Darity v. Secretary, Department of Corrections

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 9, 2007
No. 06-15773 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-01829-CV-T-30-MAP
KENNETH DARITY,
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
_________________________
(August 9, 2007)
Before TJOFLAT, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Kenneth Darity, a Florida prisoner proceeding pro se, appeals the district
court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Darity
filed his petition after the effective date of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub.L.No. 104-132, 110 Stat. 1214 (1996), and
the provisions of that act therefore govern this appeal. We granted a certificate of
appealability on the issue of whether the district court erred in finding that Darity’s
claims of ineffective assistance of trial counsel were procedurally barred because
he failed to properly identify them as issues of federal law in his appellate brief
before the state appellate court considering his Fla.R.Crim.P. 3.850 motion.
We review de novo a district court’s denial of a § 2254 habeas corpus
petition. Fortenberry v. Haley, 297 F.3d 1213, 1219 (11th Cir. 2002). A district
court’s dismissal of a habeas claim for procedural default is also reviewed de novo.
Id. Whether a petitioner exhausted state court remedies is a mixed question of law
and fact, which is also reviewed de novo. Fox v. Kelso, 911 F.2d 563, 568 (11th
Cir. 1990).
Before seeking a federal writ of habeas corpus, a state prisoner must, exhaust
all available state remedies, see 28 U.S.C. § 2254(b)(1)(A), giving the state the
opportunity to correct its alleged violations of federal rights, Baldwin v. Reese, 541
U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004). “To provide the State
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with the necessary opportunity, the prisoner must fairly present his claim in each
appropriate state court (including a state supreme court with powers of
discretionary review), thereby alerting that court to the federal nature of the claim.”
Id. (citations and quotations omitted). “‘Thus, to exhaust state remedies fully the
petitioner must make the state court aware that the claims asserted present federal
constitutional issues.’” Jimenez v. Fla. Dep’t of Corr., 481 F.3d 1337, 1342 (11th
Cir. 2007) (quoting Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998)).
“A litigant wishing to raise a federal issue can easily indicate the federal law basis
for his claim in a state court petition or brief, for example, by citing in conjunction
with the claim the federal source of law on which he relies or a case deciding such
a claim on federal grounds, or by simply labeling the claim ‘federal.’” Baldwin,
541 U.S. at 32, 124 S.Ct. at 1351. If unexhausted claims in a § 2254 petition
“would be procedurally barred in state court under the state’s law of procedural
default, the federal court may consider the barred claims as having no basis for
federal habeas relief.” Jimenez, 481 F.3d at 1342.
Under these standards, we find that the district court erred in determining
that Darity’s claims of ineffective assistance of trial counsel were procedurally
barred. The district court found that Darity had failed to exhaust because, while he
had fairly presented these claims in his original state postconviction motion under
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Rule 3.850, he had not fairly presented them as federal claims in his appellate
brief. However, the state trial court summarily denied Darity’s Rule 3.850 motion
without an evidentiary hearing. Florida Rule of Appellate Procedure
9.141(b)(2)(C) provides that, in an appeal from the summary denial of a Rule
3.850 motion without an evidentiary hearing, “[n]o briefs or oral argument shall be
required.” Fla.R.App.P. 9.141(b)(2)(C). As such, a petitioner who does file a brief
in an appeal of the summary denial of a Rule 3.850 motion does not waive any
issues not addressed in the brief. See Webb v. State, 757 So.2d 608, 609 (Fla. Dist.
Ct. App. 2000) (holding that a claim in a Rule 3.850 motion had not been waived
by the appellant’s failure to argue it in his initial brief because the motion had been
denied without an evidentiary hearing). Therefore, regardless of whether or how
Darity identified his claims to the state appellate court, he did exhaust his state
remedies prior to filing the instant § 2254 petition, and these claims are not
procedurally barred.
We express no opinion on the merits of Darity’s petition, and vacate and
remand to allow the district court to address in the first instance the merits of
Darity’s claims of ineffective assistance of trial counsel.
VACATED AND REMANDED.
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