United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD United Stales District Judge.
John Matthew Austin, an inmate of the Florida penal system,
initiated this action by filing a pro se Petition Under 28
U.S.C. § 2254 for a Writ of Habeas Corpus By a Person in
State Custody (Petition, Doc. 1). In the Petition, Austin
challenges a 2009 state court (Duval County, Florida)
judgment of conviction for leaving the scene of a crash
involving injury or death. Respondents have submitted an
Answer to Petition for Writ of Habeas Corpus (Response, Doc.
12) with exhibits (Resp. Ex.). Despite sufficient time and
multiple notices from this Court (see Order (Doc.
14); Order (Doc. 15)), Austin did not file a reply to the
Response. As such, this case is ripe for review.
State of Florida charged Austin by information in count one
with leaving the scene of a crash involving death and in
count two with driving while license suspended, cancelled or
revoked, resulting in serious injury or death. Resp. Ex. 2.
Prior to trial, the State nolle prossed count two, and Austin
proceeded to trial on count one. Resp. Ex. 3. The jury found
Austin guilty of leaving the scene of a crash involving
death, as charged. Resp. Ex. 5. Through counsel, Austin filed
a motion for new trial, which the state court denied by
written order. Resp. Exs. 6, 7. The court sentenced Austin to
fifteen years incarceration with credit for 190 days time
served. Resp. Exs. 8, 9.
filed a notice of appeal to the First District Court of
Appeal (First DCA). Resp. Ex. 10. With the benefit of
counsel, Austin filed an initial brief (Resp. Ex. 11), and
the State filed an answer brief (Resp. Ex. 12). The First DCA
affirmed Austin's conviction and sentence per curiam,
without written opinion. Resp. Ex. 13; Austin v.
State, 50 So.3d 1138 (Fla. 1st DCA 2011) (table).
next filed a pro se motion for postconviction relief in the
state circuit court pursuant to Florida Rule of Criminal
Procedure 3.850. Resp. Ex. 14. Without an evidentiary
hearing, the court summarily denied Austin's Rule 3.850
motion. Resp. Ex. 15. Austin filed a pro se motion for
rehearing, which the circuit court summarily denied. Resp.
Ex. 16. Austin appealed the denial to the Florida First DCA
(Resp. Ex. 17), filing a pro se initial brief in the
appellate court (Resp. Ex. 18). The State filed notice that
it would not file an answer brief. Resp. Ex. 19. The First
DCA affirmed the circuit court's summary denial of
postconviction relief per curiam, without written opinion.
Resp. Ex. 20. Austin v. State, 130 So.3d 229 (Fla.
1st DCA 2014) (table).
habeas corpus proceeding, the burden is on the petitioner to
establish the need for a federal evidentiary hearing. See
Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d
1057, 1060 (11th Cir. 2011). “In deciding whether to
grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the
petition's factual allegations, which, if true, would
entitle the applicant to federal habeas relief.”
Schriro v. Landrigan, 550 U.S. 465, 474 (2007)
(citation omitted); Jones v. Sec'y, Fla. Dep't of
Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016).
“It follows that if the record refutes the
applicant's factual allegations or otherwise precludes
habeas relief, a district court is not required to hold an
evidentiary hearing.” Schriro, 550 U.S. at
474. The pertinent facts of this case are fully developed in
the record before the Court. Because this Court can
“adequately assess [Austin's] claim[s] without
further factual development, ” Turner v.
Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an
evidentiary hearing will not be conducted.
Limits of Habeas Relief, Exhaustion and Procedural
Limits of Habeas Relief
habeas review “is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of
the United States.” Estelle v. McGuire, 502
U.S. 62, 68 (1991) (citations omitted). As such, federal
habeas “does not lie for errors of state law.”
Id. at 67 (quotations omitted). “[I]t is not
the province of a federal habeas court to reexamine
state-court determinations on state-law questions.”
Id. at 67-68. As such, federal courts may not review
claims based exclusively on state law issues even if the
claims are “couched in terms of equal protection and
due process.” Branan v. Booth, 861 F.2d 1507,
1508 (11th Cir. 1988) (quotation omitted).
bringing a § 2254 habeas action in federal court, a
petitioner must exhaust all state court remedies that are
available for challenging his state conviction. See
28 U.S.C. § 2254(b), (c). To exhaust state remedies, the
petitioner must “fairly present[ ]” every issue
raised in his federal petition to the state's highest
court, either on direct appeal or on collateral review.
Castille v. Peoples, 489 U.S. 346, 351 (1989)
(emphasis omitted). As the United States Supreme Court has
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28 U.S.C.
§ 2254(b)(1), thereby giving the State the
“‘“opportunity to pass upon and
correct” alleged violations of its prisoners'
federal rights.'” Duncan v. Henry, 513
U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per
curiam) (quoting Picard v. Connor, 404 U.S. 270,
275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). To provide the
State with the necessary “opportunity, ” the
prisoner must “fairly present” his claim in each
appropriate state court (including a state supreme court with
powers of discretionary review), thereby alerting that court
to the federal nature of the claim. Duncan,
supra, at 365-366, 115 S.Ct. 887; O'Sullivan
v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144
L.Ed.2d 1 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004); see
also O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999) (“[S]tate prisoners must give the state courts
one full opportunity to resolve any constitutional issues by
invoking one complete round of the State's established
appellate review process.”)
fairly present a claim, the petitioner must present it to the
state courts as a federal, constitutional claim rather than
as a matter of state law. See Duncan, 513 U.S. at
365-66; Preston v. Sec'y, Fla. Dep't of
Corr., 785 F.3d 449, 456-59 (11th Cir. 2015). To do so,
a petitioner can include “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, 541 U.S. at 32.
But raising a state law claim that “is merely similar
to the federal habeas claim is insufficient to satisfy the
fairly presented requirement.” Duncan, 513
U.S. at 366. Likewise, merely citing to the federal
constitution is insufficient to exhaust a claim in state
court. Anderson v. Harless, 459 U.S. 4, 7 (1983);
see also McNair v. Campbell, 416 F.3d 1291, 1302
(11th Cir. 2005) (“‘The exhaustion doctrine
requires a habeas applicant to do more than scatter some
makeshift needles in the haystack of the state court
record.'”) (quoting Kelley v. Sec'y for the
Dep't of Corr., 377 F.3d 1317, 1343-44 (11th Cir.
2004)). As explained by the Eleventh Circuit:
To “fairly present” a claim, the petitioner is
not required to cite “book and verse on the federal
constitution.” Picard v. Connor, 404 U.S. 270,
278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (quotation omitted).
Nevertheless, a petitioner does not “fairly
present” a claim to the state court “if that
court must read beyond a petition or a brief (or a similar
document) that does not alert it to the presence of a federal
claim in order to find material, such as a lower court
opinion in the case, that does so.” Baldwin,
541 U.S. at 32, 124 S.Ct. 1347. In other words, “to
exhaust state remedies fully the petitioner must make the
state court aware that the claims asserted present federal
constitutional issues.” Jimenez v. Fla. Dep't
of Corr., 481 F.3d 1337, 1342 (11th Cir. 2007) (quoting
Snowden v. Singletary, 135 F.3d 732, 735 (11th
Cir.1998)) (concluding that the petitioner's claims were
raised where the petitioner had provided enough information
about the claims (and citations to Supreme Court cases) to
notify the state court that the challenges were being made on
both state and federal grounds).
Lucas v. Sec'y, Dep't of Corr., 682 F.3d
1342, 1352 (11th Cir. 2012). “The crux of the
exhaustion requirement is simply that the petitioner must
have put the state court on notice that he intended to raise
a federal claim.” Preston, 785 F.3d at 457
(11th Cir. 2015); see also French v. Warden, Wilcox State
Prison, 790 F.3d 1259, 1270-71 (11th Cir. 2015),
cert. denied, 136 S.Ct. 815 (2016).
Procedural Default and Exceptions
‘the petitioner fails to raise the [federal] claim in
state court and it is clear from state law that any future
attempts at exhaustion would be futile, ” a procedural
default occurs. Owen v. Sec'y, Dep't of
Corr., 568 F.3d 894, 908 n.9 (11th Cir. 2009) (quotation
omitted); see also Smith v. Jones, 256 F.3d 1135,
1138 (11th Cir. 2001) (“The teeth of the exhaustion
requirement comes from its handmaiden, the procedural default
doctrine.”). In such circumstances, federal habeas
review of the claim is typically precluded. Pope v.
Sec'y for Dep't of Corr., 680 F.3d 1271, 1284
(11th Cir. 2012); Smith, 256 F.3d at 1138.
Nevertheless, a federal court may still consider the claim if
a state habeas petitioner can show either (1) cause for and
actual prejudice from the default; or (2) a fundamental
miscarriage of justice. See Coleman v. Thompson, 501
U.S. 722, 750 (1991); Ward v. Hall, 592 F.3d 1144,
1157 (11th Cir. 2010).
cause for a procedural default, “the petitioner must
demonstrate ‘some objective factor external to the
defense' that impeded his effort to raise the claim
properly in state court.” Ward, 592 F.3d at
1157 (quoting Murray v. Carrier, 477 U.S. 478, 488
(1986)). “[T]o show prejudice, a petitioner must
demonstrate that ‘the errors at trial actually and
substantially disadvantaged his defense so that he was denied
fundamental fairness.'” Id. (quoting
McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir.
1992) (per curiam)).
“[n]egligence on the part of a prisoner's
postconviction attorney does not qualify as
‘cause.'” Maples v. Thomas, 565 U.S.
266, 280 (2012) (citing Coleman, 501 U.S. at 753).
[w]hen a State requires a prisoner to raise an
ineffective-assistance-of-trial-counsel claim in a collateral
proceeding, a prisoner may establish cause for a default of
an ineffective-assistance claim in two circumstances. The
first is where the state courts did not appoint counsel in
the initial-review collateral proceeding for a claim of
ineffective assistance at trial. The second is where
appointed counsel in the initial-review collateral
proceeding, where the claim should have been raised, was
ineffective under the standards of Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.E.2d 674
(1984). To overcome the default, a prisoner must also
demonstrate that the underlying ineffective-assistance-of-
trial-counsel claim is a substantial one, which is to say
that the prisoner must demonstrate that the claim has some
merit. Cf. Miller-El v. Cockrell, 537 U.S. 322, 123
S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing standards for
certificates of appealability to issue).
Martinez v. Ryan, 566 U.S. 1, 14 (2012). The
Eleventh Circuit has explained that this narrow exception to
the procedural default rule
applies only where (1) a state requires a prisoner
to raise ineffective-trial-counsel claims at the
initial-review stage of a state collateral proceeding and
precludes those claims during direct appeal; (2) the prisoner
failed to properly raise ineffective-trial-counsel claims
during the initial collateral proceeding; (3) the prisoner
either did not have counsel or his counsel was ineffective
during those initial state collateral proceedings; and (4)
failing to excuse the prisoner's procedural default would
result in the loss of a “substantial”
Lambrix v. Sec'y, Fla. Dep't of Corr., 851
F.3d 1158, 1164 (11th Cir. 2017) (emphasis in original)
(citations omitted); see also Arthur v. Thomas, 739
F.3d 611, 629 (11th Cir. 2014).
absence of a showing of cause and prejudice, a petitioner may
obtain consideration on the merits of a procedurally
defaulted claim if he can establish that a failure to
consider the claim will result in a fundamental miscarriage
of justice. Coleman, 501 U.S. at 724. This exception
has been described as “exceedingly narrow in scope as
it concerns a petitioner's ‘actual' innocence
rather than his ‘legal' innocence.”
Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.
2001). “To meet this standard, a petitioner must
‘show that it is more likely than not that no
reasonable juror would have convicted him' of the
underlying offense.” Id. (quoting Schlup
v. Delo, 513 U.S. 298, 327 (1995)), cert.
denied, 535 U.S. 926 (2002)). Additionally,
“'[t]o be credible, ' a claim of actual
innocence must be based on reliable evidence not presented at
trial.” Calderon v. Thompson, 523 U.S. 538,
559 (1998) (quoting Schlup, 513 U.S. at 324). With
the rarity of such evidence, in most cases, allegations of
actual innocence are ultimately summarily rejected.
Schlup, 513 U.S. at 324.
Standard of Review
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner's federal petition for habeas
corpus. See 28.U.S.C. § 2254; Ledford v.
Warden, Ga. Diagnostic & Classification Prison, 818
F.3d 600, 642 (11th Cir. 2016). “‘The purpose of
AEDPA is to ensure that federal habeas relief functions as a
guard against extreme malfunctions in the state criminal
justice systems, and not as a means of error
correction.'” Id. (quoting Greene v.
Fisher, 565 U.S. 34, 38 (2011)). As such, federal habeas
review of final state court decisions is “'greatly
circumscribed' and ‘highly deferential.'”
Id. (quoting Hill v. Humphrey, 662 F.3d
1335, 1343 (11th Cir. 2011)).
first task of the federal habeas court is to identify the
last state court decision, if any, that adjudicated the claim
on the merits. See Wilson v. Warden, Ga. Diagnostic
Prison, 834 F.3d 1227, 1235 (11th Cir. 2016) (en banc),
cert. granted, Wilson v. Sellers, 137 S.Ct.
1203 (2017); Marshall v. Sec'y, Fla. Dep't of
Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). Regardless
of whether the last state court provided a reasoned opinion,
“it may be presumed that the state court adjudicated
the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary.”
Harrington v. Richter, 562 U.S. 86, 99 (2011);
see also Johnson v. Williams, ___U.S. ___, 133 S.Ct.
1088, 1096 (2013). Thus, the state court need not issue an
opinion explaining its rationale in order for the state
court's decision to qualify as an adjudication on the
merits. See Richter, 562 U.S. at 100; Wright v.
Sec'y for the Dep't of Corr., 278 F.3d 1245,
1255 (11th Cir. 2002).
claim was “adjudicated on the merits” in state
court, § 2254(d) bars relitigation of the claim, unless
the state court's decision (1) “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) “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); Richter, 562 U.S. at 98. As the Eleventh
Circuit has explained:
First, § 2254(d)(1) provides for federal review for
claims of state courts' erroneous legal conclusions. As
explained by the Supreme Court in Williams v.
Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000), § 2254(d)(1) consists of two distinct clauses: a
“contrary to” clause and an “unreasonable
application” clause. The “contrary to”
clause allows for relief only “if the state court
arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a
set of materially indistinguishable facts.”
Id. at 413, 120 S.Ct. at 1523 (plurality opinion).
The “unreasonable application” clause allows for
relief only “if the state court identifies the correct
governing legal principle from [the Supreme] Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case.” Id.
Second, § 2254(d)(2) provides for federal review for
claims of state courts' erroneous factual determinations.
Section 2254(d)(2) allows federal courts to grant relief only
if the state court's denial of the petitioner's claim
“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)(2). The Supreme
Court has not yet defined § 2254(d)(2)'s
“precise relationship” to § 2254(e)(1),
which imposes a burden on the petitioner to rebut the state
court's factual findings “by clear and convincing
evidence.” See Burt v. Titlow, 571 U.S.___,
___, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord
Brumfield v. Cain, 576 U.S. ___, ___, 135 S.Ct. 2269,
2282, 192 L.Ed.2d 356 (2015). Whatever that “precise
relationship” may be, “‘a state-court
factual determination is not unreasonable merely because the
federal habeas court would have reached a different
conclusion in the first instance.'” Titlow,
571 U.S. at___ 134 S.Ct. at 15 (quoting Wood v.
Allen, 558 U.S. 290, 301, 130 S.Ct. 841, 849, 175
L.Ed.2d 738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir.
2016); see also Daniel v. Comm'r, Ala. Dep't of
Corr., 822 F.3d 1248, 1259 (11th Cir. 2016). Also,
deferential review under Section 2254(d) generally is limited
to the record that was before the state court that
adjudicated the claim on the merits. See Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (regarding §
2254(d)(1)); Landers v. Warden, ...