Wells v. Secretary Department of Corrections , 343 F. App'x 581 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 9, 2009
No. 08-16663 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-02349-CV-T-17-TGW
ROBERT WELLS,
Petitioner-Appellant,
versus
SECRETARY DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 9, 2009)
Before TJOFLAT, EDMONDSON and BIRCH, Circuit Judges.
PER CURIAM:
Robert Wells, a Florida state prisoner proceeding pro se, appeals the denial
of his habeas petition, filed pursuant to 28 U.S.C. § 2254. In his petition, Wells
claimed that the state trial court erred by permitting the prosecution to read to the
jury an allegedly unavailable witness’s testimony from a previous trial. The
district court found that Wells was procedurally barred from bringing this claim
because he had not exhausted available state court remedies. Because we find that
the claim was not procedurally defaulted, we REVERSE and REMAND for the
district court to consider the merits of that claim.
I. BACKGROUND
In 1999, a jury convicted Wells of first-degree murder; however, that
conviction was reversed on direct appeal, and a second trial ended in a mistrial. A
third trial was held in 2001, at which the jury again convicted Wells of the crime
and sentenced him to life without the possibility of parole. At that trial, the state
sought to introduce transcripts from the first trial of testimony by Deputy Michael
Gattarello, one of the first law enforcement officers to arrive at the scene of the
murder. The state represented that Gattarello was unable to testify at the third trial
because he was then in Kosovo and that an investigator would confirm this
account. Wells objected to the use of this testimony, asserting that the state had
not established why Gattarello was unavailable to testify, particularly since there
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was sufficient time to make arrangements so that he could testify via other means,
i.e., via telephone or video conference. The trial court found that Gattarello was
unavailable and permitted the state to use the transcripts because he had been
subjected to cross-examination at the time he gave the testimony in question.
On direct appeal, Wells argued that the state failed to show that Gattarello
was unavailable to testify, and that, as a result, the court erred in permitting his
prior testimony to be read to the jury. In his brief, he cited a Florida state case,
Abreu v. State, 804 So. 2d 442 (Fla. Dist. Ct. App. 2001), in which the court
reversed a defendant’s conviction after finding that the use of a transcript rather
than live testimony violated his constitutional right to confront witnesses against
him. That case, according to Wells, indicated that live testimony could be replaced
by the reading of prior testimony only if there had been a showing of
unavailability. The Florida Supreme Court summarily affirmed his conviction and
sentence. See Wells v. State, 846 So. 2d 520 (Fla. 2003) (table).
After an unsuccessful motion for post-conviction relief in state court, Wells
filed a § 2254 petition, in which he raised five grounds for relief — four claims
based on ineffective assistance of counsel, and one claim relating to the failure to
show Gattarello’s unavailability. The district court subsequently denied Wells’s
petition. In so doing, it found that his unavailability argument was procedurally
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barred because Wells’s objections to the testimony were based on state rules of
evidence and did not implicate federal constitutional principles, including his Sixth
Amendment right to confrontation. Furthermore, the court determined that Wells
had not demonstrated sufficient cause and prejudice, nor a fundamental
miscarriage of justice, to excuse the procedural default. The court also denied
Wells’s request for a certificate of appealability (“COA”) with respect to all of the
claims. However, we granted a COA on the issue of whether the district court
erred in finding the confrontation clause claim to be procedurally barred.
II. DISCUSSION
Whether a petitioner is procedurally barred from raising a particular claim is
a mixed question of law and fact that we review de novo. See Bailey v. Nagle, 172
F.3d 1299, 1302 (11th Cir. 1999) (per curiam). Before filing a § 2254 habeas
action in federal court, a petitioner must exhaust all state court remedies that are
available for challenging his conviction. See 28 U.S.C. § 2254(b), (c). For a
federal claim to be exhausted, it must have been “fairly presented to the state
courts.” McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005). The
Supreme Court has suggested that a litigant could meet this requirement by citing
as part of his claim before the state appellate court “the federal source of law on
which he relies or a case deciding such a claim on federal grounds, or by simply
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labeling the claim ‘federal.’” Baldwin v. Reese, 541 U.S. 27, 32, 124 S. Ct. 1347,
1351 (2004).
We have indicated that the Court’s guidance in Baldwin “must be applied
with common sense and in light of the purpose underlying the exhaustion
requirement,” namely giving state courts “a meaningful opportunity” to address the
federal claim. McNair, 416 F.3d at 1302 (quotation marks and citation omitted).
A petitioner thus would not satisfy the exhaustion requirement merely by
presenting the state court with “all the facts necessary to support the claim” or by
making a “somewhat similar state-law claim.” Kelley v. Secretary for the Dep’t of
Corr., 377 F.3d 1317, 1343–44 (11th Cir. 2004). Instead, he must make his claims
in a manner that provides the state courts with “the opportunity to apply controlling
legal principles to the facts bearing upon (his) constitutional claim.” Id. at 1344(quotation marks and citation omitted). A habeas petitioner who fails to make such
a presentation would be procedurally barred from pursuing that same claim in
federal court unless he can show either cause for and actual prejudice from the
default or a fundamental miscarriage of justice from applying the default. See
Bailey, 172 F.3d at 1306.
Based on our review of the record, we find that Wells fairly presented his
federal claim to the state courts. In his brief on direct appeal, he challenged the
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State’s use of Gattarello’s testimony without a showing of unavailability. In
support of this argument, he cited and discussed only one case, Abreu. In Abreu, a
Florida appellate court determined that a state statute relieving a party of the need
to prove unavailability before introducing prior testimony was “unconstitutional as
a violation of the Sixth Amendment’s confrontation clause.”1 Abreu, 804 So. 2d at
443. Since Wells cited as part of his unavailability claim “a case deciding such a
claim on federal grounds,” he sufficiently showed a desire to raise a federal issue.
Baldwin, 541 U.S. at 32, 124 S. Ct. at 1351. Furthermore, the State, in its answer
brief, stated that Wells was asserting a violation of his right of confrontation and
that his Sixth Amendment right was not violated by the use of the testimony. See
R2-13, Exh. 3 at 2, 7–9. These references were sufficient to alert the state court
that Wells’s claim raised federal constitutional concerns. See McNair, 416 F.3d at
1302.
The State argues that Wells waived his right to pursue this claim by
foregoing the taking of testimony offered by the state to demonstrate Gattarello’s
unavailability. However, we can find no indication that the trial court determined
that Wells invited the error he complained of on direct appeal. Instead, the court
overruled Wells’s objection and concluded that the government had sufficiently
1
Subsequent to Wells’s appeal, the Florida Supreme Court affirmed this decision. See
State v. Abreu, 837 So. 2d 400 (Fla. 2003).
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demonstrated Gattarello’s unavailability. See R2-12, Addendum Vol. 1 at 24.
Because the Florida Supreme Court affirmed Wells’s conviction without opinion
and the trial court did not state expressly that it was denying the claim due to a
procedural default by Wells, there was no independent and adequate ground of
state procedure to conclude that the petitioner’s federal claim is barred. See
Harmon v. Barton, 894 F.2d 1268, 1274 (11th Cir. 1990) (noting that a petition can
be denied based on procedural default only when there is “a clear and express
statement by the state trial court that its judgment was based on procedural
default,” which thereby allows us to “conclude without any doubt that the state
court per curiam affirmance was also based upon that ground”).
We therefore conclude that the district court erred in finding Wells’s claim
to be procedurally defaulted. Although the State encourages us to find that the
admission of the testimony had no injurious effect on the jury’s verdict, we believe
that such a determination is better left to the district court in the first instance and
thus remand to address that issue and any others that arise. In so doing, we express
no opinion on the merits of Walls’s argument.
III. CONCLUSION
Wells appeals the district court’s denial of his habeas petition with respect to
his claim that his constitutional right of confrontation was violated. Based on our
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review of the record, we find that Wells fairly presented this claim to the state
courts and thus that the district court erred in finding the claim procedurally barred
due to a failure to exhaust state remedies. Accordingly, we REVERSE the district
court’s denial with respect to that claim and REMAND for consideration of the
merits of the claim.
REVERSED AND REMANDED.
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