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                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-15170
                           Non-Argument Calendar
                         ________________________

                       D.C. Docket No. 1:12-cv-21894-JIC



MARBEL MENDOZA,

                                                            Petitioner-Appellant,

                                    versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                           Respondent-Appellee.

                         ________________________

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

                               (August 11, 2016)

Before TJOFLAT, HULL and JORDAN, Circuit Judges.

HULL, Circuit Judge:
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      Marbel Mendoza appeals the district court’s denial of his pro se motion to

substitute counsel for the purpose of assisting him in filing an original habeas

petition to the U.S. Supreme Court. After careful review of the record and the

briefs, we affirm.

                                I. BACKGROUND

A.    Mendoza’s 1994 Florida Convictions

      Following a 1994 jury trial, Mendoza was convicted of six Florida offenses:

(1) first-degree felony murder; (2) conspiracy to commit robbery; (3) attempt to

commit armed robbery; (4) armed burglary of a dwelling; (5) use of a firearm

during the commission of a felony; and (6) possession of a firearm by a convicted

felon. Mendoza v. Sec’y, Fla. Dep’t of Corr., 761 F.3d 1213, 1216 & n.2 (11th

Cir. 2014).

      At trial, “the evidence overwhelmingly established that Mendoza planned

the robbery [of the victim Conrado Calderon], participated in it, and shot and killed

Calderon.” Id. at 1218. Mendoza recruited an acquaintance, Humberto Cuellar

(“Humberto”), to help him rob Calderon. Id. at 1215-16. Humberto, in turn,

recruited his brother Lazaro Cuellar to drive the getaway car. Id. at 1216.

Humberto testified as an eyewitness against Mendoza. Id. at 1218.

      In addition to Humberto’s testimony, the evidence showed that police

discovered Mendoza’s finger and palm prints on the car parked in Calderon’s


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driveway. Id. at 1216. Further, Calderon died from four bullet wounds, all of

which came from the type of gun that Mendoza had. Id. Three shots were fired

from point-blank range, and the fourth was fired from less than six inches away.

Id.

      On February 8, 1994, the jury found Mendoza guilty of all counts, including

first-degree felony murder. Id. at 1218. At the close of the penalty phase, the jury

recommended the death penalty by a vote of seven to five, and the Florida trial

court sentenced Mendoza to death for his first-degree murder conviction. Id. at

1225, 1228.

      On direct appeal, the Florida Supreme Court affirmed Mendoza’s

convictions and death sentence. Mendoza v. State, 700 So. 2d 670, 679 (Fla.

1997). On October 5, 1998, the U.S. Supreme Court denied Mendoza’s petition

for certiorari. Mendoza v. Florida, 525 U.S. 839, 119 S. Ct. 101 (1998).

B.    State Post-Conviction Proceedings

      Mendoza challenged his Florida convictions in state post-conviction

proceedings, raising numerous claims. Capital Collateral Regional Counsel-South

(“CCRC-South”) was appointed to represent Mendoza. On July 8, 2011, the

Florida Supreme Court affirmed the denial of post-conviction relief. Mendoza v.

State, 87 So. 3d 644 (Fla. 2011).

C.    2012-2014 Federal Habeas Proceedings


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      On May 21, 2012, the district court appointed CCRC-South to represent

Mendoza in his federal habeas proceedings. CCRC-South filed a comprehensive

28 U.S.C. § 2254 petition. In a 75-page, July 25, 2013 order, the district court

denied the § 2254 petition.

      On July 31, 2014, after briefing and oral argument, this Court affirmed the

denial of Mendoza’s § 2254 petition. Mendoza, 761 F.3d 1213. The U.S.

Supreme Court denied certiorari. Mendoza v. Jones, ___ U.S. ___, 135 S. Ct. 1714

(2015).

D.    2015 Motion for Appointment of Substitute/Supplemental Counsel

      On September 29, 2015, Mendoza filed a pro se motion in the district court

“for appointment of substitute counsel / supplemental counsel to prepare and file

original habeas corpus petition in the United States Supreme Court.”

      In his pro se motion, Mendoza stated that he intended to file a petition for

writ of habeas corpus in the U.S. Supreme Court, invoking its original jurisdiction

and claiming “actual innocence of the death penalty.” Liberally construing his pro

se pleading, we consider these to be Mendoza’s “actual innocence” claims that he

wishes to file in the U.S. Supreme Court: (1) whether his death penalty

determination was proper, in light of Enmund v. Florida, 458 U.S. 782, 102 S. Ct.

3368 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676 (1987);

(2) whether his due process rights were violated when his counsel allegedly argued


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inconsistent defense theories at trial, in light of Bradshaw v. Stumpf, 545 U.S. 175,

125 S. Ct. 2398 (2005); and (3) whether the Florida Supreme Court engaged in a

“cursory or rubber-stamp review” rather than conducting a proper proportionality

review, consistent with Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960 (1976).

      Mendoza’s pro se motion sought appointment of substitute or supplemental

counsel to assist in preparing and filing this original habeas petition in the U.S.

Supreme Court. Mendoza acknowledged that CCRC-South had already been

appointed to represent him in his post-conviction collateral proceedings, both in

state and federal court. However, Mendoza argued that substitution of federally

appointed counsel is warranted when it would serve the “interests of justice,” as

articulated by the U.S. Supreme Court in Martel v. Clair, 565 U.S. ___, 132 S. Ct.

1276 (2012). Mendoza argued that here substitution of counsel would serve the

interests of justice because a conflict of interest prevented CCRC-South from

raising the above-specified claims before the U.S. Supreme Court in an original

habeas petition. Mendoza argued CCRC-South’s conflict of interest was that it had

previously failed to raise these claims in earlier collateral proceedings and to raise

them now in an original habeas petition would require CCRC-South to admit its

own ineffectiveness.

      After the government responded to Mendoza’s motion to substitute counsel,

in an October 14, 2015 order, the district court denied Mendoza’s motion. The


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district court explained that Mendoza’s motion should be evaluated in light of the

factors articulated by the U.S. Supreme Court in Clair. The district court

determined that Mendoza had failed to show that any conflict of interest prevented

CCRC-South from raising the claims he wanted to raise before the U.S. Supreme

Court in an original habeas petition. Additionally, the district court reasoned that,

to the extent Mendoza’s claim was that CCRC-South had been ineffective during

his state post-conviction proceedings, such a claim was futile because “there is no

freestanding claim of ineffective assistance of collateral counsel” that could

proceed in an original habeas petition before the U.S. Supreme Court (citing

Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546 (1991)).

      On November 3, 2015, Mendoza filed a “motion for rehearing /

reconsideration.” After the government filed a response, the district court denied

Mendoza’s “motion for rehearing / reconsideration” in a November 17, 2015 order.

      This appeal followed.

                            II. LEGAL STANDARDS

      “In any post conviction proceeding under [28 U.S.C. § 2254],” an indigent

prisoner seeking to challenge a death sentence in federal court is “entitled to the

appointment of one or more attorneys.” 18 U.S.C. § 3599(a)(2). “[T]he right to

the appointment of counsel includes a right to legal assistance in the preparation of

a habeas corpus application and thus adheres prior to the filing of a formal, legally


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sufficient habeas corpus petition.” Chavez v. Sec’y, Fla. Dep’t of Corr., 742 F.3d

940, 944 (11th Cir. 2014) (quotation marks omitted). “Once federal habeas

counsel has been appointed to represent a state prisoner in a § 2254 proceeding,

counsel is required to represent the prisoner ‘throughout every subsequent stage of

available judicial proceedings,’ including ‘all available post-conviction process’ in

state and federal court . . . until he has been ‘replaced by similarly qualified

counsel upon the attorney’s own motion or upon motion of the defendant.’” Id.

(quoting 18 U.S.C. § 3599(e)).

      In evaluating a prisoner’s motion to replace or substitute his counsel, a

district court must use the “interests of justice” standard. Clair, 565 U.S. at ___,

132 S. Ct. at 1281. Under this standard, the factors to be considered generally

include “the timeliness of the motion; the adequacy of the district court’s inquiry

into the defendant’s complaint; and the asserted cause for that complaint, including

the extent of the conflict or breakdown in communication between lawyer and

client (and the client’s own responsibility, if any, for that conflict).” Id. at ___,

132 S. Ct. at 1287.

      The district court’s decision on a prisoner’s substitution of counsel motion

“deserves deference” because it is “so fact-specific.” Id. Accordingly, on review

this Court “may overturn it only for an abuse of discretion.” Id.




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       Furthermore, a district court may act within its discretion in denying a

prisoner’s substitution of counsel motion, “even without the usually appropriate

inquiry,” where the claim a prisoner seeks to pursue with the help of substitute

counsel would be futile. See id. at ___, 132 S. Ct. at 1289.

                                    III. DISCUSSION

       In this case, a threshold issue is whether the district court erred in

concluding Mendoza had not shown a conflict of interest. But we need not decide

this issue because the claims Mendoza seeks to pursue in an original habeas

petition to the U.S. Supreme Court would be futile.1 See id.

A.     Enmund/Tison

       Enmund and Tison both addressed whether and when a defendant can be

sentenced to death for his involvement in a crime during which another took a life.

In Enmund, the Supreme Court held that the Eighth Amendment prohibits the

imposition of the death penalty on one who participates in a crime but “who does

not himself kill, attempt to kill, or intend that a killing take place or that lethal

force will be employed.” Enmund, 458 U.S. at 797, 102 S. Ct. at 3376.

       In Tison, the Supreme Court reviewed a state’s application of the Enmund

rule and clarified its definition of “inten[t] that a killing take place or that lethal

       1
         In his appellate briefs, Mendoza, pro se, mentions only his Enmund/Tison claim and his
actual innocence claim. However, out of an abundance of caution in this death-penalty context,
we evaluate each claim stated in Mendoza’s motion for substitution of counsel in the district
court, applying the principles of liberal construction.
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force [ ] be employed.” The Supreme Court held that a showing that the defendant

anticipated or foresaw a killing or use of lethal force is insufficient to establish the

“intent” required by Enmund. Tison, 481 U.S. at 150-51, 107 S. Ct. at 1684.

However, the Supreme Court determined that a defendant who engages “in

criminal activities known to carry a grave risk of death,” and whose participation

in those activities is “major and whose mental state is one of reckless indifference

to the value of human life,” may be subject to capital punishment. Id. at 152, 157-

58, 107 S. Ct. at 1685, 1688.

      Here, Mendoza seeks to argue in an original habeas petition to the U.S.

Supreme Court that there was never a reliable determination that he killed,

attempted to kill, intended to kill, or committed a crime with reckless indifference

to the value of human life. Thus, his death sentence violates the Eighth

Amendment, as interpreted by Enmund and Tison.

      Mendoza’s claim, however, is meritless. During the penalty phase of his

trial, the court instructed the jury that it could not recommend the death penalty

unless it found that:

             One, the defendant killed, or;

             Two, attempted to kill, or:

             Three, intended that a killing take place, or;

             Four, intended that lethal force be employed, or;


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             Five, the defendant was a major participant in a felony that
      resulted in the victim’s death and his mental state was one of reckless
      indifference.

The jury therefore heard an Enmund/Tison instruction, and we presume that the

jury followed the instruction. Jamerson v. Sec’y Fla. Dep’t of Corr., 410 F.3d 682,

690 (11th Cir. 2005). Moreover, the district court made an explicit finding in its

sentencing order that the trial evidence “established that the defendant

[Mendoza] . . . fired the fatal shots.”

      Both the judge and jury determined that Mendoza met the Enmund/Tison

standard, and Mendoza has pointed to no evidence to overcome their factual

findings or show that the findings were not reliable in light of the trial evidence.

See Cabana v. Bullock, 474 U.S. 376, 387-88, 106 S. Ct. 689, 697-98 (1986)

(instructing that, if the state court or jury made a factual finding about the

defendant’s Enmund/Tison culpability, “the finding must be presumed correct . . .

unless the habeas petitioner can bear the heavy burden of overcoming the

presumption”), abrogated on other grounds by Pope v. Illinois, 481 U.S. 497, 107

S. Ct. 1918 (1987). Accordingly, Mendoza’s claim is futile.

B.    Stumpf

      Stumpf was a capital case in which it was unclear whether Stumpf or one of

his partners in a robbery killed the victim. Stumpf, 545 U.S. at 178-79, 125 S. Ct.

at 2402-03. Stumpf pled guilty to capital aggravated murder, and during the


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sentencing hearing, the state argued that Stumpf fired the fatal shots. Id. at 179,

125 S. Ct. at 2403. Later, during one of the co-defendant’s trials, and after new

evidence emerged, the state argued that the co-defendant was the triggerman, not

Stumpf. Id. at 180, 125 S. Ct. at 2403-04.

      As a result, Stumpf claimed during his post-conviction proceedings that the

prosecutor presented inconsistent theories of the case, in violation of his due

process rights. See id. at 182, 125 S. Ct. at 2405. The Supreme Court, however,

did not resolve whether there was a due process violation in sentencing Stumpf to

the death penalty. Id. at 187-88, 125 S. Ct. at 2407-08. The Supreme Court

remanded the issue to the federal appeals court for clarification of its opinion on

that subject. Id. The Supreme Court “express[ed] no opinion on whether the

prosecutor’s actions amounted to a due process violation, or whether any such

violation would have been prejudicial.” Id. at 187, 125 S. Ct. at 2408.

      Mendoza wishes to argue in an original habeas petition to the U.S. Supreme

Court that his due process rights were violated when “trial counsel” presented

inconsistent theories as to who shot Calderon. Mendoza asserts that Stumpf is the

basis for this claim. However, Stumpf did not definitively determine that a

petitioner’s due process rights are violated by the state’s presentation of

inconsistent positions. Nor did it comment at all on the effect of a defense




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attorney—which seems to be what Mendoza’s claim is about—making inconsistent

claims about whether the defendant was a principal or accessory to the crime. 2

       More importantly, the facts of Mendoza’s case are materially distinguishable

from Stumpf. In Stumpf, there was a lack of evidence tying any particular robbery

defendant to the death. See generally id. In Mendoza’s case, however, there was

overwhelming eyewitness and forensic evidence that Mendoza was the triggerman.

Thus, even assuming arguendo that a petitioner may be entitled to habeas relief for

an attorney taking inconsistent positions at trial or sentencing, Mendoza would not

be able to show that he was prejudiced by that occurrence. See id. at 187, 125 S.

Ct. at 2408 (declining to determine whether the alleged due process violation

“would have been prejudicial”); see also Brecht v. Abrahamson, 507 U.S. 619, 113

S. Ct. 1710 (1993) (applying harmless error review to non-structural claims on

collateral review). This claim, too, is futile.

C.     Proffitt

       In Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726 (1972), the Supreme

Court established that states cannot impose the death penalty arbitrarily and

capriciously. See Johnson v. Singletary, 938 F.2d 1166, 1179 (11th Cir. 1991). In

response to Furman, Florida recast its capital punishment statutes and required the
       2
         Mendoza argued in a state post-conviction motion and his § 2254 petition that defense
counsel was ineffective for taking inconsistent positions about which Cuellar brother shot the
victim. See Mendoza, 87 So. 3d at 652-55. If this is the issue that Mendoza seeks to revive in
his original habeas petition to the U.S. Supreme Court, it bears even fewer similarities to a
Stumpf due process claim, as defense counsel never argued that Mendoza was the shooter.
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trial court to weigh enumerated aggravating and mitigating factors before

sentencing a defendant to death. Proffitt, 428 U.S. at 247-48, 96 S. Ct. at 2964-65.

The Florida Supreme Court then imposed upon itself, through case law, a duty to

ensure on direct review that the result reached in a particular capital case was

similar to the results reached in other capital cases that presented comparable

circumstances. Id. at 251, 96 S. Ct. at 2966 (citing State v. Dixon, 238 So. 2d 1, 10

(1973)).

      In Proffitt, the Supreme Court determined that this capital sentencing

scheme, on its face, complied with Furman. Id. at 253, 96 S. Ct. at 2967. The

Supreme Court also concluded that there was no evidence that the Florida appellate

review process was ineffective or arbitrary in practice. Id. at 258-59, 96 S. Ct. at

2969. The Supreme Court stated that “any suggestion that the Florida court

engages in only cursory or rubber-stamp review of death penalty cases is totally

controverted” by its cumulative record of review. Id.

      Mendoza relies on Proffitt to argue that an appellate court violates the

Constitution when it conducts “only [a] cursory or rubber-stamp review of death

penalty cases,” and that he received only this minimal, constitutionally infirm level

of review. However, Proffitt never held that capital punishment violates the

Constitution if the appellate court does not review, as Medoza puts it, whether




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death was the appropriate penalty for the particular defendant and the death

sentence was consistent or proportional with other cases.

       The Supreme Court has clarified Proffitt and stated that just because “some

schemes providing proportionality review are constitutional does not mean that

such review is indispensable.” Pulley v. Harris, 465 U.S. 37, 44-45, 104 S. Ct.

871, 876 (1984). It concluded that Proffitt and companion cases “did not establish

a constitutional requirement of proportionality review.” Id. at 48, 104 S. Ct. at

878. “Proportionality review” is simply an “additional safeguard against arbitrarily

imposed death sentences,” not a constitutional necessity. See id. at 50, 104 S. Ct.

at 879.

       As there is no constitutional right to Proffitt-style appellate review, Mendoza

does not have a viable claim to habeas relief under Proffitt. In any event, we also

note that the sentencing court made an explicit finding that Mendoza’s death

sentence was proportional to sentences in other capital cases, and when Mendoza

raised a proportionality claim on direct review, the Florida Supreme Court

explained and resolved the claim in a thorough opinion. Mendoza, 700 So. 2d at

678-79. For both of these reasons, Mendoza’s proposed Proffitt claim is futile.3



       3
         If Mendoza is attempting to argue that the Florida Supreme Court failed to provide the
level of review promised by its own case law, that claim is also futile. A state court’s
misapplication of state law is not a ground for habeas relief. See McCullough v. Singletary, 967
F.2d 530, 535 (11th Cir. 1992) (“A state’s interpretation of its own laws or rules provides no
basis for federal habeas corpus relief, since no question of a constitutional nature is involved.”).
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D.    Freestanding Actual Innocence

      It is unclear whether Mendoza plans to raise a separate, freestanding claim

of actual innocence in his original habeas petition to the U.S. Supreme Court, or if

he plans to demonstrate his “innocence of the death penalty” by succeeding on the

above-discussed legal claims. While it remains an open question whether a

freestanding actual innocence claim is even cognizable in a capital habeas case,

Johnson v. Ga. Diagnostic & Classification Prison, 805 F.3d 1317, 1324 (11th Cir.

2015), it is clear that what Mendoza is proposing, even liberally construed, will not

contain the requisite showing under any articulation of the actual innocence

standard.

      “‘[A]ctual innocence’ means factual innocence, not mere legal

insufficiency.” Bousley v. United States, 523 U.S. 614, 623, 118 S. Ct. 1604, 1611

(1998). Mendoza does not plan to claim that he did not kill Calderon; rather, he

wishes to argue in his original petition that the evidence was insufficient to convict

him, or there were other procedural defects in his criminal and post-conviction

proceedings. Because those claims relate to the legal sufficiency of his conviction

and sentence, not his factual innocence of capital murder, he will not be able to

obtain relief. See id.

      Relatedly, actual innocence generally requires the presentation of new

evidence showing the petitioner’s innocence. Mendoza has not stated that he


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intends to put forth any new evidence to show that he did not kill Calderon.

Accordingly, he cannot demonstrate his actual innocence, and his claim would be

futile.

E.        Ineffective Assistance of Collateral Counsel

          Finally, to any extent Mendoza arguably wishes to raise a claim that his state

post-conviction counsel was ineffective, such a claim would be futile because it is

not cognizable. The Supreme Court has explicitly held that “[t]here is no

constitutional right to an attorney in state post-conviction proceedings.” Coleman,

501 U.S. at 752, 111 S. Ct. at 2566, abrogated in part by Martinez v. Ryan, 566

U.S. ___, 132 S. Ct. 1309 (2012) (creating a narrow exception that allows

petitioners’ to claim ineffective assistance of post-conviction counsel as a means of

overcoming the procedural default of ineffective-assistance-of-trial/appellate-

counsel claims). Therefore, “a petitioner cannot claim constitutionally ineffective

assistance of counsel in such proceedings” as a substantive ground for relief. Id.

                                  IV. CONCLUSION

          Because each of the claims Mendoza seeks to raise in an original habeas

petition to the U.S. Supreme Court would be futile, the district court did not abuse

its discretion by denying his motion for appointment of substitute counsel for




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drafting and filing the proposed petition. See Clair, 565 U.S. at ___, 132 S. Ct. at

1289. We affirm the judgment of the district court. 4

       AFFIRMED.




       4
         In the alternative and for the first time on appeal, Mendoza argues that the district court
had the inherent authority “to appoint him independent ‘supplemental’ counsel without regard to
the need to discharge and/or substitute” his current CCRC-South counsel. Mendoza makes this
argument on the basis that under 18 U.S.C. § 3599, indigent prisoners are “entitled to the
appointment of one or more attorneys.” 18 U.S.C. § 3599(a)(2) (emphasis added).
       Even had Mendoza made this argument before the district court, the argument is
nevertheless without merit. Because the claims Mendoza seeks to pursue are futile, new counsel
would be unable to assist Mendoza with his claims regardless of whether his CCRC-South
counsel were discharged.

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