Benjamin R. Singleton v. Donald Barrow , 333 F. App'x 426 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 29, 2009
No. 08-13742 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00008-CV-3
BENJAMIN R. SINGLETON,
Petitioner-Appellant,
versus
DONALD BARROW, Warden,
ATTORNEY GENERAL THURBERT E. BAKER,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(May 29, 2009)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Petitioner is an inmate in a Georgia prison. He is incarcerated because his
parole was revoked.1 He unsuccessfully petitioned the Georgia courts for a writ of
habeas corpus, contending that his Confrontation Clause rights were infringed at
the revocation hearing when he was denied the right to confront an adverse
witness, Sheriff Don Martin. He thereafter petitioned the district court for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. The district court found that
petitioner had procedurally defaulted his Confrontation Clause claim under Ga.
Code Ann. § 9-14-51 because he failed to raise it in his original or amended state
habeas petition, and that he had not shown cause to excuse the procedural default.
Specifically, he had not explained why he could not have obtained the transcript of
his parole revocation hearing prior to his state habeas hearing. We granted a
certificate of appealablity on one issue: “[w]hether the district court erred in
finding that appellant’s Confrontation Clause claim was procedurally defaulted
because he failed to raise it in the state court.”
In his brief on appeal, petitioner concedes that he did not present his
Confrontation Clause claim to the state habeas court. He argues, however, that, at
the time he petitioned the state habeas court, he was unaware that his Confrontation
Clause claim existed, and that once he became aware of its existence, he promptly
1
He had been paroled after serving the required portion of a 15-year sentence for
cocaine possession.
2
sought review in the Georgia Supreme Court. As for cause to excuse the default,
petitioner argues that he was unaware that his right of confrontation might be
violated because he was not informed that Martin would testify at his parole
revocation hearing. After the hearing concluded, he requested a copy of the
transcript of the hearing. His request was denied. He eventually received a copy,
but by that time his appeal (of the denial of the writ) was pending in the Georgia
Supreme Court.
A petitioner for § 2254 relief must exhaust state court remedies before files
his petition in federal court. 28 U.S.C. §§ 2254 (b), (c). A federal habeas court
will consider procedurally barred claims on the merits if the petitioner can show
cause for the failure to bring the claims and actual prejudice or that the court’s
failure to hear the claim would result in a fundamental miscarriage of justice.
Isaacs v. Head, 300 F.3d 1232, 1254 (11th Cir. 2002).
Georgia’s habeas statute provides:
All grounds for relief claimed by a petitioner for a writ of habeas
corpus shall be raised by a petitioner in his original or amended
petition. Any grounds not so raised are waived unless the Constitution
of the United States or of this state otherwise requires or unless any
judge to whom the petition is assigned, on considering a subsequent
petition, finds grounds for relief asserted therein which could not
reasonably have been raised in the original or amended petition.
Ga. Code Ann. § 9-14-51.
3
In Chambers v. Thompson, 150 F.3d 1324, 1325 (11th Cir. 1998), this court held
that Ga. Code Ann. § 9-14-51 “can and should be enforced in federal habeas
proceedings against claims never presented in state court, unless there is some
indication that a state court judge would find the claims in question ‘could not
reasonably have been raised in the original or amended [state habeas] petition.’” Id.
at 1327. After he obtained a copy of the revocation hearing transcript, petitioner
could have returned to the Georgia habeas court and amended his petition. He
failed to do so. His Confrontation Clause claim is therefore procedurally barred
under Ga. Code Ann. § 9-14-51. Petitioner failed to avoid the procedural default
because he failed to show adequate cause for his failure to present his claim to the
state habeas court.
AFFIRMED.
4