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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-11372
Non-Argument Calendar
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D.C. Docket No. 6:15-cv-00803-RBD-TBS
ANTHONY D. GREENWOOD,
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
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(November 7, 2019)
Before MARCUS, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
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Anthony Greenwood appeals the district court’s denial of his pro se petition
for a writ of habeas corpus under 28 U.S.C. § 2254. 1 We granted a certificate of
appealability on the issue of “whether the district court erred in deeming
procedurally defaulted Mr. Greenwood’s claim that trial counsel rendered
ineffective assistance by failing to investigate and prepare adequately for trial.”
After reviewing the evidence presented, we answer this issue in the negative and
conclude that the district court did not err. Greenwood did not give the state court
an opportunity to decide his claim and has not shown cause sufficient to excuse his
failure to present the claim. Accordingly, we affirm.
I.
On December 3, 2010, a Florida jury found Greenwood guilty of possession
of a firearm by a convicted felon in violation of Fla. Stat. § 790.23 2 (count one)
and resisting an officer without violence in violation of Fla. Stat. § 843.02 3 (count
two). Testimony at trial established that the Palm Bay Police Department received
a tip from a confidential informant that illegal activity would take place at a certain
1
While this appeal was pending, Greenwood was released to community supervision. We
nevertheless have jurisdiction because the expiration of a petitioner’s sentence before his
application is fully adjudicated does not terminate federal jurisdiction. Carafas v. LaVallee,
391
U.S. 234, 239 (1968).
2
“It is unlawful for any person to own or to have in his or her care, custody, possession, or
control any firearm, . . . if that person has been: . . . [c]onvicted of a felony.” Fla. Stat. § 790.23
(1)(a).
3
“Whoever shall resist, obstruct, or oppose any officer . . . , without offering or doing violence to
the person of the officer, shall be guilty of a misdemeanor of the first degree.” Fla. Stat.
§ 843.02.
2
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time and place. The police arrived at the scene in question, where they found
Greenwood, who started running. While in flight, Greenwood dropped a firearm
on the ground. Greenwood’s attorney, Todd Deratany, hoped that the case would
end in a plea agreement. The State offered a three-year sentence, but after
Deratany contacted a supervisor from the State Attorney’s Office, the State
withdrew the three-year offer. Immediately before trial began, Deratany told the
court that he had not spent much time working on the case because he hoped that
the case would be resolved with a plea agreement.
The court sentenced Greenwood to seven years as to count one and 258 days
as to count two with credit for time served. The Florida Fifth District Court of
Appeal affirmed. On January 22, 2013, Greenwood filed a pro se motion for post-
conviction relief with the state court under Florida Rule of Criminal Procedure
3.850. As relevant to this appeal, that motion alleged that his counsel was
ineffective because he failed to depose witnesses, failed to test a gun for
fingerprints and DNA evidence, and failed to interview and call witnesses who
might have presented exculpatory evidence. The state court held an evidentiary
hearing, and, on November 21, 2013, denied post-conviction relief. The Fifth
District Court of Appeal affirmed.
Greenwood timely filed a pro se habeas petition under 28 U.S.C. § 2254 in
federal court on May 15, 2015, which the district court dismissed without
3
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prejudice. On August 3, 2015, Greenwood filed an amended habeas petition that
presented three claims. Claim one—the only claim at issue here—stated:
The Petitioner retained Todd Deratany, on 10/22/10, to represent him
in lower court proceedings. Counsel appeared before the trial court on
December 2, 2010 on the Petitioner’s behalf. Counsel testified before
the court that he was not prepared to proceed to trial. Counsel
conceeded during Petitioner’s evidentiary hearing that he believed
[they] would resolve the case with a plea offer which, in fact, the
Petitioner had signed and agreed to. The plea offer was for 3 years.
However, due to the above, the Petitioner lost the advantageous plea
offer and was forced to proceed to trial with an unprepared counsel
where the plea offer was accepted by the Petitioner, would have been
accepted by the court, and would have resulted in a lesser sentence
than was ultimately imposed. See Motion for Postconviction Relief
attached and herein incorporated by reference.
The district court denied the petition after concluding (1) that claim one was
procedurally defaulted because Greenwood failed to exhaust his state court
remedies, and (2) that the remaining claims failed on the merits. We granted a
certificate of appealability on the question of whether the district court properly
concluded that claim one was procedurally defaulted.
II.
As a threshold matter, we liberally construe pro se pleadings. Tannenbaum
v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998). In examining the denial of
a § 2254 petition, we review questions of law and mixed questions of law and fact
de novo, and findings of fact for clear error. Prevatte v. French,
547 F.3d 1300,
1302 (11th Cir. 2008).
4
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Before bringing a habeas action in federal court, the petitioner must exhaust
his claims by presenting them to the state courts, either on direct appeal or
collateral review. 28 U.S.C. § 2254(b), (c); Castille v. Peoples,
489 U.S. 346, 351
(1989). In doing so he “must afford the State a full and fair opportunity to address
and resolve the claim on the merits.” Kelley v. Sec’y for the Dep’t of Corr.,
377
F.3d 1317, 1343 (11th Cir. 2004) (quoting Keeney v. Tamayo-Reyes,
504 U.S. 1,
10 (1992)). The exhaustion requirement applies “not only to broad legal theories
of relief, but also to the specific assertions of fact that might support relief.”
Id. at
1344. With respect to ineffective assistance of counsel claims, the “particular
factual instances of ineffective assistance of counsel” must first be presented to the
state courts.
Id. In other words, “the habeas petitioner must assert [the] theory of
relief and transparently present the state courts with the specific acts or omissions
of his lawyers that resulted in prejudice.”
Id.
In Kelley, we concluded that a habeas petitioner failed to meet the
exhaustion requirement because he did not challenge, in state court, the particular
instance of ineffective assistance that he raised in his habeas petition.
Id. at 1350.
In his state post-conviction motion, Kelley argued that his attorneys failed to
develop defense theories, including the theory that another person performed the
crime unassisted or that another person registered at a motel under Kelley’s name.
Id. at 1348. In his § 2254 petition, however, he argued that his attorneys were
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ineffective because they either failed to investigate before trial or relied on a
disbarred attorney for pretrial investigation.
Id. at 1347. We concluded that
Kelley’s federal claim was unexhausted because it presented a different factual
instance of ineffective assistance from that presented in state court.
Id. at 1348.
We explained that the federal claim was not “merely a clarified rendition” of the
state court claim because Kelley’s state court filings concerned a different instance
of ineffective assistance that did not involve reliance on the disbarred attorney.
Id.
at 1348–49.
Here, as in Kelley, Greenwood challenged different acts of his counsel in
state court than he challenged in his § 2254 petition. Greenwood’s § 2254 claim,
even liberally construed, argues that counsel lost the plea agreement by seeking a
lower sentence than the State offered, expressed ignorance at the revocation of the
agreement, and as a result, was unprepared for trial. 4 However, in the state court,
he argued that counsel failed to investigate by deposing state witnesses,
interviewing potential defense witnesses, and consider possible DNA or fingerprint
evidence.
Moreover, even if we construed Greenwood’s claim more broadly as one
concerning counsel’s failure to prepare for trial, that claim is different from the
failure to investigate claim Greenwood made in state court. Admittedly,
4
This is also how the State understood Greenwood’s argument in his § 2254 petition.
6
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Greenwood’s state- and federal-court claims are factually related. Deratany
testified that he was unprepared for trial because he had expected the case to be
resolved by a plea agreement; the motion states that counsel told the trial court that
he was unprepared for trial. But it is not “sufficient that all the facts necessary to
support the claim were before the state courts or that a similar state-law claim was
made.”
Id. at 1344. The claims themselves must be the same.
Here, in federal court, the essence of Greenwood’s § 2254 claim is that
Deratany lost his client an advantageous plea deal, failed to prepare for trial
because he was unaware that the plea deal had been lost, and as a result, was
unprepared for trial during jury selection. In contrast, the state-court claim
concerned Deratany’s failure to interview and depose witnesses and investigate
DNA and fingerprint evidence. Accordingly, the state courts never had the
opportunity to decide Greenwood’s claims related to the botched plea agreement
because he raised them for the first time in federal court.5
Examining how a court would assess the prejudice prong of Strickland v.
Washington,
466 U.S. 668 (1984), with respect to each claim illustrates the
practical distinction between Greenwood’s claims. In examining counsel’s failure
to investigate, the court would look to whether the outcome of the trial would have
5
We recognize that Greenwood, in his § 2254 petition, attempted to incorporate his Rule 3.850
motion by reference. However, we conclude that such a general reference was insufficient to
transform his unexhausted plea negotiations claim into his exhausted failure to investigate claim.
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been different had counsel fully investigated the case by contacting certain
witnesses or by investigating DNA or fingerprint evidence. Indeed, that is how the
state court approached the prejudice question. See, e.g., Housel v. Head,
238 F.3d
1289, 1294–97 (11th Cir. 2001). In contrast, a prejudice analysis of the claim
Greenwood presented to the district court would focus on whether he would have
received a more favorable sentence under the plea agreement than he received at
trial had counsel not caused the state to withdraw the plea offer. See, e.g., Osley v.
United States,
751 F.3d 1214, 1222 (11th Cir. 2014). The state court did not have
an opportunity to conduct the latter analysis because Greenwood never presented
that claim.
Nevertheless, Greenwood argues that he cured any defect in his original
petition by providing additional details about his claim in his reply. But
Greenwood presented an entirely different claim in his reply. If Greenwood had
alleged failure to investigate in his petition and then, on reply, specified that
counsel failed to investigate fingerprint or DNA evidence, this case would be
decided differently, because he would be adding onto an argument that he made in
his initial brief. Instead, Greenwood’s petition alleged that his counsel lost him a
favorable plea agreement, was ignorant of its revocation, and then was unprepared
for trial as a result. His reply then raised a new factual instance of ineffective
assistance based on a failure to investigate by failing to interview and call
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witnesses, failing to depose the State’s witnesses, or failing to investigate DNA or
fingerprint evidence. The district court was not obligated to consider this new
argument raised in Greenwood’s reply.
Herring, 397 F.3d at 1342. 6
III.
When a petitioner has failed to exhaust state court remedies, and it is clear
that any attempt to do so would be barred in state court, the claim is considered
procedurally defaulted. Bailey v. Nagle,
172 F.3d 1299, 1302–03 (11th Cir. 1999).
It is clear that Greenwood’s unexhausted claim would be procedurally barred in
state court because he has not alleged newly discovered evidence or a new
constitutional right. Young v. State,
724 So. 2d 665, 665 (Fla. 5th Dist. Ct. App.
1999) (explaining that second or successive Rule 3.850 petitions are not permitted
“absent allegations of newly discovered evidence or a new constitutional right”).
Greenwood argues that, even if his claim is procedurally defaulted, the
district court should have excused the default because he did not receive the
transcripts of the jury selection and motion in limine proceedings. Federal courts
will consider a claim despite procedural default if the petitioner can show cause for
his failure to properly present the claim and actual prejudice, or that failing to
consider the claim would result in a fundamental miscarriage of justice. Coleman
6
Greenwood also argues that the district court violated Clisby v. Jones,
960 F.2d 925, 938 (11th
Cir. 1992) (en banc), by not considering on the merits his allegations of failure to investigate.
However, this issue is outside the issues enumerated in the certificate of appealability. Our
“appellate review is limited to the issues specified in the COA.” Maharaj v. Sec’y for the Dep’t
of Corr.,
432 F.3d 1292, 1302 (11th Cir. 2005)
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v. Thompson,
501 U.S. 722, 750 (1991); Sullivan v. Sec’y, Fla. Dep’t of Corr.,
837
F.3d 1195, 1201 (11th Cir. 2016). A fundamental miscarriage of justice results
“where a constitutional violation has probably resulted in the conviction of one
who is actually innocent.” Wright v. Hopper,
169 F.3d 695, 705 (11th Cir. 1999)
(quoting Schlup v. Delo,
513 U.S. 298, 321 (1995)).
Greenwood’s attempt to excuse his claim from procedural default fails for
three reasons. First, the transcripts did not cause his failure to present his claim in
the state courts because he raised the claim in his § 2254 petition despite not
having the transcripts available. Second, the transcripts are only relevant to show
that Deratany told the court he was unprepared for trial, which Greenwood could
have shown with the transcript from his Rule 3.850 hearing where Deratany
admitted he told the court he was unprepared. See McCoy v. Newsome,
953 F.2d
1252, 1260 (11th Cir. 1992) (concluding that the petitioner did not establish cause
where he failed to show there were no other materials available that would have
fulfilled the same function as the transcript). Finally, Greenwood does not argue
that failure to consider his claim would result in a fundamental miscarriage of
justice. See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680 (11th Cir.
2014) (arguments not raised on appeal are waived). Thus, the district court did not
err in deciding not to consider Greenwood’s unexhausted claim.
AFFIRMED.
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