Rivera v. Secretary, Department of Corrections, 061218 FED11, 16-14842

Docket Nº:16-14842
Opinion Judge:PER CURIAM:
Judge Panel:Before TJOFLAT, NEWSOM and HULL, Circuit Judges.
Case Date:June 12, 2018
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

HECTOR RIVERA, Petitioner-Appellant,



No. 16-14842

United States Court of Appeals, Eleventh Circuit

June 12, 2018


Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:15-cv-01186-VMC-AEP

Before TJOFLAT, NEWSOM and HULL, Circuit Judges.


Hector Rivera, a Florida prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Rivera is serving a life sentence without parole for a first-degree murder conviction, a concurrent life sentence without parole for the attempted first-degree murder of another victim, and a 15-year sentence for the attempted first-degree murder of yet another victim. In this appeal, the only issue is whether the district court erred in determining that Rivera's claim challenging, under Florida law, the concurrent life sentence for his attempted first-degree murder conviction was procedurally defaulted and otherwise without merit.

After careful review, we agree with the district court's ruling that Rivera has not properly exhausted this claim in state court, and it is thus procedurally defaulted. We also conclude that, in any event, his claim based on Florida law does not state a basis for federal habeas corpus relief. Accordingly, we affirm the district court's denial of Rivera's § 2254 petition.


This case arises from petitioner Rivera's involvement in a home invasion on the evening of August 9, 2003. That home invasion resulted in the shooting death of Carlos Martin-Gonzales ("Carlos") and the attempted murder of Carlos's wife and daughter. The trial evidence demonstrated the following facts.

A. Offense Conduct

Carlos was born in Puerto Rico but later moved to Tampa, Florida and worked as a medical technician. Carlos opened a clinic in Tampa, where he began working with a man named Pedro Rivera ("Pedro"), who is the brother of petitioner Hector Rivera. Carlos became indebted for several thousand dollars to Pedro over the clinic.

For additional income, Carlos also performed diagnostic work in Puerto Rico for a different man named Nestor Pagan Gonzalez ("Nestor"). Carlos allegedly stole some checks from Nestor for money that Carlos believed he was owed by Nestor.

As a result, Nestor and Pedro sent a hitman from Puerto Rico, Jose Rodriguez-Sosa, who was Nestor's cousin, to "resolve this situation" with Carlos. When Rodriguez-Sosa arrived in Tampa, Pedro and petitioner Hector Rivera picked him up at the airport and provided Rodriguez-Sosa with a gun.

Because Carlos and petitioner Rivera grew up together in Puerto Rico and were friends, Carlos trusted petitioner Rivera. The plan was to have petitioner Rivera approach Carlos's apartment and make him open the door under the auspices of Rivera's repossessing Carlos's car.1 Then, Rodriguez-Sosa would enter too and attempt to collect on Carlos's debts to Nestor and Pedro.

Carlos lived with his wife, Glenda Badias, and their two daughters in an apartment in Seminole, Florida. On the night of August 9, 2003, Carlos and Glenda heard someone banging on their apartment door, and Carlos opened the door when he saw petitioner Rivera outside. As Rivera entered the apartment, Rodriguez-Sosa entered forcibly behind him and then struck Carlos in the head with a gun. Rodriguez-Sosa grabbed Carlos by the neck, forced him onto the sofa, and began asking him about the money Carlos owed to Nestor and Pedro. Rodriguez-Sosa also threatened to shoot Glenda if she was not quiet.

Petitioner Rivera told Glenda, who was holding her infant daughter at the time, that he did not know what was going on and that he was just there "to repossess the van, " but warned Glenda that Rodriguez-Sosa would shoot her and the baby if provoked. According to Glenda, Rivera "was just standing there" during the entire event.

After Carlos denied that he had Nestor's and Pedro's money, Rodriguez-Sosa shot him in the neck and head, killing him instantaneously. Rodriguez-Sosa then shot Glenda twice, and one of the bullets lodged in her daughter's leg. Petitioner Rivera and Rodriguez-Sosa fled the apartment. Glenda and her daughter survived their gunshot wounds, and Glenda was able to call 911. Police eventually identified petitioner Rivera and traced Rodriguez-Sosa back to petitioner's brother, Pedro.

B. Indictment and Convictions

On August 21, 2003, a three-count indictment charged only petitioner Rivera with: (1) the first-degree murder of Carlos Martin-Gonzales while using a firearm, in violation of Florida Statutes §§ 782.04(1)(a), 777.011, and 775.087 ("Count 1"); (2) the attempted first-degree murder of Glenda Badias while using a firearm, in violation of Florida Statutes §§ 782.04(1)(a), 777.04, 777.011, and 775.087 ("Count 2"); and (3) the attempted first-degree murder of the couple's daughter while using a firearm, in violation of Florida Statutes §§ 782.04(1)(a), 777.04, 777.011, and 775.087 ("Count 3").

More specifically, Count 1 charged that, "unlawfully and from a premeditated design to effect the death of Carlos Martin-Gonzales, " petitioner Rivera "did shoot . . . Carlos Martin-Gonzales with a firearm, thereby inflicting upon [him] . . . mortal wounds, and by the means aforesaid and as a direct result thereof, . . . Carlos Martin-Gonzales died . . . ."

Count 2 charged that, also "from a premeditated design, " petitioner Rivera "did attempt to kill [Glenda Badias] by shooting [her] with a firearm thereby knowingly or intentionally causing great bodily harm or permanent disability or permanent disfigurement to her person." Count 3 charged Rivera with similar attempt liability as in Count 2, but instead cited the couple's daughter as the victim.

Each of these three counts expressly referred to Florida's aiding and abetting statute in Florida Statutes § 777.011. That statute provides that "[w]hoever commits any criminal offense against the state . . . or aids, abets, counsels, hires, or otherwise procures such offense to be committed, . . . is a principal in the first degree and may be charged, convicted, and punished as such . . . ." Fla. Stat. § 777.011 (emphasis added). Because petitioner Rivera had aided and abetted in the shootings of Carlos and his family, Rivera was thus charged as a principal to the crimes under Florida law. See id.

Under Florida law, first-degree murder is a capital felony, and attempted first-degree murder is a first-degree felony. See id. § 777.04(4)(b) (explaining lower offense ranking for completed felony versus one "attempted, solicited, or conspired"); id. § 782.04(1)(a) ("[M]urder in the first degree . . . constitutes a capital felony."). Capital felonies are punishable by death, while first-degree felonies-unless otherwise specified by statute-are punishable by a maximum term of 30 years' imprisonment. Id. § 775.082(1)(a), (3)(b)(1).

However, under Florida law, when a person "carries, displays, uses, threatens to use, or attempts to use any weapon or firearm" during the commission of a felony where using a weapon is not an essential element, he or she receives reclassification to a higher felony degree for purposes of sentencing. Id. § 775.087(1). In the case of a crime that is already a first-degree felony, the statute requires the sentencing court to reclassify that crime to a "life felony, " which is subject to a life sentence. Id. As to all three counts in the indictment, Rivera was charged with a firearm reclassification. Therefore, as charged in the indictment, Rivera's crimes in Counts 2 and 3 were classified as life felonies, and were both subject to life sentences under Florida law. Id. § 775.082(3)(a)(3).

After a jury trial, Rivera was convicted of first-degree murder on Count 1, attempted first-degree murder on Count 2, and attempted second-degree murder on Count 3. As to Counts 1 and 2, the jury found Rivera guilty "as charged." As to Count 3, it found him guilty of attempted second-degree murder as a lesser-included offense of the charged attempted first-degree murder.

C. Sentencing and Direct Appeal

On February 4, 2005, the state trial court sentenced petitioner Rivera to concurrent sentences of life imprisonment without the possibility of parole on Count 1 and life imprisonment on Counts 2 and 3.

Rivera filed a direct appeal with the District Court of Appeal of Florida, Second District ("Second DCA"). In his direct appeal, Rivera argued only that the jury's verdict on Count 1 was not unanimous because, at trial, the government also argued for felony murder as an alternative theory of criminal liability, but the trial court did not instruct the jury on the elements of burglary or robbery. See id. § 782.04(1)(a)(2) (listing predicate felonies that, when directly contributing to the death of the victim, constitute first-degree murder). The Second DCA summarily affirmed Rivera's convictions and sentences on February 24, 2006. Rivera v. State, 923 So.2d 504 (Fla. Dist. Ct. App. 2006). Thereafter, Rivera filed two separate postconviction motions under the Florida Rules of Criminal Procedure.

D. Florida Rule 3.800 Motion to Correct an Illegal Sentence

First, Rivera filed a pro se a motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800 ("Rule 3.800"). Rivera alleged that his life sentences on Counts 2 and 3 (but not Count 1) were illegal under Florida law. Specifically, Rivera argued that, without proof that he shot the firearm, his attempted first-degree murder conviction in Count 2 was subject to a maximum 30-year prison sentence and his attempted second-degree murder conviction in Count 3 was subject to a maximum 15-year prison...

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