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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

KURTIS ROY JETER,

Petitioner,

v. CASE NO. 5:10-cv-189-RH-GRJ

SECRETARY, DEPT.

OF CORRECTIONS

Respondent.

_____________________________/

REPORT AND RECOMMENDATION

This case is before the Court on Doc. 18, Petitioner’s pro se Amended Petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and Doc. 21, Respondent’s

motion to dismiss the Petition for failure to exhaust administrative remedies. The

Petition stems from Petitioner’s nolo contendre plea to two counts of felony battery, for

which imposition of sentence was withheld and Petitioner was placed on probation. 

Petitioner was found guilty of violating the conditions of probation and was sentenced to

concurrent five-year terms of imprisonment. Upon due consideration of the Petition, the

motion to dismiss, and the state-court record, the undersigned recommends that the

Petition be dismissed.

1

State-Court Proceedings

Petitioner’s original judgment of guilt pursuant to his nolo contendre plea was

entered on September 18, 2006, and he did not appeal. Respondent’s Appendix

Exhibit (“App. Exh.”) B. The order revoking Petitioner’s probation was entered on

Because the Court may resolve the Petition on the basis of the record, the 1

Court has determined that an evidentiary hearing is not warranted. See Rule 8, Rules

Governing Habeas Corpus Petitions Under Section 2254. 

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September 18, 2008. Id. Exh. C. Petitioner appealed, and his appellate counsel filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there were no

meritorious grounds for appeal. Id. Exh. F. Petitioner filed a letter which the First

District Court of Appeal treated as a pro se brief. Id. Exh. G. The First DCA affirmed

per curiam without opinion. Jeter v. State, 12 So.3d 755 (Fla.1st DCA 2009). The

mandate issued July 27, 2009. App. Exh. I. 

On May 4, 2009, while the appeal from his revocation proceedings was pending,

Petitioner filed a motion for postconviction relief under rule Fla. R. Crim. P. 3.850,

asserting claims stemming from his original plea proceedings and sentence in 2006,

including claims that his conviction violated double jeopardy and that his trial counsel

rendered ineffective assistance in connection with the plea. Id. Exh. J. The state court

dismissed the motion as barred by the two-year statute of limitations applicable to Rule

3.850 motions. Id. The dismissal was affirmed without opinion. Id. K.; Jeter v. State,

36 So.3d 650 (Fla.1st DCA 2010). 

On June 3, 2010, Petitioner filed a state habeas petition seeking a belated

appeal. App. Exh. O. The petition was denied without opinion on June 30,

2010. Id. Exh. P; Jeter v. State, 39 So.3d 323 (Fla.1st DCA 2010).

While the rule 3.850 and belated appeal petition were pending, on September

18, 2009, Petitioner filed a motion for reduction and modification of his sentence under

rule 3.800(c). App. Exh. Q. The trial court did not rule on the motion, and no appeal

was taken. On November 6, 2009, Petitioner submitted a motion to correct sentence

pursuant to Fla. R. Crim. P. 3.800(a), seeking additional jail credit; that motion was

granted. Id. Exh. R, T. 

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On June 23, 2010, Petitioner submitted a second motion to correct sentence

under rule 3.800(a), arguing that his conviction violated double jeopardy. Id. Exh. U. 

The court found that the claim was not cognizable under Rule 3.800, and also denied

the motion as untimely, if construed as a rule 3.850 motion. Id. Exh. V.

In the instant federal habeas petition, filed on July 7, 2010, Petitioner contends

that (1) the state court erred in failing to conduct an evidentiary hearing on his untimely

Rule 3.850 motion, because he claimed that he had hired an attorney to file a motion

and the attorney failed to do so; (2) his nolo contendre plea to two counts of felony

battery violated double jeopardy; and (3) his trial counsel rendered ineffective

assistance in connection with his plea, and failed to preserve issues for appellate

review. Doc. 18. 

Respondent concedes that the Petition is timely because it was filed within one

year of Petitioner’s probation revocation and sentencing. See Ferreira v. Secretary,

Dept. of Corrections, 494 F.3d 1286, 1292-1293 (11 Cir. 2007) (statute of limitations th

is triggered by the date the “judgment” becomes final, which includes underlying

conviction and sentence imposed upon resentencing). Respondent contends, however,

that none of Petitioner’s claims stemming from his underlying plea proceeding are

cognizable on habeas review, because he failed to timely exhaust such claims and they

are now procedurally barred.2

 Petitioner was afforded an opportunity to respond to the motion to dismiss. 2

Doc. 22. Petitioner filed a response claiming that the Respondent had failed to serve

him with the motion. Doc. 26. The Respondent re-served the motion. Doc. 28. 

Petitioner has neither responded to the motion, nor sought any additional time to do so. 

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Section 2254 Exhaustion Requirement

Before bringing a habeas action in federal court, a petitioner must exhaust all

state court remedies that are available for challenging his conviction, either on direct

appeal or in a state post-conviction motion. 28 U.S.C. § 2254(b)(1), (c). Exhaustion

requires that prisoners give the state courts a “full and fair opportunity” to resolve all

federal constitutional claims by “invoking one complete round of the State’s established

appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To

properly exhaust a federal claim, a petitioner must “fairly present” the claim in each

appropriate state court, thereby affording the state courts a meaningful opportunity to

“pass upon and correct alleged violations of its prisoners’ federal rights.” Baldwin v.

Reese, 541 U.S. 27, 29 (2004) (quotation omitted). 

When a petitioner fails to properly exhaust a federal claim in state court, and it is

obvious that the unexhausted claim would now be procedurally barred under state law,

the claim is procedurally defaulted. Bailey v. Nagle, 172 F.3d 1299, 1303 (11 Cir. th

1999). Federal habeas courts are precluded from reviewing the merits of procedurally

defaulted claims unless the petitioner can show either (1) cause for the failure to

properly present the claim and actual prejudice from the default, or (2) that a

fundamental miscarriage of justice would result if the claim were not considered. Id. at

1302, 1306. A fundamental miscarriage of justice exists “where a constitutional

violation has probably resulted in the conviction of one who is actually innocent.” Ward

v. Hall, 592 F.3d 1144, 1157 (11 Cir. 2010). To state a credible claim of actual th

innocence, a petitioner must present new reliable evidence that was not presented at

trial showing that “it is more likely than not that no reasonable juror would have found

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petitioner guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 324 (1995).

Discussion

In this case, Petitioner’s failure to exhaust his Double jeopardy and ineffectiveassistance claims in state court by appealing his conviction or by filing a timely Rule

3.850 motion forecloses such claims from federal review. See Gray v. Netherland, 518

U.S. 152, 161–162 (1996) (where state-court remedies are no longer available because

petitioner failed to file a direct appeal or initiate timely state post-conviction action,

petitioner has procedurally defaulted on his claims and is generally barred from

asserting claims in a federal habeas proceeding); Coleman v. Thompson, 501 U.S. 722,

735 n.1 (1991) (citations omitted) (“[I]f the petitioner failed to exhaust state remedies

and the court to which the petitioner would be required to present his claims in order to

meet the exhaustion requirement would now find the claims procedurally barred[,] ...

there is a procedural default for purposes of federal habeas.”); Henderson v. Campbell,

353 F.3d 880, 891 (11th Cir.2003) (when petitioner fails to properly exhaust claims in

state court and is barred from raising claims in state court by applicable procedural

rules, such claims are procedurally defaulted).

Petitioner contends that the state court violated his right to due process by failing

to conduct an evidentiary hearing on his claim that he hired an attorney to file a timely

Rule 3.850 postconviction. Doc. 18. This claim presents neither cause for the

procedural default nor any independent basis for federal review. There is no federal

constitutional right to counsel in collateral post-conviction proceedings challenging the

conviction and sentence, whether arising from the Sixth Amendment or due process.

Jones v. Crosby, 137 F .3d 1279, 1280 (11th Cir. 1998) (citing Murray v. Giarratano,

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492 U.S. 1 (1989)). “The ineffectiveness or incompetence of counsel during Federal or

State collateral post-conviction proceedings shall not be a ground for relief in a

proceeding arising under section 2254.” 28 U.S.C. § 2254(i). Accordingly, counsel’s

alleged failure to file a timely Rule 3.850 motion would not excuse Petitioner’s

procedural default of the underlying claims in this case, and the state court’s denial of

an evidentiary hearing on the claim presents no federal constitutional issue. Further,

nothing in the record suggests that a fundamental miscarriage of justice would result if

Petitioner’s unexhausted double jeopardy and ineffective-assistance claims were not

considered.

Recommendation

For the foregoing reasons it is respectfully RECOMMENDED that Respondent’s

motion to dismiss, Doc. 21, be GRANTED, that the petition for a writ of habeas corpus,

Doc. 18, be DISMISSED, and that a certificate of appealability be DENIED.

IN CHAMBERS in Gainesville, Florida, on August 10, 2011.

s/ Gary R. Jones

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to

the proposed findings and recommendations within 14 days after being served with a

copy of this report and recommendation. A party may respond to another party’s

objections within 14 days after being served with a copy thereof. Failure to file specific

objections limits the scope of review of proposed factual findings and

recommendations.

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