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                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-13006
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 2:10-cv-00255-JES-DNF



JOSE RAUL PLASENCIA,

                                                          Petitioner-Appellant,

                                  versus

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

                                                      Respondents-Appellees.

                      ________________________

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

                             (April 1, 2015)

Before MARCUS, WILLIAM PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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       Raul Plasencia, a Florida state prisoner serving a 30-year sentence for

second-degree murder, in violation of Florida Statutes § 782.04(2), appeals pro se

the district court’s denial of Ground Two of his 28 U.S.C. § 2254 petition for writ

of habeas corpus. In 2002, a jury convicted Plasencia of the 1996 murder of

Michaelene Blastic. Plasencia’s guidelines range was 156 to 260 months’

imprisonment. The state trial court imposed a 30-year sentence, which reflected a

100-month upward departure from the guidelines range, based on its own judicial

determination that the crime was one of violence and was especially heinous,

atrocious, or cruel.

       We issued a certificate of appealability (COA) as to whether Plasencia’s 30-

year sentence violates the rule announced in Blakely v. Washington, 542 U.S. 296

(2004). Plasencia argues the state court’s decision denying his Blakely claim was

an unreasonable application of clearly established federal law. He asserts that,

because he was sentenced under Florida’s 1994 mandatory sentencing guidelines,

the statutory maximum the state trial court could impose without any additional

fact finding was 260 months’ imprisonment. After review,1 we affirm the district

court’s denial of habeas relief.




       1
          We review a district court’s denial of a § 2254 habeas petition de novo. McNair v.
Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). “The district court’s factual findings are
reviewed for clear error, while mixed questions of law and fact are reviewed de novo.” Id.

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                               I. PROCEDURAL BAR

      As an initial matter, the State contends Plasencia waived his Blakely claim

by not raising it until his motion for rehearing on direct appeal in state court.

“Federal habeas review of a petitioner’s claim is typically precluded when the

petitioner procedurally defaulted on or failed to exhaust the claim in state court.”

Pope v. Sec’y for the Dep’t of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012). A

claim is not subject to procedural default unless the “last state court to review the

claim states clearly and expressly that its judgment rests on a procedural bar . . .

and that bar provides an adequate and independent state ground for denying relief.”

Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir. 1991) (en banc) (citation

omitted).

      The State’s argument that Plasencia waived his Blakely claim because he did

not raise it on direct appeal is unavailing because Plasencia raised his Blakely

argument in his motion for rehearing after direct appeal. The motion for rehearing

was denied by the state appellate court without explanation. Plasencia also raised

his Blakely challenge in his Florida Rule of Criminal Procedure 3.850 motion. The

state habeas trial court denied Plasencia’s claim on the merits, albeit in terms of a

violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). Moreover, Plasencia set

forth his Blakely argument in his brief on appeal, and the state habeas appellate

court affirmed in a decision without opinion. This Court interprets the state habeas


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appellate court’s affirmance without an opinion to be a denial on the merits. See

Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348, 1353 (11th Cir. 2012). Thus,

Plasencia’s claim is not procedurally barred because the state court did not “clearly

and expressly [state] that its judgment rests on a procedural bar.” See Johnson,

938 F.2d at 1173. Furthermore, Plasencia exhausted his state court remedies

because he presented his claim to the state’s highest court in his motion for

rehearing on direct appeal, and in his Rule 3.850 motion, which was affirmed per

curiam by the Second District Court of Appeal. See Ward v. Hall, 592 F.3d 1144,

1156 (11th Cir. 2010) (stating to exhaust state remedies, a petitioner must have

presented the issues raised in the federal habeas petition to the state’s highest court,

either on direct appeal or collateral review); see also Jenkins v. State, 385 So. 2d

1356, 1359 (Fla. 1980) (holding a per curiam affirmance from a Florida District

Court of Appeal is not reviewable by the Florida Supreme Court).

                               II. BLAKELY ERROR

      Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective

Death Penalty Act (AEDPA), federal courts are precluded from granting

habeas relief on claims that were previously adjudicated on the merits in state court

unless the adjudication:

      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or


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      (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the
      State court proceeding.

28 U.S.C. § 2254(d).

      In Apprendi, the Supreme Court held that, “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” 530 U.S. at 490. In Blakely, the Supreme Court applied the rule

announced in Apprendi to hold a Washington state trial court violated the

defendant’s Sixth Amendment rights by sentencing the defendant to 90 months’

imprisonment—which reflected a 37-month upward departure from the standard

guideline range of 49 to 53 months—based upon the trial court’s own finding that

the crime involved “deliberate cruelty.” 542 U.S. at 299-304. Although the statute

provided a statutory maximum of ten years’ imprisonment, the Court explained the

“‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge

may impose solely on the basis of the facts reflected in the jury verdict or admitted

by the defendant.” Id. at 303. We have emphasized that Blakely was decided in

the context of a mandatory guidelines system. United States v. Rodriguez, 398

F.3d 1291, 1297-98 (11th Cir. 2005).

      As to the merits of Plasencia’s Blakely claim, this Court interprets the state

habeas appellate court’s per curiam affirmance as a denial on the merits. See


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Shelton 691 F.3d at 1353 (11th Cir. 2012). The state court’s decision is therefore

entitled to deference under § 2254(d). See id. Thus, in order to prevail on this

claim, Plasencia must show that the state court’s decision was contrary to, or

involved an unreasonable application of, clearly established federal law. See 28

U.S.C. § 2254(d)(1).

      The Supreme Court’s decision in Blakely applies to Plasencia’s case because

his conviction was not yet final when the Supreme Court issued Blakely. See

Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (explaining when the Supreme

Court issues a decision that “results in a ‘new rule,’ that rule applies to all criminal

cases still pending on direct review”). The Florida Supreme Court has determined

that a conviction is not final until the appellate court has issued the mandate.

Hughes v. State, 901 So. 2d 837, 839 (Fla. 2005). The Supreme Court issued

Blakely on June 24, 2004. 542 U.S. at 296. Although the state appellate court

affirmed Plasencia’s conviction and sentence on June 23, 2004, the mandate did

not issue until March 30, 2005. Because Plasencia’s case was pending on direct

review, the rule announce in Blakely applied to his case.

      Because Blakely was decided in the context of a mandatory guideline

system, Plasencia’s Blakely claim depends on whether the Florida guidelines under

which he was sentenced were mandatory or advisory. See Rodriguez, 398 F.3d at

1297. Plasencia asserts he was sentenced under the mandatory 1994 sentencing


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guidelines because the commission date of his offense fell within the window of

Heggs v. State, 759 So. 2d 620 (Fla. 2000). In Heggs, the Florida Supreme Court

invalidated Florida’s 1995 sentencing guidelines. Id. at 630-31. Thus, individuals

who committed crimes between October 1, 1995, and May 24, 1997, were

resentenced under the 1994 sentencing guidelines. Trapp v. State, 760 So. 2d 924,

928 (Fla. 2000); cf. Poole v. State, 968 So. 2d 82, 83 (Fla. 5th DCA 2007) (“Based

upon the date of his offense, Poole fell within the Heggs window and was

sentenced under the 1994 guidelines.” (footnote omitted)). Because Plasencia’s

offense occurred in February 1996, his offense falls within the Heggs window.

Indeed, his guidelines calculation score sheet was entitled “Heggs-Sentencing

Guidelines Scoresheet.”

      Defendants sentenced pursuant to the 1994 Florida sentencing guidelines

were sentenced under a determinate sentencing scheme. The 1994 sentencing

guidelines provided “[s]entences imposed by trial court judges under the 1994

revised sentencing guidelines on or after January 1, 1994, must be within the 1994

guidelines unless there is a departure sentence with written findings.” Fla. Stat.

§ 921.001(5) (1994). Moreover, Florida courts have recognized that, for

defendants sentenced under the guidelines sentencing scheme, which used several

factors and discretion in calculating the maximum guideline range, Blakely could

provide relief, even if the sentence did not exceed the statutory maximum. See


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Plott v. State, 148 So. 3d 90, 95 (Fla. 2014) (quashing the appellate court’s denial

of the defendant’s Rule 3.800 motion because the defendant’s four sentences of life

imprisonment imposed upon resentencing pursuant to Heggs were

unconstitutionally enhanced under Apprendi and Blakely where the trial court

imposed an upward departure without empaneling a jury to make the necessary

factual determination); Boardman v. State, 69 So. 3d 367, 369 (Fla. 2d DCA 2011)

(stating that, if Blakely applied retroactively to cases on collateral review, it could

apply to a defendant who was sentenced under the 1994 sentencing guidelines).

      The maximum sentence the state trial court could impose under Blakely

without any additional fact findings was the top of Plasencia’s guideline range—

260 months’ imprisonment. The court imposed a 360-month sentence, which

reflected a 100-month upward departure, based on its own factual findings.

Because the state trial court imposed an upward departure based on facts that were

not submitted to or proven to a jury, Plasencia’s sentence was imposed in violation

of Blakely. Nevertheless, as will be discussed in the next section, a reasonable

court could have determined that any Blakely error was harmless; thus, the state

court’s decision was not unreasonable. See 28 U.S.C. § 2254(d).

                              III. HARMLESS ERROR

      In Brecht v. Abrahamson, the Supreme Court determined the appropriate

standard for harmlessness of a non-structural constitutional error on collateral


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review is whether the error “had substantial and injurious effect or influence in

determining the jury’s verdict.” 507 U.S. 619, 623 (1993) (quotation omitted). A

non-structural constitutional error “occurs during the presentation of the case to the

jury” and can be “assessed in the context of other evidence presented in order to

determine the effect it had on the trial.” Id. at 629 (quotation and alterations

omitted). The Supreme Court has held Blakely error is not a structural error. See

Washington v. Recuenco, 548 U.S. 212, 222 (2006) (concluding, in the context of a

direct appeal, that failing to submit a sentencing factor to the jury was not

structural error and was thus subject to harmless error review).

      “When reviewing the harmlessness of an error under the Brecht standard, if,

when all is said and done, the court’s conviction is sure that the error did not

influence, or had but very slight effect, the verdict and judgment should stand.”

Ross v. United States, 289 F.3d 677, 683 (11th Cir. 2002) (quotations and

alterations omitted). However, an error is not harmless if the court is “in grave

doubt about whether a trial error of federal law had substantial and injurious effect

or influence in determining the jury’s verdict.” Id. (quotation omitted). The

Brecht harmless-error standard applies to a Blakely challenge raised in a § 2254

petition. See Lovins v. Parker, 712 F.3d 283, 303-04 (6th Cir. 2013) (concluding

the Blakely error was not harmless).




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      In the context of direct appeals, we have determined a Blakely error is

harmless “if it is clear beyond a reasonable doubt that a rational jury would have

found the defendant guilty absent the error.” United States v. King, 751 F.3d 1268,

1279 (11th Cir. 2014) (quotation and alterations omitted) (applying harmless error

review to errors under Alleyne v. United States, 133 S. Ct. 2151 (2013)); United

States v. Dulcio, 441 F.3d 1269, 1277 (11th Cir. 2006) (reviewing Blakely claim

for harmless error).

      Under the Florida law applicable to Plasencia’s sentence, an aggravating

factor may warrant a departure above the guideline range if “[t]he offense was one

of violence and was committed in a manner that was especially heinous, atrocious,

or cruel.” Fla. Stat. § 921.0016(3)(b) (1994). The Florida Supreme Court has

upheld the determination that a crime was especially heinous, atrocious, or cruel

where the victim was strangled. Stephens v. State, 975 So. 2d 405, 423 (Fla. 2007)

(analyzing the especially heinous, atrocious, and cruel aggravating factor in a

capital case).

      Plasencia cannot prevail under either the Brecht standard or the more

petitioner-friendly harmless-error standard applied to Blakely challenges raised on

direct appeal. See Hittson v. GDCP Warden, 759 F.3d 1210, 1233-34 n.26 (11th

Cir. 2014) (indicating harmlessness beyond a reasonable doubt is a more

petitioner-friendly standard). A rational jury would have found Plasencia


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warranted an upward departure because the crime was especially heinous,

atrocious, or cruel. The evidence presented at trial showed Blastic was found dead

in her refrigerator, the cause of death was by strangulation, there was a struggle,

and she had blunt trauma to her face and anus that occurred prior to her death.

       The Florida Supreme Court has upheld determinations that the especially

heinous, atrocious, or cruel aggravating factor applies in cases involving

strangulation, see Stephens, 975 So. 2d at 423, and has stated, “it is permissible to

infer that strangulation, when perpetrated upon a conscious victim, involves

foreknowledge of death, extreme anxiety and fear, and that this method of killing is

one to which the factor of heinousness is applicable,” Tompkins v. State, 502 So.

2d 415, 421 (Fla. 1986). Thus, a rational jury would have found beyond a

reasonable doubt that Plasencia’s strangulation of Blastic, while she was conscious

and struggling, was especially heinous, atrocious, or cruel. 2 See King, 751 F.3d at

1279; Dulcio, 441 F.3d at 1277.

       Because a reasonable court could conclude any Blakely error was harmless,

the state court’s decision denying Plasencia’s Blakely claim was not contrary to, or

an unreasonable application of, clearly established federal law. Accordingly, the



       2
            To the extent Plasencia challenges the other two grounds for departure noted in the
state trial court’s written order, we need not address them because the especially heinous,
atrocious, or cruel factor supports the departure. See Maglio v. State, 918 So. 2d 369, 377 (Fla
4th DCA 2005) (“[A] departure shall be upheld when at least one circumstance or factor justifies
the departure regardless of the presence of other factors found not to justify departure.”).
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district court did not err by denying Ground Two of Plasencia’s § 2254 petition,

and we affirm.

      AFFIRMED.




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