             Case: 16-11995    Date Filed: 04/17/2017   Page: 1 of 15


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 16-11995
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:13-cv-20886-MGC

FRANZ HERMAN RIGG,

                                                             Petitioner-Appellant,

                                      versus

WARDEN, BLACKWATER RIVER CORRECTIONAL FACILITY,

                                                            Respondent-Appellee.

                          ________________________

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

                                 (April 17, 2017)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Franz Rigg, a counseled Florida prisoner, appeals the district court’s denial

of his 28 U.S.C. § 2254 habeas petition, in which he challenged his 2008

convictions for sexual battery and kidnapping. On appeal, Rigg argues that: (1) the
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district court erred in concluding that Claim 2, in which he alleged a violation of

Brady v. Maryland, 373 U.S. 83 (1963), was procedurally defaulted, because he

qualified for an exception under Martinez v. Ryan, 566 U.S. 1 (2012); (2) the

district court erred in concluding that Claims 3a and 3f, in which he asserted

ineffective-assistance-of-counsel claims, were procedurally defaulted, because the

court wrongly held that those claims were not “substantial” enough to satisfy the

Martinez exception; and (3) the district court incorrectly evaluated his properly

exhausted ineffective-assistance claims. After thorough review, we affirm.

      We review the district court’s denial of a habeas petition de novo, its factual

findings for clear error, and mixed questions of law and fact de novo. McNair v.

Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). “An ineffective assistance of

counsel claim is a mixed question of law and fact subject to de novo review.” Id.

      First, we are unpersuaded by Rigg’s claim that the district court erred in

holding that his Brady claim was procedurally defaulted.           The doctrine of

procedural default arises when a state prisoner fails to present his claims to the

state court in a timely and proper manner, and the state court refuses to address the

merits based on state law. Wainwright v. Sykes, 433 U.S. 72, 81-88 (1977). In

those circumstances, a federal habeas court is precluded from hearing the merits,

absent a showing of cause for the failure to properly present the claim and actual

prejudice, or that the failure to consider the claim would result in a fundamental


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miscarriage of justice. Id. Procedural default can arise in two ways: (1) when the

state court correctly applies a procedural default principle of state law and

concludes that the petitioner’s federal claims are barred; or (2) when the petitioner

never raised the claim in state court, and it is obvious that the unexhausted claim

would now be procedurally barred in state court. Bailey v. Nagle, 172 F.3d 1299,

1302-03 (11th Cir. 1999). In the second instance, the federal court must determine

whether any future attempt to exhaust state remedies would be futile under the

state’s procedural default doctrine. Id. When a claim is procedurally defaulted, a

federal court may still address the merits if the petitioner can show cause for the

default and prejudice from it. Wainwright, 433 U.S. at 81-88.

      In Colman v. Thompson, 501 U.S. 722, 752-54 (1991), the Supreme Court

held that ineffective assistance of counsel during state post-conviction proceedings

cannot serve as cause to excuse factual or procedural default. The Supreme Court

reasoned that there is no constitutional right to an attorney in state post-conviction

proceedings; thus, a petition could not claim constitutionally ineffective assistance

of counsel in such proceedings and the petitioner “must bear the risk of attorney

error that results in procedural default.” Id. at 752-53 (quotation omitted).

      In Martinez, however, the Supreme Court announced an exception to the

general rule that ineffective assistance of post-conviction counsel cannot establish

cause excusing procedural default. 566 U.S. at 8-18. There, a § 2254 petitioner


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asserted ineffective-trial-counsel claims. Martinez acknowledged that he had not

raised those claims in state court and that those claims were barred by the doctrine

of procedural default. Nevertheless, Martinez claimed he had “cause” to excuse

his default because his first state collateral counsel failed to raise his ineffective-

trial-counsel claims in his first state collateral petition. Id. at 4-8. The Supreme

Court asked “whether a federal habeas court may excuse a procedural default of an

ineffective-assistance claim when the claim was not properly presented in state

court due to an attorney’s errors in an initial-review collateral proceeding.” Id. at

5. After declining to resolve that question on constitutional grounds, the Supreme

Court decided Martinez’s case on equitable grounds based on the “cause and

prejudice” exception to the procedural default doctrine in federal habeas cases. Id.

at 8-9, 14-17. To that end, the Supreme Court held that when, under state law,

       claims of ineffective assistance of trial counsel must be raised in an
       initial-review collateral proceeding, a procedural default will not bar a
       federal habeas court from hearing a substantial claim of ineffective
       assistance at trial if, in the initial-review collateral proceeding, there
       was no counsel or counsel in that proceeding was ineffective.

Id. at 17.

       We’ve explained that the Martinez exception applies only where: (1) a state

requires a prisoner to raise ineffective-trial-counsel claims at the initial-review

stage of a state collateral proceeding and precludes those claims on direct appeal;

(2) the prisoner did not comply with state rules and failed to raise ineffective-trial-


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counsel claims properly in his state initial-review collateral proceeding; (3) the

prisoner had no counsel (or his appointed counsel was ineffective by not raising

ineffective-trial-counsel claims) in the initial-review collateral proceeding; and (4)

not excusing the procedural default would cause the prisoner to lose a “substantial”

ineffective-trial-counsel claim. Arthur v. Thomas, 739 F.3d 611, 629 (11th Cir.

2014). We noted that the Supreme Court “importantly” and “expressly” limited

the holding in Martinez “to attorney errors in initial-review collateral proceedings.”

Id. We also recognized that the Supreme Court later extended Martinez’s rule to

cases where state law technically permits ineffective-trial-counsel claims on direct

appeal but state procedures, as a practical matter, make it virtually impossible to

raise an ineffective-trial-counsel claim on direct appeal. Id. at 629-30.

      In Florida, a Rule 3.850 motion to vacate typically must be filed within two

years after the judgment and sentence become final in a non-capital case. Fla. R.

Crim. P. 3.850(b). In addition, a defendant cannot raise ineffective-assistance-of-

trial-counsel claims on direct appeal in Florida. Reynolds v. State, 99 So. 3d 459,

474 (Fla. 2012) (holding that ineffectiveness claims “generally are not cognizable

on direct appeal and are properly raised in postconviction proceedings”).

      Here, the district court correctly concluded that the procedural default

exception in Martinez did not extend to Ground 2 of Rigg’s § 2254 habeas petition.

For starters, there is no dispute that Ground 2 -- in which Rigg alleged that the state


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committed a Brady violation during trial by withholding material exculpatory

evidence -- was unexhausted. Indeed, as the record shows, Rigg did not raise this

issue in any state court proceeding. See Bailey, 172 F.3d at 1303. Further, the

claim is now procedurally barred under Florida state rules as untimely, since it has

been more than two years since Rigg’s conviction and sentence became final. See

Fla. R. Crim. P. 3.850(b); Bailey, 172 F.3d at 1302-02.

      Rigg nevertheless maintains that this procedural default should be excused

under Martinez because his post-conviction counsel was ineffective for failing to

raise the issue in his Rule 3.850 motion. But the rule in Martinez specifically

provided a “narrow exception” and only discussed its application in terms of

procedurally defaulted ineffective-assistance-of-trial-counsel claims. 566 U.S. at

17. Here, Rigg seeks to use Martinez to excuse the procedural default of a claim

alleging a Brady violation, not of a claim alleging ineffective assistance of trial

counsel. Thus, Martinez does not apply to the Brady claim that Rigg attempts to

raise in his § 2254 petition, and Rigg cannot benefit from the Supreme Court’s

holding. Accordingly, the district court did not err in concluding that the Brady

claim was procedurally defaulted. See Arthur, 739 F.3d at 629.

      Nor do we agree with Rigg that the district court wrongly rejected his

ineffective-assistance-of-counsel claims as procedurally defaulted.        As we’ve

detailed, to succeed in establishing that the Martinez exception applies, a petitioner


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must show that: (1) a state requires a prisoner to raise ineffective-trial-counsel

claims at the initial-review stage of a state collateral proceeding and precludes

those claims on direct appeal; (2) the prisoner did not comply with state rules and

failed to raise ineffective-trial-counsel claims properly in his state initial-review

collateral proceeding; (3) the prisoner had no counsel (or his appointed counsel

was ineffective by not raising ineffective-trial-counsel claims) in the initial-review

collateral proceeding; and (4) not excusing the procedural default would cause the

prisoner to lose a “substantial” ineffective-trial-counsel claim. A “substantial”

claim is one that has “some merit.” Martinez, 566 U.S. at 14.

      Under 28 U.S.C. § 2254(d):

      An application for a writ of habeas corpus on behalf of a person in
      custody pursuant to the judgment of a State court shall not be granted
      with respect to any claim that was adjudicated on the merits in State
      court proceedings unless the adjudication of the claim—

      (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,

      (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).

      To prevail on a claim of ineffective assistance of counsel, a habeas petitioner

must show that: (1) “counsel’s performance was deficient” in that it “fell below an

objective standard of reasonableness”; and (2) “the deficient performance
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prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

A reviewing court need not address the performance prong of the test if the

defendant cannot meet the prejudice prong and vice versa. Id. at 697.

      To prove deficient performance, a prisoner must show that counsel erred so

seriously that he did not serve as the counsel guaranteed by the Sixth Amendment.

Strickland, 466 U.S. at 687. The proper measure of attorney performance is

reasonableness under prevailing professional norms; counsel’s performance is

deficient only if it falls below the wide range of competence demanded of counsel

in criminal cases. Id. at 688-89. “[C]ounsel is strongly presumed to have rendered

adequate assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Id. at 690. “Judicial scrutiny of counsel’s performance

must be highly deferential.”      Id. at 689.     “A fair assessment of attorney

performance requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the time.” Id. Since judicial

review of counsel’s performance already must be highly deferential, a federal

habeas court’s review of a state court decision denying a Strickland claim is thus

doubly deferential. Cullen v. Pinholster, 563 U.S. 170, 190 (2011).

      As for prejudice, a prisoner must “show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would


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have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. “[S]ome

conceivable effect on the outcome of the proceeding” is not a reasonable

probability. Id. at 693. When challenging a conviction, the prisoner must show “a

reasonable probability that, absent the errors, the factfinder would have had a

reasonable doubt respecting guilt.” Id. at 695. To make our decision, we review

“the totality of the evidence before the judge or jury.” Id. Under § 2254(d), we do

not ask whether “the state court’s determination under the Strickland standard was

incorrect but whether that determination was unreasonable -- a substantially higher

threshold.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quotation omitted).

      Here, the district court did not err in denying Rigg’s petition as to Claims 3a

or 3f. At Rigg’s trial, his former girlfriend Rosa Torrealba testified that when Rigg

learned she had dated and had a sexual encounter with a man after she and Rigg

broke up, Rigg assaulted her and demanded that she ask the man to her apartment

so Rigg could meet him. At that meeting, said Torrealba, Rigg committed the

offenses against the victim. In Claim 3a, Rigg argued that his trial counsel was

ineffective for not cross-examining Torrealba about a letter she sent to the trial

court in her case, in which she said she had an unpleasant experience with the

victim before the crime. Rigg claims the letter would have given Torrealba a

motive “incompatible with the state’s theory that Mr. Rigg masterminded the entire


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situation.” While the record reveals that counsel did not cross-examine Torrealba

about the letter, counsel did aggressively question Torrealba about many things,

including her relationships with Rigg and the victim and her expectation of

receiving post-conviction relief in exchange for testifying against Rigg.

      In light of the deference we give to trial counsel’s strategic decisions, and

the thorough cross-examination counsel undertook to challenge Torrealba’s

credibility, we cannot say that Rigg’s trial counsel was deficient for failing to

cross-examine Torrealba about the letter. Notably, Rigg’s defense at trial was that

he did not commit the crime -- and more precisely, that the victim may have

concocted the story. Had counsel asked Torrealba about a letter that may have

given her, as well as Rigg, a motive for the crime, this line of defense would have

been inconsistent with the strategy that was used. As we’ve explained, “[c]ounsel

is not required to present every nonfrivolous defense.” Chandler v. United States,

218 F.3d 1305, 1319 (11th Cir. 2000) (en banc). On the contrary, “[t]here is a

‘strong presumption’ that counsel’s attention to certain issues to the exclusion of

others reflects trial tactics rather than ‘sheer neglect.’” Harrington v. Richter, 562

U.S. 86, 109 (2011). Thus, “counsel’s reliance on particular lines of defense to the

exclusion of others . . . is not ineffective unless the petitioner can prove the chosen

course, in itself, was unreasonable.” Chandler, 218 F.3d at 1318; accord Hunt v.

Comm’r, Ala. Dep’t of Corr., 666 F.3d 708, 726 (11th Cir. 2012). Rigg has made


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absolutely no showing to this effect.     Moreover, asking Torrealba about her

experience with the victim could have undermined Rigg’s innocence defense,

which suggested that no crime had occurred.

        Nor can we say that cross-examination about the letter would have led to a

“reasonable probability” of a different outcome at trial. Counsel vigorously cross-

examined Torrealba and exposed her motives and incentives in testifying against

Rigg.    In addition, defense counsel: (a) cross-examined the victim about his

motivations for testifying; and (b) argued in closing that both the victim and

Torrealba had ulterior motives for testifying against Rigg, and questioned where

the missing letter was. Moreover, testimony from the medical and forensic experts

at trial -- in addition to testimony from Torrealba -- corroborated the victim’s

description of the offense, and vice versa. And, what’s more, Rigg admitted at trial

that he had fled to Panama upon learning that he was going to be charged with

sexual battery and kidnapping.     The record, therefore, contains overwhelming

evidence of Rigg’s guilt, and we do not see how cross-examination about a letter --

a letter that did not address whether or not Rigg committed the offenses -- would

have led to the reasonable probability of a different result. As Strickland makes

clear, the prejudice prong requires more than “some conceivable effect” on the

outcome of the proceeding. Id. at 693. Because the district court did not err in

concluding that Rigg’s Claim 3a failed to make a “substantial” ineffectiveness


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claim under Strickland’s performance and prejudice prongs, it did not err in

concluding that Rigg failed to meet the requirements under Martinez for an

exception to procedural default.

      In Claim 3f, Rigg argued that his counsel was ineffective for failing to find

and include testimony from Torrealba’s former employer that Torrealba had had a

poor experience dating the victim and sought revenge against the victim and Rigg.

But, again, in light of the overwhelming evidence of Rigg’s guilt, there is no

indication that additional testimony from Torrealba’s employer would have led to

the “reasonable probability” of a different result for Rigg. Because the district

court did not err in concluding that Rigg’s Claim 3a failed to make a “substantial”

ineffectiveness claim under Strickland’s prejudice prong, it did not err in

concluding that Rigg failed to meet the requirements under Martinez for an

exception to procedural default.

      Finally, we find no merit to Rigg’s argument that the district court

incorrectly evaluated his remaining ineffective-assistance claims. As we’ve noted,

when an ineffective-assistance claim is raised in a § 2254 petition, the inquiry turns

upon whether the relevant state court decision was contrary to, or an unreasonable

application of Strickland. Cullen, 563 U.S. at 188-90. Under Strickland, a § 2254

petitioner must show that his Sixth Amendment right to counsel was violated

because: (1) his attorney’s performance was deficient, and (2) the deficient


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performance prejudiced his defense. 466 U.S. at 687, 697. In considering a claim

that a prosecutor’s comments to the jury during closing argument violated a

petitioner’s right to a fair trial, federal habeas corpus review is limited evaluating

due process violations, not police the broad exercise of supervisory power.

Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974).

      Here, the state trial court’s decision to deny Claims 3b and 3c was not an

unreasonable application of Strickland. In Claim 3b, Rigg argues that it was

deficient for his counsel to not call a medical expert to testify about alternative

causes for the victim’s rectal tear injury -- such as a bowel movement, as opposed

to trauma -- which the state maintained Rigg had inflicted. However, on cross-

examination of the state’s medical expert, Rigg’s trial counsel elicited a concession

that the victim’s injury could have been consistent with many acts other than rape

or trauma, including consensual acts. In other words, the state’s own witness

admitted just what Rigg has claimed his own expert would have opined. Further,

as the state trial court noted, Rigg’s proposed expert’s letter explaining his opinion

admitted that his findings were not inconsistent with the state’s expert’s findings.

Thus, there is no indication that Rigg’s trial counsel was deficient for failing to call

an expert to testify, and the state trial court did not act unreasonably in denying this

ineffective-assistance-of-trial-counsel claim. See Knowles, 556 U.S. at 123.




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      In Claim 3c, Rigg claims that his trial counsel was ineffective for failing to

object to the prosecutor’s questions and comments concerning Rigg’s lack of alibi

and corroborative witnesses -- namely, that the prosecutor improperly asked him

why he did not have any of the people with whom he claimed to have had dinner

with on the night of the crime testify about his whereabouts. But as the state trial

court noted, Rigg opened himself up to questions about his memory and

consciousness of guilty by choosing to testify on his own behalf, and in doing so

admitted that his memory of the night in question was incomplete. Thus, under

Florida law, it was not improper for the prosecutor to cross-examine him by

probing his lack of memory and to ask why he could not call others whom he

claimed he was with to clarify. See Otero v. State, 754 So.2d 765, 769 (Fla. 3rd

Dist. Ct. App. 2000) (holding that a defendant who testifies on his own behalf

opens himself up to question regarding any apparent lack of memory as to the

events surrounding the charged offense). And, we’ve held that trial counsel is not

ineffective for failing to raise non-meritorious objections. See Chandler v. Moore,

240 F.3d 907, 917 (11th Cir. 2001) (holding that trial counsel is not ineffective for

failing to raise a non-meritorious issue). Because there is no indication that trial

counsel performed deficiently for failing to object on these grounds, the state trial

court’s decision to deny this ineffectiveness claim was not an unreasonable

application of Strickland.


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AFFIRMED.




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