[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________ No. 22

- 12401 Non

- Argument Calendar

____________________ FRANK CARTER, JR., Petitioner

- Appellant,

versus SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent

- Appellee.

____________________ Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 3:21

- cv
- 00797

- LC

- ZCB

_______________ _____ USCA11 Case: 22-12401 Document: 25-1 Date Filed: 02/01/2024 Page: 1 of 42 Opinion of the Court 22

- 12401

Before R OSENBAUM , G RANT , and B RASHER , 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 a n evidentiary hearing under Daubert v. Merrell Dow Pharm aceuticals , Inc. , 509 U.S. 579 (1993)

. The district court dismissed Car ter’s Daubert

- based claim as procedurally defaulted. Under th e 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 p etition. 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 USCA11 Case: 22-12401 Document: 25-1 Date Filed: 02/01/2024 Page: 2 of 422

- 12401 Opinion of the Court 3
that a procedurally defaulted claim can nonetheless proceed if the procedural default was caused either by in effective 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 co nsider 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 , 5 6 6 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 revie w 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 suff icient 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 f irst 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. B y failing to argue the point earlier

— i.e. , when Respondent answered the petition and argued for denial on procedural default grounds

— Carter forfeited the USCA11 Case: 22-12401 Document: 25-1 Date Filed: 02/01/2024 Page: 3 of 44 Opinion of the Court 22

- 12401 procedural default issue. We have made clear that district courts are under no obligation to consider arguments raised for the firsttime in an objection to a magistrate judge’s report and recommendation. Williams v. McNeil , 557 F.3d 1287, 1290

– 92 (11th Ci r. 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 den ial of Carter’s habeas petition is AFFIRMED

. USCA11 Case: 22-12401 Document: 25-1 Date Filed: 02/01/2024 Page: 4 of 4