Case: 15-10691   Date Filed: 06/13/2016   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-10691
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 4:13-cv-10115-JLK



ENIEL PLANAS,

                                                          Petitioner-Appellant,

                                  versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
FLORIDA STATE ATTORNEY GENERAL,

                                                       Respondents-Appellees.

                       ________________________

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

                              (June 13, 2016)



Before WILLIAM PRYOR, FAY, and EDMONDSON, Circuit Judges.
                 Case: 15-10691     Date Filed: 06/13/2016   Page: 2 of 5


PER CURIAM:


         Eniel Planas, a Florida prisoner proceeding pro se, appeals the district

court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition. No reversible

error has been shown; we affirm.

         In his section 2254 petition, Planas raises several claims of ineffective

assistance of counsel. Construed liberally, Planas contends, in pertinent part, that

his appellate counsel rendered ineffective assistance by failing to argue on direct

appeal that Planas’s convictions -- for both lewd and lascivious battery and for

lewd and lascivious molestation -- violated the Double Jeopardy Clause.

   The district court denied Planas’s claim as procedurally barred: Planas had

failed to raise the claim in his state post-conviction proceedings. We granted a

certificate of appealability on two issues:



   (1)      Whether the district court erred in its procedural ruling by determining
            that Planas’s sub-claim of ineffective assistance of appellate counsel in
            Claim 4 was procedurally defaulted, without examining the claim under
            Martinez v. Ryan, 569 U.S. __, 

(2012); and

   (2)      Whether appellate counsel was constitutionally ineffective for failing to
            raise on appeal that Planas’s conviction for both lewd and lascivious
            battery, and lewd and lascivious molestation, violated the Double




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           Jeopardy Clause because there was no spatial or temporal break in the
           alleged criminal conduct. *


    We review de novo a district court’s determination that a habeas claim is

procedurally defaulted. Brownlee v. Haley, 

, 1058 (11th Cir. 2002).

    “A state habeas corpus petitioner who fails to raise his federal claims properly

in state court is procedurally barred from pursuing the same claim in federal court

absent a showing of cause for and actual prejudice from the default.” Bailey v.

Nagle, 

, 1302 (11th Cir. 1999). Planas concedes that he failed to

raise properly this ineffective assistance claim in state post-conviction proceedings.

He contends that his lack of post-conviction counsel constituted cause and

prejudice under Martinez -- sufficient to excuse the default.

    Generally speaking, because a prisoner has no constitutional right to counsel in

state post-conviction proceedings, a petitioner cannot rely on the ineffective

assistance of post-conviction counsel (or the lack of counsel) to establish “cause”

sufficient to excuse a procedural default. See Coleman v. Thompson, 

, 2568 (1991). In Martinez, the Supreme Court recognized a “narrow” and

“limited” equitable exception to the general rule established in Coleman. 132 S.

Ct. at 1315, 1319-20. In Martinez, the Court decided that a prisoner may


*
  To the extent Planas attempts to raise other ineffective assistance of counsel claims in his
appellate brief, these claims are outside the scope of this appeal. See 28 U.S.C. § 2253(c)(3)
(limiting appellate review to the issues specified in the certificate of appealability).
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overcome a procedural default of an ineffective-assistance-of-trial-counsel claim

when (1) the state requires such claims be raised only in a collateral proceeding;

(2) the state either appoints no counsel for the initial-review collateral proceeding,

or appointed counsel is constitutionally ineffective; and (3) the underlying

ineffective-assistance-of-trial-counsel claim has some merit. 

In the

different context of another case, we have said that “[b]y its own emphatic terms,

the Supreme Court’s decision in Martinez is limited to claims of ineffective

assistance of trial counsel that are otherwise procedurally barred due to the

ineffective assistance of post-conviction counsel.” Gore v. Crews, 

,

816 (11th Cir. 2013) (emphasis added). The district court might well have been

correct to deny Planas’s ineffective-assistance-of-counsel claim as procedurally

defaulted, given that the pertinent claim was not about trial counsel. But that

precise point is immaterial to our decision.

   Today, we affirm the district court’s decision because the claim has no merit:

an insubstantial claim. Planas has totally failed to demonstrate that his appellate

counsel rendered constitutionally ineffective assistance. The record demonstrates

that, although the jury found Planas guilty of both the battery and molestation

offenses, the trial court granted Planas’s motion to vacate -- on double jeopardy

grounds --Planas’s conviction for lewd and lascivious battery. As a result, Planas

was in fact convicted and sentenced only of a single count of lewd and lascivious


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molestation, in violation of Fla. Sta. § 800.04(5)(a). Thus, Planas cannot show

either that his appellate counsel was deficient in failing to raise the double jeopardy

issue on direct appeal or that Planas suffered prejudice as a result. See Strickland

v. Washington, 

, 2064 (1984).

   AFFIRMED.




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