Filed: Oct. 21, 2009
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Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-10875 ELEVENTH CIRCUIT OCTOBER 21, 2009 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 05-00919-CV-T-23MSS EDDIE G. CARGILE, 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 _ (October 21, 2009) Before TJOFLAT
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-10875 ELEVENTH CIRCUIT OCTOBER 21, 2009 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 05-00919-CV-T-23MSS EDDIE G. CARGILE, 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 _ (October 21, 2009) Before TJOFLAT,..
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[DO NOT PUBLISH]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. 09-10875 ELEVENTH CIRCUIT
OCTOBER 21, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-00919-CV-T-23MSS
EDDIE G. CARGILE,
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
_________________________
(October 21, 2009)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Eddie G. Cargile, a Florida prisoner proceeding pro se, appeals the district
court’s denial of his 28 U.S.C. § 2254 petition for habeas corpus relief challenging
his life sentences following a jury conviction for sexual battery of a child under the
age of 12 and lewd and lascivious acts in the presence of a child. In his petition,
Cargile claimed, inter alia, that Florida violated his due process rights because he
was tried and convicted in Hillsborough County, Florida, an allegedly improper
venue, for conduct that allegedly occurred in Polk County, Florida. The district
court found that Cargile failed to exhaust his remedies in state court by not raising
the improper venue issue on direct appeal and was consequently procedurally
barred from raising the issue in federal court.
We granted a certificate of appealability on the following issue only:
Whether the district court erred by finding that Cargile’s challenge to the trial
court’s venue was not exhausted, where it was raised in a state petition for a writ of
habeas corpus. Cargile argues that the district court erred in determining that his
venue claim was not exhausted because, even though he did not raise the issue on
direct appeal or in a post-conviction motion, he raised the issue in his state habeas
corpus petitions.
I. BACKGROUND
The record shows that Cargile did not challenge venue in Hillsborough
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County at any time before trial or during trial. See R. Ex. 23. After being
convicted and sentenced, Cargile filed a direct appeal to Florida’s Second District
Court of Appeal pursuant to Florida Rule of Appellate Procedure 9.140. However,
Cargile did not raise a venue challenge in his direct appeal. The Second District
Court of Appeal affirmed his conviction without opinion. Cargile then filed a pro
se Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief
(“Rule 3.850 motion”) that raised four issues, none of which included a venue
challenge. Cargile does not dispute that he failed to challenge venue on direct
appeal or in his Rule 3.850 motion.
Next, Cargile filed a petition for habeas corpus in the Florida Supreme Court
where he raised his venue issue for the first time. The Florida Supreme Court
determined that relief was unauthorized and dismissed the petition. Cargile filed a
second writ of habeas corpus in Florida’s Second District Court of Appeal alleging
that the State failed to establish proper venue in Hillsborough County. The court
dismissed Cargile’s petition, stating that “a petition for writ of habeas corpus is no
longer available to collaterally attack a conviction.” Cargile v. State, 902 So. 2d
142, 142 (Fla. 2d DCA 2005) (citing State v. Broom,
523 So. 2d. 639, 641 (Fla. 2d
DCA 1988)).
After both of Cargile’s state habeas corpus petitions were dismissed, Cargile
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filed a habeas corpus petition in the United States District Court for the Middle
District of Florida alleging, inter alia, that he was tried and convicted in an
improper venue. The district court denied Cargile’s petition, holding that his
venue claim was procedurally defaulted because Cargile failed to exhaust his state
court remedies. Cargile v. Sec’y, Dep’t of Corrs., M.D. Fla. 2009, ___ F. Supp. 2d
___, *2 (No. 8:05-cv-919-T-23MSS, Jan. 30, 2009). The district court further
found that Cargile neither alleged cause and prejudice for the procedural default,
nor did he show a manifest injustice. Id. at *2–3. We agree with the district court
and affirm the denial of Cargile’s petition for habeas corpus relief.
II. STANDARD OF REVIEW
Whether a 28 U.S.C. § 2254 petitioner for habeas corpus relief is
procedurally barred from raising a particular claim is a mixed question of law and
fact that we review de novo. Bailey v. Nagle, 172 F.3d 1299, 1302 (11th Cir. 1999)
(per curiam) (citing Agan v. Vaughn,
119 F.3d 1538, 1541 (11th Cir. 1997)).
III. DISCUSSION
Generally, a habeas corpus petitioner cannot raise a claim in federal court if
he did not first exhaust the claim in state court. 28 U.S.C. § 2254(b)(1)(A); Kelley
v. Sec’y for the Dep’t of Corrs., 377 F.3d 1317, 1343 (11th Cir. 2004). A federal
claim is exhausted only if fairly presented to the state courts. McNair v. Campbell,
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416 F.3d 1291, 1302 (11th Cir. 2005) (citing Picard v. Connor,
404 U.S. 270, 275,
92 S. Ct. 509, 512 (1971)). A petitioner has not fairly presented his claim to the
state court if such claim is presented for the first and only time in a procedural
context where the merits are not considered. Castille v. Peoples,
489 U.S. 346,
351,
109 S. Ct. 1056, 1060 (1989).
In Florida, certain claims are barred from being raised outside a direct
appeal, and venue is one of those claims. See Lambrix v State, 559 So. 2d 1137,
1138 (Fla. 1990) (per curiam) (stating that a claim of error “based on information
which was contained in the original record of the case . . . must be raised on direct
appeal.”). Cargile had the opportunity to raise his venue challenge on direct appeal
and failed to do so. Because Cargile failed to challenge venue on direct appeal, he
was barred from raising it in both a Rule 3.850 motion and in a state habeas corpus
petition.
Cargile was barred from raising his venue claim in a Rule 3.850 motion for
post-conviction relief because the Florida Supreme Court explained in Baker v.
State:
The purpose of the Rule 3.850 motion is . . . not to review
ordinary trial errors cognizable by means of a direct appeal.
The motion procedure is neither a second appeal nor a
substitute for appeal. . . . [A]ny matters which could have been
presented on appeal are similarly held to be foreclosed from
consideration by motion under the Rule. Therefore, a Rule
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3.850 motion based upon grounds which either were or could
have been raised as issues on appeal may be summarily denied.
878 So. 2d 1236, 1242 (Fla. 2004) (per curiam) (quoting McCrae v. State,
437 So.
2d 1388, 1390 (Fla. 1983) (per curiam)). Thus, because Cargile did not raise his
venue challenge on direct appeal, he was barred from raising the same issue in a
Rule 3.850 motion. Likewise, in terms of a state habeas corpus petition, the
Florida Supreme Court has explained that it will deny any petition as
“unauthorized” if a petitioner raises claims that “could have been raised at trial or,
if properly preserved, on direct appeal of the judgment and sentence . . . .”
Id. at
1245–46. Taken together, these rules require that any claim that could have been
raised on direct appeal must have been raised at that time in order to avoid a
procedural default in a federal habeas corpus petition.
Cargile’s petitions for habeas corpus in state court did not exhaust his state
court remedies because the venue claims were not properly raised on direct appeal.
Cargile could have raised his venue challenge in a pre-trial motion, during trial, or
on direct appeal. Cargile did nothing in the trial court to alert the judge or the State
that he had any issue regarding venue. Cargile attempted to raise his venue claim
for the first time in a manner not permitted by the Florida courts, namely, in a state
habeas corpus petition. Thus, the district court correctly found Cargile did not
present his venue claim in the procedurally correct manner in state court, on direct
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appeal. See Baker, 878 So. 2d at 1246. The district court did not err in denying his
habeas petition as procedurally defaulted under 28 U.S.C. § 2254(b)(1)(A) because
Cargile did not first exhaust his claim in state court, and “it is apparent that the
Florida courts would now refuse to hear this claim . . . .” Smith v. Sec’y, Dep’t of
Corrs.,
572 F.3d 1327, 1342 (11th Cir. 2009) (citing Snowden v. Singletary,
135
F.3d 732, 736 (11th Cir. 1998)). Additionally, because Cargile did not allege
cause and prejudice for this default, and he did not show manifest injustice by way
of actual innocence, the district court was correct in denying Cargile’s petition for
habeas corpus relief. Therefore, we affirm the district court’s denial of Cargile’s
28 U.S.C. § 2254 petition for habeas corpus relief.
AFFIRMED.
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