            Case: 14-10653   Date Filed: 04/01/2016   Page: 1 of 9


                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-10653
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 0:12-cv-62410-JIC



DENNIS FERNANDEZ,

                                                           Petitioner-Appellant,

                                  versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                        Respondents-Appellees.

                       ________________________

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



                              (April 1, 2016)

Before TJOFLAT, WILSON and JILL PRYOR, Circuit Judges.

PER CURIAM:
                  Case: 14-10653        Date Filed: 04/01/2016         Page: 2 of 9


      Florida state prisoner Dennis Fernandez, represented by counsel, appeals the

district court’s denial of his petition for a writ of habeas corpus, pursuant to 28

U.S.C. § 2254, in which he sought to vacate, in relevant part, his convictions and

sentences for conspiracy to commit racketeering and conspiracy to submit false

and fraudulent insurance claims. On appeal, he argues that counsel in his direct

appeal was ineffective for failing to argue that these convictions violated double

jeopardy. Upon review of the record and consideration of the parties’ briefs, we

affirm.

                                                   I.

      After a 41-day jury trial, Fernandez was convicted of 15 counts under

Florida law related to a criminal auto theft enterprise. Count 15 alleged that from

March 9 through March 28, 2004, Fernandez, Carlos Torres, and Luis Manuel

Planas conspired to submit false and fraudulent insurance claims. Count 2 alleged

that from December 2, 2003 through April 22, 2004, Fernandez and eight other

individuals, not including Planas, conspired to commit racketeering. Count 2

included the insurance fraud conspiracy from Count 15 as one of many “Predicate

Incident[s].” Doc. 19-1 at 183.1 Specifically, Count 2 alleged that from March 9

through March 28, 2004, Fernandez conspired with Torres and Planas to submit

false and fraudulent insurance claims.


      1
          Citations to “Doc.” refer to docket entries in the district court record in this case.
                                                   2
                 Case: 14-10653        Date Filed: 04/01/2016        Page: 3 of 9


       Fernandez appealed. His counsel raised two arguments, both of which a

panel of Florida’s Fourth District Court of Appeals (“DCA”) rejected. Fernandez’s

counsel did not argue, however, that his convictions on Counts 2 and 15 violated

his right against double jeopardy. The Fourth DCA affirmed Fernandez’s

convictions and sentence. Fernandez v. State, 21 So. 3d 155 (Fla. 4th DCA 2009).

       Fernandez then filed a pro se petition for writ of habeas corpus in Florida’s

Fourth DCA, alleging that his appellate counsel was ineffective. Fernandez

recognized that, generally, Florida applies the Blockburger 2 test for determining if

multiple convictions for offenses arising out of the same criminal conduct amount

to double jeopardy. Fernandez argued, however, that the Blockburger test does not

apply to a conspiracy case. Indeed, the Florida Supreme Court held after

Blockburger that “a single conspiracy may have for its object the violation of two

or more criminal laws or two or more substantive offenses.” Brown v. State, 178

So. 153, 156 (Fla. 1938). The court explained:

       The conspiracy is one offense and a single offense, no matter how
       many repeated violations of the law may have been the object of the
       conspiracy. And so one may not be convicted or acquitted of a
       conspiracy to accomplish a certain criminal act and again be put in



       2
         Blockburger v. United States, 284 U.S. 299, 304 (1932). In Blockburger, the Court
established the “same elements” test for determining if two convictions are the same offense for
double jeopardy purposes. Id. “The applicable rule,” the Court explained, “is that, where the
same act or transaction constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not.” Id.
                                                  3
               Case: 14-10653     Date Filed: 04/01/2016    Page: 4 of 9


      jeopardy for the trial for the offense of the same conspiracy to commit
      a different criminal act.

Id. Relying on two recent cases from Florida’s Second DCA, Fernandez argued

that his convictions on Counts 2 and 15 violated the prohibition against double

jeopardy. See Negron Gil de Rubio v. State, 987 So. 2d 217, 219 (Fla. 2d DCA

2008) (citing Brown, 178 So. at 156); Durden v. State, 901 So. 2d 967, 968 (Fla. 2d

DCA 2005).

      The Fourth DCA denied Fernandez’s habeas petition. The court explained

that Fernandez’s case was “distinguishable from the situation presented in Negron

. . . and the other cases upon which [he] relie[d].” Doc. 22-6 at 603. “Unlike the

defendants in [those] cases,” the court continued, “Petitioner entered distinct

agreements to engage in distinct criminal offenses.” Id. The court found that the

conspiracy to commit insurance fraud in Count 15 involved a separate and distinct

agreement from the conspiracy to commit racketeering charged in Count 2.

      Fernandez next filed this pro se federal habeas petition, raising several

arguments including the double jeopardy ineffective assistance claim. The

magistrate judge recommended granting habeas relief on the double jeopardy

ineffective assistance basis only, but the district court disagreed. The district court

reasoned that because the Fourth DCA “addressed and rejected the same double-

jeopardy argument that Fernandez claims his counsel should have raised on direct

appeal [to the Fourth DCA,] . . . Fernandez cannot show that this argument ‘would
                                           4
              Case: 14-10653     Date Filed: 04/01/2016    Page: 5 of 9


have a reasonable probability of success on appeal.’” Doc. 28 at 5 (quoting Heath

v. Jones, 941 F.2d 1126, 1132 (11th Cir. 1991)). The court denied Fernandez’s

habeas petition and declined to issue a certificate of appealability (“COA”).

      Fernandez filed a motion for a COA in this Court. We granted his motion to

address his claim that appellate counsel was ineffective in failing to raise the

double jeopardy issue. We subsequently appointed counsel.

                                          II.

      We review de novo a district court’s denial of a habeas petition. Ward v.

Hall, 592 F.3d 1144, 1155 (11th Cir. 2010). A district court’s findings of fact are

reviewed for clear error, and mixed questions of law and fact, such as an

ineffective assistance of counsel claim, are reviewed de novo. Id.

                                          III.

      If a state court adjudicated a claim on the merits, a federal court may grant

habeas relief only if the decision of the state court (1) “was contrary to, or involved

an unreasonable application of, clearly established [f]ederal law, as determined by

the Supreme Court,” or (2) “was based on an unreasonable determination of the

facts in light of the evidence presented in the [s]tate court proceeding.” 28 U.S.C.

§ 2254(d). A state court’s decision is “contrary to” federal law if “the state court

arrives at a conclusion opposite to that reached by [the Supreme Court] on a

question of law or if the state court decides a case differently than th[e] Court has


                                           5
               Case: 14-10653     Date Filed: 04/01/2016    Page: 6 of 9


on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362,

412-13 (2000). A state court’s decision is an unreasonable application of clearly

established federal law only if the state court’s application of the law was

objectively unreasonable. Id. at 409. Likewise, “a state-court factual

determination is not unreasonable merely because the federal habeas court would

have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S.

290, 301 (2010). “[E]ven if reasonable minds reviewing the record might disagree

about the finding in question . . . that does not suffice to supersede the [state]

court’s determination.” Id. (alterations and internal quotation marks omitted).

      Fernandez argues that Florida’s Fourth DCA’s denial of his habeas petition

was an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984),

which articulated the constitutional right to effective assistance of counsel in a

criminal case. See Cullen v. Pinholster, 563 U.S. 170, 189 (2011). To demonstrate

that counsel’s assistance was so defective that it requires reversal, a defendant must

allege facts showing that: (1) his counsel “made errors so serious that counsel was

not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment”; and (2) “the deficient performance prejudiced the defense.”

Strickland, 466 U.S. at 687. This standard applies to claims that counsel on direct

appeal was constitutionally ineffective. See Cross v. United States, 893 F.2d 1287,

1290 (11th Cir. 1990).


                                           6
              Case: 14-10653     Date Filed: 04/01/2016   Page: 7 of 9


      Under the performance prong of Strickland, counsel’s representation is

judged by a standard of “reasonableness under prevailing professional norms,” and

there is a “strong presumption that counsel’s conduct [fell] within the wide range

of reasonable professional assistance.” Id. at 688-89. The petitioner “must

establish that no competent counsel would have taken the action that his counsel

did take.” Callahan v. Campbell, 427 F.3d 897, 933 (11th Cir. 2005) (internal

quotation marks omitted). In the context of a direct appeal, our inquiry is whether

“counsel unreasonably failed to discover nonfrivolous issues and to file a merits

brief raising them.” Smith v. Robbins, 528 U.S. 259, 286 (2000). Because judicial

review of counsel’s performance is already “highly deferential,” a federal habeas

court’s review of a state court decision denying a Strickland claim on the deficient

performance prong is thus “doubly deferential.” See Pinholster, 563 U.S. at 190

(internal quotation marks omitted). The pertinent inquiry under § 2254(d) “is

whether there is any reasonable argument that counsel satisfied Strickland’s

deferential standard.” Harrington v. Richter, 562 U.S. 86, 105 (2011). If a court

determines that the defendant has failed to establish the performance prong, it need

not address the prejudice prong. See Strickland, 466 U.S. at 697.

      Fernandez’s appellate counsel was not constitutionally deficient for failing

to argue on direct appeal that Fernandez’s conspiracy convictions violated double

jeopardy. Fernandez argues that his appellate counsel could have persuaded the


                                          7
              Case: 14-10653     Date Filed: 04/01/2016   Page: 8 of 9


Fourth DCA to adopt the rule of the Second DCA, as articulated in Negron, that

Blockburger does not apply to conspiracy claims. But this argument misses the

mark. The Fourth DCA did not reject the rule articulated in Negron. Instead, the

court reasoned that cases like Negron simply do not apply to the facts in this case,

because unlike in Negron, here Fernandez entered into two separate agreements.

      The Fourth’s DCA’s factual determination that Fernandez’s conspiracy

convictions arose out of separate and distinct agreements was not unreasonable in

the light of the evidence in the record. The two conspiracy counts charged in

Counts 2 and 15 involved a different span of time and different individuals.

Specifically, Count 2 included eight individuals in addition to Fernandez but not

Luis Manuel Planas, and charged conduct from December 2, 2003 through April

20 2004. Count 15, in contrast, alleged an agreement among Fernandez, Planas

and Torres to engage in insurance fraud during a much narrower window in March

2004. Thus, under Florida law, the two conspiracies charged separate offenses,

and a conviction on both counts did not violate Fernandez’s right against double

jeopardy. C.f. Mathes v. State, 106 So. 3d 73, 75 (Fla. 2d DCA 2013) (holding that

a conspiracy to deliver heroin was subsumed into a conspiracy to commit

racketeering because both charges named a conspiracy to commit heroine as an

objective, the same individuals were implicated in both offenses, and the two

conspiracies allegedly occurred during the same time frame).


                                          8
              Case: 14-10653     Date Filed: 04/01/2016   Page: 9 of 9


      For these reasons, Fernandez’s double jeopardy argument was meritless. “A

lawyer cannot be deficient for failing to raise a meritless claim.” Freeman v. Att’y

Gen., 536 F.3d 1225, 1233 (11th Cir. 2008). Accordingly, Fernandez cannot

demonstrate that the Fourth DCA’s determination that counsel’s performance was

constitutionally adequate was unreasonable. We thus affirm without addressing

prejudice. See Strickland, 466 U.S. at 697.

      AFFIRMED.




                                          9
