Delgado v. Fla. Dep't of Corr.

• Decision Date: 13 October 2011
• Docket Number: No. 10–13490.,10–13490.
• Citation: 659 F.3d 1311,23 Fla. L. Weekly Fed. C 467
• Parties: Jesus DELGADO, Petitioner–Appellant,v.FLORIDA DEPARTMENT OF CORRECTIONS, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

659 F.3d 1311

23 Fla. L. Weekly Fed. C 467

Jesus DELGADO, Petitioner–Appellant,

v.FLORIDA DEPARTMENT OF CORRECTIONS, Respondent–Appellee.

No. 10–13490.

United States Court of Appeals, Eleventh Circuit.

Oct. 13, 2011.

Charles Garret White (Court–Appointed), Miami, 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 BARKETT, WILSON and MARTIN, Circuit Judges.WILSON, Circuit Judge:

In 1994, Jesus Delgado was convicted of two counts of first-degree murder, one count of armed burglary, and one count of possession of a firearm by a convicted felon, but those convictions were set aside on appeal by the Florida Supreme Court. In 2004, Delgado was retried and again convicted of two counts of first-degree murder. He claims that this second trial violated the Fifth Amendment's prohibition on double jeopardy. On direct appeal, the Florida Supreme Court denied him relief, as did the federal district court on his application for a writ of habeas corpus. Having carefully reviewed the Florida Supreme Court's decision in light of United States Supreme Court precedent, we conclude that Delgado is not entitled to habeas relief because he was not “twice put in jeopardy” as that phrase is defined in federal constitutional law.

I.

In order to properly frame the parties' arguments, we offer the following background.

A.

On direct appeal from Delgado's first trial, the Florida Supreme Court summarized the underlying crime as follows:

Marlene McField was a neighbor of Tomas and Violetta Rodriguez, the victims in this case. In the early evening hours of August 30, 1990, Ms. McField witnessed the Rodriguezes arrive home. Later, at around 10 p.m., Ms. McField remembered hearing dogs in the home directly behind the Rodriguezes' home wailing in an unusual fashion.

The following morning, Ms. McField went to the Rodriguezes' home and noticed that the gate leading to the Rodriguezes' front porch was ajar; the key was still in the lock on the inside portion of the gate. Ms. McField removed the key from the gate and entered the front porch area. She then rang the doorbell, but no one answered. Knowing that the Rodriguezes were extremely security-conscious people, Ms. McField became suspicious and summoned the police.

When the police arrived, they discovered that the front door was unlocked. The first officer on the scene did not notice any sign of a forced entry. Inside, police secured the bedrooms and living room area first. Nothing in those areas indicated anything unusual. As the police moved toward the kitchen, they noticed a bloodstained knife and a pistol lying on the floor.

The kitchen, utility room, and garage did exhibit signs of a possible struggle. The utility room connects the kitchen and the garage. A wooden door leading from the utility room into the garage was cracked in the center and its hinges were broken. Mr. Rodriguez's body was discovered next to this door, just inside the garage. His body had bullet and stab wounds. Ms. Rodriguez's body was also discovered in the garage; it was wedged between a car and the garage wall. Her body had blunt force trauma and stab wounds.

In the kitchen, two cabinet drawers were open. The knife which police found was similar to a set found in one of the open kitchen drawers. A single set of bloody shoe-print impressions led from the garage into the kitchen and up to these drawers. Mr. Rodriguez was found without shoes and the soles of Ms. Rodriguez's slippers did not match the bloody impressions.

The pistol found next to the knife, a .22 caliber Ruger semiautomatic, was equipped with a silencer. Police could not trace the pistol because its serial number had been removed. Police did recover six .22 caliber shell casings that were later determined to have been fired from the Ruger. No other .22 caliber ammunition was found at the home. Police also found a .38 caliber revolver, which belonged to Mr. Rodriguez, in a zippered pouch inside a closed cabinet in the master bedroom. Testing on the revolver revealed it had not been fired. The State presented an expert who testified that tests performed on the victims' hands indicated that neither had triggered a firearm.

A single drop of only appellant's blood¹ was found in the garage. A mixture of appellant's and the victims' blood was found in the garage, on the handgun, at the base of the kitchen phone that hung from a wall, and on the kitchen phone itself. Appellant's palm print was discovered on the kitchen phone. The police determined that the last call on this phone was made to Barbara Lamellas' home, where appellant resided at the time.

In addition to the physical evidence gathered from the scene, police learned that appellant and the Rodriguezes knew each other and had recently experienced difficulties as a result of a business transaction between the Rodriguezes and Horatio Lamellas. In June of 1990, the Rodriguezes sold their dry cleaning business to Horatio Lamellas. After the purchase, Barbara Lamellas, Horatio Lamellas' daughter, and appellant, Ms. Lamellas' boyfriend, ran the business.

Maria Hernandez worked at the dry cleaning business before and after the sale to Mr. Lamellas. Ms. Hernandez testified that after the sale she observed appellant complaining that the machines were not working properly and about dissatisfied customers. According to Ms. Hernandez, appellant stated that the Rodriguezes had “tricked him with the machines, and the business they had sold them.” Ms. Hernandez stated that while the Rodriguezes were in charge, business was steady and the machines worked well.

Based on this information regarding the dry cleaning business and the evidence found at the home, appellant became a suspect. Appellant was not located and apprehended by police until December 23, 1992, more than two years after the murders.

Delgado v. State, 776 So.2d 233, 234–35 (Fla.2000) (per curiam) (“ Delgado I ”), superseded by statute, Fla. Stat. § 810.015.

B.

A grand jury indicted Delgado for two counts of first-degree murder, one count of armed burglary, and one count of possession of a firearm by a convicted felon. Delgado v. State, 948 So.2d 681, 684 (Fla.2006) (per curiam) (“ Delgado II ”). The indictment charged first-degree murder on the alternative theories of premeditation and felony murder. Id. The predicate offense supporting Delgado's felony-murder charge was burglary.² Delgado I, 776 So.2d at 236.

In Florida, burglary entails “entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” Fla. Stat. § 810.02(1)(a). Unlike its common law counterpart, Florida's statutory definition of burglary does not require an illegal breaking and entering of a protected premises with the intent to commit a felony. See Delgado I, 776 So.2d at 236. Instead, it is sufficient that a burglar simply “remain in” a structure with “the intent to commit an offense therein.” Fla. Stat. § 810.02(1). The crime, nevertheless, retains its trespassory foundations, meaning that consent to enter and remain in the relevant structure is a complete defense. See State v. Hicks, 421 So.2d 510, 510–11 (Fla.1982); Ray v. State, 522 So.2d 963, 964 n. 3 (Fla.3d Dist.Ct.App.1988), overruled on other grounds by Delgado I, 776 So.2d at 240–41, superseded by statute, Fla. Stat. § 810.015 (reinstating Ray ).

Before Delgado's first direct appeal, Florida courts interpreted the burglary statute's “remaining in” language broadly. See, e.g., Ray, 522 So.2d at 965–67. Because “a person would not ordinarily tolerate another person remaining in the premises and committing a crime, and that when a victim becomes aware of the commission of a crime, the victim implicitly withdraws consent to the perpetrator's remaining in the premises,” id. at 966, courts readily allowed circumstantial evidence to demonstrate that a defendant's license to remain in the victim's premises had been withdrawn at the time the defendant began committing the predicate criminal offense. See, e.g., id. at 966 (“[W]e will not require that [the victim] have yelled to the defendant, ‘Get out!’ before we can conclude that the defendant's license to remain on the premises was withdrawn.”). As noted by the Florida Supreme Court in Delgado I, this liberal interpretation of the “remaining in” clause effectively converted a host of criminal offenses into burglaries, simply because they were committed indoors:

[I]f we make the assumption that “a person would not ordinarily tolerate another person remaining in the premises and committing a crime,” and assuming that this withdrawn consent can be established at trial, a number of crimes that would normally not qualify as felonies would suddenly be elevated to burglary. In other words, any crime, including misdemeanors, committed on another person's premises would become a burglary if the owner of the premises becomes aware that the suspect is committing the crime. Obviously, this leads to an absurd result. For example, if a person hosts a party and catches an invitee smoking marijuana on the premises, the invitee is not only guilty of a misdemeanor marijuana charge but also of burglary, a second-degree felony. The same can be said of the invitee who writes a bad check for pizza in front of an aware host. The other extreme is also true. An invitee who commits second-degree murder on another person's premises and in the presence of an aware host could be charged with first-degree felony murder, with the underlying felony being burglary. The possibility exists that many homicides could be elevated to first-degree murder, merely because the killing was committed indoors.

Delgado I, 776 So.2d at 239.

Delgado's burglary and felony murder charges were brought on just such a theory. See id...