                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                                  FEB 19, 2009
                                 No. 07-11588                   THOMAS K. KAHN
                           ________________________                 CLERK


                      D. C. Docket No. 06-80550-CV-DTKH

CORNELIO DIAZ,



                                                                Petitioner-Appellant,

                                       versus

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,

                                                              Respondent-Appellee.

                           ________________________

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

                               (February 19, 2009)

Before HULL, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

      Petitioner-appellant Cornelio Diaz appeals the district court’s denial of his

petition for habeas relief, brought pursuant to 28 U.S.C. § 2254. In this appeal, we
consider whether Diaz’s state court sentences violate double jeopardy where Diaz

was convicted and sentenced separately for two acts of vaginal sexual battery

separated by an intervening act of anal sexual battery. After hearing oral argument

and conducting a thorough review of the record, we conclude the multiple

sentences do not violate double jeopardy and Diaz is not entitled to habeas relief.

       I. Background

       Diaz was charged in state court with burglary and four counts of sexual

battery. Counts II and IV alleged,1

       on or about February 11, 1996 . . . CORNELIO DIAZ did commit
       sexual battery upon [the victim], a person 12 years of age or older,
       without [the victim’s] consent, by penetrating and/or having union
       with the vagina of [the victim] with his penis and in the process
       thereof did not use physical force and violence likely to cause serious
       injury, contrary to Florida Statute 794.011(5).

       According to the testimony at trial, Diaz entered the 63-year-old victim’s

home at about 4 a.m. on February 11, 1996. He grabbed the victim and the two

struggled, during which Diaz placed a plastic bag over the victim’s head and

stuffed her mouth with clothes and sheets. Diaz dragged the victim into the

bedroom by her hair, threw her on the bed, and removed her clothes. He then

attempted to penetrate her with his penis. Diaz was only able to touch her vagina


       1
           Count 1 alleged burglary with assault. Count 3 alleged sexual battery by digital
penetration. Count 5 alleged sexual battery by anal penetration. Because Counts 1, 3, and 5 require
different elements, they do not constitute double jeopardy violations.

                                                2
with his penis, but was not able to penetrate. The victim testified that, when that

“just didn’t work,” Diaz kissed her vagina and then turned her over and attempted

to penetrate her anally with his penis. When he was unsuccessful, Diaz turned the

victim over again and attempted to place his penis in her mouth.2 Because the

victim started biting, Diaz abandoned oral sex and again attempted to penetrate her

vaginally. Although this time “he got a little further,” when Diaz could not

complete penetration with his penis, he used his fingers to penetrate. Diaz then fell

asleep, enabling the victim to escape and call police.3 The victim could not say

how long the offenses lasted, but the record reflects that the police received an

emergency call at about 6 a.m.

       Diaz was convicted on all counts and sentenced to 40 years’ imprisonment

on the burglary count, and 15 years’ imprisonment for each sexual battery count,

with all sentences to run concurrently. In determining the sentences, the additional

sexual battery counts received sentencing points, which increased Diaz’s term of

imprisonment.

       Diaz’s convictions were affirmed on direct appeal and in post-conviction

motions, but his sentences were overturned and he was resentenced twice. He


       2
           Diaz was not charged with sexual battery based on oral contact.
       3
          Later in her testimony, the victim seemed confused by the sequence of events, testifying
that he used his fingers to penetrate before he attempted anal penetration.

                                                 3
ultimately received 25.65 years’ imprisonment. Diaz did not challenge his

sentences on double jeopardy grounds in his direct appeal or his state post-

conviction Rule 3.850 motions. The first time Diaz raised the issue was in a

motion to correct an illegal sentence under state Rule 3.800(a),4 although he did not

mention the federal constitution. In that Rule 3.800(a) motion, Diaz argued that

the two acts of vaginal penetration were of the same type and were not separated

by time or location such that he was able to form a new criminal intent between

attempts. The state court denied the Rule 3.800(a) motion without discussion, and

the denial was affirmed on appeal. Diaz v. State, 923 So.2d 1179 (Fla. Dist. Ct.

App. 2006). Diaz then filed the instant § 2254 petition, alleging, inter alia, that his

sentences violate double jeopardy because he is being punished twice for the same

offense.

       In response, the state argued that the double jeopardy claim was

procedurally defaulted because it was improperly raised in the Rule 3.800(a)

motion and Diaz would now be barred from raising it in any post-conviction

motion. According to the state, the state court rejected the double jeopardy claim

on this procedural ground.



       4
            Rule 3.800(a) provides, “[a] court may at any time correct an illegal sentence imposed by
it, or an incorrect calculation made by it in a sentencing scoresheet, or a sentence that does not grant
proper credit for time served . . . .”

                                                   4
      The magistrate judge recommended denying habeas relief because the state

legislature had intended to allow multiple convictions and punishments for

separate acts that occurred during a single episode as long as the acts were distinct

in character and temporally separate, as was the case in Diaz’s offenses. In

support, the magistrate judge cited Blockburger v. United States, 284 U.S. 299, 52

S.Ct. 180, 76 L.Ed. 306 (1932). Diaz objected to the recommendation, although on

grounds not relevant to the issue on appeal. The district court adopted the

recommendation, over Diaz’s objection, and denied relief. After the district court

denied Diaz’s application for a certificate of appealability (“COA”), this court

granted a COA on the following issue: “Whether the district court erred in

concluding that appellant’s conviction and sentence did not violate double

jeopardy.”

      II. Standard of Review

      Diaz filed his petition after the effective date of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-32, 110 Stat.

1214 (1996), and, therefore, the provisions of that act govern this appeal. We

review de novo the district court’s denial of a habeas petition. McNair v.

Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). We review factual findings for

clear error and mixed questions of law and fact de novo. Id.



                                           5
      A federal court is prohibited from granting habeas relief from a state

conviction unless the state decision was (1) “contrary to, or involved an

unreasonable application of, clearly established federal law, as determined by the

United States Supreme Court,” or (2) “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). A state court decision is “contrary to” clearly established federal

law if either “(1) the state court applied a rule that contradicts the governing law

set forth by Supreme Court case law, or (2) when faced with materially

indistinguishable facts, the state court arrived at a result different from that reached

in a Supreme Court case.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001).

An “unreasonable application” of clearly established federal law may occur if the

state court “identifies the correct legal rule from Supreme Court case law but

unreasonably applies that rule to the facts of the petitioner’s case.” Id.; see also

Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 1522, 146 L.Ed.2d 389

(2000) (“[A]n unreasonable application of federal law is different from an incorrect

application of federal law.”). Indeed, the Supreme Court has instructed that the

question is not whether the state “correctly” decided the issue, but whether its

determination was “reasonable,” even if incorrect. See Bell v. Cone, 535 U.S. 685,

694, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002).



                                            6
       III. Discussion

       Before we reach the merits of the double jeopardy claim, we first address the

state’s argument that Diaz is procedurally barred from raising the issue.

       A. procedural bar5

       Diaz repeatedly expressed his intent to challenge only his sentences on

double jeopardy grounds; he does not challenge the convictions themselves.

Florida courts have considered double jeopardy challenges to sentences in Rule

3.800(a) motions and denied the claims on the merits. See, e.g., Lago v. State, 965

So.2d 224 (Fla. Dist. Ct. App. 2007), corrected on other grounds by 2008 WL

582546 (Fla. Dist. Ct. App. Mar. 5, 2008); Migdal v. State, 970 So.2d 445 (Fla.

Dist. Ct. App. 2007); Ruffin v. State, 947 So.2d 629 (Fla. Dist. Ct. App. 2007)

(considering double jeopardy claim in Rule 3.800 motion). But see Coughlin v.

State, 932 So.2d 1224 (Fla. Dist. Ct. App. 2006) (holding that “[d]ouble jeopardy

challenges to convictions are not cognizable under rule 3.800(a) for two reasons.

First, a traditional double jeopardy challenge attacks both the conviction and, by

default, the sentence, while rule 3.800(a) is limited to claims that a sentence itself

is illegal, without regard to the underlying conviction. . . . Second, permitting


       5
          Although appellate review is limited to issues identified in the COA, Murray v. United
States, 145 F.3d 1249, 1250-1251 (11th Cir. 1998), procedural issues that must be resolved before
the court can address the underlying claim specified in the COA are presumed to be encompassed
in the COA. Wright v. Sec’y Dep’t of Corr., 278 F.3d 1245, 1258 (11th Cir. 2002).

                                               7
defendants to attack their conviction and sentence under rule 3.800(a) would

subsume Florida Rule of Criminal Procedure 3.850 into rule 3.800(a), thereby

allowing defendants to circumvent rule 3.850’s two-year time bar for attacking

their convictions and sentences.”).

      Because the state courts have routinely considered such claims, we decline

to conclude that Diaz is procedurally barred from raising the issue. Moreover, we

are not convinced that the state court denied Diaz’s motion on the procedural

ground. Unless the state court “clearly and expressly” relied on state grounds in

reaching its decision, procedural default does not apply to bar a federal habeas

petition. Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989).

We now turn to the merits.

      B. double jeopardy

      The Fifth Amendment to the United States Constitution guarantees that no

person “shall be subject for the same offence to be twice put in jeopardy of life or

limb.” U.S. Const. amend. V. “That guarantee . . . consist[s] of three separate

constitutional protections.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct.

2072, 2076, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v.

Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). Relevant to the

instant case, “it protects against multiple punishments for the same offense.” Id.



                                          8
      The Double Jeopardy Clause does not prohibit cumulative punishments for a

single incidence of criminal behavior, however, when the legislature clearly

intends to allow cumulative punishments. Williams v. Singletary, 78 F.3d 1510,

1512-1514 (11th Cir. 1996).

      Here, Diaz was convicted of sexual battery under Fla. Stat. § 794.011(5) (“A

person who commits sexual battery upon a person 12 years of age or older, without

that person’s consent, and in the process thereof does not use physical force and

violence likely to cause serious personal injury commits a felony of the second

degree”). This section does not specify legislative intent. Fla. Stat. § 794.011; cf.

Capron v. State, 934 So.2d 954 (Fla. Dist. Ct. App. 2007) (noting that Fla. Stat.

§ 800.04 does not indicate legislative intent). Therefore, we cannot determine

from this statute whether multiple punishments would be constitutional.

      Because clear legislative intent is lacking, we turn to other portions of the

Florida code to determine whether Diaz may be punished cumulatively for two acts

that violate the same statutory provision. Under Florida law:

      Whoever, in the course of one criminal transaction or episode,
      commits an act or acts which constitute one or more separate criminal
      offenses, upon conviction and adjudication of guilt, shall be sentenced
      separately for each criminal offense; and the sentencing judge may
      order the sentences to be served concurrently or consecutively. For the
      purposes of this subsection, offenses are separate if each offense
      requires proof of an element that the other does not, without regard to
      the accusatory pleading or the proof adduced at trial.

                                           9
       (b) The intent of the Legislature is to convict and sentence for each
       criminal offense committed in the course of one criminal episode or
       transaction and not to allow the principle of lenity . . . to determine
       legislative intent. Exceptions to this rule of construction are: 1.
       Offenses which require identical elements of proof . . . .

Fla. Stat. § 775.021(4)(a)-(b) (emphasis added).6

       Florida Statute § 775.021 does not resolve the precise question before us. In

this case, we are not dealing with two convictions for the same offense that violates

different statutory provisions. Rather, we must determine whether and when a

defendant may be punished twice under the same statute.

       We find § 775.021 instructive on this issue and conclude that under

§ 775.021(4), if Diaz’s two separate attempts of vaginal penetration constituted

more than one criminal offense, he could be sentenced separately without running

afoul of the double jeopardy clause.

       Our review of Florida state law confirms that Diaz’s offenses constitute

more than one crime. Under Florida law, “[s]exual battery” means oral, anal, or

vaginal penetration by, or union with, the sexual organ of another or the anal or



       6
          This statute codifies Blockburger’s “same-elements” test to determine whether a single
criminal incident may be cumulatively punished under separate statutory provisions. State v. Paul,
934 So.2d 1167 (Fla. 2006) (“The prevailing standard for determining the constitutionality of
multiple convictions for offenses arising from the same criminal transaction is whether the
Legislature “intended to authorize separate punishments for the two crimes . . . Absent a clear
statement of legislative intent to authorize separate punishments for two crimes, courts employ the
Blockburger test, as codified in section 775.021, Florida Statutes (1997), to determine whether
separate offenses exist.”).

                                                10
vaginal penetration of another by any other object.” Fla. Stat. § 794.011(1)(h). In

Saavedra v. State, the state court explained, “The sexual battery statute may be

violated in multiple, alternative ways. . . . However, the fact that the same victim is

sexually battered in the same manner more than once in a criminal episode by the

same defendant does not conclusively prohibit multiple punishments.” 576 So.2d

953 (Fla. Dist. Ct. App. 1991) (internal citations omitted). Thus, it appears that,

under Florida law, two separate attempts at vaginal penetration, when separated by

an intervening attempt at anal penetration, would qualify as two different sexual

batteries. Accordingly, under Florida law, the court could impose multiple

sentences for such offenses. But see Gisi v. State, 909 So.2d 531 (Fla. Dist. Ct.

App. 2005) (reversing convictions and sentences for eight counts of handling and

fondling because in each episode, the handling and fondling was foreplay

preceding the intercourse, and each episode was a continuous course of conduct

without a break in time or a change in location).

      Because there was a disagreement among the Florida courts of appeals, the

Florida Supreme Court recently addressed the question of whether multiple

convictions under Fla. Stat. Ann. § 794.011 and 800.04(4) are distinct criminal acts

for purposes of double jeopardy. See State v. Meshell, 2009 WL 137514 (Fla. Jan.

22, 2009). In Meshell, the defendant engaged in several distinct sexual acts with a



                                           11
minor during one criminal episode. He was convicted of vaginal penetration and

oral sex. On appeal, Meshell argued that double jeopardy prohibited the two

convictions because there was no “temporal break” between the acts sufficient for

him to form new criminal intent. Although the state court of appeals agreed and

concluded that a temporal break was required, because there was a split among the

Florida courts of appeals, the court certified the question to the Florida Supreme

Court. Id. at *1-2. Upon review, the Florida Supreme Court disagreed, finding

that the two acts were distinct and required different elements of proof, and thus

the Florida legislature intended multiple punishments. Id. at *3. Considering the

facts of Meshell’s offenses, the Florida Supreme Court concluded that sexual

intercourse and oral sex were two distinct acts “of a separate character and type

requiring different elements of proof.” Id. at *4. The court also noted that “spatial

and temporal aspects are equally as important as distinctions in character and type

in determining whether multiple punishments are appropriate.” Id. at *3 (citing

Saavedra, 576 So.2d at 956-57).

      We recognize that the Meshell decision is not directly on point; it is,

however, instructive on the issue of whether two counts of the same conduct may

be punished separately. We find support for this position in Meshell’s concurring

opinion, in which one justice noted that the decision should not be read to deny



                                          12
that “separate instances of the same type of criminal sex act in a single episode

may be punishable as separate offenses.” Id. at *4 (Canady, J. concurring).

      The Florida legislature instructs that we must consider whether the offenses

constitute more than one crime even if they occur in the same criminal episode; if

more than one instance of the same type of conduct occurs, the instances may be

punished separately only if the offenses constitute more than one crime. See Fla.

Stat Ann. § 775.021(4). We conclude that Diaz’s conduct qualifies as more than

one criminal offense. Relevant to this determination are the “spatial and temporal

aspects” as well as “distinctions in character and type.” Saavedra, 576 So.2d 957.

Thus, the fact that the two offenses involve the same elements is not dispositive.

The temporal break - turning the victim over and attempting oral sex and anal

penetration - enabled Diaz to form new criminal intent to engage in vaginal

penetration. And although we recognize that the offenses occurred over a short

period of time, we conclude that the intervening anal and oral sexual acts provided

a sufficient temporal break to establish more than one crime. When Diaz was

unsuccessful in his first attempt at vaginal penetration, he abandoned that crime

and instead tried anal penetration. By doing so, he formed a new intent to commit

the separate offense of anal penetration. When this also proved unsuccessful, Diaz

again abandoned his crime and reformed his intent to commit vaginal penetration.



                                          13
This abandonment of intent creates the temporal break necessary to place these two

acts of vaginal penetration into distinct offenses.

      Because the legislature has confirmed that multiple punishment is authorized

where the two offenses constitute separate crimes, we cannot say that the state

court’s decision is contrary to federal law. Moreover, a conclusion is not contrary

to federal law if no Supreme Court precedent is on point. Washington v. Crosby,

324 F.3d 1263, 1265 (11th Cir. 2003).

      Nor can we say that the decision is an unreasonable application of federal

law. The Supreme Court confirms that multiple punishments are permissible when

expressly authorized by the state legislature. Ohio v. Johnson, 467 U.S. 493, 499

n. 8, 104 S.Ct. 2536, 2541 n. 8, 81 L.Ed.2d 425 (1984) (“[e]ven if the crimes are

the same under Blockburger, if it is evident that a state legislature intended to

authorize cumulative punishments, a court’s inquiry is at an end.”). Here, the

Florida legislature and now the Florida Supreme Court have confirmed that

multiple punishments can be imposed for the same conduct as long as that conduct

resulted from more than one criminal offense.

      Therefore, because the state court’s interpretation is consistent with and a

reasonable application of federal law, Diaz was not entitled to habeas relief.

      AFFIRMED.



                                           14
