Lawson petitions under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 9) and challenges his conviction for aggravated battery on a law enforcement officer, for which conviction Lawson serves twenty years. Numerous exhibits ("Respondent's Exhibit __") support the response. (Doc. 18) The respondent admits the petition's timeliness. (Response at 4-5 n.2, Doc. 18) The respondent correctly argues that Lawson failed to exhaust the only ground asserted in the petition.
On August 18, 2003, Lawson stole a pick-up truck in Palm Harbor, Florida, while the distracted owner was unloading merchandise. The owner immediately advised the police. The truck was quickly discovered and a high-speed chase ensured. Lawson unsuccessfully attempted to elude the officers by speeding, by running several stop lights, and by ramming a police car involved in the chase. Lawson fled from the scene after he was stopped. The aggravated battery on a law enforcement officer, the only conviction challenged in Lawson's federal petition,*fn2 is based on Lawson's ramming a police car.
Lawson asserts a single claim of ineffective assistance of counsel, specifically that counsel failed to object when the trial court constructively amended the information. As ground seven in his state Rule 3.850 motion to vacate (Respondent's Exhibit 19 at 89), Lawson argued that counsel was ineffective for not objecting to the trial court's jury instruction for aggravated battery on a law enforcement officer. The post-conviction court rejected this claim as follows (Respondent's Exhibit 16A at 133-34) (citations to the record or exhibits omitted):
Claim 7: "Ineffective assistance of counsel for failing to properly argue jury instructions that were contrary to the information and which omitted, misapplied, and misstated required elements necessary to constitute the offense charge against the defendant."
The Defendant alleges that counsel was ineffective for failing to properly argue the jury instruction. Specifically, the Defendant alleges that counsel should have objected to the court placing the word "or" between 2(a) and 2(b) for the instruction for aggravated battery of a law enforcement officer.*fn3 The court finds that the Defendant's claim is without merit.
The trial transcript clearly shows that counsel brought to the court's attention the Defendant's concern about placing the word "or" between 2(a) [("used a deadly weapon")] and 2(b) [("intentionally or knowingly caused great bodily harm")] for the instruction for aggravated battery of a law enforcement officer. . . . However, after reviewing the jury instruction and Fla. Stat. §784.045, the court determined that the word "or" would be appropriately used in separating the elements found in 2(a) and 2(b). . . .
The court at that time gave the Defendant the option of having 2(a) and 2(b) included in the jury instructions, separated by the word "or," or since there was no evidence of 2(a) adduced at trial, simply having 2(b) read by itself.*fn4 The Defendant chose to have both items read. Therefore, there was no ineffective assistance of counsel. Furthermore, to the extent the Defendant alleges [that the] trial court committed fundamental error by allowing the jury instruction, the Defendant should have raised that claim on direct appeal. See also Johnson v. State, 841 So. 2d 349, 357 n. 9 (Fla. 2002); Bruno v. State, 807 So. 2d 55, 63 (Fla. 2001).
At trial Lawson erroneously believed that the prosecution was required to prove that he both "used a deadly weapon" and "intentionally or knowing caused great bodily harm." At defense counsel's request, the trial judge explained to Lawson that the prosecutor was required to prove that Lawson either "used a deadly weapon" or "intentionally or knowingly caused great bodily harm," but not both. (Respondent's Exhibit 1, Addendum 4 at 540-41) Lawson never argued in either the trial court, or the post-conviction court, or the appellate court, that the jury instruction was a constructive amendment of the information. The respondent opposes the petition specifically based on Lawson's failure to exhaust.*fn5
A petitioner must present each claim to a state court before raising the claim in federal court. "[E]xhaustion of state remedies requires that petitioners 'fairly presen[t]' federal claims to the state courts in order to give the State the 'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995), quoting Picard v. Connor, 404 U.S. 270, 275 (1971). Accord Rose v. Lundy, 455 U.S. 509, 518-19 (1982) ("A rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error."), and Upshaw v. Singletary, 70 F.3d 576, 578 (11th Cir. 1995) ("[T]he applicant must have fairly apprised the highest court of his state with the appropriate jurisdiction of the federal rights which allegedly were violated."). Also, a petitioner must present to the federal court the same claim presented to the state court. Picard v. Connor, 404 U.S. at 275 ("[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.").
A petitioner must alert the state court that he is raising a federal claim and not just a state law claim.
A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim "federal."
Baldwin v. Reese, 541 U.S. 27, 32 (2004). As a consequence, "[i]t is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982). See also Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1271, 1345 (11th Cir. 2004) ("The exhaustion doctrine requires a habeas applicant to do more than scatter some makeshift needles in the haystack of the state court record.") (citations omitted). Although Lawson's jury instruction and constructive amendment claims are both similar and based on the same facts, "[m]ere similarity of ...