Respondents Brief — Medgar Samuel, Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections

No. 22-6001

IN THE

Supreme Court of the United States

_______________

MEDGAR SAMUEL,

v.

Petitioner,

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent.

_______________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

_______________

BRIEF IN OPPOSITION

_______________

ASHLEY MOODY

Attorney General of

Florida

OFFICE OF THE

ATTORNEY GENERAL

State of Florida

PL-01, The Capitol

Tallahassee, FL

32399-1050

Phone: (850) 414-3300

henry.whitaker@

myfloridalegal.com

HENRY C. WHITAKER

Solicitor General

Counsel of Record

JEFFREY PAUL DESOUSA

Chief Deputy Solicitor

General

ALLEN L. HUANG

Deputy Solicitor General

Counsel for Respondent

i

QUESTION PRESENTED

Before a federal district court may award habeas

relief to a state inmate, the inmate must have exhausted his state-court remedies. 28 U.S.C.

§ 2254(b)(1)(A). In such proceedings, a state may be

“deemed to have waived” the exhaustion defense only

if it does so “expressly.” Id. § 2254(b)(3). Here, the

State argued—and petitioner does not dispute—that

petitioner had failed to timely exhaust one of the 17

claims he raised in his federal habeas petition. Petitioner also does not dispute that, as a result, he is procedurally barred from raising that claim. Instead, petitioner contends that the court of appeals should have

held the State’s argument forfeited because the State

did not raise the procedural bar in district court.

The question presented is whether, notwithstanding the alleged forfeiture, the court of appeals correctly held that § 2254(b)(3) required it to consider the

State’s exhaustion argument on the merits.

ii

TABLE OF CONTENTS

QUESTION PRESENTED.......................................... i

TABLE OF AUTHORITIES ...................................... iii

STATEMENT .............................................................. 1

REASONS FOR DENYING THE PETITION ............ 8

I.

This case does not implicate a circuit split. .....9

II.

The Eleventh Circuit correctly held that a

state cannot forfeit a procedural-default

defense caused by an inmate’s failure to

exhaust. ...........................................................14

III. This case is a poor vehicle. .............................16

CONCLUSION .......................................................... 16

iii

CASES

TABLE OF AUTHORITIES

Carvajal v. Artus,

633 F.3d 95 (2d Cir. 2011) .................................. 9–10

Caver v. Straub,

349 F.3d 340 (6th Cir. 2003) ..................................12

Cheeks v. Gaetz,

571 F.3d 680 (7th Cir. 2009) ..................................13

Dubria v. Smith,

224 F.3d 995 (9th Cir. 2000) ..................................11

Eichwedel v. Chandler,

696 F.3d 660 (7th Cir. 2012) ..................................13

Ellis v. Hargett,

302 F.3d 1182 (10th Cir. 2002) ..............................10

Engle v. Isaac,

456 U.S. 107 (1982) ................................................15

Fisher v. Texas,

169 F.3d 295 (5th Cir. 1999) ..................................11

Franklin v. Johnson,

290 F.3d 1223 (9th Cir. 2002) ...................... 2, 10–15

Garner v. Mitchell,

502 F.3d 394 (6th Cir. 2007) ..................................12

Garner v. Mitchell,

557 F.3d 257 (6th Cir. 2009) ..................................12

Haygood v. State,

109 So. 3d 735 (Fla. 2013) ....................................... 4

Jackson v. Johnson,

194 F.3d 641 (5th Cir. 1999) ..................................11

Kelley v. Sec’y for Dept. of Corr.,

377 F.3d 1317 (11th Cir. 2004) ............................... 1

McNair v. Campbell,

416 F.3d 1291 (11th Cir. 2005) ..........................9, 14

iv

State v. Montgomery,

39 So. 3d 252 (Fla. 2010) ......................................... 4

O’Sullivan v. Boerckel,

526 U.S. 838 (1999) ................................................15

Picard v. Connor,

404 U.S. 270 (1971) ................................................. 1

Rojem v. Gibson,

245 F.3d 1130 (10th Cir. 2001) ..............................11

Samuel v. State,

19 So. 3d 326 (Fla. 4th DCA 2009) ......................... 3

Samuel v. State,

173 So. 3d 984 (Fla. 4th DCA 2015) ....................... 3

Samuel v. State,

236 So. 3d 1089 (Fla. 4th DCA 2017) ..................... 4

Tucker v. Johnson,

115 F.3d 276 (5th Cir. 1997) ..................................11

United States v. Paulk,

46 F.4th 399 (6th Cir. 2022)...................................12

STATUTES

28 U.S.C. § 2254 ...................................... 1–2, 9, 14–15

RULES

Fla. R. of Crim. P. 3.850 ............................................. 4

1

STATEMENT

1. Under the Antiterrorism and Effective Death

Penalty Act of 1996, a person in custody under a state

conviction may apply for federal habeas relief from a

state court decision that is (1) “contrary to, or involved

an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of

the United States”; or (2) “based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d).

But before proceeding to federal court, the inmate

must “exhaust[]” his claim by presenting it to the state

courts. Id. § 2254(b)(1); see also Picard v. Connor, 404

U.S. 270, 275 (1971). “It is not sufficient merely that

the federal habeas petitioner has been through the

state courts”; “nor is it sufficient that all the facts necessary to support the claim were before the state

courts or that a somewhat similar state-law claim was

made.” Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317,

1343–44 (11th Cir. 2004) (citing Picard, 404 U.S. at

275–76). Instead, the inmate “must present his claims

to the state courts such that they are permitted the

‘opportunity to apply controlling legal principles to the

facts bearing upon [the] constitutional claim.’” Id. at

1344 (quoting Picard, 404 U.S. at 277).

The exhaustion requirement advances the important interests of federalism and comity; it ensures

that before a federal court grants habeas relief, the

state courts have the opportunity to correct any mistakes in a criminal judgment. Picard, 404 U.S. at 275.

To that end, a state responding to a federal habeas pe-

2

tition “shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon

the requirement unless the State, through counsel, expressly waives the requirement.” 28 U.S.C.

§ 2254(b)(3).

Separately, a federal habeas claim may also be procedurally defaulted. The term procedural default “can

encompass two different scenarios.” See Franklin v.

Johnson, 290 F.3d 1223, 1238 (9th Cir. 2002)

(O’Scannlain, J., concurring in part and concurring in

the judgment). The first arises when an inmate fails

to timely exhaust his federal claim in state court. If an

inmate fails to do so, then the inmate has both failed

to exhaust his claim and is procedurally barred from

raising the claim in the future, since “[a]s a result [of

the failure to timely exhaust], his claim is procedurally barred.” Id. The second scenario occurs where “[a]

state court will not hear his claim due to [some other]

state procedural bar.” Id. For example, if an inmate

failed to object to the admission of evidence at trial

and state law requires a contemporaneous objection,

the inmate is procedurally barred from raising the evidence claim on direct appeal or in a state habeas petition. Id.

As explained below, this case involves the interplay between exhaustion and the first type of procedural default, not the second.

2. Petitioner Medgar Samuel was charged with

and tried for second-degree murder for stabbing and

killing a man during a fight. Pet. App. A-3 at 7–9. The

jury was also instructed on a lesser-included offense,

manslaughter, and the standard jury instructions at

the time provided that petitioner could be convicted of

3

manslaughter if he caused the victim’s death either

intentionally or by culpable negligence. Pet. 3. During

deliberations, the jury asked whether it needed to find

that petitioner caused the victim’s death both intentionally and by culpable negligence. Pet. App. A-3 at

46. With the agreement of the parties, the trial court

responded that the jury need find only one or the

other. Pet. App. A-3 at 46. The jury found petitioner

guilty of manslaughter, and the court sentenced petitioner to 25 years’ imprisonment. Pet. App. A-3 at 10.

On direct appeal, petitioner argued that the trial

court erred in failing to reread the manslaughter instruction when the jury asked for clarification. Samuel v. Fla. Dep’t of Corr., No. 17-cv-80722, DE32-1:24–

26 (S.D. Fla. Apr. 16, 2018). The court of appeal affirmed. Samuel v. State, 19 So. 3d 326 (Fla. Dist. Ct.

App. 2009).

3. In his first state habeas motion, petitioner argued that his trial counsel was ineffective for accepting the culpable-negligence jury instruction, DE321:228–30, but the state postconviction court denied relief, finding that (1) the jury instruction was proper,

(2) his jury-instruction claim should have been raised

on direct appeal, and (3) he failed to show prejudice,

Samuel v. Fla. Dep’t of Corr., No. 17-cv-80722, DE323:190 (S.D. Fla. Apr. 16, 2018). The court of appeal affirmed. Samuel v. State, 173 So. 3d 984 (Fla. Dist. Ct.

App. 2015). Petitioner then filed a pro se petition in

the Florida court of appeal, arguing that his appellate

counsel prejudiced him by failing to raise two claims

not relevant here. DE32-1:50–68. The court of appeal

denied the petition. DE32-1:123.

4

Years later, petitioner filed a successive state postconviction motion, relying on two intervening decisions from the Florida Supreme Court. Samuel v. Fla.

Dep’t of Corr., No. 17-cv-80722, DE32-4:21 (S.D. Fla.

Apr. 16, 2018). In State v. Montgomery, the Florida

Supreme Court held that, as a matter of state law, instructing a jury that intent to kill is an element of

manslaughter constitutes fundamental error where

the defendant was convicted of the greater offense of

second-degree murder. 39 So. 3d 252, 254, 259–60

(Fla. 2010). Following Montgomery, the court held

that under state law a manslaughter instruction including intent to kill was not cured by inclusion of a

subsequent instruction on manslaughter by culpable

negligence. Haygood v. State, 109 So. 3d 735, 740–41

(Fla. 2013). Petitioner argued only that under Montgomery and Haygood, his jury instructions—which instructed the jury that he could be found guilty of manslaughter if he intended to kill the victim or if he was

culpably negligent—constituted “fundamental error.”

DE32-4:23–31. Petitioner did not argue that his jury

instructions violated any federal rights. Nor did Montgomery or Haygood establish any federal rights.

The state postconviction court denied petitioner’s

motion as untimely under Florida Rule of Criminal

Procedure 3.850(b)(2); concluded that Montgomery

and Haygood did not apply retroactively to his conviction, which had become final before they were issued;

and even if they did apply retroactively, that he had

failed to file his motion within two years of the decision announcing retroactive application, as required

under Rule 3.850(b)(2). DE32-4:38–39. The court of

appeal affirmed without an opinion. Samuel v. State,

236 So. 3d 1089 (Fla. Dist. Ct. App. 2017).

5

4. Petitioner then filed a pro se federal habeas petition asserting 17 grounds for relief. Samuel v. Fla.

Dep’t of Corr., No. 17-cv-80722, DE1 (S.D. Fla. June 9,

2017). Only Grounds 13 and 15 are relevant here. In

Ground 13 he argued that the trial court erred “in not

giving the jury a complete definition of manslaughter

in response to the jury’s request for clarification.”

DE1:27. In Ground 15 he argued that the “[t]rial court

committed fundamental error when [it] instructed the

jurors on the element of: (1) intentional/caused, and

(2) culpable negligence, for the elements of manslaughter.” His “supporting facts” for Ground 15 state

in full:

Instead of the court administering the instructions as the statu[t]e provides which requires

(2) two elements; 1) the victim is dead; and 2)

give either a, b, or c depending on proof of allegations. Instead the trial court gave three elements, in which culpable negligence didn’t fit,

nor was it argued, and intentional/caused [sic]

was deemed fundamentally erroneous. The

court was even given an opp[o]rtunity to correct

the erroneous jury instructions, but no one; the

court, defense counsel, nor the state knew they

could recall the jurors to correct the erroneous

instructions. Now, with a man[’]s liberty at

stake, no one would take the time to find out if

and/or how. This violated the petitioner’s 14th

Amend. Right to the U.S. Constitution.

DE1:29. Petitioner indicated that he had previously

raised Ground 13 on “direct appeal” and had raised

Ground 15 when he previously argued “ineffective assistance of appellate counsel.” DE1:27, 29.

6

In its response to the habeas petition, the State

combined its merits response to Grounds 13 and 15,

arguing that petitioner had not shown how the trial

court’s instructions to the jury were contrary to, or involved an unreasonable application of, clearly established federal law. Samuel v. Fla. Dep’t of Corr., No.

17-cv-80722, DE31:77–80 (S.D. Fla. Apr. 16, 2018).

The State also argued that Ground 13 was exhausted

but Ground 15 was not. DE31:27. Specifically, the

State asserted that “Ground Fifteen of the [federal habeas] petition was not exhausted” “[b]ecause the factual and legal basis for [it] does not appear to have

been presented by Petitioner in his State habeas petition alleging ineffective assistance of appellate counsel.” DE31:23–24. And it explained elsewhere in its response that “unexhausted claims [are] procedurally

defaulted, even absent a state court determination to

that effect, if it is clear from state law that any future

attempts at exhaustion would be futile.” DE31:18.

A magistrate judge issued a report on the petition,

Pet. App. A-3, which the district court adopted in its

entirety, Pet. 4 n.1; Pet. App. A-2. The district court

declined to resolve the exhaustion issue. It instead

ruled on the merits of Grounds 13 and 15 together after finding them related, focusing on Ground 13 and

not addressing Montgomery or Haygood. Pet. App. A3 at 45–48. The district court interpreted petitioner to

be arguing that the state trial court—instead of clarifying that manslaughter could be committed by either

an intentional act or culpable negligence—should

have repeated the whole definition of manslaughter

because it included instructions on justifiable and excusable homicide. Pet. App. A-3 at 46–47. But the district court denied the claims, finding that any error

7

was harmless, because “the jury was instructed on excusable and justifiable homicide . . . [and] . . . the

jury’s narrow request for clarification does not suggest

the jury failed to consider Petitioner’s self-defense theory.” Pet. App. A-3 at 48.

Petitioner applied for a certificate of appealability

on 16 of his claims, including Grounds 13 and 15.

Samuel v. Fla. Dep’t of Corr., No. 17-cv-80722, DE64

(S.D. Fla. May 29, 2020). The Eleventh Circuit

granted a certificate of appealability only for Ground

15, as to whether the district court erred “in finding

that any error in the state trial court’s manslaughter

instruction, which included an intent-to-kill element,

was harmless.” Samuel v. Fla. Dep’t of Corr., No. 2012002, DE12:13–14 (11th Cir. Feb. 3, 2021). The Eleventh Circuit construed Ground 15 as alleging that the

trial court erred in instructing the jury that it could

find the mens rea element satisfied by an intent to kill

rather than mere culpable negligence. DE12:13. In

granting the certificate of appealability, the court of

appeals acknowledged that “it is not clear whether

Montgomery applies in a case where the defendant is

ultimately convicted of manslaughter.” DE12:14.

Along with refuting petitioner’s claim on the merits, the State argued in the Eleventh Circuit that petitioner’s federal habeas claim was “procedurally

barred” because it was “not exhausted in state court.”

Samuel v. Fla. Dep’t of Corr., No. 20-12002, DE36:34

(11th Cir. Dec. 6, 2021).

The Eleventh Circuit affirmed. Instead of reaching

the merits, the Eleventh Circuit held that petitioner

“failed to properly exhaust his claim by failing to fairly

8

present his federal claim” in any state filing. Pet. App.

A-1 at 7. The court of appeals observed that neither

petitioner’s direct appeal nor his two state habeas motions had raised the claim that the jury instruction violated a federal right. Pet. App. A-1 at 7–8. In his direct appeal, “he argued only that the court erred in not

rereading the instruction when the jury asked for clarification,” without referencing any federal right. Pet.

App. A-1 at 7. In his first state habeas motion, he had

raised only an ineffective assistance of counsel claim

for accepting an erroneous jury instruction. Pet. App.

A-1 at 7. In his second state habeas motion, “while he

referred to ‘fundamental error,’ he pointed only to

state law cases in support and did not refer to the constitution or any federal rights”; and his citations to

Montgomery and Haygood had not exhausted any federal claim because “neither of those cases talk about

constitutional error.” Pet. App. A-1 at 7–8.

The Eleventh Circuit further concluded that the

claim was procedurally barred. Petitioner “would be

barred from presenting the claims in state court,” it

reasoned, “because the remedy is no longer available

in a [Florida state habeas] motion, as more than two

years passed since Montgomery and Haygood were decided.” Pet. App. A-1 at 8.

REASONS FOR DENYING THE PETITION

Petitioner, a state inmate, contends that the court

of appeals erred in considering on the merits the

State’s argument that he had failed to timely exhaust

his state-court remedies on one of the seventeen

claims he raised in his federal habeas corpus petition.

But the court of appeals correctly entertained the

9

State’s argument—which petitioner does not dispute

on the merits—because the federal habeas statute

provides that a state responding to a federal habeas

petition “shall not be deemed to have waived the exhaustion requirement or be estopped from reliance

upon the requirement unless the State, through counsel, expressly waives the requirement.” 28 U.S.C.

§ 2254(b)(3). The court of appeals correctly rejected

the suggestion that this express waiver requirement

is inapplicable to the State’s argument simply because

petitioner’s failure to timely exhaust also results in

the claim being procedurally barred. And every other

circuit to address the question in a binding holding

has agreed.

Further review is unwarranted.

I. THIS CASE DOES NOT IMPLICATE A CIRCUIT SPLIT.

Petitioner argues that the Court should resolve a

“split in the circuits” on whether “a State forfeits the

affirmative defense of procedural default by failing to

assert it in the district court.” Pet. 7 (identifying the

“Fifth, Sixth, Seventh, Ninth, and Tenth Circuits” as

favoring his rule).

In fact, all three circuits with a binding opinion addressing these circumstances agree with the court of

appeals’ holding: “[W]hen a petitioner has failed to exhaust his claim by failing to fairly present it to the

state courts and the state court remedy is no longer

available, the failure also constitutes a procedural

bar,” and the State waives that defense only if it does

so expressly. McNair v. Campbell, 416 F.3d 1291,

1305–06 (11th Cir. 2005); see Carvajal v. Artus, 633

F.3d 95, 105 (2d Cir. 2011) (“We are persuaded that

10

when a state’s procedural default argument is predicated on a habeas applicant’s failure to exhaust . . . we

may consider such an argument for the first time on

appeal unless it was expressly waived in the district

court.”); Ellis v. Hargett, 302 F.3d 1182, 1189 (10th

Cir. 2002) (“[Petitioner’s] federal due process claim

has not been exhausted. Since the State has not expressly waived the exhaustion requirement, it applies

to this claim. Because [petitioner] has already applied

once for state postconviction relief, he is clearly procedurally barred from raising this claim[.]” (citations

omitted)). Each of those circuits invokes § 2254(b)(3)

as the basis for that rule.

Most of the cases on which petitioner relies involve

a type of procedural bar not at issue here. And the only

circuits to address the circumstances of this case while

suggesting a different result—the Sixth, Seventh, and

Ninth Circuits—either failed to address § 2254(b)(3)

or examined the issue only in dicta.

1. As noted, procedural default “can encompass

two different scenarios.” See Franklin, 290 F.3d at

1238 (O’Scannlain, J., concurring in part and concurring in the judgment). The first, at issue here, results

from a state inmate’s failure to exhaust the claim in

state court within the period permitted by the state’s

rules of procedure—with the result that any attempt

to assert the claim would now be procedurally barred

as untimely. Id. The second arises where the inmate

did timely present the claim to the state courts but

was turned away because of some “state procedural

bar,”—for example, when a prisoner attempts to raise

an unpreserved claim in the state appellate court. Id.

11

In this second scenario, the exhaustion requirement

“does not come into play.” Id.

This case involves the first type of procedural default: As the Eleventh Circuit concluded, petitioner

never attempted to raise his claim in the Florida

courts, with the result that any such claim would now

be untimely. Pet. App. at 8. Yet most of the cases petitioner identifies as part of the purported split, Pet.

8–9, deal with the second type of procedural default,

and thus have no bearing on the dispute:

•

Tucker v. Johnson, 115 F.3d 276, 281 n.5 (5th

Cir. 1997) (State waived argument that inmate

failed to request jury instruction at trial, barring the claim under Texas’s contemporaneousobjection rule).

•

Fisher v. Texas, 169 F.3d 295, 300–01 (5th Cir.

1999) (State waived argument that inmate

failed to object during jury selection to a peremptory strike).

•

Jackson v. Johnson, 194 F.3d 641, 650–52 (5th

Cir. 1999) (State waived defense that inmate

failed to contemporaneously object to prosecutor’s statements at trial).

•

Dubria v. Smith, 224 F.3d 995, 1000–01 (9th

Cir. 2000) (en banc) (State waived defense that

inmate failed to contemporaneously object to

admission of police interview at trial).

•

Rojem v. Gibson, 245 F.3d 1130, 1142 (10th Cir.

2001) (State waived defense that inmate failed

to object to prosecutor’s remarks at trial).

12

2. Petitioner identifies cases from three circuits involving the first type of procedural default. Pet. 8–9.

But none of those cases include a binding holding. The

Sixth Circuit, in Caver v. Straub, refused to consider

the state’s argument that the inmate procedurally defaulted because of lack of exhaustion, finding that the

state did not raise the issue in the district court. 349

F.3d 340 (6th Cir. 2003). The Sixth Circuit did not,

however, take a position on whether § 2254(b)(3) applies in that circumstance—indeed, it did not mention

that statute at all. See id. at 345–46. Under circuit

precedent, then, Caver would not bind future panels.

See United States v. Paulk, 46 F.4th 399, 403 (6th Cir.

2022) (refusing to apply a prior decision as binding

precedent because it “did not consider the specific issue presented here”). 1

Contrary to petitioner’s suggestion (Pet. 8), the

Ninth Circuit’s decision in Franklin likewise does not

hold that the first type of procedural default can be

waived impliedly. Though the majority opinion in that

case includes a “discussion of the waiver matter,”

1

A subsequent panel of the Sixth Circuit, without citing

Caver, reasoned from first principles when concluding that

§ 2254(b)(3) did not absolve the state’s failure to raise the exhaustion defense below, but the Sixth Circuit sitting en banc

later vacated that decision. Garner v. Mitchell, 502 F.3d 394, 401

n.1 (6th Cir. 2007), vacated en banc (Jan. 3, 2008). The en banc

court then affirmed the denial of habeas relief on the merits

alone, without addressing the waiver issue. Garner v. Mitchell,

557 F.3d 257, 258–71 (6th Cir. 2009) (en banc); see also id. at 271

(Daughtrey, J., concurring in result only) (observing that the

waiver issue “has somehow disappeared from the discussion at

the current stage of the litigation”). As a result, no Sixth Circuit

precedent on how to apply § 2254(b)(3) in this circumstance exists.

13

Franklin, 290 F.3d at 1233, that discussion was “dictum,” id. at 1239 (O’Scannlain, J., concurring in part

and concurring in the judgment). As Judge

O’Scannlain observed in a concurring opinion, the majority’s treatment of the waiver question was “unnecessary” to the outcome because the majority nevertheless affirmed the district court’s denial of the habeas

petition on the merits. Id. at 1239. No subsequent published opinion from the Ninth Circuit has enshrined

that dictum in a holding.

Finally, petitioner cites (Pet. 8) Cheeks v. Gaetz,

571 F.3d 680 (7th Cir. 2009), where the question was

whether a district court could decline to consider a

procedural bar arising from the failure to exhaust. But

rather than address the question presented, the Seventh Circuit acknowledged in Cheeks that it had not

yet decided the circumstance at issue in this case: “as

to whether section 2254(b)(3) applies to procedural default as well as to exhaustion . . . [w]e decline[] to take

a position on that issue.” Id. at 686 n.1 (citations omitted); see also Eichwedel v. Chandler, 696 F.3d 660, 700

(7th Cir. 2012) (“We have not yet taken a position on

this question, and we need not do so in this case.”

(footnote omitted)). At any rate, the discussion in

Cheeks giving weight to the State’s failure to raise procedural default at the district court was dicta for the

same reason that Franklin’s was—the inmate’s request for relief was denied on the merits.

In sum, there is no disagreement among the circuits about whether § 2254(b)(3) applies to procedural

defaults arising from lack of exhaustion.

14

II. The Eleventh Circuit correctly held that a

state cannot forfeit a procedural-default defense caused by an inmate’s failure to exhaust.

Certiorari is similarly unwarranted because the

Eleventh Circuit’s approach is correct. Underscoring

the importance of AEDPA’s exhaustion requirement,

Congress has specified that, in federal habeas proceedings seeking review of a state-court conviction,

“[a] State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance

upon the requirement unless the State, through counsel, expressly waives the requirement.” 28 U.S.C.

§ 2254(b)(3) (emphasis added).

Based on that text, the Eleventh Circuit correctly

reasoned that a state cannot impliedly waive a procedural bar that results from the inmate’s failure to exhaust. McNair, 416 F.3d at 1305. “Because

§ 2254(b)(3) provides that the State can waive [a petitioner’s] failure to properly exhaust his claim only by

expressly doing so,” that court has said, “it logically

follows that [a] resulting procedural bar[] which arises

from and is dependent on the failure to properly exhaust[] can only be waived expressly.” Id. Indeed, in

such an instance “[t]here could be no procedural bar

argument . . . without [the petitioner’s] failure first to

exhaust his claim.” Franklin, 290 F.3d at 1238

(O’Scannlain, J., concurring in part and concurring in

the judgment). “Thus, [where] the State’s argument is

based upon [the petitioner’s] failure to exhaust his

claim, which, as a by-product, renders it procedurally

barred . . . the State [cannot] waive this argument by

failing to raise it below.” Id. (emphasis added). Any

15

other approach would “elevate[] form over substance.”

Id. at 1238.

Put differently, when the procedural default arises

from the inmate’s failure to exhaust, the State is still

enforcing “the exhaustion requirement,” even though

that requirement has resulted in a procedural default.

That defense thus must be waived expressly or not at

all. See 28 U.S.C. § 2254(b)(3).

In dicta arguing the contrary, the Franklin majority thought that such a procedural default is not predicated on lack of exhaustion. It argued that “[i]f a petitioner failed to present his claims in state court and

can no longer raise them through any state procedure,

state remedies are no longer available, and are thus

exhausted.” Franklin, 290 F.3d at 1231 (citing Engle

v. Isaac, 456 U.S. 107, 125 n.28 (1982)). In other

words, by delaying so long that state remedies become

unavailable, the inmate had “exhausted” the remedies

available in state court and rendered § 2254(b)(3) inapplicable.

But part of the “exhaustion requirement,” 28

U.S.C. § 2254(b)(3), this Court has held, is that the

claims must be “properly exhausted.” O’Sullivan v.

Boerckel, 526 U.S. 838, 848 (1999). Were it otherwise,

“a prisoner could evade the exhaustion requirement—

and thereby undercut the values that it serves—by

‘letting the time run’ on state remedies.” Id. (citation

omitted). “To avoid this result, and thus ‘protect the

integrity’ of the federal exhaustion rule, [this Court]

ask[s] not only whether a prisoner has exhausted his

state remedies, but also whether he has properly exhausted those remedies[.]” Id. (citation omitted). And

16

that requirement includes complying with the time

limits for presenting a claim to the state court. See id.

III. This case is a poor vehicle.

Finally, this is a poor vehicle for resolving the

question presented because the State did raise the exhaustion/procedural-default defense in the district

court. In its response in the district court, the State

noted that petitioner failed to raise the claim underlying Ground 15 in state court, DE31:23–24; and further

noted elsewhere in its response that the Eleventh Circuit treats an unexhausted claim as procedurally defaulted if a state-court petition for postconviction relief would now be deemed untimely, DE31:18. The district court thus reasonably would have understood

Ground 15 to be procedurally defaulted.

CONCLUSION

The petition for a writ of certiorari should be denied.

17

Respectfully submitted,

ASHLEY MOODY

Attorney General of Florida

OFFICE OF THE

ATTORNEY GENERAL

State of Florida

PL-01, The Capitol

Tallahassee, FL

32399-1050

Phone: (850) 414-3300

henry.whitaker@

myfloridalegal.com

HENRY C. WHITAKER

Solicitor General

Counsel of Record

JEFFREY PAUL DESOUSA

Chief Deputy Solicitor

General

ALLEN L. HUANG

Deputy Solicitor General

Counsel for Respondent

March 27, 2023