The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 27, 2006
No. 05-13053 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00117-CV-RWS-2
WARREN R. SKILLERN,
Petitioner-Appellant,
versus
STATE OF GEORGIA,
WARDEN HUGH SMITH, Georgia State Prison,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 27, 2006)
Before DUBINA, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Warren R. Skillern, a Georgia prisoner proceeding pro se, appeals the
district court’s denial of his 28 U.S.C. § 2254 petition in which he challenged his
convictions for child molestation, cruelty to children, and rape. We granted a
Certificate of Appealability (“COA”) on the following two issues concerning
procedural default:1
(1) Whether the district court erred in determining that the following
ineffective assistance of trial counsel claims were procedurally
defaulted: trial counsel was ineffective for: (a) trying the case “as if
there was a third party element;” (b) failing to object to the state’s
reference to two witnesses as “defe[n]dants;” (c) failing to object to
the seizure of appellant’s property; (d) failing to request a
Jackson-Denno 2 hearing; (e) failing to use exculpatory “school
records;” (f) failing to raise the issue of police misconduct; (g) using
appellant’s mistress as a witness and failing to object during
cross-examination; (h) subpoenaing the examining physician;
(i) failing to move to dismiss for lack of evidence; (j) questioning the
school counselor; (k) failing to object to the state’s assertion that
appellant blamed others for the charged offenses; and (l) forcing
appellant to testify, and
1
We decline to address Skillern’s other arguments because they are beyond the scope of
our COA.
Skillern has filed the following motions, which we construe, together, as a motion for
reconsideration of the COA and DENY it: (1) “Motion To Incorporate, To Take Affidavit of Grave
Concern, and For Brief Modification;” (2)“Motion For Order Instructing Respondent and
Respondents’ Attorney to Cease and Desist Interference of Skillern’s Right to Full Access to the
Courts;” (3) “Motion for Abeyance and Evidentiary Hearing;” (4) “Motion for Abeyance and
Evidentiary Hearing w/ Motion for Court to Direct Clerk to Serve;” (5) “Motion for Original
Jurisdiction Summary Judgment;” (6) “Motion for Consideration of Arrest w/o Probable Cause;”
(7)“Motion for Service and Copies of Exhibit;” (8) “Motion for Stay of State Court Proceeding;”
and (9) “Request for Stay of State Court Proceedings.” We also DENY Skillern’s “Motion for
Order” and “Request for Modification and to File Brief/Information.”
2
Jackson v. Denno, 378 U.S. 368 (1964).
2
(2) Whether the district court erred in determining that appellant’s
ineffective assistance of appellate counsel claims were procedurally
defaulted?
We review a district court’s decision to deny habeas corpus relief on the basis of a
procedural default de novo. See Brownlee v. Haley, 306 F.3d 1043, 1058 (11th
Cir. 2002). After careful review, we affirm.
I.
The relevant facts are these. In 1994, after a jury trial, Skillern was
convicted in the Superior Court of Cherokee County, Georgia of child molestation,
aggravated child molestation, rape, and cruelty to children. After his conviction,
he secured a new attorney and moved for a new trial, alleging numerous instances
of ineffective assistance of trial counsel, including that counsel failed (1) to
challenge a search and seizure of Skillern’s property; (2) to procure physical,
psychiatric and psychological reports of two state witnesses; (3) to procure
criminal histories for state witnesses; (4) to have certain examinations performed in
furtherance of a theory of defense based on Child Abuse Accommodation
Syndrome (“CAAS”); (5) to adopt a “discernable strategy of defense”; and (6) “to
acquaint himself with law and authority relevant to this case.” At an evidentiary
hearing on the motion, Skillern raised additional ineffective-assistance claims,
including that his trial counsel (7) “did not request a continuance to obtain police
3
reports” concerning one of the child-victim’s prior allegations of molestation and
(8) “did not make objections at trial.” Also at the evidentiary hearing, the state
trial court heard the testimony of Skillern’s trial attorney and Skillern himself. The
state trial court denied the motion for a new trial on the merits, stating that Skillern
had failed to demonstrate either prong of the test for ineffective assistance of
counsel set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984).
On direct appeal to the Georgia Court of Appeals, Skillern argued, among
other things, that the trial court erred by denying him a new trial because his
attorney had provided ineffective assistance by failing to: (1) “procure expert
testimony” at Skillern’s request; (2) “adequately investigate the case prior to trial”;
and (3) call character witnesses at Skillern’s request. The Georgia Court of
Appeals found that trial counsel’s testimony at the evidentiary hearing on the
motion for a new trial was “sufficient evidence to support the trial court’s ultimate
conclusion that [Skillern] failed to show ineffectiveness under [Strickland].”
Skillern v. State, 521 S.E.2d 844, 848 (Ga. Ct. App. 1999). The Georgia Court of
Appeals affirmed Skillern’s convictions, except for the conviction for aggravated
child molestation, which was reversed for a reason unrelated to the instant appeal.
Id.
4
Thereafter, Skillern filed four state habeas corpus petitions, in which he
reasserted some of the instances of ineffective assistance of trial counsel that he
had raised in his motion for new trial or on direct appeal, as well as many new
claims.3 In opposition to Skillern’s habeas petitions, the state argued that some of
the ineffective-assistance claims had been addressed and rejected by the Georgia
Court of Appeals in Skillern’s direct appeal. As for the remaining claims, the state
argued that the claims were procedurally barred because they had not been raised
on direct appeal, but could have been.
After numerous hearings on these four petitions, the state habeas court
denied relief, finding that some of Skillern’s ineffective-assistance claims had been
“decided adversely to [Skillern] on direct appeal, [and because] the same were
litigated on direct appeal and decided adversely, they cannot now be re-litigated.”
As for Skillern’s other claims based on trial counsel’s assistance, the state habeas
3
Skillern asserted the following arguments that trial counsel was ineffective for failing:
(1) to challenge the indictment on numerous grounds; (2) to object to the state’s expert witness; (3)
to object to the testimony of two detectives who improperly bolstered the victim’s testimony; (4)
to object to the admission of a videotape; (5) to move for a mistrial based on the admission of
“similar transaction evidence”; (6) to secure an expert witness on CAAS; (7) to object to, or
otherwise challenge, some of the state’s motions and arguments during the trial; (8) to preserve
issues for appeal; and (9) to object to the victim’s mother’s testimony that Skillern liked young girls.
Skillern also contended trial counsel was ineffective for (10) attempting to qualify a counselor as
an expert witness; (11) allowing Skillern to be brought before the jury in shackles; (12) failing to
pursue evidence that the victim’s father thought she was lying; (13) failing to obtain and present
evidence that the victim’s mother had a criminal history; and (14) failing to call witnesses to testify
that the victim might have seen her mother engage in sexual activities or watch pornographic tapes.
5
court found that they failed on the merits because Skillern had not shown “with a
reasonable degree of probability that the results would have been different, but for
the alleged errors, committed by his trial attorney.” The state habeas court also
found that Skillern’s ineffective-assistance claims based on appellate
representation failed because appellate counsel had “possessed those qualities of
adequacy” set forth in Stephens v. State, 453 S.E.2d 443 (Ga. 1995), and
Strickland, 466 U.S. at 687.
Skillern then filed numerous unsuccessful federal habeas petitions4 before
filing the instant petition, pursuant to 28 U.S.C. § 2254. In this petition, as
originally filed, Skillern indicated only that he believed he had received ineffective
assistance of trial and appellate counsel, but did not enumerate any specific
instances. Instead, Skillern summarily stated that he “reserved the right to list the
ten pages of instances of ineffective assistance of [trial] counsel” and “reserved the
right to list the five pages of instances of ineffective assistance of [appellate]
counsel.” The district court noted that “out of deference to Petitioner’s
pro se status, the court will afford Petitioner an opportunity to amend his Petition
to identify specific instances of ineffective assistance of counsel.”
4
See Skillern v. Smith, No. 2:02-CV-0197-RWS (N.D. Ga. 2002)(dismissed as successive
to previous petition, which was not exhausted); Skillern v. Smith, Case No. 2:02-CV-0029-RWS
(N.D. Ga. 2002) (dismissed without prejudice for failure to exhaust state remedies); Skillern v.
Sikes, Case No. 2:98-CV-24-WCO (N.D. Ga. 1998) (same).
6
Skillen then filed an amended petition alleging a number of ways his trial
counsel was ineffective, including: (1) trying the case “as if there was a third party
element”; (2) failing to object to the state’s reference to two witnesses as
defendants in the case against him; (3) failing to make a Fourth Amendment
challenge as to the warrantless seizure of his property; (4) failing to request a
Jackson v. Denno hearing; (5) failing to use exculpatory school records; (6) failing
to raise the issue of police misconduct, including the alleged “planting” of
evidence; (7) using appellant’s mistress as a witness and failing to object during
cross-examination; (8) subpoenaing the examining physician; (9) failing to move
to have the rape charge, if not all charges, dismissed for want of evidence; (10)
questioning the school counselor in a manner that suggested Skillern’s guilt; (11)
failing to object to the state’s assertion that Skillern blamed others for the charged
offenses; (12) forcing appellant to testify; (13) failing to seek a psychological
evaluation of the victim; (14) failing to assert a CAAS defense; (15) failing to use
available character witnesses; and (16) failing to prepare for trial.
The district court found that the last four claims were raised on direct appeal
to the Georgia Court of Appeals, and that the Georgia appellate court’s decision
was neither contrary to, nor an unreasonable application, of the clearly established
7
Strickland standard for ineffective assistance of counsel.5 As for the remaining
twelve claims, the district court concluded that they were procedurally defaulted
since Skillern failed to raise them in his state court proceedings, prior to seeking
federal habeas relief.
Skillern also claimed that appellate counsel was ineffective for failing: (1) to
raise any of the allegations of ineffective assistance of trial counsel claims, and
“sabotag[ing] the direct appeal”; (2) to challenge the validity of the motion for new
trial hearing; and (3) to challenge the constitutionality of Georgia’s “rape slight
penetration rule” and the sufficiency of the evidence of penetration in his case. As
to these claims, the district court stated:
In evaluating the state court ruling with great deference,
[this court] cannot conclude that the state court’s decision
either involved an unreasonable application of clearly
established Federal law [] or that it was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding. In
[Skillern’s 2000] petition for state habeas corpus relief,
the state court examined Petitioner’s claims and
concluded that Petitioner had failed to establish
ineffective assistance of appellate counsel.
(citations omitted). Moreover, the district court concluded, the unexhausted claims
based on appellate counsel’s representation would be procedurally barred under
Georgia law. This appeal followed.
5
Consideration of these four claims is beyond the scope of our COA.
8
II.
A federal habeas petitioner who claims he is detained pursuant to a final
judgment of a state court in violation of the U.S. Constitution is entitled to have a
federal habeas court make its own independent determination of those claims to the
extent that a state court has previously addressed them on the merits. Wainwright
v. Sykes, 433 U.S. 72, 87-89 (1977). However, a petitioner who failed to properly
raise a federal claim in state court is procedurally barred from raising that claim in
federal court absent a showing of cause for and actual prejudice from the default.
Id.
There are two principles of procedural-default law implicated here. First,
procedural default can occur when a petitioner never raised the federal claim in
state court, “and it is obvious that the unexhausted claim would now be
procedurally barred due to a state-law procedural default.” Bailey v. Nagle, 172
F.3d 1299, 1303 (11th Cir. 1999). Second, procedural default can occur when the
federal claim was raised in the state court proceedings, but the state court correctly
applied a procedural default principle of state law to conclude that the federal
claim was barred, in which instance the federal court will respect the state court’s
decision. Id.
9
When we consider whether a federal claim was raised in state court
proceedings, the exhaustion doctrine of 28 U.S.C. § 2254 requires that the grounds
for relief must have been “fairly presented” to the state court before they can be
considered by a federal court in a habeas context. Picard v. Connor, 404 U.S. 270,
275 (1971). In cases involving ineffective-assistance-of-counsel claims, we have
held that “a habeas petitioner may not present instances of ineffective assistance of
counsel in his federal petition that the state court has not evaluated previously.”
Footman v. Singletary, 978 F.2d 1207, 1211 (11th Cir. 1992).
For purposes of determining whether a claim has been exhausted in Georgia
state court, we have held that “[w]hen a claim has been presented to the [Georgia]
Court of Appeals and relief has been denied, the litigant shall be deemed to have
exhausted all available state remedies.” Hills v. Washington, 441 F.3d 1374, 1375
(11th Cir. 2006) (citing Ga. Sup. Ct. R. 40). Pursuant to the requirements of
Georgia habeas law,
All grounds for relief claimed by a petitioner for a writ of habeas
corpus shall be raised by a petitioner in his original or amended
petition. Any grounds not so raised are waived unless the Constitution
of the United States or of this state otherwise requires or unless any
judge to whom the petition is assigned, on considering a subsequent
petition, finds grounds for relief asserted therein which could not
reasonably have been raised in the original or amended petition.
O.C.G.A. § 9-14-51.
10
III.
From our careful review of the record, including the proceedings at
Skillern’s trial, his motion for a new trial, his direct appeal, and his numerous state
habeas applications, it is clear that, except for the claims lettered (c) and (e) in our
COA, all of Skillern’s claims based on ineffective assistance of trial counsel were
raised for the first time in his § 2254 petition and never adjudicated in state court,
and thus were unexhausted. Under O.C.G.A. § 9-14-51, these claims are
procedurally barred in state court. “[W]hen it is obvious that the unexhausted
claims would be procedurally barred in state court due to a state-law procedural
default, we can forego the ‘judicial ping-pong’ and just treat those claims now
barred by state law as no basis for federal habeas relief.” Snowden v. Singletary,
135 F.3d 732, 736 (11th Cir. 1998). Accordingly, Skillern’s unexhausted claims,
raised for the first time in federal court, were properly dismissed.6
As for claim (c), concerning the failure to object to the seizure of Skillern’s
property, although the district court erred by finding this claim had never been
raised, the court properly denied federal habeas relief because this claim was not
presented to the Georgia Court of Appeals and, thus, was not exhausted. Hills, 441
6
Moreover, none of these claims involve issues that “a state court judge would find . . .
‘could not reasonably have been raised in [Skillern’s] original or amended [state habeas] petition.”
Chambers v. Thompson, 150 F.3d 1324, 1327 (11th Cir. 1998) (quoting O.C.G.A. § 9-14-51). And
Skillern has not argued “cause and prejudice,” as a basis to excuse his default of these claims.
11
F.3d at 1375 (“[w]hen a claim has been presented to the [Georgia] Court of
Appeals and relief has been denied, the litigant shall be deemed to have exhausted
all available state remedies”). Construing Skillern’s petition liberally, and based
on our review of the record, Skillern asserted claim (c) when he argued, both in his
motion for a new trial and in one of his state habeas petitions, that trial counsel
should have moved to suppress, or otherwise challenged, the introduction of
evidence seized from his vehicle. After an evidentiary hearing, the state trial court,
in its order denying Skillern’s motion for a new trial, noted the following:
Valente [Skillern’s trial attorney] filed a motion to suppress the
search and seizure of certain items located during the search of
defendant’s vehicle pursuant to a search warrant. Valente did not
pursue the motion because the State agreed to stipulate that a strap on
dildo found among defendant’s personal belongings would not be
admitted into evidence in exchange for Valente stipulating that a jar of
vaseline had been found among defendant’s personal belongings.
Valente explained that the jar of vaseline was a common household
product that he could easily explain being in the defendant’s
possession, but that the defendant’s possession of a strap on dildo
would be extremely prejudicial to the defendant in front of a
conservative rural county jury.
Moreover, at the March 27, 2002 hearing on one of Skillern’s state habeas
petitions, the state habeas court heard Skillern’s argument on the stipulation
concerning the jar of Vaseline. Skillern asserted that he never agreed to the
stipulation and that his attorney was ineffective for allowing the introduction of the
Vaseline jar.
12
The state habeas court denied relief, noting at the hearing that Skillern had
raised this issue in a prior state habeas petition. Cf. O.C.G.A. § 9-14-51 (requiring
habeas petition to raise “[a]ll grounds claimed” in the original petition and stating
that claims not raised are waived). Although Skillern raised this claim prior to his
§ 2254 petition, he did not raise the claim in any proceeding before the Georgia
Court of Appeals. Accordingly, it was not exhausted and Skillern was not entitled
to federal habeas relief. Hills, 441 F.3d at 1375.
As for claim (e), concerning trial counsel’s failure to use exculpatory school
records, Skillern argued this claim before the state habeas court at the March 27,
2002 hearing on the state habeas application. Skillern contended that the records
were exculpatory in nature, as they suggested that the child-victim’s mother
coerced the child to lie and that the child-victim had previously made claims that
she had been molested by another individual. On April 6, 2003, the state habeas
court denied state habeas relief, finding that “the school records which [Skillern]
contends are exculpatory, he has filed a separate pleading indicating he has had
them since 1994, long before he filed his first habeas petition.” Pursuant to
O.C.G.A. § 9-14-51, this ineffective-assistance claim, which the state habeas court
found was available to Skillern when he filed his first habeas petition, was waived.
And the state habeas court concluded that the record belied Skillern’s proffered
13
excuse for not raising the claim earlier. Accordingly, although this claim was
raised prior to Skillern’s federal habeas petition, he nonetheless is not entitled to
relief because the state habeas court enumerated a procedural-default principle of
state law to conclude that the ineffective-assistance claim was barred. In such a
case, a federal court will respect the state court’s decision. Bailey, 172 F.3d at
1303.
Finally, we can discern no error in the district court’s decision on the
ineffective-assistance claims as to appellate counsel, which, like most of the trial-
assistance claims, were procedurally defaulted because they were not first raised in
state court.7 Although in its order, the district court first suggested that it had
considered the merits of Skillern’s claims, we find it clear, based on our own
thorough review of the record, that the claims were not properly raised in state
court. In his four state habeas applications, Skillern vaguely asserted that he had
received ineffective assistance of appellate counsel. He did not, however,
enumerate the instances of ineffectiveness he made in response to the district
court’s order giving him leave to amend his § 2254 petition to state specific
instances. Accordingly, like the trial claims, the appellate claims do not afford a
basis for federal habeas relief, as they are procedurally barred. In short, even under
7
Again, Skillern has not argued “cause and prejudice,” as a basis to excuse his default of
these claims.
14
a liberal construction of his voluminous pro se filings, we simply cannot conclude
that he “fairly presented” to the state courts the specific claims he now asserts in
federal court. Picard, 404 U.S. at 275.
In sum, because Skillern raised his trial-based claims, except for (c) and (e),
and his appellate-based claims for the first time in his § 2254 petition, the district
court correctly dismissed the claims as procedurally defaulted. Likewise, although
claims (c) and (e) were not raised for the first time in the § 2254 petition, they also
fail because claim (c) was not exhausted in state court and claim (e) was denied by
the state habeas court on the basis of a state procedural-default rule.
AFFIRMED.
15