Filed: Aug. 10, 2010
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-14596 ELEVENTH CIRCUIT AUGUST 10, 2010 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 08-80722-CV-KAM WAYNE E. WILLIAMS, II, Petitioner-Appellant, versus FLORIDA DEPARTMENT OF CORRECTIONS, Walter A. McNeil, Secretary, Respondent-Appellee. _ Appeal from the United States District Court for the Southern District of Florida _ (August 10, 2010) Before EDMONDSON, MARTIN and FA
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-14596 ELEVENTH CIRCUIT AUGUST 10, 2010 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 08-80722-CV-KAM WAYNE E. WILLIAMS, II, Petitioner-Appellant, versus FLORIDA DEPARTMENT OF CORRECTIONS, Walter A. McNeil, Secretary, Respondent-Appellee. _ Appeal from the United States District Court for the Southern District of Florida _ (August 10, 2010) Before EDMONDSON, MARTIN and FAY..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14596 ELEVENTH CIRCUIT
AUGUST 10, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-80722-CV-KAM
WAYNE E. WILLIAMS, II,
Petitioner-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
Walter A. McNeil, Secretary,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 10, 2010)
Before EDMONDSON, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Wayne E. Williams, II, a Florida state prisoner serving a 15-year sentence
for robbery, appeals from the district court’s order denying his pro se habeas
petition under 28 U.S.C. § 2254. Williams argues that, but for appellate counsel’s
deficient performance on direct appeal, he would not have procedurally defaulted
the following claim for relief—that the state trial court erred in denying his motion
for a judgment of acquittal, as the evidence of his guilt was so weak that his
conviction offended due process. Williams contends that the district court erred by
failing to consider whether appellate counsel’s deficient performance constituted
cause that would excuse his procedural default of this claim, and also erred by
failing to consider this ineffective-assistance claim as an independent ground for
relief. Williams further argues that both trial and appellate counsel performed
deficiently by failing to argue that the jury instructions were erroneous, as they
included an improper instruction regarding the use of force by an aggressor. He
asserts that the court erred by failing to consider whether he was entitled to relief
on this basis. In addition, Williams argues the underlying merits of his contention
that the state trial court erred in denying his motion for a judgment of acquittal.
The state responds that we should affirm because Williams’s entire § 2254
petition was time-barred under the one-year statute of limitations prescribed by 28
U.S.C. § 2244(d)(1).
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For the reasons set forth below, we vacate and remand.
I.
Williams filed a pro se habeas petition under 28 U.S.C. § 2254 arguing,
among other things, that the state trial court erred in denying his motion for a
judgment of acquittal (“ground 1”). Specifically, Williams argued that the state
failed to present competent and substantial evidence of his guilt, and that his
conviction thus was obtained in violation of his Fifth, Sixth, and Fourteenth
Amendment rights to a fair jury trial. As a separate ground for relief, Williams
asserted that he had received ineffective assistance of appellate counsel, as
appellate counsel had failed, on direct appeal, to raise arguments concerning
fundamental errors in the trial proceedings (“ground 2”). In addition, Williams
asserted, appellate counsel had failed to adequately argue the one issue that was
raised on direct appeal. Williams did not specify the fundamental errors that
appellate counsel had failed to raise, and did not explain how appellate counsel
failed to properly argue the sole issue raised on direct appeal.
The state responded to Williams’s petition, arguing that the petition, as a
whole, should be dismissed as untimely under 28 U.S.C. § 2244(d)(1). The state
further argued that, even if the court did not dismiss Williams’s § 2254 petition as
time-barred, his claims for relief lacked merit. Addressing Williams’s first ground
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for relief, the state asserted that, while Williams had raised the issue of sufficiency
of the evidence on direct appeal, he had couched this argument in terms of state
law, not federal law. As a result, the state contended, Williams failed to exhaust
this constitutional claim by raising it on direct appeal, and the court should dismiss
this claim as procedurally barred. Turning to Williams’s second ground for
relief—that appellate counsel was ineffective—the state contended that this
conclusory allegation demonstrated no basis for habeas relief.
Williams filed a reply to the state’s response to his § 2254 petition. In his
reply, Williams argued that appellate counsel was ineffective for failing to argue,
on direct appeal, that the jury instructions were erroneous because they included an
improper instruction regarding the use of force by an aggressor. In addition,
Williams reiterated his argument that appellate counsel ineffectively argued the
sole issue raised in his direct appeal. Citing to the Fifth, Sixth, and Fourteenth
Amendments, Williams indicated that appellate counsel should have argued that
the evidence of his guilt was so weak that his conviction was obtained in violation
of the Due Process Clause. Williams indicated that appellate counsel’s deficient
performance in this regard constituted cause that excused his procedural default of
ground 1, his constitutional sufficiency-of-the-evidence claim.
The magistrate judge entered a report and recommendation, recommending
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that the district court deny Williams’s § 2254 petition. The magistrate first found
that Williams’s § 2254 petition was timely. Addressing the merits of Williams’s
claims, the magistrate found that, as to ground 1, while Williams had raised the
issue of sufficiency of the evidence in his direct appeal, he failed to couch this
issue in terms of federal law, or in terms of any specific constitutional guarantee.
As a result, the magistrate concluded that Williams failed to exhaust this claim and,
as he could not return to state court to exhaust this claim, it was procedurally
defaulted. The magistrate further determined that Williams had not alleged or
established cause to excuse his procedural default of this claim. Addressing
ground 2, the magistrate found that Williams’s assertion that he received
ineffective assistance of appellate counsel lacked merit, because he did not specify
the fundamental errors that counsel had failed to raise on direct appeal.
Williams filed objections to the magistrate’s report and recommendation. In
his objections, Williams argued that, even if he procedurally defaulted his
constitutional sufficiency-of-the-evidence argument, he could establish cause for
the procedural default because he received ineffective assistance of appellate
counsel. Williams also objected that appellate counsel performed ineffectively by
failing to properly argue that Williams’s conviction was not supported by sufficient
evidence. Williams further argued that appellate counsel was ineffective for failing
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to properly raise any federal issues on direct appeal. In addition, Williams
reasserted his argument that appellate counsel performed deficiently by failing to
argue that the jury instructions included an improper instruction regarding the use
of force by an aggressor.
The district court, without discussion, overruled Williams’s objections,
“ratified and affirmed” the magistrate’s report and recommendation “in its
entirety,” and denied Williams’s § 2254 petition. We granted a certificate of
appealability (“COA”) as to the following issue:
Whether the district court erred when it failed to consider Williams’s
ineffective-assistance-of-counsel argument, raised in his reply to the
government’s response, alleging that counsel was ineffective for
failing to object to the jury instructions and failing to properly argue
the single claim, challenging the state court’s denial of his motion for
a judgment of acquittal, raised on direct appeal.
II.
“Appellate review is limited to the issues specified in the COA.” Murray v.
United States, 145 F.3d 1249, 1251 (11th Cir. 1998). Because the issue of whether
Williams’s § 2254 petition is timely under § 2244(d)(1) is not specified in the
COA, we do not consider this non-jurisdictional issue. See Williams v. McNeil,
557
F.3d 1287, 1290 n.3 & n.4 (11th Cir.), cert. denied,
129 S. Ct. 2747 (2009) (noting
that we would not consider the underlying merits of whether the prisoner’s § 2254
petition was time-barred because this issue was not specified in the COA); Steed v.
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Head, 219 F.3d 1298, 1300 (11th Cir. 2000) (noting that § 2244’s one-year
limitations period is “not a jurisdictional bar”).
III.
We construe the issues specified in the COA in light of the parties’ pleadings
and the record. McCoy v. United States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001).
We note that Williams raised the following arguments for the first time in his reply
to the state’s response: (1) that appellate counsel performed ineffectively by failing
to argue, on direct appeal, that the jury instructions contained an improper
instruction regarding the use of force by an aggressor; and (2) that appellate
counsel’s ineffectiveness in arguing the sufficiency-of-the-evidence argument
raised on direct appeal constituted an independent ground for relief under § 2254,
and also constituted cause and prejudice for his procedural default of ground 1.
Accordingly, we read the terms of the COA, construed in light of the
parties’ pleadings, to specify the following issues for appellate review—whether
the district court erred by failing to consider: (1) whether appellate counsel was
ineffective for failing to argue, on direct appeal, that the jury instructions were
erroneous because they included an improper instruction regarding the use of force
by an aggressor; (2) whether appellate counsel was ineffective for failing to
properly argue, on direct appeal, that the trial court’s error in denying Williams’s
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motion for a judgment of acquittal offended due process, and thus was an issue
involving federal law; and (3) whether appellate counsel’s ineffectiveness in this
regard constituted cause and prejudice that would excuse Williams’s procedural
default of his federal sufficiency-of-the-evidence claim.
Because the COA specified only the above issues for appellate review, we
do not address Williams’s contention that trial counsel was ineffective for failing
to object to the jury instructions, or his argument concerning the merits of his
motion for a judgment of acquittal. See Murray, 145 F.3d at 1251.
IV.
We review the district court’s treatment of the magistrate judge’s report and
recommendation for abuse of discretion. Williams, 557 F.3d at 1290. When
reviewing a district court’s denial of a habeas petition, we review factual findings
for clear error, and legal conclusions de novo.
Id. We liberally construe a pro se
litigant’s pleadings. Sibley v. Culliver,
377 F.3d 1196, 1200-01 (11th Cir. 2004).
The district court must resolve all claims for relief raised in a petition for
habeas corpus, regardless of whether habeas relief is granted or denied. Clisby v.
Jones, 960 F.2d 925, 936 (11th Cir. 1992). Clisby’s holding was designed to avoid
the “piecemeal” resolution of claims raised in a habeas petition, and thus achieve
the desirable result of a more thorough review of habeas petitions by the district
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court. Id.
The Federal Rules of Civil Procedure apply to habeas proceedings, to the
extent that they are not inconsistent with the statutes that govern habeas
proceedings. Williams v. Chatman,
510 F.3d 1290, 1293 (11th Cir. 2007). At the
time that Williams filed his § 2254 petition, Fed.R.Civ.P. 15(a) provided, in
relevant part, that, “A party may amend its pleading once as a matter of
course . . . before being served with a responsive pleading.” Fed.R.Civ.P. 15(a)(1)
(2005).1 After a responsive pleading was filed, a party could amend its pleading
only after obtaining the opposing party’s written consent, or by obtaining the
court’s leave to amend. Fed.R.Civ.P. 15(a)(2) (2005). Where a prisoner alleges a
constitutional claim in broad terms in his initial habeas petition, and specifies the
facts supporting the claim in a subsequent pleading, the more detailed version of
the claim in subsequent pleading “serves to expand facts or cure deficiencies in the
original claims.” Dean v. United States,
278 F.3d 1218, 1222-23 (11th Cir. 2002)
(applying Fed.R.Civ.P. 15(c), which involves the relation back of an amendment to
an initial pleading).
1
Effective December 1, 2009, Rule 15(a) has been amended to provide that “[a] party
may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if
the pleading is one to which a responsive pleading is required, 21 days after service of a
responsive pleading or 21 days after service of a motion under 12(b), (e), or (f), whichever is
earlier.” See Fed.R.Civ.P. 15(a); Fed.R.Civ.P. 15, Advisory Committee Notes.
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Procedural default is an affirmative defense, and a state waives this defense
if it does not allege it in a timely manner during § 2254 proceedings. See Moon v.
Head, 285 F.3d 1301, 1315 n.17 (11th Cir. 2002) (noting that procedural default is
an affirmative defense and, as a result, the state waived this defense by failing to
raise it before the district court and on appeal). An ineffective-assistance-of-
counsel claim, if it is itself both exhausted and not procedurally defaulted, may
constitute cause that may excuse the procedural default of another constitutional
claim for relief. Hill v. Jones,
81 F.3d 1015, 1029-31 (11th Cir. 1996).
Here, the magistrate and the district court were required to consider the
following two independent claims for relief, which Williams detailed in his reply
to the state’s response: (1) whether appellate counsel performed deficiently by
failing to argue that the jury instructions included an improper instruction
regarding the use of force by an aggressor; and (2) whether appellate counsel
performed deficiently by failing to raise the sufficiency-of-the-evidence argument
in terms of federal law. See Dean, 278 F.3d at 1223-23;
Clisby, 960 F.2d at 936.
Because Williams argued, in his initial § 2254 petition, that he received ineffective
assistance of appellate counsel, the state was on notice that Williams believed that
appellate counsel had mishandled his direct appeal. The state asserted, in its
response, that Williams’s ineffective-assistance-of-appellate-counsel claim was too
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vague to warrant relief, and Williams replied by asserting facts that served to
clarify and expand this claim. See Dean, 278 F.3d at 1222-23. Accordingly, the
details concerning Williams’s ineffective-assistance-of-appellate-counsel claims,
which he included in his reply to the state’s response, were not an improper
attempt to amend the § 2254 petition by adding new claims, and the court and the
magistrate should have considered the two claims described above.
In addition, Williams’s assertion that appellate counsel’s deficient
performance constituted cause that excused his procedural default of ground 1 also
did not constitute an improper attempt to amend his § 2254 petition. Williams
asserted, in his § 2254 petition, that the evidence of his guilt was so weak that his
conviction violated his constitutional rights, and the state responded to this claim
by asserting the affirmative defense of procedural default. Williams responded to
this affirmative defense by asserting that appellate counsel’s failure to argue that
Williams’s conviction violated his constitutional rights constituted cause that
would excuse his procedural default of ground 1. In this context, Williams’s
ineffective-assistance claim did not constitute an improper attempt to amend his
§ 2254 petition, and the magistrate and the district court should have addressed this
argument. See Fed.R.Civ.P. 15(a)(1)-(2); cf. Williams, 557 F.3d at 1289-90, 1292
(holding that the district court possessed discretion to decline to review the § 2254
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petitioner’s arguments responding to the state’s assertion that his petition was
untimely, because the § 2254 petitioner raised these arguments for the first time in
his objections to the magistrate judge’s report and recommendation, and failed to
assert these arguments in a reply to the state’s response, despite the fact that he was
ordered to raise these arguments in a reply).
For the foregoing reasons, we conclude that the court erred by failing to
consider the ineffective-assistance-of-appellate-counsel claims that Williams
detailed in his reply to the state’s response. See Dean, 278 F.3d at 1223-23;
Clisby, 960 F.2d at 936. Moreover, in this case, the court’s failure to acknowledge
that Williams alleged cause to excuse his procedural default of ground 1 resulted in
the court’s failure to thoroughly consider the constitutional claim that Williams
alleged in ground 1 of his § 2254 petition. See
Clisby, 960 F.2d at 936.
Accordingly, we vacate and remand so that the district court may consider the
following issues: (1) whether appellate counsel performed deficiently by failing to
argue that the jury instructions included an improper instruction regarding the use
of force by an aggressor; (2) whether appellate counsel performed deficiently by
failing to argue that the state’s evidence of Williams’s guilt was so weak that his
conviction offended due process; and (3) whether Williams’s claim that he
received ineffective assistance of appellate counsel constituted cause that would
12
excuse his failure to argue, on direct appeal, that his constitutional rights were
violated because the evidence was insufficient to support his conviction.
VACATED AND REMANDED.
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