Raul Carillo v. Secretary, Florida Department of Corrections , 477 F. App'x 546 ( 2012 )


Menu:
  •                                                        [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________            FILED
    U.S. COURT OF APPEALS
    No. 10-14732         ELEVENTH CIRCUIT
    APRIL 25, 2012
    Non-Argument Calendar
    JOHN LEY
    ________________________
    CLERK
    Docket No. 1:08-cv-22977-JAL
    RAUL CARRILLO,
    Petitioner-Appellant,
    versus
    SECRETARY, FLORIDA DEPARTMENT OF
    CORRECTIONS,
    Respondent-Appellee.
    _________________________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________________________
    (April 25, 2012)
    Before EDMONDSON, MARTIN, and ANDERSON, Circuit Judges.
    PER CURIAM:
    Raul Carrillo, a Florida prisoner proceeding with the assistance of appointed
    counsel, appeals the district court’s dismissal of his pro se 
    28 U.S.C. § 2254
     habeas
    corpus petition challenging his convictions and life sentence for first-degree
    murder and aggravated stalking with a firearm. No reversible error has been
    shown; we affirm.
    As an initial matter -- because the timely filing of a notice of appeal is a
    mandatory prerequisite for the exercise of appellate jurisdiction -- we must address
    whether Carrillo’s notice of appeal was timely filed. See Rinaldo v. Corbett, 
    256 F.3d 1276
    , 1278 (11th Cir. 2001). Carrillo was required to file a notice of appeal
    “within 30 days after the judgment or order appealed from [was] entered.” See
    Fed.R.App.P. 4(a)(1)(A). Although the district court entered an order denying
    Carrillo’s petition on 23 July 2010, it failed to set forth its judgment in a separate
    document, as required by Fed.R.Civ.P. 58(a). See Jackson v. Crosby, 
    375 F.3d 1291
    , 1293 n.5 (11th Cir. 2004) (noting that Rule 58(a)(1) requires a district court
    to set out its judgment in a separate document when denying a petition for habeas
    corpus). As a result, the court’s judgment was not deemed “entered” for purposes
    of Rule 4(a) until 150 days later -- on 20 December 2010. See Fed.R.App. P.
    4(a)(7)(A)(ii). Because Carrillo’s notice of appeal was filed before the judgment
    was entered, we treat it as having been filed on the date of entry. See Fed.R.App.P.
    2
    4(a)(2). Thus, Carrillo’s notice of appeal was timely and we have jurisdiction to
    consider his appeal.
    In his section 2254 petition, Carrillo argued that the trial court erred in
    denying his Batson1 challenge to the government’s use of a peremptory strike
    against a male venire member, Paul Soule.2 In response to Carrillo’s Batson
    challenge, the trial court stated that males were not a suspect class requiring a
    Batson-type inquiry.3 Despite this error,4 the prosecutor set forth neutral
    explanations for the strike, stating that Soule had asked why the state was not
    seeking the death penalty and had expressed doubt about the credibility of
    witnesses who were convicted felons. After some discussion about Soule’s
    responses, the trial court granted the strike over Carrillo’s objection.
    1
    Batson v. Kentucky, 
    106 S.Ct. 1712
     (1986).
    2
    On appeal, the state argues that Carrillo’s section 2254 petition should be dismissed for failure
    to exhaust his state administrative remedies. In the district court, however, the state represented that
    Carrillo had “exhausted all of his claims in state court.” Because we conclude that the state
    explicitly waived its exhaustion defense in the district court, we will not consider this defense on
    appeal. See Dorsey v. Chapman, 
    262 F.3d 1181
    , 1186-87 (11th Cir. 2001) (determining that the
    state waived its exhaustion defense when it expressly declined to raise it in its answer to a habeas
    petition).
    3
    Although the trial court did not address Batson itself, it referred to a Neil/Slappy Melbourne
    inquiry, which is Florida’s equivalent of an inquiry under Batson. See Melbourne v. State, 
    679 So.2d 759
     (Fla. 1996); State v. Slappy, 
    522 So.2d 18
     (Fla. 1988); State v. Neil, 
    457 So.2d 481
     (Fla.
    1984).
    4
    When Carrillo’s case was tried in 2005, it was well-established that “the Equal Protection Clause
    prohibits discrimination in jury selection on the basis of gender.” See J.E.B. v. Ala. ex rel. T.B., 
    114 S.Ct. 1419
    , 1430 (1994).
    3
    On direct appeal, the state appellate court affirmed Carrillo’s conviction. In
    doing so, it concluded that -- “[b]ecause the trial court heard the state’s gender-
    neutral explanation, allowed defense counsel to argue its position, and then granted
    the peremptory strike” -- the court “implicitly underwent a genuineness inquiry.”
    The court also determined that the strike was proper because the state’s
    gender-neutral reasons were supported by the record.
    Carrillo raised his Batson claim again in his section 2254 petition, and the
    district court denied it. But the court granted Carrillo a certificate of appealability
    on “whether the state appellate court unreasonably applied federal law in (1) its
    determination that the trial court implicitly performed the third step under Batson .
    . . and (2) its determination that no violation of Batson and its progeny occurred, in
    affirming Petitioner’s conviction.”
    To obtain habeas relief, Carrillo must demonstrate that the state appellate
    court’s ruling was (1) “contrary to, or involved an unreasonable application of,
    clearly established Federal law, as determined by the Supreme Court,” or (2)
    “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)(1), (2). A state
    court’s decision is “contrary to” federal law if “the state court arrives at a
    conclusion opposite to that reached by [the Supreme Court] on a question of law or
    4
    if the state court decides a case differently than th[e] Court has on a set of
    materially indistinguishable facts.” Williams v. Taylor, 
    120 S.Ct. 1495
    , 1523
    (2000). We may not grant habeas relief based solely on our conclusion that the
    state court “applied clearly established federal law erroneously or incorrectly.” 
    Id. at 1522
    . Instead, the state court’s application of federal law “must also be
    unreasonable.” 
    Id.
     We review de novo the district court’s decision about whether
    the state court’s ruling was contrary to federal law, involved an unreasonable
    application of federal law, or was based on an unreasonable determination of the
    facts. Smith v. Sec’y, Dep’t of Corr., 
    572 F.3d 1327
    , 1332 (11th Cir. 2009).
    Batson requires courts to use a three-part test to analyze equal protection
    challenges to the prosecutor’s use of peremptory challenges. Batson, 
    106 S.Ct. at 1723-24
    . First, the defendant must make a prima facie showing of purposeful
    discrimination based on a prohibited ground. 
    Id. at 1723
    . The burden then shifts
    to the prosecutor to articulate a neutral explanation for the challenge. 
    Id.
     Third,
    the trial court has the duty to determine whether the defendant has established
    purposeful discrimination. 
    Id. at 1724
    . At this stage, “the defendant bears the
    burden of convincing the . . . court that the proffered reasons are pretextual by
    introducing evidence of comparability.” Atwater v. Crosby, 
    451 F.3d 799
    , 807
    (11th Cir. 2006). “[T]he ultimate burden of persuasion regarding [discriminatory]
    5
    motivation rests with, and never shifts from, the opponent of the strike.” 
    Id. at 806
    .
    Based on our review of the record, we cannot conclude that the state
    appellate court applied Batson unreasonably in this case. That the trial court erred
    in stating that men were not a protected class is undisputed. But that alone is not
    enough to warrant relief. See Williams, 
    120 S.Ct. at 1522
    . Moreover, the
    exchange between the court and the parties did not end there. Instead, the
    prosecutor proffered that she struck Soule based on his questions about the death
    penalty and his response about the credibility of convicted felons. Although brief,
    the trial court and the parties engaged in some discussion of the substance of
    Soule’s voir dire responses during which defense counsel attempted to rebut the
    prosecutor’s proffered reasons. After considering the parties’ arguments, the trial
    court granted the strike. We conclude that the trial court indeed touched on the
    third step of Batson and, thus, that the state appellate court’s application of Batson
    was reasonable. See Atwater, 
    451 F.3d at 807
     (concluding that the trial court’s
    application of Batson was reasonable where the trial court “touched” on Batson’s
    third step by agreeing with the prosecutor’s characterization of a juror’s voir dire
    response).
    6
    We also are unconvinced that the state appellate court erred in concluding
    that the prosecutor’s peremptory strike was not the product of intentional
    discrimination. “The evaluation of a prosecutor’s [gender]-neutral explanations
    under Batson is a ‘pure issue of fact . . . peculiarly within a trial judge’s province.’”
    McGahee v. Ala. Dep’t of Corr., 
    560 F.3d 1252
    , 1255 (11th Cir. 2009). Thus, we
    will grant habeas relief on a Batson claim only “if it was unreasonable to credit the
    prosecutor’s [gender]-neutral explanations.” 
    Id. at 1256
    . Soule was the only juror
    to question the trial court about the death penalty and it was not unreasonable for
    the trial court to credit the prosecutor’s concern about a juror’s focus on the death
    penalty in a non-capital case. Carrillo also failed to compare Soule’s responses to
    the responses of other venire members and, thus, failed to satisfy his burden of
    demonstrating that the prosecutor’s proffered reasons were pretextual. See
    Atwater, 
    451 F.3d at 807
    .
    AFFIRMED.
    7