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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-12518
Non-Argument Calendar
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D.C. Docket No. 6:15-cv-01096-GKS-GJK
KYLE A. KEYS,
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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(May 23, 2019)
Before TJOFLAT, JORDAN and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Kyle Keys filed a habeas petition under 28 U.S.C. § 2254 claiming that the
State of Florida violated Giglio v. United States,
405 U.S. 150 (1972), by failing to
disclose information he could have used to impeach a prosecution witness. We are
barred from considering his claim, however, because he has procedurally defaulted
it, and we therefore affirm the dismissal with prejudice of his petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Crime and the Trials
Keys was tried three times for first-degree murder and robbery with a
firearm. His acquaintance Toris Oliver did not testify at the first two trials, which
ended in a hung jury and a mistrial, respectively. At the third trial, Oliver testified
that he and Keys pulled into the grounds of an apartment building to let Keys out
to ask a woman for a cigarette. Oliver saw Keys approach the woman with a gun
and try to grab her purse, then heard two gunshots and the woman screaming for
help, and then saw her fall. When Keys returned to the car with a billfold and cell
phone, Oliver asked if he had shot the lady, and Keys replied, “I shot in the air.”
Doc. 12-18 at 49. 1 Later, after learning that the woman had died, Oliver
confronted Keys, who said that he had not meant to shoot her and that “the gun just
went off.”
Id. at 54. On direct, cross, and redirect examination, Oliver denied that
1
“Doc #” refers to the numbered entries on the district court’s docket.
2
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the prosecution had offered him anything in exchange for his testimony. Keys’s
third trial ended in his convictions on the murder and robbery charges.
After the verdict, Keys’s trial lawyer received a letter from Oliver admitting
that he had lied on the stand when he denied having received anything from the
prosecution in exchange for his testimony. Oliver enclosed a letter from his own
lawyer to himself regarding a conversation she had with the prosecution about the
possibility of a deal in which the State would ask for a lower sentence if Oliver
testified against Keys.
B. Keys’s Motion Under Florida Rule of Criminal Procedure 3.850
Through counsel, Keys filed a post-conviction motion pursuant to Florida
Rule of Criminal Procedure 3.850 arguing that Oliver’s letter and enclosure were
newly discovered evidence that undermined the validity of the jury verdict. The
contents of Keys’s Rule 3.850 motion are essential to our resolution of the instant
appeal, so we describe them in detail.
In his five-paragraph argument, Keys raised a single claim titled “Newly
discovered evidence.” Doc. 12-27 at 74. The first two paragraphs described
Oliver’s trial testimony and his post-trial letter and enclosure. The third paragraph
quoted the standard for a newly discovered evidence claim under Florida law. See
Burns v. State,
858 So. 2d 1229, 1230 (Fla. Dist. Ct. App. 2003). Keys argued he
met both prongs of the standard: (1) the evidence of Oliver’s deal with the
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prosecution was newly discovered because Keys could not have learned of it
earlier through due diligence; and (2) introduction of the new evidence to impeach
Oliver would “probably produce an acquittal” on retrial, especially since the first
trial—at which Oliver did not testify—ended in a hung jury. Doc. 12-27 at 74-75;
see also
Burns, 858 So. 2d at 1230.
The fourth paragraph contained a large block quotation from a U.S. Court of
Appeals for the Ninth Circuit case to illustrate “the importance of informing the
jury that a prosecution witness has been offered a lenient sentence in exchange for
his or her testimony.” Doc. 12-27 at 75. That Ninth Circuit case and four other
federal cases Keys cited all discussed Giglio claims. See Carriger v. Stewart,
132 F.3d 463, 479 (9th Cir. 1997) (en banc) (quoting United States v. Bernal-
Obeso,
989 F.2d 331, 333-34 (9th Cir. 1993)); Brown v. Wainwright,
785 F.2d
1457, 1466 (11th Cir. 1986); United States v. Barham,
595 F.2d 231, 242-43 (5th
Cir. 1979); Tassin v. Cain,
482 F. Supp. 2d 764, 775 (E.D. La. 2007). Keys
introduced the other citations to argue that Oliver’s testimony was “inherently
untrustworthy,” that “it [wa]s probable that [Keys] would be acquitted” if Keys
could use the new evidence to impeach Oliver on retrial, and that “[c]ourts . . .
have consistently held that [post-trial] disclosure of a deal between the prosecution
and the prosecution’s key witness entitles the defendant to a new trial.” Doc. 12-
27 at 76 & n.2 (internal quotation marks omitted).
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Citing only Florida state cases, the fifth and final paragraph requested an
evidentiary hearing to determine whether the post-trial evidence qualified as newly
discovered and whether it would likely lead to an acquittal if used in a retrial.
Keys later amended his Rule 3.850 motion to attach Oliver’s letter and its
enclosure, Oliver’s letter from his lawyer.
The Florida circuit court denied Keys’s Rule 3.850 motion. In his motion
for rehearing, Keys described his claim as a “newly discovered evidence claim.”
Doc. 12-28 at 25. His only argument was that the court failed to appreciate that
Oliver’s letter and enclosure were newly discovered, and the only case he cited
was a Florida state case on the deadline for filing a motion for rehearing. See
Whipple v. State,
867 So. 2d 433 (Fla. Dist. Ct. App. 2004). The circuit court
denied his motion for rehearing. On appeal to the Florida district court of appeal,
Keys again captioned his claim as a “newly discovered evidence claim.” Doc. 12-
28 at 35, 43. Most of his appellate brief was copied verbatim from his Rule 3.850
motion, including his citations to Carriger, Bernal-Obeso, Brown, Barham, and
Tassin. The only new substance was the addition of a few paragraphs citing only
Florida state cases and arguing that Oliver’s letter and enclosure qualified as newly
discovered evidence. The Florida district court summarily affirmed the denial of
Keys’s Rule 3.850 motion. His motion for rehearing again referred to his “newly
discovered evidence claim” and argued that Oliver’s letter and enclosure were
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newly discovered. Doc. 12-28 at 53. The Florida district court summarily denied
that motion.
C. Keys’s Habeas Petition Under 28 U.S.C. § 2254
After the Florida district court of appeal denied Keys’s motion for rehearing,
Keys filed his § 2254 petition in federal district court. That petition raised two
claims; only the first is before us.2 Keys titled that claim “Violation pursuant to
Giglio v. United States,
405 U.S. 150 (1972).” Doc. 1 at 6. He explained that
Giglio stands for the proposition that due process requires the prosecution to
disclose material evidence the defense can use to impeach a government witness,
and then he used the same block quotation from Carriger and citations to Bernal-
Obeso, Barham, Brown, and Tassin that he used in his Rule 3.850 motion. He
requested an evidentiary hearing to develop the factual basis for his Giglio claim, 3
but the district court dismissed his petition with prejudice. This is Keys’s appeal.
2
Because Keys makes no argument to this Court regarding the second claim contained in
his § 2254 petition—that the state trial court erred in denying Keys’s motion for acquittal—he
has abandoned that claim. See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681-82
(11th Cir. 2014).
3
The same counsel who filed Keys’s Rule 3.850 and subsequent state post-conviction
motions filed his § 2254 petition.
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II. STANDARD OF REVIEW
We review de novo the mixed question of law and fact of whether a § 2254
petitioner has procedurally defaulted a claim. Ogle v. Johnson,
488 F.3d 1364,
1368 (11th Cir. 2007).
III. DISCUSSION
The district court correctly dismissed with prejudice Keys’s § 2254 petition
because he failed to fairly present his Giglio claim to the Florida post-conviction
courts, resulting in an uncured procedural default.
Federal habeas petitioners must “fairly present[]” their federal claims to the
state courts, Picard v. Connor,
404 U.S. 270, 275 (1971), to give the state courts a
“meaningful opportunity” to consider any federal bases for relief, Vasquez v.
Hillery,
474 U.S. 254, 257 (1986). Otherwise, the claims are procedurally
defaulted, and federal courts may not review the claims on their merits. See
Coleman v. Thompson,
501 U.S. 722, 731-32, 735 n.1 (1991). Keys failed to
comply with this requirement throughout the litigation of his Rule 3.850 motion.
To begin with, the presentation of his Rule 3.850 motion would not have alerted a
state court that Keys intended to raise a Giglio claim. He captioned his claim
“Newly discovered evidence,” Doc. 12-27 at 74; cited the state law standard for
bringing a newly discovered evidence claim; argued that he could meet the two-
pronged standard—(1) newly discovered evidence that would (2) “probably
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produce an acquittal on retrial,”
Burns, 858 So. 2d at 1230; and requested an
evidentiary hearing to develop the factual basis for his claim. He cited federal
cases that cited Giglio, but he cited those cases only to support his contention that
he could meet the second prong of a Florida law newly discovered evidence
claim—showing that the new evidence would “probably produce an acquittal on
retrial.”
Id.
Moreover, had Keys properly presented a Florida law newly discovered
evidence claim and a Giglio claim to the state courts, he would have alerted the
Florida courts to the lower standard for sustaining a Giglio claim as contrasted with
the Florida law claim. Doing so would have given the Florida courts the
opportunity to grant his Giglio claim even if they denied his newly discovered
evidence claim. A Florida law newly discovered evidence claim requires that the
new evidence be “such that it would probably produce an acquittal on retrial,”
Burns, 858 So. 2d at 1230, whereas a Giglio claim requires only a “reasonable
likelihood that the false testimony could have affected the judgment of the jury,”
United States v. Alzate,
47 F.3d 1103, 1110 (11th Cir. 1995) (internal quotation
marks omitted). Florida law’s standard for relief based on newly discovered
evidence is far more stringent than Giglio’s standard. But Florida law’s standard is
practically indistinguishable from the materiality standard under Brady v.
Maryland,
373 U.S. 83 (1963)—“reasonable probability that, had the evidence
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been disclosed to the defense, the result . . . would have been different.” United
States v. Bagley,
473 U.S. 667, 682 (1985). Because Giglio’s materiality standard
is “more defense-friendly” than Brady’s,
Alzate, 47 F.3d at 1109-10, it is also more
defense-friendly than Florida’s standard for a newly discovered evidence claim.
If Keys had wanted to present a Giglio claim to the Florida courts, he would
have called attention to Giglio’s more defense-friendly materiality standard. This
would have given the Florida courts an opportunity to grant his Giglio claim even
if they decided his Florida law newly discovered evidence claim lacked merit.
Keys’s failure to mention Giglio’s materiality standard in his Rule 3.850 motion is
strong evidence that he failed to fairly present his Giglio claim to the Florida
courts. 4
Keys’s case resembles McNair v. Campbell,
416 F.3d 1291 (11th Cir. 2005).
There, McNair’s state court post-conviction motion argued that the jury had
improperly considered extrinsic evidence in violation of Alabama law,
id. at 1303,
which requires the court to determine that the extraneous evidence “might have
unlawfully influenced” the jury, Ex parte Troha,
462 So. 2d 953, 954 (Ala. 1984)
(internal quotation marks omitted). We observed that the materiality standard in a
4
After Keys filed his Rule 3.850 motion, a Florida appellate court issued an opinion
discussing at length the differences between a Florida law newly discovered evidence claim and
a Giglio claim. See Cueto v. State,
88 So. 3d 1064, 1067 (Fla. Dist. Ct. App. 2012). Although
Keys did not have the benefit of Cueto, the caselaw setting out the different materiality standards
was available to him.
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federal extraneous evidence claim is even lower—extraneous evidence is
“presumptively prejudicial”—but the petitioner “never mentioned, much less
argued, th[at] federal standard.”
McNair, 416 F.3d at 1303. And, just as
“McNair’s reliance on state law continued when he went before the Alabama
Supreme Court,”
id., Keys consistently referred to his claim as a “newly
discovered evidence claim” throughout his state court post-conviction litigation. 5
Our conclusion that McNair failed to “fairly present his federal constitutional claim
to the state court,”
id. at 1304, applies equally here.
Keys contends that his citations to federal cases citing Giglio sufficed to
fairly present a Giglio claim in his Rule 3.850 motion. The U.S. Supreme Court
has stated that “[a] litigant wishing to raise a federal issue can easily indicate the
federal law basis for his claim in a state-court petition . . . by citing in conjunction
with the claim . . . a case deciding such a claim on federal grounds.” Baldwin v.
Reese,
541 U.S. 27, 32 (2004). But Baldwin concerned a § 2254 petitioner who
raised an ineffective assistance of counsel claim to the state courts; failed to
specify whether the basis for that claim was state law, federal law, or both; and
then sought to raise a federal ineffective assistance of counsel claim in federal
5
Doc. 12-27 at 88 (amendment to Rule 3.850 motion); Doc. 12-28 at 2 (reply to state’s
response to Rule 3.850 motion), 25 (motion for rehearing before Florida circuit court), 35, 43
(appellate brief to Florida district court of appeal), 53 (motion for rehearing before Florida
district court of appeal).
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court.
Id. at 29-30. In other words, Baldwin addressed a situation in which the
federal habeas court had to determine whether the § 2254 petitioner had raised only
a state law claim to the state courts or also the federal law analog to that state law
claim.
That is not the situation we face here. The federal analog of a Florida law
newly discovered evidence claim is a federal newly discovered evidence claim.
See United States v. Scrushy,
721 F.3d 1288, 1304-05 (11th Cir. 2013) (elements:
“(1) the evidence must be newly discovered and have been unknown to the
defendant at the time of trial; (2) the evidence must be material, and not merely
cumulative or impeaching; (3) the evidence must be such that it would probably
produce an acquittal; and (4) the failure to learn of such evidence must be due to
no lack of due diligence on the part of the defendant”). Giglio, by contrast,
concerns a situation where the government knew or should have known of evidence
in its possession that the defense could have used to impeach a government
witness. See
Bagley, 473 U.S. at 676 (“Impeachment evidence . . . falls within the
Brady rule. See Giglio . . . .”);
id. at 678 (explaining that Brady concerns
“information favorable to the accused that had been known to the prosecution but
unknown to the defense”); Ford v. Hall,
546 F.3d 1326, 1331 (11th Cir. 2008)
(setting forth the “knew[] or should have known” standard for “Giglio error,
[which is] a species of Brady error”). The requirement that a § 2254 petitioner
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fairly present his federal claims to the state courts is not satisfied where he raised
only a “somewhat similar state-law claim” in the state courts. Anderson v.
Harless,
459 U.S. 4, 6 (1982). Keys’s Florida law newly discovered evidence
claim was not “somewhat similar” to a Giglio claim. Thus Baldwin’s generous
language cannot help Keys.
Given Keys’s presentation of his Florida law newly discovered evidence
claim to the state courts and the significant difference in the materiality standards
between that claim and a Giglio claim, we conclude that Keys failed to fairly
present his Giglio claim to the state courts. See
Picard, 404 U.S. at 275. Under
Florida law, “claims that could have been raised in a prior postconviction motion
are procedurally barred.” Rivera v. State,
187 So. 3d 822, 832 (Fla. 2015) (internal
quotation marks omitted). Because Keys has deprived the Florida courts of the
opportunity to consider his Giglio claim, he has procedurally defaulted it, and he
has made no argument for cause and prejudice or a fundamental miscarriage of
justice to overcome the default. See
Coleman, 501 U.S. at 731-32, 735 n.1, 750.
Due to this uncured procedural default, Keys’s Giglio claim provides “no basis for
federal habeas relief,” Snowden v. Singletary,
135 F.3d 732, 736 (11th Cir. 1998),
and the district court properly dismissed with prejudice his § 2254 petition.6
6
The district court ruled in the alternative that Keys’s Giglio claim fails on the merits.
We need not reach the district court’s alternative ruling because we conclude that Keys has
procedurally defaulted this claim. See Thomas v. Cooper Lighting, Inc.,
506 F.3d 1361, 1364
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IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s dismissal with
prejudice of Keys’s § 2254 petition.
AFFIRMED.
(11th Cir. 2007) (“We may affirm the district court’s judgment on any ground that appears in the
record . . . .”).
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