Carlos Jiminez v. Secretary, Florida Department of Corrections , 450 F. App'x 826 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-12151 JANUARY 3, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 1:10-cv-22180-MGC
CARLOS JIMENEZ,
llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
lllllllllllllllllllllllllllllllllllllll Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 3, 2012)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Carlos Jimenez, a state prisoner proceeding pro se, appeals the district court’s
denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. He argues on
appeal, as he did before the district court, that during his trial for aggravated battery,
the state trial court deprived him of his due process and confrontation rights, under
the Fifth, Sixth, and Fourteenth Amendments, by denying his request for an
interpreter in his native language, Mumm, during voir dire and closing argument.
In examining the district court’s denial of habeas relief, we review any factual
findings for clear error, and questions of law and mixed questions of law and fact de
novo. Walls v. Buss, 658 F.3d 1274, 1277 (11th Cir. 2011). Pursuant to the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L.No. 104-
132, 110 Stat. 1214 (1996), in reviewing state prisoner habeas claims that have
already been considered and rejected by a state court, we cannot grant relief unless
the state court’s decision was contrary to, or involved an unreasonable application of,
clearly established federal law, as determined by the U.S. Supreme Court, or 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); Walls, 658 F.3d at 1277. In
addition, we will not question a state court’s application of state law in federal habeas
corpus review, where no question of a constitutional nature is involved. Davis v.
Jones, 506 F.3d 1325, 1332 (11th Cir. 2007).
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When no Supreme Court precedent is on point, a state court’s conclusion
cannot be contrary to clearly established federal law as determined by the U.S.
Supreme Court. Washington v. Crosby, 324 F.3d 1263, 1265 (11th Cir. 2003). A
state court decision is an “unreasonable application” of clearly established law if the
state court unreasonably applies the established law to the facts of a case. Id. An
unreasonable application of federal law is different from an incorrect application of
federal law. Renico v. Lett, 130 S.Ct. 1855, 1862 (2010). A federal court may not
grant habeas relief simply because it concludes in its independent judgment that the
relevant state court decision applied clearly established federal law erroneously or
incorrectly. Id. Rather, that application must be objectively unreasonable. Id.Moreover, under AEDPA, we accord a presumption of correctness to a state
court’s factual findings. 28 U.S.C. § 2254(e)(1); Mason v. Allen, 605 F.3d 1114,
1118-19 (11th Cir. 2010). At the very least, the petitioner must show that the state
court decision was based on an unreasonable determination of the facts in light of the
evidence presented. Jones v. Walker, 540 F.3d 1277, 1288 n.5 (11th Cir. 2008) (en
banc); see also Cave v. Sec’y, Dep’t of Corr., 638 F.3d 739, 744-47 (11th Cir.), cert.
denied, 181 L.Ed.2d 298 (2011). Our review is “doubly deferential” when factual
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findings underlie the state court’s legal ruling. Childers v. Floyd, 642 F.3d 953, 972
(11th Cir.) (en banc), petition for cert. filed, (U.S. July 6, 2011) (No. 11-42).
Notwithstanding a constitutional violation, we will not reverse a conviction if
the error is harmless. Mason, 605 F.3d at 1123. Whether an error is harmless is a
mixed question of law and fact that we review de novo. In habeas proceedings, we
review whether a constitutional violation is harmless by determining whether the
error had a substantial and injurious effect or influence in determining the jury’s
verdict. To show prejudice, there must be more than a reasonable possibility that the
error contributed to the conviction. Id.The Sixth Amendment protects the right of an accused to be present at every
stage of his trial. Illinois v. Allen, 397 U.S. 337, 338 (1970). Similarly, a defendant
has a Fourteenth Amendment due process right to be present at a proceeding
whenever his presence is reasonably related to the fullness of his opportunity to
defend against the charge, to the extent that a fair and just hearing would be thwarted
by his absence. See Snyder v. Massachusetts, 291 U.S. 97, 105-08 (1934), overruled
in part on other grounds, Malloy v. Hogan, 378 U.S. 1, 6 (1964); United States v.
Bowe, 221 F.3d 1183, 1189 (11th Cir. 2000). Whether the exclusion of a defendant
from a trial proceeding is permissible should be considered in light of the entire
record. Snyder, 291 U.S. at 115-17. The Fourteenth Amendment likewise prohibits
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trying an accused who lacks capacity to understand the proceedings or to assist in the
preparation of his defense. See Drope v. Missouri, 420 U.S. 162, 171-72 (1975).
As a constitutional matter, the appointment of an interpreter is within the trial
court’s discretion. Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir. 1989);
see also Perovich v. United States, 205 U.S. 86, 91 (1907). In determining whether
an interpreter is needed, the trial court must balance the defendant’s rights to due
process, confrontation of witnesses, effective assistance of counsel, and to be present
at his trial against the public’s interest in the economical administration of criminal
law. United States v. Edouard, 485 F.3d 1324, 1338 (11th Cir. 2007); Valladares,
871 F.2d at 1566. The basic inquiry is whether the failure to provide an interpreter
made the trial fundamentally unfair. Edouard, 485 F.3d at 1337; Valladares, 871 F.2d
at 1566.
After thorough review of the record and the parties’ briefs, we affirm the
district court’s denial of Jimenez’s habeas petition. Jimenez has not identified any
on point clearly established Supreme Court precedent that the state court’s rulings
regarding the use of interpreters were contrary to, or of which the state court’s rulings
were an unreasonable application. He has likewise not established that the lack of a
Mumm interpreter during voir dire and closing argument essentially excluded him
from his trial, prevented him from understanding the proceedings or assisting in his
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defense, or rendered the proceedings fundamentally unfair. Edouard, 485 F.3d at
1337-38; Valladares, 871 F.2d at 1566.
Nor has Jimenez shown that the state trial court’s factual determination that
Jimenez could adequately understand the Spanish translations provided during voir
dire and closing argument was erroneous, in light of the evidence presented in the
state court proceeding. The court heard testimony from several witnesses to the effect
that Jimenez could understand Spanish. Moreover, even if the state court had
committed constitutional error, any such error was harmless because Jimenez has
pointed to nothing in the record that would suggest that the failure to use a Mumm
interpreter for voir dire, closing argument, or both, had any effect, much less a
substantial and injurious one, on the jury’s composition or verdict. See Mason, 605
F.3d at 1123.
Finally, Jimenez’s arguments regarding the interpretation of 28 U.S.C. § 1827and Fla.Stat. § 90.606 are not properly before this Court, because: (i) they are outside
the scope of the district court’s certificate of appealability; (ii) 28 U.S.C. § 1827 only
governs the use of interpreters in federal courts, not state courts; and (iii) we will not
question a state court’s application of state law in federal habeas corpus review,
Davis, 506 F.3d at 1332.
AFFIRMED.
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