USCA11 Case: 20-12002 Date Filed: 08/04/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12002
Non-Argument Calendar
____________________
MEDGAR SAMUEL,
Petitioner-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:17-cv-80722-KAM
____________________
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2 Opinion of the Court 20-12002
Before WILSON, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
Medgar Samuel, a Florida prisoner proceeding on appeal
with counsel, appeals the district court’s denial of his pro se petition
for a writ of habeas corpus, filed pursuant to
28 U.S.C. § 2254. We
granted a certificate of appealability (“COA”) as to whether the dis-
trict court erred in finding that any error in the state trial court’s
manslaughter instruction, which included an intent-to-kill element,
was harmless. The government raises the issue of whether Samuel
properly exhausted his claim in state court. Samuel argues that the
issue of exhaustion was not properly on appeal because it was not
included in the certificate of appealability and that, even if it was,
the state waived the issue.
When examining a district court’s denial of a § 2254 habeas
petition, we review questions of law de novo and findings of fact
for clear error. LeCroy v. Sec’y, Fla. Dep’t of Corr.,
421 F.3d 1237,
1259 (11th Cir. 2005). “[A]ppellate review is limited to the issues
specified in the COA.” Murray v. United States,
145 F.3d 1249, 1251
(11th Cir. 1998). However, we will also review procedural issues
that must be resolved before we can reach the merits of the under-
lying claim, even if they were not addressed by the district court.
McCoy v. United States,
266 F.3d 1245, 1248 n.2 (11th Cir. 2001).
We “may affirm on any ground supported by the record.” Trotter
v. Sec’y, Dep’t of Corr.,
535 F.3d 1286, 1291 (11th Cir. 2008)
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20-12002 Opinion of the Court 3
(quoting Welding Servs., Inc. v. Forman,
509 F.3d 1351, 1356 (11th
Cir. 2007)).
Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), federal courts are precluded from granting habeas re-
lief on claims that were previously adjudicated on the merits in
state court, unless the adjudication “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly es-
tablished Federal law” or “resulted in a decision that 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).
AEDPA limits federal review of state prisoners’ applications for ha-
beas relief, imposing highly deferential standards for evaluating
state court rulings. Renico v. Lett,
559 U.S. 766, 773 (2010); Bell v.
Cone,
535 U.S. 685, 693 (2002).
Before bringing a habeas action in federal court, the peti-
tioner must exhaust all state court remedies that are available for
challenging his conviction, either on direct appeal or in a state
post-conviction motion.
28 U.S.C. § 2254(b), (c). The exhaustion
requirement is not jurisdictional and may be waived by the state.
28 U.S.C. § 2254(b)(2); Thompson v. Wainwright,
714 F.2d 1495,
1502 (11th Cir. 1983). However, “[a] State shall not be deemed to
have waived the exhaustion requirement . . . unless the State,
through counsel, expressly waives the requirement.”
28 U.S.C.
§ 2254(b)(3); McNair v. Campbell,
416 F.3d 1291, 1306 (11th Cir.
2005).
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4 Opinion of the Court 20-12002
“Exhaustion of state remedies requires that the state pris-
oner fairly presen[t] federal claims to the state courts in order to
give the State the opportunity to pass upon and correct alleged vi-
olations of its prisoners’ federal rights.” Snowden v. Singletary,
135
F.3d 732, 735 (11th Cir. 1998) (quotation marks omitted, alteration
in original). “It is not sufficient merely . . . that all the facts neces-
sary to support the claim were before the state courts or that a
somewhat similar state-law claim was made.” McNair,
416 F.3d at
1302 (quoting Kelley v. Sec'y for Dep’t of Corr.,
377 F.3d 1317, 1343
(11th Cir. 2004)). Further, “ordinarily a state prisoner does not
‘fairly present’ a claim to a state court if that court must read be-
yond a petition or a brief (or a similar document) that does not alert
it to the presence of a federal claim.” Baldwin v. Reese,
541 U.S.
27, 32 (2004). Thus, the state petition must make the state court
aware that the claims asserted do, in fact, raise federal constitu-
tional issues. Snowden,
135 F.3d at 735.
The exhaustion requirement is satisfied when the petitioner
properly raised the issue in state court, even if the court did not
rule on it. Smith v. Digmon,
434 U.S. 332, 333 (1978). In that case,
no deference is owed under § 2254(d), and the claim is instead re-
viewed de novo. Brewster v. Hetzel,
913 F.3d 1042, 1051 (11th Cir.
2019). However, “when a petitioner has failed to exhaust his claim
by failing to fairly present it to the state courts and the state court
remedy is no longer available, the failure also constitutes a proce-
dural bar.” McNair,
416 F.3d at 1305. As with the exhaustion re-
quirement, a procedural bar resulting from a petitioner’s failure to
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20-12002 Opinion of the Court 5
properly exhaust his state court remedies can only be waived ex-
pressly by the state.
Id. at 1305-06.
However, where the petitioner failed to raise a claim in state
court but overcomes that procedural default, we review the claim
“without any § 2254(d)(1) deference, because there is no state court
decision on the merits of [the] claim.” Wright v. Sec’y for Dep’t of
Corr.,
278 F.3d 1245, 1259 (11th Cir. 2002). Additionally, “[a] fed-
eral court may still address the merits of a procedurally defaulted
claim if the petitioner can show cause for the default and actual
prejudice resulting from the alleged constitutional violation.”
Ward v. Hall,
592 F.3d 1144, 1157 (11th Cir. 2010).
Where there is a trial error, habeas petitioners are not enti-
tled to habeas relief based on the error unless they can establish
that it resulted in “actual prejudice.” Brecht v. Abrahamson,
507
U.S. 619, 637 (1993). “Under this test, relief is proper only if the
federal court has grave doubt about whether a trial error of federal
law had substantial and injurious effect or influence in determining
the jury’s verdict.” Davis v. Ayala,
576 U.S. 257, 267–68 (2015)
(quotation marks omitted). “There must be more than a reasona-
ble possibility that the error was harmful,” which reflects the view
that states should not be “put to th[e] arduous task [of retrying a
defendant] based on mere speculation that the defendant was prej-
udiced by trial error.”
Id. at 2198 (quotation marks omitted, alter-
ations in original). Questions of state law, moreover, rarely raise
issues of federal constitutional significance. Carrizales v. Wain-
wright,
699 F.2d 1053, 1054–55 (11th Cir. 1983). An erroneous jury
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6 Opinion of the Court 20-12002
instruction “raises an issue of constitutional dimension only if it
renders the entire trial fundamentally unfair.”
Id. (quoting Smith
v. Smith,
454 F.2d 572, 579 (5th Cir. 1971)).
In April 2010, the Florida Supreme Court held that intent to
kill is not an element of manslaughter by act. State v. Montgom-
ery,
39 So. 3d 252, 254 (Fla. 2010). It concluded that giving the
manslaughter-by-act instruction (erroneously stating that an intent
to kill was required) constituted fundamental error where the de-
fendant was indicted and tried for first-degree murder and con-
victed of second-degree murder after the jury was erroneously in-
structed on the lesser included offense of manslaughter.
Id. at
257-59. The court determined that this error was fundamental be-
cause manslaughter was a category one lesser included offense that
was removed two steps from first-degree murder, and the jury had
to be provided an opportunity to exercise its pardon power to con-
vict the defendant of the next lower crime.
Id.
In February 2013, the Florida Supreme Court held that giv-
ing the erroneous manslaughter-by-act instruction in a murder trial
was a fundamental error where: (1) the jury also received instruc-
tions on manslaughter by culpable negligence; (2) the jury con-
victed the defendant of second-degree murder; (3) the evidence
supported a guilty verdict for manslaughter by act; and (4) the evi-
dence did not reasonably support a guilty verdict for manslaughter
by culpable negligence. Haygood v. State,
109 So. 3d 735, 737, 741
(Fla. 2013). It concluded that a fundamental error occurred in
Haygood’s trial because the evidence did not support a finding of
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20-12002 Opinion of the Court 7
culpable negligence, as Haygood admitted to striking, choking, and
tripping the victim.
Id. at 741-42.
In Florida, Rule 3.850 motions must be brought within two
years of the finalized judgment or sentence. Fla. R. Crim. P.
3.850(b). Rule 3.850 motions may be brought after the two-year
period if the right asserted was not established within the period, it
has been held to apply retroactively, and the claim is brought
within two years of the date of the decision announcing retroactiv-
ity. Id. at 3.850(b)(2).
As an initial matter, while the issue of exhaustion was not
specifically articulated in the COA, we may review any procedural
issues that must be resolved before reaching the merits of the
claim, which would include exhaustion. The state did not waive
any argument that the claim should be denied based on lack of ex-
haustion because it raised an argument below that Samuel failed to
exhaust the claim.
Here, Samuel failed to properly exhaust his claim by failing
to fairly present his federal claim to the state court. On his direct
appeal, he argued only that the court erred in not rereading the
instruction when the jury asked for clarification. When addressing
the erroneous jury instruction in his first Rule 3.850 motion, he did
not present the court with the particular legal basis of his current
federal claim because he failed to raise the issue of constitutional
error based on Montgomery and Haygood, instead raising the
claim as an issue of ineffective assistance of counsel for accepting
an erroneous jury instruction. In his second Rule 3.850 motion,
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8 Opinion of the Court 20-12002
while he referred to “fundamental error,” he pointed only to state
law cases in support and did not refer to the constitution or any
federal rights. While he cited to Montgomery and Haygood, nei-
ther of those cases talk about constitutional error. Moreover, he
conceded in the district court that he did not properly exhaust this
claim in any state proceeding. Further, Samuel would be barred
from presenting the claims in state court because the remedy is no
longer available in a Rule 3.850 motion, as more than two years
passed since Montgomery and Haygood were decided, and his
claim is therefore procedurally barred. Therefore, Samuel failed to
exhaust this claim. Accordingly, we affirm. 1
AFFIRMED.
1
In light of our disposition, we need not address the several alternative
grounds to affirm suggested by Appellee’s brief.
