Case: 18-12301 Date Filed: 04/28/2020 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-12301
Non-Argument Calendar
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D.C. Docket No. 6:14-cv-00989-RBD-TBS
SCOTT ALLAN MOSER,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF
CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 28, 2020)
Before WILLIAM PRYOR, JILL PRYOR and MARCUS, Circuit Judges.
PER CURIAM:
Scott Moser, a Florida prisoner convicted of two counts of aggravated assault
with a firearm and one count of shooting at or within, or into, an occupied vehicle,
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challenges the district court’s denial of his 28 U.S.C. § 2254 petition. The district
court granted a certificate of appealability on whether the exception established in
Martinez v. Ryan,
566 U.S. 1 (2017), excuses procedurally defaulted claims of
ineffective assistance of appellate counsel. On appeal, Moser argues that the district
court erred in finding that the Martinez exception did not apply to excuse his
procedurally defaulted claims of ineffective assistance of appellate counsel. After
careful review, we affirm.
We review the district court’s denial of a § 2254 petition de novo. McNair v.
Campbell,
416 F.3d 1291, 1297 (11th Cir. 2005). Further, exhaustion and procedural
default present mixed questions of law and fact, subject to de novo review. Fox v.
Kelso,
911 F.2d 563, 568 (11th Cir. 1990); Judd v. Haley,
250 F.3d 1308, 1313 (11th
Cir. 2001). Under the prior precedent rule, we are bound to follow prior binding
precedent “unless and until it is overruled by our court en banc or by the Supreme
Court.” United States v. Vega-Castillo,
540 F.3d 1235, 1236 (11th Cir. 2008).
Appellate courts are bound by controlling Supreme Court precedent. United States
v. Johnson,
921 F.3d 991, 1001 (11th Cir. 2019).
In Martinez, the Supreme Court established an exception to the requirement
under the Antiterrorism and Effective Death Penalty Act that requires all petitioners
to exhaust all available remedies in state court. The Court held:
Where, under state law, claims of ineffective assistance of trial counsel
must be raised in an initial-review collateral proceeding, a procedural
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default will not bar a federal habeas court from hearing a substantial
claim of ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that proceeding was
ineffective.
Martinez, 566 U.S. at 17. Under Martinez, a petitioner must still establish that
the underlying claim is “substantial” and has “merit” before the procedural
default can be excused.
Id. at 14.
In Davila v. Davis, the Supreme Court considered whether the Martinez
exception allowed a federal court to hear a substantial, but procedurally defaulted,
claim of ineffective assistance of appellate counsel.
137 S. Ct. 2058, 2065 (2017).
The Court held that Martinez did not extend or apply to excuse procedurally
defaulted claims of ineffective assistance of appellate counsel.
Id. at 2065-70.
As Moser acknowledges, his argument that the Martinez exception applies to
ineffective-assistance-of-appellate-counsel claims is foreclosed by Supreme Court
precedent. See
id. That precedent is binding, even if it was wrongly decided, as
Moser argues. Accordingly, the district court did not err in finding that Moser’s
procedurally defaulted claims of ineffective assistance of appellate counsel were not
excusable under Martinez, and we affirm.
AFFIRMED.
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