           Case: 17-12054   Date Filed: 03/01/2018   Page: 1 of 7


                                                        [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-12054
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:15-cv-23896-MGC


JAVIER SOLIS,

                                                          Petitioner-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
DEPARTMENT OF LEGAL AFFAIRS FOR THE STATE OF FLORIDA,

                                                       Respondents-Appellees.

                       ________________________

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

                              (March 1, 2018)

Before WILLIAM PRYOR, JILL PRYOR and FAY, Circuit Judges.

PER CURIAM:
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      Javier Solis, a Florida prisoner, appeals pro se the denial of his petition for a

writ of habeas corpus. 28 U.S.C. § 2254. Solis argues that the state trial and

postconviction courts violated his right to due process and that both his trial and

his appellate counsel were ineffective. Because the decisions of the Florida courts

rejecting Solis’s arguments reasonably applied clearly established federal law, we

affirm.

      Solis raised nine issues to invalidate his convictions and sentence for

burglary with assault and for sexual battery. Solis contested the denial of his

motion for a mistrial based on the state allegedly shifting the burden to him to

present an alibi defense. Solis also alleged that trial counsel was ineffective for

failing to object to Detective Castaneda’s authentication of photographs; for failing

to object to the detective’s testimony about a warning to be on the lookout and

about his arrival at the crime scene; for conceding that Solis was guilty of assault;

and for failing to object to Solis’s sentence as being based on his arrests for two

similar offenses. Solis also alleged that the postconviction court had an ex parte

communication with the state. Finally, Solis alleged that his appellate counsel was

ineffective for failing to challenge Solis’s sentence and to challenge a hearsay

statement made by Castaneda. The Florida court summarily rejected all of Solis’s

postconviction arguments.




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      We review de novo the denial of a petition for a writ of habeas corpus.

Borden v. Allen, 646 F.3d 785, 808 (11th Cir. 2011). The Antiterrorism and

Effective Death Penalty Act of 1996 prohibits granting “[a]n application for a writ

of habeas corpus on behalf of a person in custody pursuant to the judgment of a

State court . . . with respect to any claim that was adjudicated on the merits in State

court unless the adjudication of the claim . . . was contrary to, or involved an

unreasonable application of, clearly established Federal law.” 28 U.S.C.

§ 2254(d)(1). “By its terms, Section 2254(d) bars relitigation of any claim

‘adjudicated on the merits,’” even if the “state court’s decision is unaccompanied

by an explanation,” Harrington v. Richter, 562 U.S. 86, 98 (2011), unless the

petitioner can “show that the state court’s ruling on the claim . . . was so lacking in

justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement,” id. at 103. And because

the factual findings of the state court are “presumed to be correct,” the petitioner

bears “the burden of rebutting the presumption of correctness by clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1). The relevant state decision for

federal review is the last adjudication on the merits. Wilson v. Warden, Ga.

Diagnostic Prison, 834 F.3d 1227, 1235 (11th Cir. 2016) (en banc).

      The state court did not unreasonably apply clearly established federal law

when it rejected Solis’s argument that he was denied a fair trial because the state


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shifted the burden to him to prove his innocence with alibi evidence when it

inquired whether he had given a statement about being with his brother and

submitted rebuttal testimony about his statement. See United States v. Simon, 964

F.2d 1082, 1086 (11th Cir. 1992). Solis testified that he was unsure of his

whereabouts at the time of the crimes and that he could have been with the victim

if she were one of 20 prostitutes he had paid for sex. The prosecutor asked Solis

about giving a statement “that he remembered the day because [he] [was] with

[his] brother,” Solis responded, “I told [Castaneda] it’s possible.” Later, the

detective testified that Solis said he had worked on a bathroom in his brother’s

house when the crimes occurred. Because Solis’s trial testimony conflicted with

his prior statement to the detective, the prosecutor could use Solis’s statement for

impeachment on rebuttal. The trial court commented that the prosecutor never

alluded to the absence of Solis’s brother during the trial, which might have

suggested to the jury that Solis should have called his brother as a witness. See

Simon, 964 F.2d at 1086. The state court could have reasonably concluded that

Solis’s statement was used for the permissible purpose of testing his credibility.

      The state postconviction court could have also reasonably concluded that

Solis’s trial counsel was not ineffective. The state court could have reasonably

concluded that trial counsel had no reason to object to Castaneda’s testimony or to

Solis’s sentence. See Freeman v. Att’y Gen., 536 F.3d 1225, 1233 (11th Cir. 2008).


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Castaneda could authenticate photographs of the crime scene that he witnessed the

photographer take. See Fed. R. Evid. 901. Castaneda’s testimony about receiving a

warning to be on the lookout “with a description of the person [they were] looking

for” and about the purpose of a lookout warning was unobjectionable and was

devoid of any incriminating hearsay information that might have been in the actual

warning. See Fed. R. Evid. 801(c); United States v. Cain, 587 F.2d 678, 680 (5th

Cir. 1979). It would have been futile to challenge Castaneda’s testimony about

being at the crime scene based solely on Solis’s conjecture that the testimony was

false. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991). The state court

also could have reasonably determined that trial counsel, faced with the victim’s

positive identification and biological evidence connecting Solis to the crimes,

made a strategic decision to concede that Solis was guilty of assault and to focus

on the failure of the state to produce direct evidence that he had burgled her

vehicle. See Strickland v. Washington, 466 U.S. 668, 690 (1984). And after trial

counsel objected at sentencing to evidence of Solis’s arrests, the trial court stated

that it was “not considering the facts” of nor would Solis “be punished” for other

bad acts.

       Solis was entitled to no relief on his claim about an ex parte communication

between the postconviction court and the state. A district court may summarily

dismiss a petition that fails “to state facts that point to a ‘real possibility of


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constitutional error,’” Advisory Committee Notes to Rule 4 Governing Section

2254 Cases, and Solis offered no evidence beyond his speculation that an ex parte

communication occurred before the trial court ruled on his postconviction motion.

      The state postconviction court also could have reasonably concluded that

appellate counsel was not ineffective. The state court could have reasonably

determined that appellate counsel had no reason to pursue the meritless claim that

Solis’s sentence was based on his arrests. See Chandler v. Moore, 240 F.3d 907,

917 (11th Cir. 2001). And the state court could have ruled that appellate counsel

could not argue for the first time on appeal that the trial court violated the

Confrontation Clause or that Solis was punished for maintaining that he was

innocent and proceeding to trial. See Diaz v. Sec’y for the Dep’t of Corr., 402 F.3d

1136, 1142 (11th Cir. 2005) (“Under Florida law, an error that passed without

objection cannot be raised on appeal; appellate counsel, therefore, is not ineffective

for failure to raise a meritless argument.”). And, even if Solis’s claims had been

preserved for appeal, the state court could have reasonably determined that the

claims lacked merit. Solis contended that Castaneda testified about a statement that

Solis’s brother made to Detective Espana, but Solis failed to explain where

Castaneda made the alleged hearsay statement or to respond to the argument of the

state that Espana was not mentioned during Solis’s trial. See Chavez v. Sec’y Fla.

Dep’t of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011). Solis argues he was


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punished for maintaining his innocence, as evidenced by the trial judge’s remark

that he had “a serious problem with Mr. Solis’ testimony.” But the state court

could have reasonably concluded that the trial judge’s remark referred to Solis’s

lack of credibility and lack of remorse. See Duke v. Allen, 641 F.3d 1289, 1294–95

(11th Cir. 2011).

      We AFFIRM the denial of Solis’s petition for a writ of habeas corpus.




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