Earl Lavelle White v. Secretary, Florida Department of Corrections

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11110
Non-Argument Calendar
____________________
EARL LAVELLE WHITE,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:20-cv-14391-RS
____________________
USCA11 Case: 22-11110 Document: 46-1 Date Filed: 02/07/2024 Page: 1 of 7

-- 1 of 7 --

2 Opinion of the Court 22-11110
Before J ILL PRYOR , NEWSOM , and B RANCH, Circuit Judges.
PER CURIAM:
Earl Lavelle White, a Florida prisoner serving a 20-year sen-
tence for the sale or delivery of cocaine and possession of cocaine,
appeals the district court’s denial of his 28 U.S.C. § 2254 habeas pe-
tition. First, responding to the issue on which we granted a certif-
icate of appealability (“COA”), he concedes that the district court
did not err when it concluded that Martinez v. Ryan, 566 U.S. 1
(2012), did not excuse his procedural default in state court as to the
second, fourth, and fifth claims in his § 2254 petition—namely, that
his trial counsel was ineffective for (2) failing to communicate the
state’s ten-year plea offer, (4) failing to object to statements during
closing arguments that undermined the presumption of innocence,
and (5) failing to present a motion for judgment of acquittal. White
explains—correctly— that Martinez is inapplicable because its hold-
ing excuses only procedural default as to attorney errors in ini-
tial-review collateral proceedings, not attorney errors in appeals
from initial-review collateral proceedings, like here.
Second, despite this concession, he argues that adjacent to
the issue on which we granted a COA is the overriding question
whether the district court nevertheless erred when it concluded
that his procedural default was not excused. White argues that, at
least as to Claims 4 and 5, the district court failed to consider
whether he had otherwise demonstrated cause and prejudice for
USCA11 Case: 22-11110 Document: 46-1 Date Filed: 02/07/2024 Page: 2 of 7

-- 2 of 7 --

22-11110 Opinion of the Court 3
his failure to exhaust those claims.1
I.
Before bringing a § 2254 action in federal court, a state pris-
oner must exhaust all state court remedies available for challenging
his conviction. 28 U.S.C. § 2254(b), (c). To properly exhaust a
claim, he “must fairly present every issue in his federal petition to
the state’s highest court, either on direct appeal or on collateral re-
view.” Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir. 2010). Where
the petitioner failed to exhaust the claim in state court and the un-
exhausted claim would now be foreclosed under state procedural
rules, the federal claim is procedurally defaulted and therefore
barred. Henderson v. Campbell, 353 F.3d 880, 898–99 (11th Cir. 2003).
However, such procedural default may be excused if the petitioner
establishes cause for and actual prejudice resulting from the de-
fault, or if not excusing the default would result in a fundamental
miscarriage of justice. Bailey v. Nagle, 172 F.3d 1299, 1306 (11th Cir.
1999).
Generally, lack of an attorney or attorney error in the initial
state collateral proceeding does not establish cause to excuse a pro-
cedural default for claims not raised at that time. Labrix v. Sec’y Fla.
Dep’t of Corrs., 756 F.3d 1246, 1260 (11th Cir. 2014). However, one
1 We review de novo a district court’s grant or denial of a habeas corpus peti-
tion. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010). Factual findings are
reviewed for clear error, and mixed questions of law and fact are reviewed de
novo. Id. Whether a particular claim is subject to the procedural-default doc-
trine is a mixed question of law and fact. Id. at 1175.
USCA11 Case: 22-11110 Document: 46-1 Date Filed: 02/07/2024 Page: 3 of 7

-- 3 of 7 --

4 Opinion of the Court 22-11110
narrow exception is provided in Martinez, where the Supreme
Court held that a procedural default would not bar a federal habeas
court from hearing a substantial claim of ineffective assistance of
trial counsel if (1) the claim could not be heard on direct appeal2
and (2) in the state’s initial-review collateral proceeding there was
no counsel, or counsel in that proceeding was ineffective. Martinez,
566 U.S. at 13–14, 16.
The Supreme Court so concluded by reasoning that “[w]hen
an attorney errs in initial-review collateral proceedings, it is likely
that no state court at any level will hear the prisoner’s claim,” and
that “if counsel’s errors in an initial-review collateral proceeding do
not establish cause to excuse the procedural default in a federal ha-
beas proceeding, no court will review the prisoner’s claims.” Id. at
10–11. But the Court emphasized the limited circumstances where
this exception applies and stated that “[t]he same is not true when
counsel errs in other kinds of postconviction proceedings,” and that
“[w]hile counsel’s errors in these proceedings preclude any further
review of the prisoner’s claim, the claim will have been addressed
by one court, whether it be the trial court, the appellate court on
direct review, or the trial court in an initial-review collateral pro-
ceeding.” Id. at 11. Accordingly, the Court took care to expressly
limit its holding, stating that “[t]he holding in [Martinez] does not
2 Generally, under Florida law, claims of ineffective assistance of counsel are
not cognizable on direct appeal. Bruno v. State, 807 So. 2d 55, 63 (Fla. 2001).
However, such a claim may be raised on direct appeal when the ineffective-
ness is apparent on the face of the record. Id. at 63 n.14.
USCA11 Case: 22-11110 Document: 46-1 Date Filed: 02/07/2024 Page: 4 of 7

-- 4 of 7 --

22-11110 Opinion of the Court 5
concern attorney errors in other kinds of proceedings, including
appeals from initial-review collateral proceedings, second or suc-
cessive collateral proceedings, and petitions for discretionary re-
view in a State’s appellate courts.” Id. at 16.
Here, Martinez does not excuse any procedural default be-
cause White’s ineffective-assistance-of-trial-counsel claims were
raised in his initial-review collateral proceeding. Because these
claims were raised during his initial-review collateral proceeding,
they fall outside of the concern that underlay the Supreme Court’s
decision in Martinez—that failure to excuse procedural default
when claims were not presented in initial-review collateral pro-
ceedings could result in claims never being addressed in any court.
Indeed, White concedes that Martinez does not excuse this proce-
dural bar. Accordingly, White’s counsel’s failure to appeal the de-
nial of these claims is not excused under Martinez, and we affirm as
to this issue.
II.
Generally, we only review claims encompassed by the COA.
Raleigh v. Sec’y, Fla. Dep’t of Corr., 827 F.3d 938, 948 (11th Cir. 2016).
Although our review is limited to issues specified in the COA, the
COA is construed in light of the pleadings and other parts of the
record. McCoy v. United States, 266 F.3d 1245, 1248 n.2 (11th Cir.
2001) (quotation marks omitted). On “exceptional occasions,”
such as when we request supplemental briefing on issues not
within the scope of the COA, a COA may be expanded sua sponte
to include issues that reasonable jurists would find debatable. Mays
USCA11 Case: 22-11110 Document: 46-1 Date Filed: 02/07/2024 Page: 5 of 7

-- 5 of 7 --

6 Opinion of the Court 22-11110
v. United States, 817 F.3d 728, 733 (11th Cir. 2016) (quotation marks
omitted).
Although pro se filings are held to a less stringent standard
and are liberally construed, Carmichael v. United States, 966 F.3d
1250, 1258 (11th Cir. 2020), issues raised for the first time on appeal
are generally not considered, “even when pro se litigants are in-
volved,” Clements v. Florida, 59 F.4th 1204, 1208 (11th Cir. 2023),
cert. denied, No. 23-107 (Dec. 11, 2023). While this rule is not “iron-
clad,” we generally exercise our discretion to consider issues raised
for the first time on appeal only when: “(1) [the issue] involves a
pure question of law and refusal to consider it would result in a
miscarriage of justice; (2) the party lacked an opportunity to raise
the issue at the district court level; (3) the interest of substantial
justice is at stake; (4) the proper resolution is beyond any doubt; or
(5) the issue presents significant questions of general impact or of
great public concern.” United States v. Campbell, 26 F.4th 860, 873
(11th Cir. 2022) (en banc), cert. denied, 143 S. Ct. 95 (2022).
Here, White attempts to expand the scope of our COA by
arguing that “intertwined” with the question in the COA “is the
overriding question of whether the procedural default is excused.”
To this end, he argues that he demonstrated cause and prejudice
for his default of two of his claims. In doing so, White raises a new
argument on appeal that seeks to expand the scope of our COA.
Contrary to his contention, his newly raised argument does not in-
volve purely legal questions, nor does it fall under any other excep-
tion that would justify exercising our discretion to consider it.
USCA11 Case: 22-11110 Document: 46-1 Date Filed: 02/07/2024 Page: 6 of 7

-- 6 of 7 --

22-11110 Opinion of the Court 7
Because it is not an “exceptional occasion,” we decline to sua
sponte expand our COA. Accordingly, we affirm the district
court’s judgment.
AFFIRMED.
USCA11 Case: 22-11110 Document: 46-1 Date Filed: 02/07/2024 Page: 7 of 7

-- 7 of 7 --