Diaz v. Secretary for the Dept. of Corrections

• Citation: 402 F.3d 1136
• Decision Date: 14 March 2005
• Docket Number: No. 04-12795.,04-12795.
• Parties: Angel Nieves DIAZ, Petitioner-Appellant, v. SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

402 F.3d 1136

Angel Nieves DIAZ, Petitioner-Appellant, v. SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, Respondent-Appellee.

No. 04-12795.

United States Court of Appeals, Eleventh Circuit.

March 14, 2005.

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Todd Gerald Scher (Court-Appointed), Sp. Asst. CCRC, Miami Beach, FL, for Petitioner-Appellant.

Sandra Sue Jaggard, Miami, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON, Chief Judge, and MARCUS and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:

The key issue in this habeas corpus appeal is whether counsel for Angel Nieves Diaz, a Florida prisoner sentenced to death, was ineffective for not arguing, in his direct appeal, that Diaz was absent from several pretrial hearings and other discussions among the trial court and counsel. Because the minor proceedings from which Diaz was absent were outside the presence of the jury, no objection was made, and Diaz was not prejudiced by his absences, we conclude that the district court correctly found that this argument had no chance of success in Diaz's direct appeal. We also conclude that Diaz's other arguments are meritless. We, therefore, affirm the denial of Diaz's habeas petition.

I. BACKGROUND

Angel Nieves Diaz was one of three men who robbed the Velvet Swing Lounge in Miami, Florida, in late December 1979. Diaz v. State, 513 So.2d 1045, 1046-47 (Fla.1987) (Diaz I). Diaz and his cohorts murdered Joseph Nagy, the bar manager, in the course of their robbery. Id. No one witnessed Nagy's murder because "[t]he majority of the patrons and employees had been forcibly confined to a restroom" and those that had not been moved into the restroom hid underneath the bar, for fear that they too would be killed. Id. Diaz and his co-defendant, Angel "Sammy" Toro, were tried in a Miami court almost six years to the day after they committed their crimes.

Diaz was represented by counsel until the moment before opening arguments began. Diaz then decided to conduct his own defense, against the advice of both his lawyer and the trial judge. The trial judge was "amazed," however, by Diaz's ability to represent himself and specifically praised Diaz's ninety-minute cross-examination of a witness for the State. Diaz was nevertheless "convicted of first-degree murder, four counts of kidnapping, two counts of armed robbery, one count of attempted robbery, and one count of possessing a firearm during the commission of a felony." Id."The trial court sentenced Diaz to a total of 834 years of imprisonment and imposed the jury's recommended sentence of death" for the murder of Joseph Nagy. Id. Diaz's co-defendant in the crime, "Sammy" Toro, was sentenced to life imprisonment, despite some evidence that Toro, not Diaz, was the shooter. Id. at 1049. A jailhouse informant testified at Diaz's trial, however, that Diaz admitted that he shot Joseph Nagy. Id. at 1048.

Diaz's death sentence was "based on five aggravating circumstances and no mitigating circumstances," but the Florida Supreme Court struck one of the aggravating circumstances on direct appeal. See Diaz v. Dugger, 719 So.2d 865, 866 & n. 1 (Fla.1998) (Diaz II). The four remaining aggravating circumstances were "Diaz was under sentence of imprisonment, had previously been convicted of another capital felony, ... committed the murder during a kidnapping, and committed the murder for pecuniary gain." Id. at 866 n. 1. In the direct appeal, then-Justice Barkett concurred with a compelling summary of why Diaz's death sentence was proper:

... I cannot fault the result based on the record in this case, which could have convinced a judge and jury beyond a reasonable doubt that Diaz was the more culpable of the two perpetrators. Moreover, the defendant's prior record in this instance includes an armed robbery, two escapes, the assault and battering of correctional officers, and a conviction for murdering the director of a drug rehabilitation center by stabbing him nineteen times while he slept. On this record, there is sufficient evidence and sufficient aggravating factors to support the conviction and sentence.

Id. at 1049-50 (Barkett, J., specially concurring). Diaz exhausted his direct appeal when the Supreme Court of the United States denied his petition for a writ of certiorari. Diaz v. Florida, 484 U.S. 1079, 108 S.Ct. 1061, 98 L.Ed.2d 1022 (1988). Diaz then began to attack his sentence collaterally.

Diaz next filed a motion in the sentencing court, under Florida Rule of Criminal Procedure 3.850, to overturn his death sentence. The trial court held an evidentiary hearing on one of the claims Diaz presented: ineffective assistance of counsel during the penalty phase of his trial. The trial court later denied relief on that claim. Diaz appealed that denial to the Florida Supreme Court, which also denied relief. Diaz II, 719 So.2d at 865. The Florida court also denied Diaz's separate petition for a writ of habeas corpus. Id. The Supreme Court denied his petition for certiorari. Diaz v. Florida, 526 U.S. 1100, 119 S.Ct. 1580, 143 L.Ed.2d 675 (1999). Diaz filed a successive habeas petition in the Florida Supreme Court, but that petition was denied as well.

Between his first state collateral attack and his successive state habeas petition, Diaz filed a petition for a writ of habeas corpus in the Southern District of Florida under 28 U.S.C. section 2254. Diaz amended that petition after his successive habeas petition was denied by the Florida Supreme Court. The district court denied Diaz's habeas petition. Diaz sought and was granted a certificate of appealability from the district court on all of the issues presented in his habeas petition. This appeal followed.

II. STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this appeal and limits our review of the decisions of the state courts:

A federal court may not grant a petition for a writ of habeas corpus to a state prisoner on any claim that has been adjudicated on the merits in state court unless the adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court.

Clark v. Crosby, 335 F.3d 1303, 1307-08 (11th Cir.2003) (citations omitted). A general framework of substantial deference governs our review of every issue that the state courts have decided:

[A] state-court decision can be "contrary to" this Court's clearly established precedent in two ways. First, a state-court decision is contrary to this Court's precedent if the state court arrives at a conclusion opposite to that reached by this Court on a question of law. Second, a state-court decision is also contrary to this Court's precedent if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours.

...

[A] state-court decision can involve an "unreasonable application" of this Court's clearly established precedent in two ways. First, a state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case. Second, a state-court decision also involves an unreasonable application of this Court's precedent if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.

Williams v. Taylor, 529 U.S. 362, 405-07, 120 S.Ct. 1495, 1519-20, 146 L.Ed.2d 389 (2000). We will not, therefore, grant Diaz's habeas petition unless the determination of the Florida Supreme Court was either contrary to, or an unreasonable application of, Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), which governs Diaz's claim of ineffective assistance of appellate counsel.

III. DISCUSSION

We first address Diaz's argument of ineffective assistance of appellate counsel regarding Diaz's absence from critical stages of his trial. We then discuss Diaz's other ineffective assistance of counsel arguments. Finally, we address the four other issues Diaz has raised.

A. Diaz's Ineffective Assistance of Appellate Counsel Claim Regarding Diaz's Absence from Critical Stages of His Trial

The Supreme Court has held that "a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631 (1987). Diaz has identified eleven allegedly critical trial court proceedings from which he was either absent or during which he alleges that there was no interpreter. Diaz contends that each of these absences, both individually and cumulatively, should have been raised by his appellate counsel and that the failure of counsel to raise them constitutes prejudicial ineffective assistance of counsel under Strickland. For ease of discussion, we consider the pretrial absences first because Diaz was still represented by counsel at that time. We then review the absences that Diaz identified as occurring when he served as his own lawyer with the aid of standby counsel.

1. Pretrial Absences

Diaz was represented by Peter Ferrero before his trial, and Ferrero was followed by Robert Lamons, who represented Diaz during some pretrial matters and even served as standby counsel after Diaz decided to represent himself. Although Diaz was represented by counsel at every pretrial proceeding he has identified, his exclusion from those proceedings could have...