Case: 16-10332 Date Filed: 05/07/2018 Page: 1 of 13

This case involves the murder of a young man named Victor Espejo. After work on April 10, 2001, Espejo left his grandmother’s house with plans to go to a birthday party for a girl who petitioner Levi Medina knew. Driving his 1998 white . Case: 16-10332 Date Filed: 05/07/2018 Page: 2 of 13


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Levi Jessie Medina, a Florida prisoner,appeals pro sethe district court’s
denial of his 28 U.S.C. §2254 petition for a writ of habeas corpus.After a jury trial, Medina was convicted of: (1) attempted firstdegree murder without discharging a firearm; (2)criminal mischief over $1,000.00; (3) tampering with physical evidence; and (4) display, use, threat, or attempted use of a firearm while committing a felony. Based on the prosecution’s closing argumenthistrialMedina moved for a new trial, which the state court denied.In his §2254 petition, Medina claims the prosecution’s commentin closing argument denied his constitutionright to a fair trial under the Due Process Clause.
After careful review, we conclude that the statetrialcourt’s denial ofMedina’sclaim that he was denied a fair trial wasnotcontrary to, or an unreasonable application ofclearly established federal law, nor was it based on an unreasonabledetermination of the facts. Accordingly, wemustaffirm the district court’s denial of Medina’s§ 2254 petition.BACKGROUNDOffense ConductThis case involves the murder of a young man named Victor Espejo.After work on April, 2001, Espejoleft his grandmother’s housewith plansgo to birthday partyfora girl who petitioner Levi Medina knewDriving his 1998 white
��3 &#x/MCI; 0 ;&#x/MCI; 0 ;Pontiac Sunfire, Espejo met up with petitioner Medina andanother man,Floyd Ruelat Medina’s houseEspejo droveforthe groupOn their way to the party, thepicked up a fourth man, Modesto Guzmanwho broughtalong .22 caliber pistol in a black purseand the fourpurchased some alcoholThe party ended just after midnight, and the group proceeded to Miami Beach.They parked in South Beach, met some girls,and stayed until 2:00 or 3:00a.m. As they left the beach, Medina complained that there were too many people inEspejo’sPontiac car, pulled out the .22 caliber pistolfrom underneath his seatand fired four or five shots out of his window.Ruel asked tobe taken home and wasdropped offaround 3:30a.mThe next morning, Espejo’s grandmother, Graciela Garcia, noticed that Espejohad not come hoand decided to call the policeIn an effort to find her grandsonarcia contactedseveral of Espejo’s friendsand acquaintancesincluding Medina.Medinaadmitted that he was out with Espejothat nightMedina told Garcia that, at the end of the night, Espejo went to the Homestead ighborhood with “some little black guy” and that “they stayed on 27th Avenue and 14th or something like that.”Also thenext morning, Ruel called Medina to talk about the girls they had met at the beach. Ruel later drove to Medina’s houseandnoticedthaMedina was
��4 &#x/MCI; 0 ;&#x/MCI; 0 ;acting strangely.en questionedabout his behavior, Medina asked Ruel if he was wearing a wire and then admitted that he had done something bad.few days later, Medina confided in Ruel that Espejo was missing and that police found Espejo’scar, whichhad been set on fire. Medina claimed that he learned this information from the news. Medina also told Ruel thatafter dropping him offMedina, Guzman, and Espejo were at a gas stationwhen “some black guy approached the car and was asking [Espejo] for a ride” in exchange for $40. Medina claimed that Espejo “sold him out” anddecided to give black guya ride, while Medina and Guzman were left to walk home.In a conversation about two weeks later, Medina told Ruel that police welooking for Espejoandthat, whentheycontacted himRuel should tell the “black guy story” but not mention the firearmthey had hadin the vehiclethat nightWhen Medina was interviewed bypolice, he gave three different storiesof what happened onthe evening that Espejo disappearedIn thefirst story,consistent withwhat hetold Rueland GarciaMedina claimed that he and Guzmanwent into a gas stationandthat anunknown black male approached Espejo at the pump for a ride.Medina described this black man to police as 19 years old with two or three gold teethof average height, a thin build, and braided hair. In this first story, Medina and Guzman were forced to walk home.
��5 &#x/MCI; 0 ;&#x/MCI; 0 ;In a second story, thethreestill went to a gasstation, but Medina and Guzman showed the .22 caliber pistol to the unknown black male, who then stole the firearm and ran away with it.Medina claimed that, after buying gas, Espejo dropped Medina off at home and left with Guzman.Guzman came over to edina’s house the next morning and was driving Espejo’s car. Presumably, Guzman had killed Espejo the night before, and so Medina and Guzman drove to the Everglades to retrieve Espejo’s body.As the police interview continued, Medinatold a third story, where he confessed and admitted that the first and second stories involving an unknown black male were lies.In his verbal confession, Medina said that he, Guzman, and Espejo were headed to Miccosukee, Florida and stopped off to urinate.this time, Medina pointedthe .22 caliber pistolgun at Espejo’s head and squeezed the trigger twice. The gun jammed, so Guzman took it, cleared the chamber, and Guzman then shot Espejo in the head twotimes.Medina and Guzmanlater discarded Espejo’s body in a dumpster and lit his car on fire.Espejo’s body was never found.IndictmentA Florida grand jury charged Medinawith(1) first degree murder (Count1), (2)criminal mischief over $1,000.00 (Count 2), (3) tampering with physical evidence (Count3), and (4)display, use, threat, or attempted use of a firearm while
��6 &#x/MCI; 0 ;&#x/MCI; 0 ;committing a felony (Count 4).The case proceeded to trial on November 28, 2007Closing Argument, the Jury’s Verdict, and SentencingDuring closing arguments, the prosecution walked through whatoccurredthe night of April 10, 2001 and the events that followed, eventually arriving atthe story told initially by Medina. The prosecutor recounted Medina’s initial story about “this black guy,” statingHe’s got that story that he made up. That we went to this Amoco station and this black guy came out and he needed a ride and something about 40 dollars and I got dropped off and I had to walk home. First of all, it’s an ugly story because it’s sort of a racist Defense counsel objected tothis characterization, and the state trial court overruled the objection. The prosecution continuedthat Medina had made up an initial story that involved racial stereotypingSo it’s a racist stereotype, maybe that’s why hesaid, you know, some young ack guy, and eventually gets a full description, body height, gold teeth, all sorts of stuff. But he admits that the same story is a complete, complete lie when the cops talk to him. He tells them I made that all up, it never happened, there was no such stuff. But that’s the story he sort of weaves through all of his conversations with everybody.In his closing argument, Medina’s efense counsel later respondedthat there was nothing racial about the fact that his client had initially referred to a black guy:

defendant Modesto Guzman was charged in Counts 2 and 3 of this indictment, which also charged Guzman alone in a fifth count
��7 &#x/MCI; 0 ;&#x/MCI; 0 ;But one thing we do know, ladies and gentlemen, that [Espejo]was the driver of the vehicle and [Espejo]dropped [Ruel]at home. But once [Espejo]left the gas station, there was nothing racial about the fact that there was a black guy. There was nothing racial. I’m black. I’m his lawyer, so there’s no big deal there ladies and gentlemen, but that black guy left after that. So who did it,that guy who left with [Espejo]Defense counsel also moved for a new trial based on the prosecution’s commentwhich the state trial court denied. After deliberations, the jury returned a verdict finding Medina guilty on all four counts, but as to Countonlyfor a lesserincluded offense of attempted first degree murder without discharging a firearm. Thestatetrial court imposed concurrent prison sentences of 30 years Count 1, years onCounts 2 and 3, and 15years onCount 4Procedural History
Medina appealed his convictionto the District Court of Appeal of Florida, Third District(“Third DCA”)which summarily affirmed on May 13, 2009.See
Medina v. State, 8 So. 3d 1275 (Fla. Dist. Ct. App. 2009). Medina did not raise the
present issuein his direct criminal appeal.
On May 25, 2010, Medina filed with the Third DCA a petition alleging ineffective assistance of his appellate counsel under Florida Rule of Appellate Procedure 9.141(d), which the Third DCA laterdeniedin an unpublished summary dispositionSeeMedina v. State51 So. 3d 469 (Fla. Dist. Ct. App. 2010).
��8 &#x/MCI; 0 ;&#x/MCI; 0 ;On January4, 2011, Medina filed a petition for rehearing, whichwas deniedMarch 16, 2011, Medina filed the present §2254 petition
In his2254petition, Medina arguedinter aliathat “the State
inappropriately referred to [him] as a ‘racist’ by elaboratingto the jury the story that he had originally presented to the authorities regarding the ‘black male’ involved in the possible offense.”
The district court held an evidentiary hearingon Medina’s 2254 petition. At that hearing, Medina’s counsel argued that, although the prosecution’s commentdid not “outright call [Medina] a racist,” inferred that Medina’s story involved stereotypinga black male and that this prejudiced Medina.The government argued that the comment was appropriate to rebut Medina’s defense that anunknown black male killed Espejo and thatdefense counsel cured any prejudice by arguing that Medina could not be racist because his counsel wasalsoa black male.After the hearing, the district courtissued an orderdenyingMedina’s §2254 petition in its entirety and decliningto grant a certificate of appealability (“COA”) any of Medina’s claimsAs to the prosecution’s comments characterizing Medina’s story as racist, the district court found that they “were [not] made with

Medina’s petition asserted five claims: (1)due process violations for failure to prove that Espejo’s disappearance was the result of murder; (2)prosecutorial misconduct for appealingto the sympathy of the jury; (3)Sixth Amendment violations for the introduction of an arrest form containing hearsay statements aboutGuzman’s involvement in the crime; (4)prosecutorial misconduct for shifting the burden during closing argument; and (5)prosecutorial misconduct for allegedly calling Medina a racist during closing argument.
��9 &#x/MCI; 0 ;&#x/MCI; 0 ;the intent of categorizing [Medina] as a racist” and that “any damage that may have resulted .was ameliorated soon thereafter by defense counsel’s closing statement, wherein he directly addressed the issue.” The district court concluded that the state trial court’s decision to deny Medina a new trial was not contrary to, or an unreasonable application of,clearly established lawand that it did not involve an unreasonable determination of the facts in light of the evidence.Medina appealed. This Court issued aCOAas to the single issueof whetherduringclosing arguments,the prosecutor improperly inferred that Medina was a racist and thereby prejudiced Medina’s substantial rights.DISCUSSION2254ReviewUnder 28 U.S.C. §2254, as amended by the AntiTerrorism and Effective Death Penalty Act of 1996 (“AEDPA”), federal courts may only grant habeas relief on claims previously adjudicated in state court if 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(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).Clearly established federal law “refers to the holdings, as opposed to the dicta, of the Supreme Court’sdecisionas of the time of the
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relevant statecourt decision.” Lockyer v. Andrade, 538 U.S. 63, 71, 123 S. Ct.
1166, 1172 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct.
1495, 1499 (2000))seeParker v. Matthews, 567 U.S. 37, 4749, 132 S. Ct. 2148,
2155 (2012) (holding that the Sixth Circuit erred by applying its precedent on prosecutorial misconduct instead of the Supreme Court’s standardin Darden v.
Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471 (1986)
We review de novothe district court’s decisions about whether the state
court acted contrary to clearly established law, unreasonably applied federal law, or made an unreasonable determination of fact.Trepal v. Sec’y, Fla. Dep’tof
Corr., 684 F.3d 1088, 1107 (11th Cir. 2012).However, AEDPA “imposes a highly
deferential standard for evaluating statecourt rulings and demands that statecourt decisions be given the benefit of the doubt.” Id.(quoting Hardy v. Cross, 565 U.S.
65, 66, 132 S. Ct. 490, 491 (2011) (per curiam)).
Clearly Established Law on Prosecutorial Misconduct
The “clearly established Federal law” for purposes of prosecutorial misconduct s set forth in Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct.
2464, 2471 (1986). SeeParker v. Matthews, 567 U.S. 37, 4549, 132 S. Ct. 2148,
2155 (2012) (stating that Dardenwas the “clearly established Federal law” for
purposes of prosecutorial misconduct). In Darden, the Supreme Court held that
mproper comments by a prosecutor requirea new trial only if they “so infected the
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[original]trial with unfairness as to make the resulting conviction a denial of due process.” 488 U.S. at 181,106 S. Ct. at 2471 (quoting Donnelly v. DeChristoforo
416 U.S. 637, 94 S. Ct. 1868 (1974)); seeParker, 567 U.S. at 4849, 132 S. Ct. at
2155 (noting that Dardenprovides a “highly generalized” approach to be applied
flexiblyon a casecase basis). is not enough that the prosecutor’s comments were “improper,” “offensive,” “undesirable[,]or even universally condemned.”Darden, 477 U.S. at 181, 106 S. Ct. at 2471Rather, the
prosecutor’s misconduct must render the defendant’s conviction “fundamentally unfair.” Id.at 183,106 S. Ct. at 2472.
Arguments and AnalysisOn appeal,as he did before the district court,Medina argues that his constitutional right to afair trial was violated when, during closing argument, the prosecution twice characterizedMedina’s story about “some black guy” driving away with Espejo as “racist” or based on a “racist stereotype.” Medina argues that these comments were improper to the point of justifyinga new trial because theyeffectively inferred that Medina himself was a racist and race was not an issueThe problem for Medina is that when quoted in context, the prosecutor was recounting how Medina had first told a complete lie that wasan ugly, madestory about victim Espejoin his carat the gas station leaving with an unknown black man with gold teeth and braided hair and making Medina walk.
��12 &#x/MCI; 0 ;&#x/MCI; 0 ;Furthermore, the prosecution did not call Medinaa racist during closing arguments but fairlycharacterizedMedina’s madestory as based on a “racial stereotype” to imply that this black guywas the one who left with Espejoand thus must be who killed him, not Medina. The prosecution did not err in characterizing Medina’s lie about who left with Espejo at the gas station.
Even assuming that the remarks were improper, there is no evidence that they“so infected the trial with unfairness as to make the resulting conviction[s]a denial of due process.” Darden, 477 U.S. at 181, 106 S.Ct. at 2471. These two
isolated comments made during closing argument wereinsufficient to render Medina’s convictions“fundamentally unfairor tojustify a new trial.Id.at 183,
106 S. Ct. at 2472.Moreover, defense counsel was able to, and did, ectly rebut these contentions during his closing argument.In any event, Medina points to no Supreme Court authority indicating that the prosecution’sarguments based on Medina’s madeup storywarrantrelief under §2254.
In light of theseconsiderations, Medina has not shown that the state trial court’s decision was contrary to, or involved an unreasonable application of, clearly established federal lawas determined by the Supreme Court of the United

In his brief, Medina also arguesthatthe state trial court should have given a curative jury instruction, but we cannot find in the record where Medina’s defense counsel requested one. Rather, Medina’s counsel asked for a mistrial. Even so, Medina has not shown the state trial court’s denial of his motion for a new trial was an unreasonable application of clearly established federal law, and thus no curative instruction was required.
��13 &#x/MCI; 0 ;&#x/MCI; 0 ;States, or that it wasbased on an unreasonable determination of the facts in light of the evidence presented to the state court.III.CONCLUSIONFor all of these reasons, we affirm the district court’s denial of Medina’s 2254 petition.AFFIRMED.
DO NOT PUBLISH]IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT________________________No. 160332NonArgument Calendar________________________D.C. Docket No.20907MGCLEVI JESSIE MEDINAa.k.a. Juan Perez, PetitionerAppellant,versusSECRETARY, DEPARTMENT OF CORRECTIONS RespondentAppellee.________________________Appeal from the United States District Courtfor the Southern District of Florida________________________(May 7, 2018)Before WILSONJORDANand , Circuit Judges.PER CURIAM:

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