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With more than three decades of criminal defense experience, Benjamin “Benji” Waxman focuses exclusively on federal and state appeals, post-conviction remedies, trial court motion practice, and developing legal strategies for criminal cases. He has also worked extensively vacating criminal convictions to eliminate immigration consequences and lectured across the state on vacating such convictions.
A certified Criminal Appellate Specialist by the Florida Bar since 1990, Benji is a resourceful, proven advocate who understands how to serve as a trusted advisor at the most difficult time of his client’s life. As the chances of success are small at the post-conviction phase, Benji is valued for his absolute honest assessment of a potential client’s case and the chances for relief and maximizing that opportunity.
At the state level, Benji’s experience includes appeals to all of the Florida District Courts of Appeal, discretionary review in the Florida Supreme Court, motions for rehearing and rehearing en banc, motions for post-conviction relief, petitions for writs of prohibition, mandamus, habeas corpus, and certiorari, and applications for federal habeas corpus relief from state court convictions pursuant to 28 USC § 2254. For federal convictions, Benji has filed appeals in nearly every federal circuit court of appeals. He is skilled in federal motions to vacate judgments pursuant to 28 USC § 2255, applications for permission to file second or subsequent § 2255 motions, and petitions for pardon, clemency, or commutation. Benji has filed and had granted applications for certificates of appealability and appealed denials of motions under 28 USC §§ 2254 and 2255. Benji has filed numerous petitions for writs of certiorari in the U.S. Supreme Court and has won review and vacation of his client’s conviction in that Court.
Regardless of the challenge at hand, Benji is skilled in presenting newly discovered evidence, errors not known to the defense, changing laws, and the ineffective assistance of prior counsel to defend his clients. In addition, Benji has cultivated and maintained a network of experts and other professionals involved in such fields as mental health, ballistics, blood spatter, fingerprints, and DNA to further his client’s position.
Among other death penalty cases, Benji defended a Spanish national on death row for more than a decade in post-conviction proceedings until he got his conviction and death sentence vacated. He ultimately helped defeat the death penalty following a three and one-half month trial. The case and Benji’s representation are represented in a documentary to be released in 2019 and already serve as the storyline for a fictional television program in Spain.
Benji thrives under the challenge and pressure associated with post-conviction counsel. He cares deeply about his client’s fate and seeks to alleviate their burden even in the most difficult circumstances. In return, Benji’s clients value that he takes the time to understand the emotional drivers underlying their predicament and goes to any length to secure their freedom or lessen the punishment.
Prior Experience
Before joining the firm, Benji maintained a solo practice for several years. Prior to that, he was a member for three decades and partner for more than two decades with the former Miami criminal defense firm, Robbins, Turkey, Ross, Amsel, Raben & Waxman, P.A.
Many highlights of Mr. Waxman’s career include:
- Winning a reversal in United States v. Louis, 861 F.3d 1330 (11th Cir. 2017), a cocaine trafficking conviction based on insufficient evidence where the defendant had 111 kilograms of cocaine in the back seat of his car driving away from a ship containing another 227 kilos of cocaine
- Winning Williamson v. United States, 512 U.S. 594 (1994), vacating narcotics trafficking conviction and limiting the scope of 804(b)(3)’s “statement against penal interest” hearsay exception
- Reversal of his client’s death sentence in Smith v. State, 699 So. 2d 629 (Fla. 1997)
- Quashing the Third District Court of Appeal’s en banc decision dramatically limiting the availability of post-conviction relief for immigrant defendants who are not properly warned of their convictions’ deportation consequences in Peart v. State, 756 So. 2d 42 (Fla. 2000)
- Reversal of the federal murder conviction of his client in United States v. Dominguez, 907 F.2d 216 (1st Cir. 1990), based on an issue of statutory construction
- Lead counsel in Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992), a class action brought on behalf of thousands of homeless persons against the City of Miami for violations of civil liberties
U.S. SUPREME COURT
Williamson v. United States, 512 U.S. 594 (1994), a rare review of a federal appellate court’s decision entered without written opinion, which vacated narcotics trafficking conviction and limited the scope of 804(b)(3)’s “statement against penal interest” hearsay exception
FEDERAL APPEALS
United States v. Louis, 861 F.3d 1330 (11th Cir. 2017)
Federal Trade Commission v. Teri Chierico, 206 F.3d 1378 (11th Cir. 2000), reversing client’s contempt citations for allegedly violating Federal Trade Commission’s anti-telemarketing judgment
United States v. Cataldo, 171 F.3d 1316 (11th Cir. 1999), winning sentence reduction based on erroneous application of obstruction of justice enhancement
United States v. Gomez, 164 F.3d 1354 (11th Cir. 1999), winning sentence reduction based on erroneous enhancement of base offense level
United States v. Sepulveda, 115 F.3d 882 (11th Cir. 1997), winning sentence reduction in possession of cloned cellular telephone case based on statutory construction
United States v. Perez-Tosta, 36 F.3d 1552 (11th Cir. 1994), reversing client’s conviction for trafficking in 140 kilos of cocaine based on insufficient evidence
Pottinger v. City of Miami, 810 F. Supp. 1551 (SD Fla. 1992)
United States v. Dominguez, 907 F.2d 216 (1st Cir. 1990)
FLORIDA SUPREME COURT
Ibar v. State, 190 So. 3d 1012 (Fla. 2016), reversing client’s death sentence and triple homicide conviction based on ineffective assistance of counsel
Sims v. State, 967 So. 2d 148 (Fla. 2007), local counsel in vacating death penalty and murder conviction based on ineffective assistance of counsel
Peart v. State, 756 So. 2d 42 (Fla. 2000)
Smith v. State, 699 So. 2d 629 (Fla. 1997)
STATE APPEALS
Frances v. State, 31 So. 3d 285 (Fla. 4th DCA 2010), reversing denial of post-conviction relief from 24-year-old conviction based on affirmative misadvice of counsel regarding deportation consequences
Hernandez v. State, 20 So. 3d 417 (Fla. 3d DCA 2009), reversing denial of post-conviction relief from cocaine trafficking conviction based on newly discovered evidence
Mehl v. State, 16 So. 3d 1060 (Fla. 4th DCA 2009), reversing enhanced sentence based on double jeopardy violation
Docekal v. State, 929 So. 2d 1139 (Fla. 5th DCA 2006), reversing sexual assault conviction based on erroneous limitation of right to cross-examine alleged victim
Dixon v. State, 901 So. 2d 384 (Fla. 3 DCA 2005), reversing DUI conviction based on violation of speedy trial rights
Robbins v. State, 891 So. 2d 1102 (Fla. 5th DCA 2005), reversing second-degree murder conviction based on violation of defendant’s right to silence
Goodrich v. State, 854 So. 2d 663 (Fla. 3d DCA 2003), reversing aggravated battery with a motor vehicle conviction based on trial court’s erroneous restriction on defendant’s closing argument
Barone v. State, 841 So. 2d 653 (Fla. 3d DCA 2003), reversing narcotics trafficking conviction based on erroneous admission of hearsay
Williams v. State, 715 So. 2d 1152 (Fla. 3d DCA 1998), reversing client’s conviction for burglary, resisting arrest, and theft based on erroneous admission of testimony regarding uncharged crime
Bell v. State, 614 So. 2d 562 (Fla. 3d DCA 1993), reversing client’s conviction for leaving the scene of collision with injuries based on improper restriction of client’s right to cross-examination
State v. Diaz, 595 So. 2d 969 (Fla. 3d DCA 1992), winning affirmance of order suppressing narcotics evidence based on illegal search
Smith v. State, 578 So. 2d 366 (Fla. 3d DCA 1991), winning reversal of client’s cocaine trafficking conviction based on erroneous denial of motion to continue trial
Court Admissions
- Colorado, 1983
- Florida, 1984, Board Certified in Appellate Practice since 1990
- U.S. Supreme Court, 1988
- U.S. District Court Middle District of Florida, 1992
- U.S. District Court Northern District of Florida, 2006
- U.S. District Court Southern District of Florida, 1987
- U.S. Court of Appeals, 1st Circuit, 1984
- U.S. Court of Appeals, 2d Circuit, 2004
- U.S. Court of Appeals, 3d Circuit, 1987
- U.S. Court of Appeals, 4th Circuit, 1987
- U.S. Court of Appeals, 5th Circuit, 2000
- U.S. Court of Appeals, 6th Circuit, 1994
- U.S. Court of Appeals, 7th Circuit, 1989
- U.S. Court of Appeals, 8th Circuit, 1985
- U.S. Court of Appeals, 9th Circuit, 1991
- U.S. Court of Appeals, 10th Circuit, 1986
- U.S. Court of Appeals, 11th Circuit, 1987
Awards & Recognition
- AV® Preeminent™ Peer Review Rated by Martindale-Hubbell
- Florida Bar Board Certified in Appellate Practice, 1990-present
- “Best Lawyers,” Best Lawyers, Miami: Appellate Practice, 2019-2021
- “Florida Legal Elite,” Appellate Practice, Florida Trend, 2020
- “Super Lawyer,” Appellate, Florida Super Lawyers, 2006-2023
- ”Against All Odds,” Florida Association of Criminal Defense Lawyers, 2016
- C. Clyde Atkins Civil Liberties Award, Greater Miami ACLU, 2014
- ”President’s Service Award,” FACDL Miami, 2004, 2005, 2011
- “Best Lawyer in Miami,” New Times Magazine, 1998
- ”Public Interest Recognition Award,” University of Miami Law School, 1996
AV® Preeminent™ and BV® Distinguished™ are certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell certification procedures, standards and policies.
Memberships
- Director, ACLU, Miami Chapter
- Former Director, Florida Association of Criminal Defense Lawyers, Miami Chapter
- Former Director and Executive Committee Member, Florida ACLU
- Board Member, Transition Inc. (a 501(c)(3) organization dedicated to providing job opportunities to released prisoners)
