Kurtis Roy Jeter v. Secretary, Florida Department of Corrections

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
U.S. COURT OF APPEALS
No. 11-14965
ELEVENTH CIRCUIT
Non-Argument Calendar JULY 3, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 5:10-cv-00189-RH-GRJ
KURTIS ROY JETER,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(July 3, 2012)
Before CARNES, EDMONDSON, and FAY, Circuit Judges.
PER CURIAM:
Kurtis Roy Jeter, a Florida state prisoner proceeding pro se, filed a petition
for a writ of habeas corpus under 28 U.S.C. § 2254. The district court dismissed
the petition as procedurally defaulted. Jeter contends that was error because he
has shown cause for the default.
I.
In September 2006 Jeter pleaded no contest in Florida state court to two
counts of felony battery. That court convicted him and sentenced him to two
concurrent five-year terms of probation. Jeter did not appeal. In 2008 his
probation was revoked and he was sentenced to five years imprisonment because
he did not submit required monthly reports, failed a drug test, changed his address
without notifying his probation officer, and did not attend a required therapy
program.
In May 2009, Jeter filed a pro se motion for post-conviction relief under Fla.
R. Crim. P. 3.850(b)(3) alleging: (1) his felony battery convictions violated the
Double Jeopardy Clause of the Fifth Amendment; (2) his plea was coerced; and
(3) ineffective assistance of counsel because his attorney allowed him to plead no
contest, did not preserve issues for appeal, and did not file a timely post-
conviction motion. The state court denied his petition as untimely, and the Florida
First District Court of Appeal affirmed that denial without a written opinion.
In July 2010 Jeter filed a petition under 28 U.S.C. § 2254 seeking relief on
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the same grounds that he had alleged in his Rule 3.850 motion. The State moved
to dismiss the petition.
The district court granted the state’s motion to dismiss. It concluded that
the claims Jeter asserted in his Rule 3.850 motion were procedurally defaulted
because he had not timely filed that motion. Jeter alleged that he had hired an
attorney to file his Rule 3.850 motion, that the attorney had not done so, and that
he was diligent and did all he could to ensure the attorney performed as promised.
In support of that allegation, Jeter submitted two affidavits from members of his
family. The court accepted all of that as true, but it concluded that Jeter had not
shown facts amounting to a miscarriage of justice, nor had he shown cause for the
procedural default. The district court granted a certificate of appealability limited
to the question of whether his attorney’s alleged professional misconduct could
constitute cause for the state-court procedural default.
II.
The district court’s finding that a claim is procedurally barred is a mixed
question of law and fact that we review de novo. Ogle v. Johnson, 488 F.3d 1364,
1368 (11th Cir. 2007). A state court’s rejection of a petitioner’s constitutional
claim on adequate and independent state procedural grounds will generally
preclude any federal habeas review of that claim, Ward v. Hall, 592 F.3d 1144,
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1156 (11th Cir. 2010), and the Florida court’s rejection of Jeter’s petition as
untimely under Rule 3.850 is a rejection on adequate and independent state
procedural grounds, see Whiddon v. Dugger, 894 F.2d 1266, 1267–68 (11th Cir.
1990).
A federal habeas court may review the merits of a procedurally defaulted
claim if the petitioner shows cause for the procedural default and actual prejudice
from it. See Ward, 592 F.3d at 1157. To show cause, a petitioner must
demonstrate some objective factor external to the defense that impeded his effort
to raise the claim properly in state court. Murray v. Carrier, 477 U.S. 478, 488,
106 S.Ct. 2639, 2645 (1986).
Here, Jeter alleges that he retained counsel to file a Rule 3.850 motion, but
the attorney did not file the motion before the deadline, maybe because the
attorney had died. The Florida court denied Jeter’s Rule 3.850 motion as
untimely, however, because it found that Jeter had not retained counsel to file a
post-conviction motion.1 We presume that finding is correct absent clear and
convincing evidence that it is not. See 28 U.S.C. § 2254(e)(1). We cannot say
1
Under Florida law, a Rule 3.850 petitioner has two years after the judgment and
sentence become final to file a Rule 3.850 motion, but that time period is extended by two years
if the petitioner retained counsel to file the motion and counsel’s neglect led to an untimely
filing. Fla. R. Crim. P. 3.850(b). The Florida court did not grant Jeter the two year extension
because it found he had not retained counsel to file a post-conviction motion.
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that two affidavits from Jeter’s family members and Jeter’s own assertions provide
clear and convincing evidence that the Florida court’s finding was incorrect.
Therefore, we defer to that finding. Because Jeter did not retain counsel to file a
Rule 3.850 motion, it follows that counsel’s alleged professional misconduct
cannot provide cause to excuse Jeter’s procedural default.2
AFFIRMED.
2
The district court also granted Jeter a certificate of appealability as to whether his §
2254 petition was timely. Because we affirm the dismissal of the petition on the grounds of
procedural default, we do not address the timeliness issue.
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