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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16755
Non-Argument Calendar
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D.C. Docket No. 0:13-cv-61149-DPG
MARTIN DIEZ,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
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(November 29, 2017)
Before WILSON, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Martin Diez appeals the district court’s denial of his 28 U.S.C. § 2254
petition for a writ of habeas corpus. We granted Diez a certificate of appealability
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on two issues: (1) whether trial counsel was ineffective for failing to obtain
Venezuelan custody documents for use at trial; and (2) whether the State
committed a Brady 1 violation by withholding the Venezuelan custody documents
from Diez. After careful consideration of the parties’ briefs and the record, we
affirm.
I.
In June 2004, Diez met with Edgar and Alicia Lopez to discuss their desire
to bring their granddaughter, Elizabeth, back to Venezuela from the United States.
The Lopezes told Diez that: (1) they had raised Elizabeth from her birth in
Venezuela in 1999 until 2003, when they returned her to her mother, Eunice, in the
United States; (2) they were concerned for Elizabeth’s safety; (3) they had legal
custody of Elizabeth; and (4) all legal means of retrieving Elizabeth had failed,
including contacting the Venezuelan consulate, the Florida Department of Children
and Families, and the local police. Diez claims the Lopezes showed him
Venezuelan custody documents indicating that they had lawful custody of
Elizabeth. The Lopezes asked Diez if he could find someone with authority to “go
to Eunice’s apartment and scare her into returning Elizabeth.”
Diez took matters into his own hands. He went to Eunice’s apartment
dressed as a police officer. He presented a fake search warrant, forcefully entered
1
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963)
2
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the apartment, and led Eunice—at gunpoint—from room to room looking for
Elizabeth’s passport. Diez searched Eunice’s bag, removing her driver’s license
and cell phone. He told her not to call the police and threatened to shoot her if she
moved. He then took Elizabeth to the Lopezes’ apartment. The next day, he
surrendered himself to the Federal Bureau of Investigation.
Diez was found guilty of armed kidnapping of a child under the age of
thirteen years with intent to commit interference with child custody (Count 1),
armed kidnapping with intent to commit interference with child custody (Count 2),
armed burglary (Count 3), and interfering with child custody (Count 5). He was
sentenced to three concurrent terms of 20 years for Counts 1–3 and was sentenced
to a concurrent term of four years for Count 5.
II.
We review de novo a district court’s denial of a § 2254 habeas corpus
petition. Bester v. Warden, 836 F.3d 1331, 1336 (11th Cir. 2016). If a state court
has adjudicated a claim on the merits, a federal court may grant habeas relief only
if the decision of the state court (1) “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court,” or (2) “was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Under
the “unreasonable application” prong, relief is appropriate only if the state court’s
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application of clearly established federal law is “objectively unreasonable,” not
simply incorrect. Bell v. Cone, 535 U.S. 685, 694, 122 S. Ct. 1843, 1850 (2002).
To establish an ineffective-assistance claim, Diez must show that his
“counsel’s performance was deficient” and that “the deficient performance
prejudiced [his] defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984). If he makes an insufficient showing on either prong, we need
not address the other prong. See Holladay v. Haley, 209 F.3d 1243, 1248 (11th
Cir. 2000).
For counsel’s performance to be deficient, it must fall “below an objective
standard of reasonableness.” Harrington v. Richter, 562 U.S. 86, 104, 131 S. Ct.
770, 787 (2011) (quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 2064). It is
presumed that counsel’s conduct fell within the range of reasonable professional
assistance. Johnson v. Sec’y, Dep’t of Corrs., 643 F.3d 907, 928 (11th Cir. 2011).
To overcome that presumption, Diez “must show that no competent counsel would
have taken the action that his counsel did take.” Id. (internal quotation marks
omitted).
To establish prejudice, “a challenger must demonstrate ‘a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” Harrington, 562 U.S. at 104,
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131 S. Ct. at 787 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. 2052). The
likelihood of a different outcome must be substantial, not just conceivable. See id.
When the standards created by Strickland and § 2254(d) apply in tandem,
our review is doubly deferential as to the performance prong. Id. at 105, 131 S. Ct.
787. “The question is whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Id. Because of this double deference,
“it will be a rare case in which an ineffective assistance of counsel claim that was
denied on the merits in state court is found to merit relief in a federal habeas
proceeding.” Evans v. Sec’y, Florida Dep’t of Corrs., 699 F.3d 1249, 1268 (11th
Cir. 2012) (internal quotations omitted). The Florida appellate court denied Diez’s
claims without explanation. Because we interpret that decision as a denial on the
merits, it is entitled to deference under § 2254(d). See Wright v. Sec’y for Dep’t of
Corrs., 278 F.3d 1245, 1254 (11th Cir. 2002) (concluding that a state court’s
summary denial of a claim is considered an adjudication on the merits for purposes
of § 2254(d)(1)). Thus, Diez must show that there was no reasonable basis for the
state court’s denial of relief. See Harrington, 562 U.S. at 102, 131 S. Ct. at 786.
III.
Diez first alleges that trial counsel was ineffective for failing to acquire a
copy of the Venezuelan custody documents, which could have shown that he had a
good-faith belief that he was returning the child to her legal custodians, rather than
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interfering with child custody. 2 He argues that because Counts 1, 2, 3, and 5 all
included intent to commit interference with child custody as an element of the
offense, the custody documents could have been used to negate the required intent
for those offenses. 3
Even if his counsel was ineffective, Diez cannot show prejudice. Although
the documents could have supported his testimony that he believed the Lopezes
were Elizabeth’s custodians, there was still a significant amount of evidence the
jury could have used to find intent to interfere with child custody. Diez knew
several crucial facts: the Lopezes left Elizabeth in the care of her biological
mother, Eunice; all legal means of getting Elizabeth back had been exhausted;
authorities representing both Venezuela and Florida refused to act on the Lopezes’
claims; and the Lopezes asked Diez to “scare” Eunice into giving Elizabeth back.
Clearly, even with the custody document, a jury could have been convinced that
Diez’s decision to “spook” Eunice into giving up custody showed the requisite
intent. The likelihood of a different outcome is not substantial. Accordingly, Diez
has failed to overcome the deference afforded to state court decisions. 4
2
Interference with child custody occurs when someone “without lawful authority, knowingly or
recklessly takes or entices . . . any minor . . . from the custody of the minor’s . . . parent, his or
her guardian . . . or any other lawful custodian commits the offense of interference with custody
and commits a felony of the third degree . . . .” Fla. Sta. § 787.03(1) (2004) (emphasis added).
3
Count 3, Diez’s armed burglary charge, included “the intent to commit the offense of
Kidnapping and/or Interference with Custody” as an element of the offense.
4
For the same reasons, the district court did not abuse its discretion in denying Diez’s request for
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IV.
Diez also alleges that the State committed a Brady violation by withholding
the Venezuelan custody documents from him. A Brady claim has three parts: (1)
the evidence at issue is favorable to the accused, either because it is exculpatory or
because it is impeaching; (2) the evidence was suppressed by the State, either
willfully or inadvertently; and (3) the defendant incurred prejudice. Strickler v.
Greene, 527 U.S. 263, 281–82, 119 S. Ct. 1936, 1948 (1999). The prejudice prong
is met when “there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different.” Kyles v.
Whitley, 514 U.S. 419, 433, 115 S. Ct. 1555, 1565 (1995). The crucial question on
that point is “whether the government’s evidentiary suppressions, viewed
cumulatively, undermine confidence in the guilty verdict.” Allen v. Sec'y, Fla.
Dep’t of Corrs., 611 F.3d 740, 746 (11th Cir. 2010). The prejudice showing for a
Strickland claim is the same as required for a Brady claim. Brown v. Head, 272
F.3d 1308, 1316 (11th Cir. 2001).
Here, as previously discussed, Diez cannot demonstrate prejudice. Even if
the State possessed the documents and had disclosed them, the jury would still
have convicted him of the four crimes that it did. Because the prejudice analysis is
an evidentiary hearing on this claim. Diez cannot show that failure to obtain the documents
prejudiced him, and thus any evidence to explain counsel’s efforts to obtain them would not have
assisted the resolution of his claim. Breedlove v. Moore, 279 F.3d 952, 960 (11th Cir. 2002).
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the same for Brady as it is for Strickland, Diez cannot show a Brady violation even
if he proved that the state knowingly withheld the documents from him. Thus,
Diez is not entitled to relief or an evidentiary hearing on his Brady claim.
Accordingly, we affirm.
AFFIRMED.
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