 677 F.3d have concluded that defense counsel’s stra Cir.2012). “This court has made clear that object tegic, decision not to did not result any where no error of the ‘[t]here [is] in ineffective assistance of counsel. See rulings, argument court’s [trial] Strickland, 466 U.S. requires cumulative trial error Comm’r, 2065; Dep’t of Corr., Hunt v. Ala. reverse convictions [the defendant’s] Court (11th Cir.2012). 666 F.3d As the ” is without merit.’ determined, magistrate judge there are Taylor, States many why might reasons defense counsel Cir.2005) curiam)) (alterations orig (per statement, object including to such a inal). Because we have found no error in objection may draw attention to the appeal, Insignares has failed the issues assuming statement. Even the failure to the state lacked a to show deficient, object rea deny his cumulative- reasonable basis to sonably have found that could error claim.12 prejudice, objection suffered no because single during prose- to this statement AFFIRMED. argues specified errors not We do not consider issues outside the COA. the COA contributed to the cumulative error. Harley Kane,

FAY, Kane, N. Judge, concurring Charles J. Circuit Plaintiffs-Appellants, specially: opinion, Although I concur the court’s express I some doubt separately write Tilghman Pa, Stewart Fox & Bianchi interpret how we should and concern about Stewart, P.A., Todd S. William C. Mag opinion Supreme Hearon, P.A., Defendants-Appellees. Patterson, wood v. 561 U.S. No. (2010). 13-10560. It 177 L.Ed.2d 592 is clear Magivood opinion does not alter our Appeals, States Court of Secretary, De holding Ferreira Eleventh Circuit. Corrections, 494 F.3d

partment (11th Cir.2007). However, there is lan 26, 2014. June me guage Magwood indicates to may Supreme

that the well take tack it deal with a case

different should response In

like this one. dissen

ters, goes lengths Justice Thomas some emphasize: Magwood’s “This is

application challenging intervening

judgment. alleges The errors he are new.

It obvious to us—and the State does

dispute his claim of ineffective assis —that at resentencing upon

tance turns new er Magwood,

rors.” 561 U.S. at 2801. That is not the situation Insignares. nothing

with new in There petition attacking judgment. his new

Instead, exactly he raises the same issues application. raised his earlier Conse

quently, except intervening for the “new dealing in

judgment,” we are this case with

an otherwise clear abuse of the writ. Supreme

When the Court has a case one,

exactly like this we will know the then, are our

answer. Until bound

precedent in Ferreira. Harley KANE,

In re N. Debtor. (11th Cir.2007). Corr., Secy, Dep’t

Jordan v.

Case Details

Case Name: Mitchell A. Insignares v. Secretary, Florida Department of Corrections

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jun 23, 2014

Citation: 755 F.3d 1273

Docket Number: 12-12378

Court Abbreviation: 11th Cir.