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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-11705
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D.C. Docket No. 1:12-cv-21894-JIC
MARBEL MENDOZA,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 23, 2020)
Before WILSON, WILLIAM PRYOR, and JORDAN, Circuit Judges.
PER CURIAM:
This appeal requires us to decide whether the district court abused its
discretion when it denied Marbel Mendoza’s motion to reconsider an order
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denying him substitute counsel to pursue an original writ of habeas corpus in the
Supreme Court. Mendoza, whom Florida sentenced to death for the murder of
Conrado Calderon, moved for substitute counsel to petition for an Original Writ
based on two claims that his death sentence is invalid. The district court denied his
motion because it concluded the two claims Mendoza seeks to raise in the petition
were futile. Because that conclusion was not manifest error, we affirm the denial of
Mendoza’s motion to reconsider.
I. BACKGROUND
In 1992, Marbel Mendoza robbed, shot, and killed Conrado Calderon outside
Calderon’s home. Two years later, Florida convicted Mendoza and sentenced him
to death for the murder. The Florida Supreme Court affirmed his conviction and
death sentence on direct appeal, and Florida courts later denied him postconviction
relief.
In 2012, Mendoza filed a federal petition for a writ of habeas corpus, 28
U.S.C. § 2254, which the district court denied. After we granted Mendoza a
certificate of appealability for his claim of ineffective assistance of counsel in the
penalty phase of his trial, see Strickland v. Washington, 466 U.S. 668, 687 (1984),
we affirmed the denial of his petition. Mendoza v. Sec’y, Fla. Dep’t of Corr., 761
F.3d 1213, 1215 (11th Cir. 2014). The Supreme Court denied Mendoza’s petition
for a writ of certiorari. Mendoza v. Jones, 575 U.S. 941 (2015).
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In 2015, Mendoza moved for the appointment of substitute counsel to
petition for an Original Writ. Mendoza planned to raise several claims in his
petition, including the claim that his death sentence is invalid under Enmund v.
Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987), because
no factfinder ever determined that he killed, intended to kill, or committed a crime
with reckless indifference to human life. Although Mendoza was represented by
Florida’s Capital Collateral Regional Counsel-South, which had represented him
throughout his state and federal postconviction proceedings, he argued the district
court should appoint him substitute or supplemental counsel to pursue an Original
Writ. According to Mendoza, his current counsel could not effectively pursue an
Original Writ on the claims he sought to raise because that would require them to
admit their ineffectiveness for failing to raise the claims in earlier collateral
proceedings.
The district court denied Mendoza’s motion, and we affirmed. Mendoza v.
Sec’y, Fla. Dep’t of Corr., 659 F. App’x 974, 976 (11th Cir. 2016). We held that
the district court did not abuse its discretion by denying Mendoza’s motion for
substitute counsel because “each of the claims Mendoza [sought] to raise in an
original habeas petition to the U.S. Supreme Court would be futile.” Id. at 982. As
to his claim under Enmund and Tison, we explained that the jury at Mendoza’s trial
“heard an Enmund/Tison instruction” and that the sentencing court found that he
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“fired the fatal shots,” so his claim was futile. Id. at 979 (internal quotation marks
omitted).
In 2019, Mendoza moved a second time for the appointment of substitute
counsel to petition for an Original Writ. This time, he explained that he planned to
bring two claims in the petition: the claim under Enmund and Tison discussed
above, and a claim under Espinosa v. Florida, 505 U.S. 1079, 1080 (1992), and
Lewis v. Jeffers, 497 U.S. 764, 766 (1990), that the aggravating circumstance
Florida used to impose his death sentence was unconstitutionally vague. He again
argued that his current counsel could not effectively pursue an Original Writ
without admitting their “beyond negligence” in failing to previously raise these
claims.
The district court again denied Mendoza’s motion for new counsel. It
explained that no conflict of interest prevented Mendoza’s current counsel from
petitioning for an Original Writ if warranted. And in any event, it ruled that the two
claims Mendoza planned to present in his petition were futile. Based on the
absence of a conflict and the futility of Mendoza’s claims, the district court
concluded that it was not in the interests of justice to appoint Mendoza substitute
counsel.
Mendoza then moved for reconsideration of the order denying his second
motion for new counsel, Fed. R. Civ. P. 59(e), but the district court denied his
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motion. Mendoza argued that the district court manifestly erred in making a merits
determination of his claims in the course of deciding that it was not in the interests
of justice to appoint new counsel to file a futile petition for an Original Writ. The
district court rejected this argument. It explained that the Supreme Court decisions
on which Mendoza relied to establish manifest error, see Martinez v. Ryan, 566
U.S. 1 (2012), and Slack v. McDaniel, 529 U.S. 473 (2000), did not address the
standard for appointing habeas petitioners substitute counsel, which was instead
governed by another decision, see Martel v. Clair, 565 U.S. 648 (2012).
Mendoza appealed the denial of his second motion for substitute counsel and
the denial of his motion for reconsideration. We dismissed for lack of jurisdiction
the part of the appeal that challenged the order denying Mendoza’s second motion
to substitute counsel. But we allowed the appeal to proceed as to the order denying
Mendoza’s motion for reconsideration.
II. STANDARD OF REVIEW
We review the denial of a motion for reconsideration, Fed. R. Civ. P. 59(e),
for an abuse of discretion. Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007).
“The only grounds for granting a Rule 59 motion are newly-discovered evidence or
manifest errors of law or fact.” Id. (alteration adopted) (internal quotation marks
omitted).
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III. DISCUSSION
When a habeas petitioner in a capital case moves for substitute counsel, a
district court must decide the motion “in the interests of justice.” Clair, 565 U.S. at
658 (internal quotation marks omitted). That standard “contemplates a peculiarly
context-specific inquiry.” Id. at 663. Because the decision whether to substitute
counsel “is so fact-specific,” a district court’s disposition of a substitution motion
“deserves deference,” and “a reviewing court may overturn it only for an abuse of
discretion.” Id. at 664. Among the factors a reviewing court may consider are “the
timeliness of the motion; the adequacy of the district court’s inquiry into the
defendant’s complaint; and the asserted cause for that complaint.” Id. at 663. A
district court may deny a motion to substitute counsel “even without the usually
appropriate inquiry” where the claims a petitioner seeks to pursue with the help of
new counsel are futile. Id. at 666.
To obtain reversal of the order denying his motion for reconsideration,
Mendoza must establish that the district court manifestly erred in denying his
motion for substitute counsel. See Arthur, 500 F.3d at 1343. The district court
concluded that the two claims Mendoza seeks to pursue with the help of substitute
counsel are futile, and that conclusion, if correct, was sufficient to deny Mendoza
substitute counsel. See Clair, 565 U.S. at 666; Mendoza, 659 F. App’x at 978, 982.
Mendoza has failed to establish that the district court manifestly erred, so we must
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affirm.
The district court did not manifestly err in concluding that Mendoza’s claim
under Enmund and Tison was futile. We previously held that the Enmund and
Tison claim was futile and so did not justify appointing Mendoza new counsel
when he appealed the denial of his first motion for substitute counsel. Mendoza,
659 F. App’x at 978–79. That holding is now the law of the case, and the district
court did not abuse its discretion in adhering to it. See United States v. Anderson,
772 F.3d 662, 668–70 (11th Cir. 2014).
Nor did the district court manifestly err in concluding that Mendoza’s claim
under Espinosa and Jeffers was futile. In Espinosa, the Supreme Court held that
Florida’s aggravating factor that a murder was “especially wicked, evil, atrocious
or cruel” was unconstitutionally vague because it left “the sentencer without
sufficient guidance for determining the presence or absence of the factor.” 505
U.S. at 1080–81 (internal quotation marks omitted). The Court in Jeffers rejected a
challenge to an Arizona aggravating factor because the Arizona Supreme Court
construed the factor in a manner that “channel[ed] the sentencer’s discretion by
clear and objective standards that provide specific and detailed guidance, and that
make rationally reviewable the process for imposing a sentence of death.” 497 U.S.
at 777–78 (internal quotation marks omitted). Mendoza asserts that Florida
sentenced him to death using the aggravating factor that he acted with “reckless
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indifference to human life,” which he contends was too vague under Espinosa and
Jeffers to channel his sentencer’s discretion. But as the state points out, Florida did
not use that aggravating factor to sentence Mendoza to death.
Mendoza does not contend that any of the three aggravating circumstances
the sentencing jury and judge weighed are invalid under Espinosa and Jeffers. The
trial court instructed Mendoza’s advisory sentencing jury that it could recommend
a death sentence if it found any of the following aggravating circumstances and
determined that they were not outweighed by any mitigating circumstances:
(1) “[t]he defendant has been previously convicted of another felony involving the
use of violence to some person”; (2) “[t]he crime for which the defendant is to be
sentenced was committed while he was engaged, or an accomplice in the
commission, or an attempt to commit or flight after committing or attempting to
commit the crime of robbery and/or burglary”; or (3) “[t]he crime for which the
defendant is to be sentenced was committed for financial gain.” After the jury
recommend a death sentence, the sentencing court found that all three aggravating
circumstances existed, although it considered the second and third circumstances
as a single aggravating factor. The sentencing court determined that the mitigating
evidence did not outweigh the aggravating circumstances, and it sentenced
Mendoza to death. Because Florida did not sentence Mendoza to death using an
invalid aggravating factor, the district court did not manifestly err in concluding
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that his claim under Espinosa and Jeffers was futile.
IV. CONCLUSION
We AFFIRM the denial of Mendoza’s motion for reconsideration.
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