Case: 16-16755     Date Filed: 11/29/2017   Page: 1 of 8


                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 16-16755
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 0:13-cv-61149-DPG

MARTIN DIEZ,

                                                               Petitioner-Appellant,

                                       versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                            Respondents-Appellees.

                           ________________________

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

                               (November 29, 2017)

Before WILSON, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Martin Diez appeals the district court’s denial of his 28 U.S.C. § 2254

petition for a writ of habeas corpus. We granted Diez a certificate of appealability
                  Case: 16-16755      Date Filed: 11/29/2017   Page: 2 of 8


on two issues: (1) whether trial counsel was ineffective for failing to obtain

Venezuelan custody documents for use at trial; and (2) whether the State

committed a Brady 1 violation by withholding the Venezuelan custody documents

from Diez. After careful consideration of the parties’ briefs and the record, we

affirm.

                                                I.

         In June 2004, Diez met with Edgar and Alicia Lopez to discuss their desire

to bring their granddaughter, Elizabeth, back to Venezuela from the United States.

The Lopezes told Diez that: (1) they had raised Elizabeth from her birth in

Venezuela in 1999 until 2003, when they returned her to her mother, Eunice, in the

United States; (2) they were concerned for Elizabeth’s safety; (3) they had legal

custody of Elizabeth; and (4) all legal means of retrieving Elizabeth had failed,

including contacting the Venezuelan consulate, the Florida Department of Children

and Families, and the local police. Diez claims the Lopezes showed him

Venezuelan custody documents indicating that they had lawful custody of

Elizabeth. The Lopezes asked Diez if he could find someone with authority to “go

to Eunice’s apartment and scare her into returning Elizabeth.”

         Diez took matters into his own hands. He went to Eunice’s apartment

dressed as a police officer. He presented a fake search warrant, forcefully entered


1
    Brady v. Maryland, 

, 

(1963)
                                                2
              Case: 16-16755     Date Filed: 11/29/2017    Page: 3 of 8


the apartment, and led Eunice—at gunpoint—from room to room looking for

Elizabeth’s passport. Diez searched Eunice’s bag, removing her driver’s license

and cell phone. He told her not to call the police and threatened to shoot her if she

moved. He then took Elizabeth to the Lopezes’ apartment. The next day, he

surrendered himself to the Federal Bureau of Investigation.

      Diez was found guilty of armed kidnapping of a child under the age of

thirteen years with intent to commit interference with child custody (Count 1),

armed kidnapping with intent to commit interference with child custody (Count 2),

armed burglary (Count 3), and interfering with child custody (Count 5). He was

sentenced to three concurrent terms of 20 years for Counts 1–3 and was sentenced

to a concurrent term of four years for Count 5.

                                          II.

      We review de novo a district court’s denial of a § 2254 habeas corpus

petition. Bester v. Warden, 

, 1336 (11th Cir. 2016). If a state court

has adjudicated a claim on the merits, a federal court may grant habeas relief only

if the decision of the state court (1) “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court,” or (2) “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). Under

the “unreasonable application” prong, relief is appropriate only if the state court’s


                                          3
               Case: 16-16755     Date Filed: 11/29/2017    Page: 4 of 8


application of clearly established federal law is “objectively unreasonable,” not

simply incorrect. Bell v. Cone, 

, 694, 

, 1850 (2002).

      To establish an ineffective-assistance claim, Diez must show that his

“counsel’s performance was deficient” and that “the deficient performance

prejudiced [his] defense.” Strickland v. Washington, 

, 687, 

, 2064 (1984). If he makes an insufficient showing on either prong, we need

not address the other prong. See Holladay v. Haley, 

, 1248 (11th

Cir. 2000).

      For counsel’s performance to be deficient, it must fall “below an objective

standard of reasonableness.” Harrington v. Richter, 

, 104, 

, 787 (2011) (quoting 

, 104 S. Ct. at 2064). It is

presumed that counsel’s conduct fell within the range of reasonable professional

assistance. Johnson v. Sec’y, Dep’t of Corrs., 

, 928 (11th Cir. 2011).

To overcome that presumption, Diez “must show that no competent counsel would

have taken the action that his counsel did take.” 

marks

omitted).

      To establish prejudice, “a challenger must demonstrate ‘a reasonable

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

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’” 

,


                                           4
              Case: 16-16755      Date Filed: 11/29/2017    Page: 5 of 

(quoting 

, 

). The

likelihood of a different outcome must be substantial, not just conceivable. See 

standards created by Strickland and § 2254(d) apply in tandem,

our review is doubly deferential as to the performance prong. 

. “The question is whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.” 

this double deference,

“it will be a rare case in which an ineffective assistance of counsel claim that was

denied on the merits in state court is found to merit relief in a federal habeas

proceeding.” Evans v. Sec’y, Florida Dep’t of Corrs., 

, 1268 (11th

Cir. 2012) (internal quotations omitted). The Florida appellate court denied Diez’s

claims without explanation. Because we interpret that decision as a denial on the

merits, it is entitled to deference under § 2254(d). See Wright v. Sec’y for Dep’t of

Corrs., 

, 1254 (11th Cir. 2002) (concluding that a state court’s

summary denial of a claim is considered an adjudication on the merits for purposes

of § 2254(d)(1)). Thus, Diez must show that there was no reasonable basis for the

state court’s denial of relief. See 

, 131 S. Ct. at 786.

                                         III.

      Diez first alleges that trial counsel was ineffective for failing to acquire a

copy of the Venezuelan custody documents, which could have shown that he had a

good-faith belief that he was returning the child to her legal custodians, rather than


                                           5
                 Case: 16-16755         Date Filed: 11/29/2017        Page: 6 of 8


interfering with child custody. 2 He argues that because Counts 1, 2, 3, and 5 all

included intent to commit interference with child custody as an element of the

offense, the custody documents could have been used to negate the required intent

for those offenses. 3

       Even if his counsel was ineffective, Diez cannot show prejudice. Although

the documents could have supported his testimony that he believed the Lopezes

were Elizabeth’s custodians, there was still a significant amount of evidence the

jury could have used to find intent to interfere with child custody. Diez knew

several crucial facts: the Lopezes left Elizabeth in the care of her biological

mother, Eunice; all legal means of getting Elizabeth back had been exhausted;

authorities representing both Venezuela and Florida refused to act on the Lopezes’

claims; and the Lopezes asked Diez to “scare” Eunice into giving Elizabeth back.

Clearly, even with the custody document, a jury could have been convinced that

Diez’s decision to “spook” Eunice into giving up custody showed the requisite

intent. The likelihood of a different outcome is not substantial. Accordingly, Diez

has failed to overcome the deference afforded to state court decisions. 4


2
 Interference with child custody occurs when someone “without lawful authority, knowingly or
recklessly takes or entices . . . any minor . . . from the custody of the minor’s . . . parent, his or
her guardian . . . or any other lawful custodian commits the offense of interference with custody
and commits a felony of the third degree . . . .” Fla. Sta. § 787.03(1) (2004) (emphasis added).
3
  Count 3, Diez’s armed burglary charge, included “the intent to commit the offense of
Kidnapping and/or Interference with Custody” as an element of the offense.
4
  For the same reasons, the district court did not abuse its discretion in denying Diez’s request for
                                                   6
                Case: 16-16755       Date Filed: 11/29/2017      Page: 7 of 8


                                              IV.

       Diez also alleges that the State committed a Brady violation by withholding

the Venezuelan custody documents from him. A Brady claim has three parts: (1)

the evidence at issue is favorable to the accused, either because it is exculpatory or

because it is impeaching; (2) the evidence was suppressed by the State, either

willfully or inadvertently; and (3) the defendant incurred prejudice. Strickler v.

Greene, 

, 281–82, 

, 1948 (1999). The prejudice prong

is met when “there is a reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been different.” Kyles v.

Whitley, 

, 433, 

, 1565 (1995). The crucial question on

that point is “whether the government’s evidentiary suppressions, viewed

cumulatively, undermine confidence in the guilty verdict.” Allen v. Sec'y, Fla.

Dep’t of Corrs., 

, 746 (11th Cir. 2010). The prejudice showing for a

Strickland claim is the same as required for a Brady claim. Brown v. Head, 

, 1316 (11th Cir. 2001).

       Here, as previously discussed, Diez cannot demonstrate prejudice. Even if

the State possessed the documents and had disclosed them, the jury would still

have convicted him of the four crimes that it did. Because the prejudice analysis is



an evidentiary hearing on this claim. Diez cannot show that failure to obtain the documents
prejudiced him, and thus any evidence to explain counsel’s efforts to obtain them would not have
assisted the resolution of his claim. Breedlove v. Moore, 

, 960 (11th Cir. 2002).
                                               7
              Case: 16-16755     Date Filed: 11/29/2017    Page: 8 of 8


the same for Brady as it is for Strickland, Diez cannot show a Brady violation even

if he proved that the state knowingly withheld the documents from him. Thus,

Diez is not entitled to relief or an evidentiary hearing on his Brady claim.

Accordingly, we affirm.

      AFFIRMED.




                                          8