402 F.3d 1136 (11th Cir. 2005), 04-12795, Diaz v. Secretary for Dept. of Corrections

Docket Nº:04-12795.
Citation:402 F.3d 1136
Party Name:Angel Nieves DIAZ, Petitioner-Appellant, v. SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
Case Date:March 14, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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402 F.3d 1136 (11th Cir. 2005)

Angel Nieves DIAZ, Petitioner-Appellant,



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.


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.

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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

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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.


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...

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