United States District Court, M.D. Florida, Jacksonville Division
GREGORY F. WASHINGTON, Petitioner,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
MORALES HOWARD UNITED STATES DISTRICT JUDGE.
Gregory F. Washington, an inmate of the Florida penal system,
initiated this action by filing a Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2254 (Doc. 1; Petition), to
which he attached exhibits (Pet. Ex.). He subsequently
filed an Amended Petition (Doc. 14; Amended Petition) and a
Memorandum of Law in Support of Petition for Writ of Habeas
Corpus by a Person in State Custody under 28 U.S.C. §
2254 (Doc. 18; Pet. Mem.). In the Amended Petition,
Washington challenges a 2011 state court (Nassau County,
Florida) judgment of conviction for trafficking in oxycodone
for which he was sentenced to twenty-five years imprisonment.
Respondents filed an Answer in Response to Order to Show
Cause and Petition for Writ of Habeas Corpus (Doc. 33;
Response). Pursuant to the Court's order (Doc. 35),
Respondents filed a supplemental response (Doc. 36; Supp.
Response) with exhibits (Resp. Ex.). Washington filed a reply
(Doc. 40; Reply). This case is ripe for review.
2010, the State of Florida (State) charged Washington by
information with trafficking in oxycodone and conspiracy to
traffic in controlled substances. Pet. Ex. A-1 at 15. At
trial, the State proceeded only on the count of trafficking
in oxycodone. Pet. Ex. A-6 at 5. A jury convicted Washington,
see id. at 351, and the trial court sentenced him to
a mandatory minimum term of twenty-five years imprisonment.
Pet. Ex. A-8 at 17.
appealed his conviction and sentence to the First District
Court of Appeal (First DCA). Pet. Ex. C-1. The First DCA held
oral argument, see Resp. Ex. R, before affirming
Washington's conviction and sentence per curiam, without
written opinion. Pet. Ex. C-2. Washington moved for
rehearing, see Pet. Ex. C-3, and for clarification,
certification and written opinion. See Pet. Ex. C-4.
After denying Washington's motions see Pet. Ex.
C-5, the First DCA issued the mandate in Washington's
case on August 7, 2012. Pet. Ex. C-6.
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. Because Washington has not established the need for an
evidentiary hearing, the Court will not conduct one.
Exhaustion and Procedural Default
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 (1982);
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.” Id. 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
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.