[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
2
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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