Henry v. Florida Dept. Corrections, 98-5089

• Decision Date: 29 December 1999
• Docket Number: No. 98-5089,98-5089
• Citation: 197 F.3d 1361
• Parties: (11th Cir. 1999) Shawn Marcus HENRY, Petitioner-Appellant, v. DEPARTMENT OF CORRECTIONS, Michael W. Moore, as Director, State of Florida, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1361

197 F.3d 1361 (11th Cir. 1999)

Shawn Marcus HENRY, Petitioner-Appellant, v. DEPARTMENT OF CORRECTIONS, Michael W. Moore, as Director, State of Florida Respondents-Appellees.

No. 98-5089.

United States Court of Appeals Eleventh Circuit.

Dec. 29, 1999.

[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Florida. (No. 97-659-CV-LCN), Lenore C. Nesbitt, Judge.

Before COX, Circuit Judge, KRAVITCH, Senior Circuit Judge, and PROPST^*, Senior District Judge.

COX, Circuit Judge:

Shawn Marcus Henry seeks a certificate of appealability (COA) as mandated by 28 U.S.C. 2253(c) to appeal the district court's denial of his 28 U.S.C. 2254 petition. Henry's petition requires us to determine the proper standard for granting a COA when, as was the case here, the district court disposes of a petition on procedural grounds.

I. Procedural History

Henry was accused of entering the apartment of an acquaintance and shooting him. A Florida state court convicted Henry of first-degree murder and armed burglary, crimes for which he is currently serving concurrent sentences. Following affirmance on direct appeal, Henry filed a petition for postconviction relief under Fla. R.Crim. P. 3.850. In his 3.850 petition, Henry asserted two claims for relief: (1) that his trial counsel had been ineffective for failing to call a particular witness, Edwin Heyliger; and (2) that his trial counsel had been ineffective for advising Henry, on the basis of erroneous information regarding his prior criminal background and because of a conflict of interest, not to take the stand on his own behalf. The trial judge denied relief on both of Henry's claims without conducting an evidentiary hearing.

Henry then appealed the denial of his 3.850 petition. In his briefs, Henry characterized the issue on appeal solely as whether "[t]he trial court erred in denying defendant's motion for postconviction relief without an evidentiary hearing." (R.-5, Ex. E at 7, Ex. G at 3.) In arguing the issue, however, the briefs both presented facts and cited law relevant to the substance of his ineffective-assistance claims. The appeals court affirmed without opinion.

Henry then filed the instant federal habeas corpus petition. Again, he raised the same two ineffective-assistance claims. The district judge referred the matter to a magistrate judge for a report and recommendation. The magistrate judge recommended that the petition be dismissed because Henry had failed to exhaust his claims in state court. Specifically, he noted that the substance of Henry's ineffective-assistance claims had only been brought forth "tangentially from the issue specified in the appeal"-i.e., tangentially from the question whether the trial court should have granted an evidentiary hearing. (R.-7 at 4.) As an alternative basis for decision, the report and recommendation also addressed the merits of Henry's ineffective-assistance claims and found them lacking. Following receipt and consideration of Henry's objections to the magistrate judge's report, the district judge denied Henry's petition solely because of his failure to exhaust his remedies in state court. The district judge declined to reach the merits of Henry's ineffective-assistance claims.

Finally, the district judge denied Henry's request for a COA, and Henry accordingly sought a COA from this court. A motions judge of this court, see Fed. R.App. P. 27(c); 11th Cir. R. 27-1(d)(2), granted a COA as to the exhaustion issue and ordered briefing on the appropriate standard for granting a COA where a district court denies or dismisses a petition for procedural reasons without reaching the merits of the underlying claims. In accordance with Fed. R.App. P. 27(c) and 11th Cir. R. 27-1(d), we now review the prior decisions regarding the COA in light of the briefs submitted and oral argument. We conclude that the COA was properly granted. We then proceed, using the full presentation of the exhaustion issue provided by the briefs and oral argument, to address the appeal itself.

II. The COA

Henry's application for a COA raises two questions: (1) whether it is ever appropriate to allow appeals from procedural-rule dismissals of 2254 petitions; and (2) if it is ever appropriate, when COAs should be granted to permit such appeals. We begin our analysis of both questions with some history. The Antiterrorism and Effective Death Penalty Act of 1996 102, 28 U.S.C. 2253 (Supp. II 1997) (AEDPA), both renamed the certificate needed to appeal the denial or dismissal of a 2254 petition and changed the standard for issuing that certificate. Prior to AEDPA, petitioners wanting to appeal had to seek a certificate of probable cause (CPC), which required making a "substantial showing of the denial of [a] federal right." Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (alteration in original) (emphasis added) (quoting Stewart v. Beto, 454 F.2d 268, 270 n. 2 (5th Cir.1971)). By contrast, under 2253(c)(1) federal courts may grant COAs "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2) (emphasis added).

Despite the change in the statutory language, this circuit has concluded that the pre- and post-AEDPA standards for permitting appeal are identical as they relate to the merit demanded of the constitutional issues raised. See Hardwick v. Singletary, 126 F.3d 1312, 1313 (11th Cir.1997) ("Notwithstanding a marginal variance in the language identifying the necessary showing with respect to certificates of probable cause and appealability, ... the standard governing certificates of probable cause and certificates of appealability is materially identical."). Stated fully, that standard requires an appealing petitioner to " 'demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are "adequate to deserve encouragement to proceed further." ' " Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4 (alteration in original) (quoting Gordon v. Willis, 516 F.Supp. 911, 913 (N.D.Ga.1980) (quoting United States ex rel. Jones v. Richmond, 245 F.2d 234 (2d Cir.1957))).

We think that the answers to both of the questions raised by Henry's petition lie in determining whether the Barefoot standard should be continued not only, as Hardwick holds, with respect to the merit of constitutional claims presented, but also with respect to the district court's handling of procedural issues raised by a petition. Concluding that the Barefoot standard should be so continued, we hold, first, that appeals from procedural-rule dismissals are appropriate and, second, that the language of Barefoot provides the analytical framework for determining when COAs should be granted to permit such appeals.

The State's contrary contention notwithstanding, our holding is, in light of historical application of the statute, consistent with the statutory text. It is true that 2253(c)(2) does not, on its face, provide for COAs to be issued where the district court has denied or dismissed the petition on a nonconstitutional ground. Frequently applied procedural doctrines, such as exhaustion, might seem precluded from review by the shift from "federal right" to "constitutional right."¹ On this view, Hardwick 's observation that the pre- and post-AEDPA appealability standards are "materially identical" is not accurate for procedural-rule dismissals. Hardwick, 126 F.3d at 1313. But we reject this view.

Both before and after AEDPA, 28 U.S.C. 2254(a) has provided that the writ of habeas corpus may be granted for violation by state courts "of the Constitution or laws or treaties of the United States." Barefoot 's use of the term "federal" to describe the rights appealable under 2253 created no ambiguity in the relationship between 2254 and 2253; to appeal, petitioners had to make the required "substantial showing" with respect to rights arising under one of the three sources of federal law listed in 2254. AEDPA's use of the term "constitutional" in 2253(b)(2), on the other hand, can, under a strict construction of the text alone, be read to limit the federal rights that may be appealed to those arising under the first of 2254(a)'s three sources.

We offer no opinion regarding the validity of this distinction. Rather, our point is that the reference to "federal" rights in Barefoot really did not include applications of procedural bars by district courts. Yet, appeals from procedural rulings were allowed pre-AEDPA. See, e.g., Hollis v. Davis, 941 F.2d 1471 (11th Cir.1991) (considering the appeal of district-court conclusions regarding exhaustion and procedural default); Gunn v. Newsome, 881 F.2d 949, 954-63 (11th Cir.1989) (en banc) (considering the appeal of a district-court conclusion regarding abuse of the writ). Our holding today permits nothing more; while the difference between "federal" and "constitutional" might be material with respect to the types of claims raised in the petition, it is not material to the question presented here.

Moreover, as the Third Circuit recently pointed out, pre-AEDPA reasons for appellate review of procedural-rule dismissals have not diminished with the passage of AEDPA. Denying COAs for procedural dismissals

would preclude appellate review of all procedural issues relating to federal habeas corpus. The district courts would be left to themselves to develop the law relating to AEDPA's statute of limitations, the exhaustion requirement, etc., potentially leading to unreviewable contradictions in the law of the circuit or the erroneous denial of relief to a petitioner under a sentence of death.

Morris v. Horn, 187 F.3d 333, 340 (3d Cir.1999). Thus, our decision to carry the Barefoot standard forward to deal with procedural-rule dismissals is not only just as consistent with AEDPA's statutory text as earlier use of...