755 F.3d 1273 (11th Cir. 2014), 12-12378, Insignares v. Secretary, Florida Department of Corrections

Docket Nº:12-12378
Citation:755 F.3d 1273, 24 Fla.L.Weekly Fed. C 1489
Opinion Judge:PER CURIAM:
Party Name:MITCHEL A. INSIGNARES, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee
Attorney:For Mitchel A. Insignares, Petitioner - Appellant: Tim Bower Rodriguez, Tim Bower Rodriguez, PA, Tampa, FL. For Secretary, Florida Department of Corrections, Respondent - Appellee: Natalia Costea, Jill Kramer, Pam Bondi, Richard L. Polin, Attorney General's Office, Miami, FL.
Judge Panel:Before MARCUS and FAY, Circuit Judges, and HODGES,[*] District Judge. FAY, Circuit Judge, concurring specially. FAY, Circuit Judge, concurring specially:
Case Date:June 23, 2014
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1273

755 F.3d 1273 (11th Cir. 2014)

24 Fla.L.Weekly Fed. C 1489

MITCHEL A. INSIGNARES, Petitioner-Appellant,

v.

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee

No. 12-12378

United States Court of Appeals, Eleventh Circuit

June 23, 2014

Page 1274

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:11-cv-20858-MGC.

For Mitchel A. Insignares, Petitioner - Appellant: Tim Bower Rodriguez, Tim Bower Rodriguez, PA, Tampa, FL.

For Secretary, Florida Department of Corrections, Respondent - Appellee: Natalia Costea, Jill Kramer, Pam Bondi, Richard L. Polin, Attorney General's Office, Miami, FL.

Before MARCUS and FAY, Circuit Judges, and HODGES,[*] District Judge. FAY, Circuit Judge, concurring specially.

OPINION

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PER CURIAM:

Mitchel A. Insignares, a Florida prisoner, appeals the district judge's denial of his pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254.1 Because resentencing by the state judge resulted in a new judgment, making this the first challenge to that new judgment, we conclude Insignares's petition is not successive. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Underlying Conviction

In the early morning hours of July 5, 2000, Antonio Houed left the Pink Pony, a Miami strip club, to return to his house.

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When he arrived home, he noticed a man, later identified as Insignares, had followed him in a red car. Insignares confronted Houed, ordered him to get on the ground, and threatened him with a gun. When Houed did not comply, Insignares shot at him four times. Houed took refuge behind a car, and Insignares fired another six or seven shots. Houed eventually was able to escape, while Insignares left to commit crimes against other victims.2

Houed testified that he had described the attacker to police as weighing between 250 and 300 pounds, being 6 feet, 1 inch to 6 feet, 2 inches tall, and having a goatee and gold teeth. He also told police the attacker was wearing a white shirt, black shorts, and a hood. Based on that description, police contacted Houed to identify the attacker later that morning. He identified Insignares on sight. Houed also recognized a red Mitsubishi Galant owned by Gloria Insignares, Insignares's mother, as the car the attacker had used.

Houed's description was not the only evidence identifying Insignares. Luis Correa was working as a bouncer at the Pink Pony on the morning of July 5, 2000. The manager told Correa to keep an eye on a suspicious man at the club. Correa testified that the man was wearing a white t-shirt and dark shorts, and he appeared to be more interested in the patrons of the club than the dancers. At his manager's direction, Correa recorded the license-plate number for the car in which the man left. Correa testified to the license-plate number, which police later determined was registered to Gloria Insignares's car; he further stated the car he saw at the Pink Pony was a red or burgundy Mitsubishi Galant.

Insignares's defense at trial was mistaken identity. He contended there was insufficient evidence linking him to the crimes. He challenged the testimony of Correa and argued Correa's recall of the license-plate number from memory at trial, fourteen months later, was not credible. He also questioned why the victim did not tell police immediately the make and model of the car, and he suggested Houed's testimony was biased by anger.

The jury found Insignares guilty on all counts. He was convicted of (1) attempted first-degree murder with a firearm, Fla. Stat. § § 775.087, 777.04(1), 777.011, 782.04(1), resulting in a sentence of 40 years of imprisonment, including a 20-year mandatory minimum; (2) criminal mischief, Fla. Stat. § 806.13(1)(b)3, resulting in a sentence of 5 years of imprisonment; and (3) discharging a firearm in public, Fla. Stat. § § 775.087, 790.15(1), resulting in a sentence of 1 year of imprisonment. These sentences ran concurrently.

B. State Direct and Post-Conviction Review

On February 14, 2002, Insignares filed a post-conviction motion to correct his sentence under Florida Rule of Criminal Procedure 3.800. The state judge resentenced Insignares by reducing his 40-year imprisonment sentence for attempted murder to 27 years and replacing his 1-year imprisonment sentence for discharging a firearm with a 5-year suspended imprisonment sentence. These sentences remained concurrent.

On direct appeal, the state appellate court reversed Insignares's criminal-mischief conviction but otherwise affirmed. Insignares v. State, 847 So.2d 1063, 1064 (Fla. Dist. Ct. App. 2003) (per curiam). The appellate court's mandate issued on July 14, 2003. On August 18, 2003, the state

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judge vacated the criminal-mischief conviction.

On May 25, 2004, Insignares filed a collateral challenge to his conviction under Florida Rule of Criminal Procedure 3.850 and alleged ineffective assistance of trial counsel. Relevant to this appeal, Insignares alleged his trial counsel was ineffective for failing to (1) depose Correa, (2) colloquy a sleeping juror, and (3) object or move for a mistrial after improper statements by the prosecutor during his closing argument. He additionally alleged cumulative error. On post-conviction review, the state judge held an evidentiary hearing and denied the motion. The appellate court affirmed. Insignares v. State, 957 So.2d 680 (Fla. Dist. Ct. App. 2007). The appellate court's mandate issued on May 18, 2007.

C. First Federal Habeas Petition and Additional State Review

On December 12, 2007, Insignares filed his first federal habeas petition under § 2254 in the Southern District of Florida. Notably, he alleged the same errors in his 2007 petition as he has in his second federal habeas petition, the subject of this appeal. The district judge dismissed his petition as untimely. Without seeking a Certificate of Appealability (" COA" ), Insignares appealed the dismissal. We dismissed that appeal for failure to prosecute. Insignares v. Fla. Dep't of Corr., No. 08-15529 (11th Cir. Oct. 22, 2008).

On April 1, 2009, Insignares filed a second Florida Rule 3.800 motion to correct his sentence. The state judge granted the motion and reduced the mandatory-minimum imprisonment sentence for his attempted-murder conviction from 20 years to 10 years, but he otherwise left his conviction and sentence intact. The judge entered the corrected sentence and new judgment on May 22, 2009.

On June 15, 2009, Insignares filed a second Florida Rule 3.850 motion challenging his conviction and alleged actual innocence. The state judge denied the petition; the appellate court affirmed without opinion. Insignares v. State, 50 So.3d 1146 (Fla. Dist. Ct. App. 2010) (per curiam). The mandate issued on January 24, 2011.

D. Second Federal Habeas Petition

On March 10, 2011, Insignares filed the § 2254 habeas petition at issue in this appeal. The petition was referred to a magistrate judge, who construed the petition as raising ten claims, which he rejected in a Report and Recommendation (" R& R" ). The magistrate judge concluded the habeas petition was not " second or successive" under Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010), because it was Insignares's first petition to challenge the new judgment entered after resentencing. R& R at 27. The district judge adopted the R& R and issued a COA as to whether (1) counsel was ineffective for failing to investigate, depose, and adequately impeach Luis Correa; (2) counsel was ineffective for failing to colloquy and remove a sleeping juror pursuant to Insignares's request; (3) counsel was ineffective for failing to object to the prosecutor's misrepresentation of facts crucial to the issue of identification and move for mistrial after the prosecutor commented on his opinion of the evidence; and (4) cumulative error deprived Insignares of a fair trial.

II. JURISDICTION

Before addressing the merits of Insignares's habeas petition, we first must decide whether the district judge had jurisdiction to decide it. Under the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), Pub. L. No.104-132, 110 Stat. 1214, a prisoner " in

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custody pursuant to the judgment of a State court," 28 U.S.C. § 2254(a), " shall move in the appropriate court of appeals for an order authorizing the district court to consider" a " second or successive" federal habeas petition. 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 152, 127 S.Ct. 793, 796, 166 L.Ed.2d 628 (2007). Subject to exceptions not present in this case, a district judge lacks jurisdiction to decide a second or successive petition filed without our authorization.3 Insignares did not seek permission to file a successive petition. Therefore, the district judge had jurisdiction to hear his petition only if Insignares's application was not second or successive.

Because Insignares had filed a federal habeas petition in 2007 challenging his conviction and raising the same issues as his 2011 federal habeas petition, the state argues his second petition is successive. Insignares responds that, although he filed a 2007 federal petition, the reduction of his mandatory-minimum sentence in 2009 resulted in a new judgment. He contends the 2011 federal habeas petition is his first challenge to that new judgment; consequently, it is not " second or successive." Appellant's Br. at 3-5. We agree with Insignares.

In Magwood, the Supreme Court decided whether a habeas petition challenging a state prisoner's sentence after intervening resentencing was " second or successive." 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592. The state prisoner in Magwood had been convicted of murder and sentenced to death. Id. at 324, 130 S.Ct. at 2792. On initial federal habeas review, the district judge did not disturb the conviction but conditionally granted the petition concerning...

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