              Case: 19-11705    Date Filed: 01/23/2020    Page: 1 of 9


                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-11705
                          ________________________

                       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
                         ________________________

                                (January 23, 2020)

Before WILSON, WILLIAM PRYOR, and JORDAN, Circuit Judges.

PER CURIAM:

      This appeal requires us to decide whether the district court abused its

discretion when it denied Marbel Mendoza’s motion to reconsider an order
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denying him substitute counsel to pursue an original writ of habeas corpus in the

Supreme Court. Mendoza, whom Florida sentenced to death for the murder of

Conrado Calderon, moved for substitute counsel to petition for an Original Writ

based on two claims that his death sentence is invalid. The district court denied his

motion because it concluded the two claims Mendoza seeks to raise in the petition

were futile. Because that conclusion was not manifest error, we affirm the denial of

Mendoza’s motion to reconsider.

                                   I. BACKGROUND

          In 1992, Marbel Mendoza robbed, shot, and killed Conrado Calderon outside

Calderon’s home. Two years later, Florida convicted Mendoza and sentenced him

to death for the murder. The Florida Supreme Court affirmed his conviction and

death sentence on direct appeal, and Florida courts later denied him postconviction

relief.

          In 2012, Mendoza filed a federal petition for a writ of habeas corpus, 28

U.S.C. § 2254, which the district court denied. After we granted Mendoza a

certificate of appealability for his claim of ineffective assistance of counsel in the

penalty phase of his trial, see Strickland v. Washington, 466 U.S. 668, 687 (1984),

we affirmed the denial of his petition. Mendoza v. Sec’y, Fla. Dep’t of Corr., 761

F.3d 1213, 1215 (11th Cir. 2014). The Supreme Court denied Mendoza’s petition

for a writ of certiorari. Mendoza v. Jones, 575 U.S. 941 (2015).


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      In 2015, Mendoza moved for the appointment of substitute counsel to

petition for an Original Writ. Mendoza planned to raise several claims in his

petition, including the claim that his death sentence is invalid under Enmund v.

Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987), because

no factfinder ever determined that he killed, intended to kill, or committed a crime

with reckless indifference to human life. Although Mendoza was represented by

Florida’s Capital Collateral Regional Counsel-South, which had represented him

throughout his state and federal postconviction proceedings, he argued the district

court should appoint him substitute or supplemental counsel to pursue an Original

Writ. According to Mendoza, his current counsel could not effectively pursue an

Original Writ on the claims he sought to raise because that would require them to

admit their ineffectiveness for failing to raise the claims in earlier collateral

proceedings.

      The district court denied Mendoza’s motion, and we affirmed. Mendoza v.

Sec’y, Fla. Dep’t of Corr., 659 F. App’x 974, 976 (11th Cir. 2016). We held that

the district court did not abuse its discretion by denying Mendoza’s motion for

substitute counsel because “each of the claims Mendoza [sought] to raise in an

original habeas petition to the U.S. Supreme Court would be futile.” Id. at 982. As

to his claim under Enmund and Tison, we explained that the jury at Mendoza’s trial

“heard an Enmund/Tison instruction” and that the sentencing court found that he


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“fired the fatal shots,” so his claim was futile. Id. at 979 (internal quotation marks

omitted).

      In 2019, Mendoza moved a second time for the appointment of substitute

counsel to petition for an Original Writ. This time, he explained that he planned to

bring two claims in the petition: the claim under Enmund and Tison discussed

above, and a claim under Espinosa v. Florida, 505 U.S. 1079, 1080 (1992), and

Lewis v. Jeffers, 497 U.S. 764, 766 (1990), that the aggravating circumstance

Florida used to impose his death sentence was unconstitutionally vague. He again

argued that his current counsel could not effectively pursue an Original Writ

without admitting their “beyond negligence” in failing to previously raise these

claims.

      The district court again denied Mendoza’s motion for new counsel. It

explained that no conflict of interest prevented Mendoza’s current counsel from

petitioning for an Original Writ if warranted. And in any event, it ruled that the two

claims Mendoza planned to present in his petition were futile. Based on the

absence of a conflict and the futility of Mendoza’s claims, the district court

concluded that it was not in the interests of justice to appoint Mendoza substitute

counsel.

      Mendoza then moved for reconsideration of the order denying his second

motion for new counsel, Fed. R. Civ. P. 59(e), but the district court denied his


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motion. Mendoza argued that the district court manifestly erred in making a merits

determination of his claims in the course of deciding that it was not in the interests

of justice to appoint new counsel to file a futile petition for an Original Writ. The

district court rejected this argument. It explained that the Supreme Court decisions

on which Mendoza relied to establish manifest error, see Martinez v. Ryan, 566

U.S. 1 (2012), and Slack v. McDaniel, 529 U.S. 473 (2000), did not address the

standard for appointing habeas petitioners substitute counsel, which was instead

governed by another decision, see Martel v. Clair, 565 U.S. 648 (2012).

      Mendoza appealed the denial of his second motion for substitute counsel and

the denial of his motion for reconsideration. We dismissed for lack of jurisdiction

the part of the appeal that challenged the order denying Mendoza’s second motion

to substitute counsel. But we allowed the appeal to proceed as to the order denying

Mendoza’s motion for reconsideration.

                          II. STANDARD OF REVIEW

      We review the denial of a motion for reconsideration, Fed. R. Civ. P. 59(e),

for an abuse of discretion. Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007).

“The only grounds for granting a Rule 59 motion are newly-discovered evidence or

manifest errors of law or fact.” Id. (alteration adopted) (internal quotation marks

omitted).




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                                 III. DISCUSSION

      When a habeas petitioner in a capital case moves for substitute counsel, a

district court must decide the motion “in the interests of justice.” Clair, 565 U.S. at

658 (internal quotation marks omitted). That standard “contemplates a peculiarly

context-specific inquiry.” Id. at 663. Because the decision whether to substitute

counsel “is so fact-specific,” a district court’s disposition of a substitution motion

“deserves deference,” and “a reviewing court may overturn it only for an abuse of

discretion.” Id. at 664. Among the factors a reviewing court may consider are “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.” Id. at 663. A

district court may deny a motion to substitute counsel “even without the usually

appropriate inquiry” where the claims a petitioner seeks to pursue with the help of

new counsel are futile. Id. at 666.

      To obtain reversal of the order denying his motion for reconsideration,

Mendoza must establish that the district court manifestly erred in denying his

motion for substitute counsel. See Arthur, 500 F.3d at 1343. The district court

concluded that the two claims Mendoza seeks to pursue with the help of substitute

counsel are futile, and that conclusion, if correct, was sufficient to deny Mendoza

substitute counsel. See Clair, 565 U.S. at 666; Mendoza, 659 F. App’x at 978, 982.

Mendoza has failed to establish that the district court manifestly erred, so we must


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affirm.

      The district court did not manifestly err in concluding that Mendoza’s claim

under Enmund and Tison was futile. We previously held that the Enmund and

Tison claim was futile and so did not justify appointing Mendoza new counsel

when he appealed the denial of his first motion for substitute counsel. Mendoza,

659 F. App’x at 978–79. That holding is now the law of the case, and the district

court did not abuse its discretion in adhering to it. See United States v. Anderson,

772 F.3d 662, 668–70 (11th Cir. 2014).

      Nor did the district court manifestly err in concluding that Mendoza’s claim

under Espinosa and Jeffers was futile. In Espinosa, the Supreme Court held that

Florida’s aggravating factor that a murder was “especially wicked, evil, atrocious

or cruel” was unconstitutionally vague because it left “the sentencer without

sufficient guidance for determining the presence or absence of the factor.” 505

U.S. at 1080–81 (internal quotation marks omitted). The Court in Jeffers rejected a

challenge to an Arizona aggravating factor because the Arizona Supreme Court

construed the factor in a manner that “channel[ed] the sentencer’s discretion by

clear and objective standards that provide specific and detailed guidance, and that

make rationally reviewable the process for imposing a sentence of death.” 497 U.S.

at 777–78 (internal quotation marks omitted). Mendoza asserts that Florida

sentenced him to death using the aggravating factor that he acted with “reckless


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indifference to human life,” which he contends was too vague under Espinosa and

Jeffers to channel his sentencer’s discretion. But as the state points out, Florida did

not use that aggravating factor to sentence Mendoza to death.

      Mendoza does not contend that any of the three aggravating circumstances

the sentencing jury and judge weighed are invalid under Espinosa and Jeffers. The

trial court instructed Mendoza’s advisory sentencing jury that it could recommend

a death sentence if it found any of the following aggravating circumstances and

determined that they were not outweighed by any mitigating circumstances:

(1) “[t]he defendant has been previously convicted of another felony involving the

use of violence to some person”; (2) “[t]he crime for which the defendant is to be

sentenced was committed while he was engaged, or an accomplice in the

commission, or an attempt to commit or flight after committing or attempting to

commit the crime of robbery and/or burglary”; or (3) “[t]he crime for which the

defendant is to be sentenced was committed for financial gain.” After the jury

recommend a death sentence, the sentencing court found that all three aggravating

circumstances existed, although it considered the second and third circumstances

as a single aggravating factor. The sentencing court determined that the mitigating

evidence did not outweigh the aggravating circumstances, and it sentenced

Mendoza to death. Because Florida did not sentence Mendoza to death using an

invalid aggravating factor, the district court did not manifestly err in concluding


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that his claim under Espinosa and Jeffers was futile.

                               IV. CONCLUSION

      We AFFIRM the denial of Mendoza’s motion for reconsideration.




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