Martin v. Secretary, Department of Corrections , 262 F. App'x 990 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 23, 2008
THOMAS K. KAHN
No. 07-12376
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 05-00747-CV-T-17-MSS
HUGH GILBERT MARTIN,
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
_________________________
(January 23, 2008)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Appellant Hugh Gilbert Martin, a Florida state prisoner serving sentences for
attempted sexual battery, false imprisonment, and tampering with a witness,
appeals the district court’s denial of his pro se § 2254 habeas petition. We granted
a certificate of appealability (“COA”) on three issues: (1) whether the district court
erred, or abused its discretion, in disregarding the State’s written waiver of an
exhaustion defense; (2) if not, whether the district court correctly found that eight
of Martin’s claims were unexhausted in state court because he failed to raise them
there; and (3) whether the district court erred in denying Martin’s claim that his
constitutional right to a speedy trial was violated.
I.
In June 2005, Martin, proceeding pro se, filed the present federal habeas
corpus petition under 28 U.S.C. § 2254, raising 12 claims for relief and indicating
that he raised none of them through a post-conviction motion or petition for habeas
corpus in a state trial court, although he stated that all issues had been raised on
direct appeal. One of the claims alleged that Martin’s Sixth Amendment right to a
speedy trial was violated.
The State responded, denying that Martin was entitled to relief. According
to the State, all claims raised in Martin’s petition were raised on direct appeal, but
no collateral proceeding occurred under Fla.R.Crim.P. 3.850. Nevertheless, the
2
State noted that it “[did] not assert the exhaustion doctrine.” The State also
asserted that a speedy trial violation did not occur.
After reviewing Martin’s state court record, the district court found that
Martin failed to exhaust the federal dimension of eight of his claims. The court
stated that “[t]he exhaustion of the federal dimension of a habeas claim is a
statutory requirement that cannot be waived by this Court.” The district court did
not address the merits of the eight claims. Instead, it found that the eight claims
were procedurally barred and denied relief.
The district court also found habeas relief was not warranted on Martin’s
speedy trial claim because there had been no deprivation of his federal
constitutional rights. More specifically, the court considered the four factors from
Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972), and found that the Florida
appellate court’s decision that Martin’s speedy trial rights were not violated was
not contrary to or an unreasonable application of clearly established federal law or
an unreasonable determination of the facts of the case and denied relief.
Ultimately, the district court denied all of Martin’s claims with prejudice. We
subsequently granted a COA as to the three issues noted above.
II.
“We review de novo a district court’s grant or denial of a habeas corpus
3
petition.” McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). Exhaustion
presents a mixed question of law and fact, subject to de novo review. Fox v. Kelso,
911 F.2d 563, 568 (11th Cir. 1990). The pleadings of a pro se litigant are liberally
construed. See Pugh v. Smith, 465 F.3d 1295, 1300 (11th Cir. 2006) (liberally
construing a pro se petitioner’s § 2254 pleadings).
Generally, a habeas petitioner cannot raise a claim in federal court if the
claim was not first exhausted in state court. 28 U.S.C. § 2254(b)(1); Kelley v.
Sec’y for Dep’t of Corr., 377 F.3d 1317, 1343 (11th Cir. 2004). Exhaustion
protects the “States’ sovereign power to punish offenders and their good-faith
attempts to honor constitutional rights.” Engle v. Isaac, 456 U.S. 107, 128, 102 S.
Ct. 1558, 1572 (1982).
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, 333-34, 98 S. Ct. 597, 599 (1978). “It is settled that a habeas petitioner
need not have sought state habeas relief so long as he has exhausted his direct
appeal remedies.” Pedrero v. Wainwright, 590 F.2d 1383, 1387 n.2 (5th Cir.
1979). 1
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to October 1, 1981.
4
“The teeth of the exhaustion requirement comes from its handmaiden, the
procedural default doctrine. If the petitioner has failed to exhaust state remedies
that are no longer available, that failure is a procedural default which will bar
federal habeas relief,” unless one of two exceptions apply: cause and prejudice or
fundamental miscarriage of justice. Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir.
2001). If the petitioner never raised the claim in state court, and it is obvious that
the unexhausted claim would be procedurally barred in state court, “the exhaustion
requirement and procedural default principles combine to mandate dismissal.”
Bailey v. Nagle, 172 F.3d 1299, 1303 (11th Cir. 1999).
“Acting through their attorneys general, states can waive procedural bar
defenses in federal habeas proceedings.” Hills v. Washington, 441 F.3d 1374,
1376 (11th Cir. 2006). The requirement that habeas claims be exhausted is not
jurisdictional and may be waived by the state. Davis v. Dugger, 829 F.2d 1513,
1521 (11th Cir. 1987). A district court may not dismiss a habeas petition for
failure to exhaust state remedies unless the state first responds and raises an
exhaustion defense or waives exhaustion. Id. If the state waives exhaustion, the
district court may invoke the procedural bar sua sponte if “requiring the petitioner
to return to state court to exhaust his claims serves an important federal interest.”
Esslinger v. Davis, 44 F.3d 1515, 1524-26 (11th Cir. 1995) (holding that invoking
5
the bar served no important federal interest). An example of an important federal
interest occurs where the case presents an issue on which an unresolved question of
fact or of state law might have an important bearing and both comity and judicial
efficiency require complete exhaustion to ensure that the district court may
ultimately review the issue on a fully informed basis. Id. at 1524 n.34.
Nevertheless, the district court should assume that the waiver by the state is
justified and should not invoke the bar sua sponte without giving the petitioner an
opportunity to show cause for the default. Id. at 1528; see also Thompson v.
Wainwright, 714 F.2d 1495, 1509-10 (11th Cir. 1983) (vacating and remanding
where we could not determine if the district court rejected the state’s waiver on the
ground that exhaustion could not be waived or because exhaustion would aid
federal review).
Finally, we may affirm for any reason supported by the record even if not
relied upon by the district court. See Williams v. Bd. of Regents of the Univ. Sys. of
Ga., 477 F.3d 1282, 1301 (11th Cir. 2007).
Here, the State explicitly waived exhaustion as a defense and did so
permissibly, and the district court appears to have erroneously disregarded the
State’s waiver on the ground that exhaustion may not be waived if the federal
aspects of a petitioner’s claims have not been fully developed at the State level.
6
Furthermore, the district court never gave Martin an opportunity to show cause for
default before determining that exhaustion barred eight of his claims. The district
court also did not make alternative findings regarding the merits of the eight
claims, and although we can “affirm on any basis” in some cases, here, the absence
of findings means that we cannot determine the merits of the eight claims.
Accordingly, we vacate the district court’s order denying habeas relief in this
respect and remand for further proceedings. We also do not consider whether the
district court correctly found that eight of Martin’s claims were unexhausted in
state court as a result of his failure to raise them there.
III.
With respect to Martin’s speedy trial claim under the Constitution, the
district court could not grant habeas relief on that under 28 U.S.C. § 2254(d) unless
the adjudication in state court “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established 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.” A state court’s
decision is contrary to clearly established federal law if the state court: (1) arrives
at a conclusion opposite to that reached by the Supreme Court on a question of
law; or (2) decides a case differently than the Supreme Court on a set of materially
7
indistinguishable facts. Ventura v. Attorney General, Fla., 419 F.3d 1269, 1280-81
(11th Cir. 2005). A state court’s decision is an unreasonable application of clearly
established federal law if the state court identifies the correct governing legal
principle from decisions of the Supreme Court, but applies it in an objectively
unreasonable manner to the facts of the petitioner’s case. Id. at 1286. The
determination of a factual issue made by a state court is presumed correct and the
petitioner has the burden of rebutting that presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
The Sixth Amendment to the Constitution provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy . . . trial.” U.S. C ONST.
amend. VI. In determining whether a defendant’s right to a speedy trial was
violated, the following four factors are considered: (1) the length of delay; (2) the
reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to
the defendant. Barker, 407 U.S. at 530, 92 S. Ct. at 2192.
“The first factor serves a triggering function; unless some ‘presumptively
prejudicial’ period of delay occurred, we need not conduct the remainder of the
analysis.” United States v. Register, 182 F.3d 820, 827 (11th Cir. 1999). “A delay
is considered presumptively prejudicial as it approaches one year” from indictment
to trial. United States v. Schlei, 122 F.3d 944, 987 (11th Cir. 1997); see also
8
United States v. Harris, 376 F.3d 1282, 1290 (11th Cir. 2004) (a delay of 18
months is presumptively prejudicial). When calculating the length of delay, any
period of delay caused by the petitioner should be excluded. Hill v. Wainwright,
617 F.2d 375, 378 (5th Cir. 1980).
Different weights are assigned to different reasons for delay. Barker, 407
U.S. at 531, 92 S. Ct. at 2192. A deliberate attempt to hinder the defense is
weighted heavily against the State, negligence or overcrowded courts are weighted
less heavily against the State, and legitimate reasons like a missing witness justify
an appropriate delay. Id. at 531, 534, 92 S. Ct. at 2192, 2194 (noting that the
illness of a witness was a strong excuse for delay). Pretrial delay is often
inevitable and “wholly justifiable” because the State may need time to, inter alia,
collect witnesses against the accused. Doggett v. United States, 505 U.S. 647, 656,
112 S. Ct. 2686, 2693 (1992). “Between diligent prosecution and bad-faith delay,
official negligence in bringing an accused to trial occupies the middle ground.” Id.
at 656-57, 112 S. Ct. at 2693 (reversing our decision that failure to demonstrate
actual prejudice excuses negligence). Whether and how a defendant asserts his
right to a speedy trial is also part of the balancing test. Barker, 407 U.S. at 532,
534-35, 92 S. Ct. at 2192, 2194 (defendant waited more than three years before
asserting his right to a speedy trial).
9
In this circuit, if the State pursued prosecution with reasonable diligence
then the defendant must show actual prejudice to prevail on a Sixth Amendment
speedy trial claim. Harris, 376 F.3d at 1290. Moreover, even if all three Barker
factors weigh against the State, if they do not do so heavily then the petitioner must
demonstrate actual prejudice to prevail. See United States v. Ingram, 446 F.3d
1332, 1338 (11th Cir. 2006) (direct appeal context). In determining prejudice, the
crime charged and the proof existing on the date of indictment should be
considered. Id. at 1339. “[T]he delay that can be tolerated for an ordinary street
crime is considerably less than for a serious, complex conspiracy charge.” Barker,
407 U.S. at 531, 92 S. Ct. at 2192. Three additional factors should be considered:
(1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and
concern of the accused; and (3) limiting the possibility that the defense will be
impaired. Id. at 532, 92 S. Ct. at 2193. The last factor is the most important. Id.
The federal Speedy Trial Act, 18 U.S.C. §§ 3161-3174, does not apply to
state court proceedings. See United States v. Bell, 833 F.2d 272, 277 (11th Cir.
1987) (noting that the Speedy Trial Act clock started running only after a federal
indictment was returned, even though federal authorities were involved in earlier
related state proceedings). Instead, as a Florida prisoner, Martin’s rights were
governed by Florida’s speedy trial rules. These rules are also not controlling
10
because they are not based on clearly established federal law, having been
promulgated by Florida and not the Supreme Court, although they are relevant in
examining whether an unreasonable determination of the facts occurred in light of
the evidence below. See 28 U.S.C. § 2254(d); Ventura, 419 F.3d at 1280-81, 1286.
Here, the central question is whether the determination by the Florida courts
that Martin was not deprived of the right to a speedy trial was contrary to or
involved an unreasonable application of clearly established federal law. See 28
U.S.C. § 2254(d).
The length of delay from the time the information was filed until the time of
trial was approximately sixteen months (from December 2000 until April 2002)
and is presumptively prejudicial based on applicable caselaw, despite the district
court’s contrary finding. See Register, 182 F.3d at 827. The record indicates that
several reasons for the delay existed and Martin was to blame in part because,
among other things, he filed an interlocutory appeal and requested that the trial
judge recuse himself. To the extent that the delays were primarily caused by the
State’s inability to get a witness to testify, a problem with a witness justifies an
appropriate delay. See Doggett, 505 U.S. at 656, 112 S. Ct. at 2693. Moreover, to
the extent all three Barker factors weighed against the State, they did not do so
heavily, and Martin had to demonstrate actual prejudice to prevail. See Ingram,
11
446 F.3d at 1338.
Martin did not establish actual prejudice. See Barker, 407 U.S. at 531, 92
S.Ct. at 2192. This is primarily because he alleged no facts and introduced no
evidence showing that his defense was impaired by the delay. See id.
Accordingly, we conclude that the district court did not err in finding that the state
court adjudication did not result in a decision that was contrary to or involve an
unreasonable application of clearly established federal law, or one involving an
unreasonable determination of the facts, and we affirm the denial of Martin’s
petition in this respect.
VACATED AND REMANDED IN PART; AFFIRMED IN PART.
12