Paul Johnson v. Secretary, Florida Department of Corrections

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11966
Non-Argument Calendar
____________________
PAUL JOHNSON,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-25143-AMC
____________________
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2 Opinion of the Court 22-11966
Before R OSENBAUM , NEWSOM , and GRANT, Circuit Judges.
PER CURIAM:
Paul Johnson, a state prisoner proceeding pro se, appeals the
denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus.
We granted a certificate of appealability to review whether the dis-
trict court erred in finding that Johnson’s federal due-process claim,
alleging a denial of meaningful review on direct appeal because of
missing transcripts, was unexhausted and procedurally barred since
it was not raised on direct appeal of his convictions. After careful
review, we hold that the due-process claim was not available to
Johnson during his direct appeal, and that he properly exhausted
the claim by raising it in his first postconviction motion under Fla.
R. Crim. P. 3.850. Still, though, Johnson cannot succeed on the
merits of his § 2254 petition because the state courts reasonably re-
jected his due-process claim. So we affirm.
I.
In January 2014, state prosecutors initiated two cases against
Johnson, a youth tennis coach, charging him with felony sex of-
fenses involving two minors under 16. Ultimately, he faced two
counts as to minor S.R., and three counts as to minor J.A.
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22-11966 Opinion of the Court 3
From the time of his arrest until a Faretta1 hearing just before
trial, Johnson was represented by counsel—first by a public de-
fender and then by private attorney Elio Vazquez. As the cases
progressed, defense counsel agreed to or acquiesced in numerous
continuances granted by the trial court. But in September 2015,
Johnson filed pro se motions invoking his state speedy-trial rights,
which Vazquez declined to adopt, citing the need to wait for DNA
testing results. After the DNA results came back, Johnson filed an-
other pro se demand for a speedy trial, which Vazquez again did not
adopt. The trial court set trial for January 2016 and said there
would be no further continuances. After two additional continu-
ances and another pro se speedy-trial motion from Johnson, which
was stricken, trial was set to go forward on February 9, 2016.
Just before trial, Johnson filed a pro se motion to discharge
Vazquez, citing “problems” with “some things that were done.”
The trial court warned Johnson that no continuances would be per-
mitted, so he must be ready to proceed on his own. After a hearing,
the trial court discharged Vazquez and appointed a public defender
to serve as standby counsel. Once pro se, Johnson declined to refile
his motions for speedy trial. The court then denied his request for
a continuance, noting his repeated protestations that he was ready
for trial, and the parties proceeded to jury selection.
1 Faretta v. California, 422 U.S. 806, 834–35 (1975) (recognizing a right of self-
representation so long as the defendant knowingly and intelligently waives the
right to counsel and its associated benefits).
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4 Opinion of the Court 22-11966
The next day, February 10, 2016, in lieu of starting trial,
Johnson chose to plead guilty to all five counts in both cases, re-
serving the right to appeal issues related to his speedy-trial rights.
The trial court sentenced him to ten years on each count, to run
concurrently.
Johnson appealed, and the public defender was appointed to
represent him. In September 2016, defense counsel filed a notice
stating the judicial acts to be reviewed and designating eight tran-
scripts to be prepared. An amended notice in late October 2016
designated six additional transcripts. Not long after, the public de-
fender was discharged upon Johnson’s request, and Johnson pro-
ceeded pro se on appeal.
On December 27, 2016, the clerk filed a notice instructing
the parties that various hearing transcripts had not been received.
Johnson filed a motion requesting that the missing transcripts be
supplemented in the record on appeal, which the appellate court
granted as to five transcripts—September 24, 2015; October 1,
2015; December 18, 2015; January 29, 2016; February 9, 2016; and
February 10, 2016—apparently omitting transcripts designated
only in the October 2016 amended notice.
In September 2017, Johnson filed an appellate brief arguing
that his conviction should be vacated because his federal constitu-
tional right to a speedy trial was violated by the state’s lack of dili-
gence in bringing him to trial. After filing his brief, Johnson filed a
letter notifying the appellate court that five outstanding transcripts
were missing from the record—from January 17, 2014; October 3,
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22-11966 Opinion of the Court 5
2014; May 21, 2015; June 1, 2015; and October 2, 2015. The state
filed its answer brief, and the Third District Court of Appeal af-
firmed the judgment in a per curiam decision.
Johnson timely moved for rehearing, arguing that the court
erred by overlooking his letter about the missing transcripts and
deciding the appeal on an incomplete record. The appellate court
denied rehearing, and the mandate issued.
Johnson next filed a pro se motion for postconviction relief
under Fla. R. Crim. P. 3.850 and a supporting memorandum of law.
He asserted that the state court’s rejection of his speedy-trial claim
was an unreasonable application of clearly established federal law,
and that the state violated his Fourteenth Amendment right to due
process by failing to provide an adequate record for his direct ap-
peal. He also contended his counsel rendered ineffective assistance
by agreeing to continuances and failing to assert his speedy-trial
rights.
The state postconviction court denied the Rule 3.850 mo-
tion in a short order. The court concluded that Johnson’s “speedy
trial rights were waived by his Counsel and that decision is binding
on the defendant even if he was not consulted or it was against his
wishes,” and that he could not “couch issues denied on direct ap-
peal as claims of ineffective assistance of counsel.” The court did
not expressly address the due process claim. The Third District
Court of Appeal affirmed that decision and denied rehearing, and
the Florida Supreme Court denied review.
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6 Opinion of the Court 22-11966
II.
Next, Johnson filed a habeas petition challenging his convic-
tions in federal court under 28 U.S.C. § 2254. In his first ground for
relief (Claim 1), he contended that the state violated his due-pro-
cess right to meaningful appellate review by failing to provide an
adequate record for his direct appeal. He also asserted multiple
claims of ineffective assistance against trial counsel for obtaining
continuances without his consent and for failing to assert his
speedy-trial rights. In response, the state contended, in relevant
part, that Claim 1 was unexhausted because Johnson failed to raise
a federal claim on direct appeal.
The district court found that Johnson “raised Claim 1 on di-
rect appeal but nevertheless failed to exhaust Claim 1 because he
did not fairly present the federal nature of Claim 1 in the state fo-
rum.” The court explained that, while Johnson raised the sub-
stance of his missing-transcripts argument on direct appeal, he
failed to alert the court to the federal nature of the claim, instead
raising the issue “only as a violation of Rule 9.200(f)(2) of the Flor-
ida Rules of Appellate Procedure.” In the court’s view, the federal
claim was unexhausted, and therefore procedurally defaulted, be-
cause it could have been raised on direct appeal but was not. The
district court dismissed one other claim as unexhausted, denied the
remainder of the § 2254 petition, and denied a certificate of appeal-
ability (“COA”).
Johnson appealed, and we granted a COA, stating that rea-
sonable jurists would debate “[w]hether the district court erred by
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22-11966 Opinion of the Court 7
finding that [Claim] 1 of Johnson’s 28 U.S.C. § 2254 petition was
procedurally barred?”
III.
When reviewing the district court’s denial of a habeas peti-
tion, we review questions of law and mixed questions of law and
fact de novo, and any findings of fact for clear error. Nyland v. Moore,
216 F.3d 1264, 1266 (11th Cir. 2000). We review de novo whether a
habeas petitioner is procedurally barred from raising a claim in fed-
eral court. Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1345 (11th
Cir. 2004).
Before bringing a habeas action in federal court, a petitioner
must exhaust all state court remedies that are available for chal-
lenging his conviction, either on direct appeal or in a state postcon-
viction motion. 28 U.S.C. § 2254(b), (c). The exhaustion require-
ment is not jurisdictional and may be waived by the state. 28 U.S.C.
§ 2254(b)(2) & (3); Thompson v. Wainwright, 714 F.2d 1495, 1502
(11th Cir. 1983). The state has not waived exhaustion here.
Ordinarily, habeas petitioners “cannot raise claims in federal
court if those claims were not first exhausted in state court.”
McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005). To be ex-
hausted, “a federal claim must be fairly presented to the state
courts,” id., so that the state has “the opportunity to pass upon and
correct alleged violations of its prisoners’ federal rights,” Snowden
v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (cleaned up). “In the
process of exhausting a claim, the petitioner must comply with all
‘independent and adequate’ state procedures, or else the petitioner
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8 Opinion of the Court 22-11966
will have procedurally defaulted on that claim.” Mason v. Allen, 605
F.3d 1114, 1119 (11th Cir. 2010). Habeas petitioners “can escape
the exhaustion requirement only by showing cause for the default
and actual prejudice resulting therefrom, or by establishing a fun-
damental miscarriage of justice.” Kelley, 377 F.3d at 1345.
Johnson claims that the state violated his federal due-process
right to meaningful appellate review because he was not provided,
and the appellate court did not review, several transcripts on direct
review of his convictions.
Where a state provides “direct appellate review of convic-
tions,” it must “also provide[] a court reporter and transcript in or-
der to allow for review to be meaningful.” Bush v. Sec’y, Fla. Dep’t
of Corr., 888 F.3d 1188, 1195 (11th Cir. 2018); see Entsminger v. State
of Iowa, 386 U.S. 748, 751–52 (1967) (holding that states are required
to make transcripts available to indigent defendants to ensure ade-
quate and effective appellate review). Because a trial transcript
“might be critical to reviewing for alleged trial-court errors[,] af-
firming a conviction without one might be arbitrary,” requiring va-
catur of the conviction. Bush, 888 F.3d at 1195–96. That is, “affirm-
ing a conviction on direct appeal notwithstanding the absence of
portions of the trial transcript essential to meaningful appellate re-
view of trial-judge error could deny the defendant procedural due
process of law.” Id. at 1197. But missing transcripts do not violate
due process if meaningful review is still possible. See id at 1196–97.
Here, the district court erred in finding that Johnson failed
to exhaust his federal due-process claim. As Johnson points out, he
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22-11966 Opinion of the Court 9
fairly presented that claim in his postconviction motion under Rule
3.850. And apart from the issue below, there has been no sugges-
tion that Johnson otherwise failed to exhaust state remedies avail-
able to him.
The district court reasoned, however, that the federal due-
process claim “could have been raised on direct appeal but w[as]
not,” so it was “considered abandoned and procedurally barred
from collateral review” under Florida law, citing our decision in
Sullivan v. Wainwright, 695 F.2d 1306 (11th Cir. 1983). But in Sulli-
van, the state court itself applied the procedural bar. See id. at 1310
& nn. 4, 6. Nothing similar occurred here. The state postconvic-
tion court denied the speedy-trial claim on the merits without ad-
dressing the related due-process claim, and the appellate court’s af-
firmance was similarly silent.2 Thus, the record does not show that
“the state court declined to consider the constitutional claim[] be-
cause of valid state procedural rules.” Id. at 1310. And “usually a
procedural default bars the consideration of the merits of an issue
in federal court only when the state court itself applies the proce-
dural default rule.” Snowden, 135 F.3d at 737 (cleaned up).
We also cannot say that a federal due-process claim was
available to Johnson on direct appeal of his convictions and so
2 In conducting our review, we “look through” the state appellate court’s un-
explained decision “to the last related state-court decision that does provide a
relevant rationale”—the state postconviction court’s denial of Johnson’s Rule
3.850 motion—and “presume that the unexplained decision adopted the same
reasoning.” Wilson v. Sellers, 584 U.S. __, 138 S. Ct. 1188, 1192 (2018).
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10 Opinion of the Court 22-11966
should have been raised. A “procedural due process claim is not
complete when the deprivation occurs,” but rather “only when the
[s]tate fails to provide due process.” Reed v. Goertz, 598 U.S. 230,
236 (2023) (cleaned up). And, as we recognized in Bush, the failure
to provide due process arises from “affirming a conviction on direct
appeal notwithstanding the absence of portions of the trial tran-
script essential to meaningful appellate review.” Bush, 888 F.3d at
1197 (emphasis added). What’s considered “essential” will depend
in part on the grounds for the appellate court’s ruling. It follows
that Johnson’s federal due-process claim was not available until the
appellate court affirmed his conviction, at the earliest. See Reed, 598
U.S. at 236. While Johnson may have had grounds to object to the
missing transcripts under Florida appellate rules, any federal due-
process claim would have been premature. Accordingly, Johnson
did not abandon the claim by failing to raise it on direct appeal.
So as to the question specified in our COA, we conclude that
the district court erred in finding that Johnson’s due-process claim
was procedurally barred.
IV.
That said, we affirm the denial of Johnson’s § 2254 petition.
That’s because Johnson has not made any showing that the missing
transcripts were essential to meaningful review of his argument
that his speedy-trial rights were violated.3 He has not identified the
3 Although the issue specified in the COA is procedural, the COA incorporated
the underlying substance of the claim as well. See Spencer v. United States, 773
F.3d 1132, 1138 (11th Cir. 2014) (“Even when a prisoner seeks to appeal a
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22-11966 Opinion of the Court 11
possible contents of the missing transcripts or suggested how they
might have affected the result of his direct appeal. And the mere
failure to compile and make available the complete record does not
alone establish a due-process violation. See Bush, 888 F.3d at 1197
(noting that “there may also be instances in which meaningful re-
view can be conducted without a trial transcript”).
Nor does the record provide reason to believe that the ab-
sence of these transcripts—from January 17, 2014; October 3, 2014;
May 21, 2015; June 1, 2015; and October 2, 2015—prevented ade-
quate and effective review of Johnson’s convictions. Johnson’s fil-
ings do not indicate that these transcripts would reveal some deci-
sion or insight not otherwise reflected in the record. While the
transcripts may reflect continuances, even continuances requested
by his attorney without consulting Johnson or against his wishes,
the record is otherwise undisputed regarding when continuances
were granted and who requested them. And Florida caselaw is
clear that a waiver of speedy-trial rights “applies even in situations
in which the attorney requests the continuance without consulting
the defendant or against the defendant’s wishes.” Randall v. State,
938 So.2d 542 (Fla. 1st DCA 2006). Johnson does not explain, and
we fail to see, how the missing transcripts would have aided in
identifying or establishing errors in his case.
procedural error, the certificate must specify the underlying constitutional is-
sue.”). And we may affirm on any ground supported by the record. See Beeman
v. United States, 871 F.3d 1215, 1221 (11th Cir. 2017).
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12 Opinion of the Court 22-11966
Although the state postconviction court did not expressly
address Johnson’s due-process argument, it implicitly rejected that
claim by denying the speedy-trial claim on the merits, and so we
likewise “must presume that the federal claim was adjudicated on
the merits.” Johnson v. Williams, 568 U.S. 289, 300 (2013). The pre-
sumption has not been rebutted here, since it’s reasonable to infer
from the state court’s blanket rejection of Johnson’s speedy-trial
claim that it viewed the missing transcripts as harmless, not that it
overlooked the due-process argument. See id. at 300–01, 304. That
means deference is owed to the state court’s decision under
§ 2254(d), which insulates reasonable state-court decisions from
federal review. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562
U.S. 86, 101 (2011) (“A state court’s determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded jurists
could disagree’ on the correctness of the state court’s decision.”).
For reasons we just explained, the state postconviction court
reasonably rejected Johnson’s contention that meaningful review
on direct appeal was not possible due to the missing transcripts.
Accordingly, we affirm the denial of Johnson’s § 2254 habeas cor-
pus petition.
AFFIRMED.
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