[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

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No. 22-12401

Non-Argument Calendar

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FRANK CARTER, JR., 

Petitioner-Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, 

Respondent-Appellee.

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Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 3:21-cv-00797-LC-ZCB

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2 Opinion of the Court 22-12401

Before ROSENBAUM, GRANT, and BRASHER, Circuit Judges.

PER CURIAM:

Petitioner Frank Carter, Jr., is a Florida state prisoner. Carter 

has filed in federal court a petition for a writ of habeas corpus alleging that his state conviction and sentence violate his federal constitutional rights. See 28 U.S.C. § 2254. As relevant for this appeal, 

Carter asserts in his habeas petition that his trial attorney performed ineffectively by failing to move for an evidentiary hearing 

under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 

(1993). 

The district court dismissed Carter’s Daubert-based claim as 

procedurally defaulted. Under the Antiterrorism and Effective 

Death Penalty Act of 1996 (AEDPA), a state prisoner typically must 

exhaust the relevant state’s available post-conviction remedies before pursuing a federal habeas petition. 28 U.S.C. § 2254(b)(1)(A). 

When a state prisoner fails to raise and litigate a habeas claim in 

state post-conviction proceedings, that claim is unexhausted and 

thus cannot be pursued in federal court. See Bailey v. Nagle, 172 F.3d 

1299, 1303 (11th Cir. 1999). The Daubert-based claim first appeared 

in Carter’s second state post-conviction petition, and the state 

courts dismissed that claim as procedurally defaulted. Accordingly, 

there is no doubt that the Daubert-based claim was procedurally defaulted under AEDPA. 

In certain circumstances, however, a procedural default can 

be equitably excused. The Supreme Court held in Martinez v. Ryan

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22-12401 Opinion of the Court 3

that a procedurally defaulted claim can nonetheless proceed if the 

procedural default was caused either by ineffective counsel in the

earlier post-conviction proceeding or by the fact that “there was no 

counsel . . . in that proceeding . . . .” 566 U.S. 1, 17 (2012). Carter’s 

state post-conviction petitions were all filed pro se. But the district 

court did not consider whether Martinez applied to Carter’s Daubert-based habeas claim. 

We granted a certificate of appealability limited to the following question: “Whether the district court erred in failing to consider Martinez v. Ryan, 566 U.S. 1 (2012), as a basis to excuse Carter’s 

procedural default of [the Daubert-based claim] of his § 2254 petition?” The issue for our review is narrow. We do not decide today 

whether Carter’s Daubert-based claim is meritorious. We do not 

even decide today whether Martinez excuses Carter’s procedural 

default. Today, we decide only whether Carter’s pro se filings in the

district court were sufficient to raise a Martinez argument that 

should have been addressed below. 

The district court did not err in failing to apply Martinez to 

Carter’s Daubert-based claim because Carter waited too long to 

even attempt to raise a Martinez-style argument. The first time that 

Carter even arguably raised Martinez or otherwise argued for an 

excuse of the procedural default of the Daubert-based claim was 

when he filed objections to the magistrate judge’s recommendation that the habeas petition be denied. By failing to argue the point 

earlier—i.e., when Respondent answered the petition and argued 

for denial on procedural default grounds—Carter forfeited the 

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procedural default issue. We have made clear that district courts 

are under no obligation to consider arguments raised for the first 

time in an objection to a magistrate judge’s report and recommendation. Williams v. McNeil, 557 F.3d 1287, 1290–92 (11th Cir. 2009). 

And when a district court declines to address an untimely raised 

issue, that issue has been forfeited for appellate review. Knight v. 

Thompson, 797 F.3d 934, 937 n.1 (11th Cir. 2015) (citing Williams, 

557 F.3d at 1291).

The district court’s denial of Carter’s habeas petition is

AFFIRMED. 

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