[DO NOT PUBLISH]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 GENERA L, 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:

Case: 13-13006 Date Filed: 04/01/2015 Page: 1 of 122 Raul Plasencia, a Florida state prisoner serving a 30

- year sentence for second

- degree murder, in violation of Fl orida Stat utes § 782.04(2), appeals pro se the district c ourt’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 guideline s 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 guideline s 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 applicati on 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’ imprisonmen t . 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.

Case: 13-13006 Date Filed: 04/01/2015 Page: 2 of 123 I. PROCEDURAL BAR As an initial matter, the S tate 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 b ecause Plasencia raised his Blakely
argum ent 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 habe as 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

Case: 13-13006 Date Filed: 04/01/2015 Page: 3 of 124 appellate court’s affirmance without an opinion to be a denial on the merits. See
S helton v. Sec’y , Dep’t of Corr. , 691 F.3d 1348, 1353 (11th Cir. 2012). Thus, Plasencia’s claim is no t procedurally barred because the state court did not “clearly and expressly [state] that it s 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 rev iew); 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 An titerrorism and Effe ctive 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 Case: 13-13006 Date Filed: 04/01/2015 Page: 4 of 125 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence pres ented 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 t o 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 crue lty.” 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 j udge 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 1 291, 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

Case: 13-13006 Date Filed: 04/01/2015 Page: 5 of 126 Shelton 691 F.3d at 1353 (1 1th Cir. 2012)

. The state court’s de cision is therefore entitled to deference under § 22 54(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 w hen the S upreme 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 mandat e. 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 mand ate 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 Florid a 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

Case: 13-13006 Date Filed: 04/01/2015 Page: 6 of 127 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]entence s 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). Moreove r , 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 th e statutory maximum

. See

Case: 13-13006 Date Filed: 04/01/2015 Page: 7 of 128 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 retro actively 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 Plas encia’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 d ecision 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

Case: 13-13006 Date Filed: 04/01/2015 Page: 8 of 129 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 e rror 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 omit ted). 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).

Case: 13-13006 Date Filed: 04/01/2015 Page: 9 of 1210 In the context of direct appeals , we ha ve d etermined 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 s entence, an aggravating factor may warrant a departure above the guideline range i f “[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, an d 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, 123 3

- 3 4 n.26 (11th Cir. 2014) (indicating harmlessness beyond a reasonable doubt is a more petitioner

- friendly standard). A r ational jury would have found Plasencia

Case: 13-13006 Date Filed: 04/01/2015 Page: 10 of 1211 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 Suprem e 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 perpetrate d 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 , 50 2 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 reas onable 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 S o. 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 f actors found not to justify departure.”). Case: 13-13006 Date Filed: 04/01/2015 Page: 11 of 1212 district court did not err by denying Ground Two of Plasencia’s § 2254 petition, and we affirm. AFFIRMED. Case: 13-13006 Date Filed: 04/01/2015 Page: 12 of 12