[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-12420

Non-Argument Calendar

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D.C. Docket No. 8:17-cv-02074-VMC-CPT

TITO MORELL,

 Petitioner-Appellant,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL, STATE OF FLORIDA,

 Respondents-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(July 16, 2019)

Before MARTIN, NEWSOM and HULL, Circuit Judges.

PER CURIAM:

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Tito Morell, a Florida prisoner proceeding pro se, appeals from the district 

court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. A certificate of 

appealability (“COA”) was granted on this issue: “Whether the District Court erred 

in determining that the ineffective-assistance claims Mr. Morell attempted to raise 

via an amended Fla. R. Crim. P. 3.850 motion were procedurally defaulted because 

the Florida courts declined to consider them.” After review, we reverse and 

remand for further proceedings consistent with this opinion.

I. BACKGROUND

We begin by reviewing the complicated procedural history of this case, and 

then discuss the issue presented in Morell’s COA.

A. State Court Trial and Direct Appeal

In 2013, a Florida jury convicted Morell of one count of armed robbery with 

a firearm. As a “prison releasee reoffender” under Florida law, Morell was 

sentenced to a mandatory term of life imprisonment without the possibility of 

parole.

In state court, Morell filed a direct appeal raising a single issue: that the trial 

court erred by refusing to include robbery by sudden snatching as a permissible 

lesser included offense on the verdict form. On March 20, 2015, the Second 

District Court of Appeal (“Second DCA”) summarily affirmed Morell’s armed 

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robbery conviction and life sentence. Morell v. State, 173 So. 3d 896 (Fla. Dist. 

Ct. App. 2015) (table).

B. State Rule 3.850 Motion

On February 8, 2016,1 Morell filed a pro se motion for postconviction relief 

in state court pursuant to Florida Rule of Criminal Procedure 3.850. In his Rule 

3.850 motion, Morell raised two ineffective assistance of trial counsel claims. 

Morell’s Rule 3.850 motion alleged his trial counsel was ineffective (1) for failing 

to move to strike a juror who was a security officer, and (2) for failing to move to 

suppress Morell’s post-arrest statement because the detective never informed 

Morell his statement would be recorded and Morell was intoxicated at the time.

According to Morell, on February 24, 2016, he delivered to prison officials 

two other documents for mailing: (1) a motion for leave to supplement his Rule 

3.850 motion for postconviction relief, and (2) an Amended Rule 3.850 motion for 

postconviction relief. In his motion to supplement, Morell stated that he had 

“obtained documentation in support of additional grounds” and that the court had 

authority to permit his supplemental filing because “a final order ha[d] not been 

entered” and Morell was “still within his two-year time limitation.” In the 

 1

Though Morell’s motion was not stamped as filed by the state court until February 17, 

2016, it was delivered to prison authorities for mailing on February 8, 2016, and that date is 

therefore considered the date of filing under the prison mailbox rule. See Williams v. McNeil, 

557 F.3d 1287, 1290 n.2 (11th Cir. 2009) (“Under the ‘prison mailbox rule,’ a pro se prisoner’s 

court filing is deemed filed on the date it is delivered to prison authorities for mailing.”).

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Amended Rule 3.850 motion, Morell raised four more ineffective trial counsel 

claims. Morell’s Amended Rule 3.850 motion alleged trial counsel was 

ineffective: (1) for failing to object to the admission at trial of evidence regarding 

Morell’s standoff with police; (2) for failing to object to the state’s commenting on 

Morell’s silence and shifting the burden of proof; (3) for failing to object to Morell 

being denied his right to confront a second eyewitness; and (4) because trial 

counsel’s cumulative errors deprived Morell of his right to the effective assistance 

of counsel.

C. March 14 State Habeas Order on Original Rule 3.850 Motion

On March 14, 2016,2 the state habeas court issued an order denying Morell’s 

original Rule 3.850 motion. That March 14, 2016 order made no reference to 

Morell’s February 24, 2016 motion to supplement or February 24, 2016 Amended 

Rule 3.850 motion.

Specifically, as to the first claim in Morell’s original Rule 3.850 motion, the 

state habeas court held that Morell had not shown any evidence of actual bias on 

the part of the juror who was a security officer. As to the second claim in Morell’s 

original Rule 3.850 motion, the state habeas court held that (1) law enforcement 

had no duty to inform Morell that he was being recorded, and (2) the trial court 

 2

The state habeas court originally filed this order on March 10, 2016, but amended it on 

March 14, 2016. The amendment related only to the exhibits attached to the court’s order, and 

not to the substance of the order itself.

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specifically addressed the intoxication issue in ruling on Morell’s motion to 

suppress at trial and found no indication that Morell lacked the capacity to 

understand what was going on.

D. Morell’s March 29 Motion for Rehearing

On March 29, 2016, Morell filed a motion for rehearing, asserting, in 

relevant part, that the state habeas court’s Rule 3.850 order “does not address the 

Motion for Leave to Supplement the Motion for Postconviction Relief that was 

filed on February 24, 2016.” On April 4, 2016, the state habeas court received and 

docketed Morell’s March 29, 2016 motion for rehearing.

That same day, April 4, 2016, the state habeas court also received and 

docketed Morell’s February 24, 2016 motion for leave to supplement his Rule 

3.850 motion. The certificate of service on Morell’s motion for leave to 

supplement was dated February 24, 2016. It does not appear, however, that the 

state habeas court ever received or docketed Morell’s February 24, 2016 Amended 

Rule 3.850 motion.

E. State Court Orders on March 29 Motion for Rehearing and February

24 Motion to Supplement

On April 12, 2016, in two separate orders, the state habeas court denied 

Morell’s March 29 motion for rehearing and dismissed his February 24 motion for 

leave to supplement his Rule 3.850 motion. As to Morell’s February 24 motion for 

leave to supplement, the state habeas court determined that the motion was due to 

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be dismissed because the court (in its March 14, 2016 order) already had denied 

Morell’s original Rule 3.850 motion, and Morell’s February 24 motion for leave to 

supplement did not specify what issues he sought to raise in a supplemental Rule 

3.850 motion. Specifically, the state habeas court stated:

THIS CAUSE comes before the Court on Defendant’s pro se “Motion 

for Leave to Supplement Motion for Postconviction Relief,” filed 

February 24, 2016, pursuant to the “mailbox rule,” but not received by 

the court until April 4, 2016, along with Defendant’s Motion for 

[reh]earing, which was dated March 29, 2016. After reviewing the 

motion, the court finds that same must be DISMISSED because on 

March 1[4], 2016, the court issued a final order on Defendant’s motion 

for postconviction relief. Furthermore, Defendant’s instant motion to 

supplement lacks any specific allegations detailing the subject matter 

of Defendant’s proposed supplement. Fla. R. Crim. P. 3.850.

As shown above, Morell contends he gave prison officials for mailing his 

February 24 Amended Rule 3.850 motion setting forth his four additional claims at 

the same time he gave them his February 24 motion for leave to supplement, which 

the state habeas court did receive.

F. Morell’s Rule 3.850 Appeal to the Second DCA

Morell appealed the state habeas court’s decision to the Second DCA, but 

did so without filing a brief on appeal, as is permitted under Florida law. See Fla. 

R. App. P. 9.141(b)(2)(C)(i) (providing that “[b]riefs are not required” in an appeal 

from the denial of a Rule 3.850 motion). On January 25, 2017, the Second DCA 

summarily affirmed the state habeas court’s decision.

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On March 1, 2017, Morell filed a “Motion Pursuant to Manifest Injustice 

Exception to the Law of the Case Doctrine” in the Second DCA. In this motion, 

Morell requested that the Second DCA reconsider its decision, arguing that the 

state habeas court failed to address the four claims raised in his Amended Rule 

3.850 motion. Morell asserted that he “raised the above listed claims in a motion 

for leave to supplement his first rule 3.850 motion, but the lower court failed to 

address and grant the submission of amended motion.” As exhibits to his “Motion 

Pursuant to Manifest Injustice,” Morell attached copies of his February 24, 2016 

motion for leave to supplement and his February 24, 2016 Amended Rule 3.850 

motion. Like Morell’s motion to supplement, the certificate of service on Morell’s 

Amended Rule 3.850 motion was dated February 24, 2016.

The Second DCA construed Morell’s motion as a motion for reconsideration 

and summarily denied the motion without further explanation on April 28, 2017.

G. Federal § 2254 Proceedings

In August 2017, Morell filed the instant 28 U.S.C. § 2254 petition for a writ 

of habeas corpus. In his § 2254 petition, Morell raised several claims, including, in 

Ground Three, the four ineffective assistance claims from his February 24, 2016 

Amended Rule 3.850 motion. In addition to arguing the merits of those four 

ineffective assistance claims, Morell contended that the state habeas court denied 

him due process by dismissing his February 24, 2016 motion to supplement 

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without addressing the merits of his claims (that were set forth in the February 24, 

2016 Amended Rule 3.850 motion). Morell asserted that the claims in his 

Amended Rule 3.850 motion were timely and fairly presented to the state courts 

and should have been decided on their merits.

In response, the state argued that Morell’s four ineffective assistance claims 

in his Amended Rule 3.850 motion (now Ground Three in his § 2254 petition)

were unexhausted because “[t]hey were raised in state court for the first and only 

time after the Second District Court of Appeal had already per curiam affirmed the 

state post-conviction court’s ruling.” The state maintained that Morell “had not 

raised these claims in his Rule 3.850 motion,” these claims “were never considered 

by the lower state court in his post-conviction proceedings,” and even if Morell 

had raised them in a brief on appeal to the Second DCA, they “would not have 

been considered.”

In a reply, Morell reiterated that he had timely presented the claims in 

Ground Three to the state courts by raising them in his February 24, 2016 

Amended Rule 3.850 motion (that was sent with his motion to supplement). 

Morell noted that both his motion to supplement and his Amended Rule 3.850 

motion were filed, pursuant to the prison mailbox rule, on February 24, 2016. 

Morell submitted that, under Florida law, it was error for the state courts not to 

consider his timely Amended Rule 3.850 motion dated February 24, 2016. In any 

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event, Morell maintained he had exhausted the claims in Ground Three by giving 

the state courts an opportunity to act on his claims through one complete round of 

state appellate review.

The district court denied Morell’s § 2254 petition. Regarding the claims in 

Ground Three, the district court determined that those four ineffective assistance 

claims were not exhausted. As the state had argued, the district court concluded 

that Morell “raised these [four] claims in state court for the first and only time after 

the [Second DCA] per curiam affirmed the state trial court’s denial of 

postconviction relief.” The district court further concluded that Morell had not 

raised the claims in Ground Three in his original Rule 3.850 motion, and though 

Morell moved to supplement his Rule 3.850 motion, he did not proffer any 

proposed claims, and the state habeas court dismissed the motion to supplement on 

procedural grounds. In sum, the district court determined that because Morell did 

not raise the four claims in Ground Three in his original Rule 3.850 motion, he 

failed to exhaust those claims and was not entitled to have them reviewed in his 

federal habeas proceeding. The district court denied Morell a COA.

This Court, however, granted Morell’s motion for a COA on the issue of 

whether the district court erred in concluding the claims in Ground Three (the four 

ineffective assistance claims) were procedurally defaulted.

II. DISCUSSION

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A. Exhaustion and Procedural Default

To exhaust a claim for purposes of federal habeas review, a state prisoner 

“must give the state courts one full opportunity to resolve any constitutional issues 

by invoking one complete round of the State’s established appellate review 

process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 1732 

(1999).3 “In the process of exhausting a claim, the petitioner must comply with all 

‘independent and adequate’ state procedures, or else the petitioner will have 

procedurally defaulted on that claim.” Mason v. Allen, 605 F.3d 1114, 1119 (11th 

Cir. 2010). In other words, to exhaust a claim for purposes of federal habeas 

review, a state prisoner must have properly raised the claim under the applicable 

state procedural rules. See id.

For a claim to be procedurally defaulted based on an “independent and 

adequate” state procedural ruling, the following criteria must be met: (1) the last 

state court to render a judgment in the case must clearly and expressly state that it 

is relying on state procedural rules to resolve the federal claim without reaching the 

merits of the claim; (2) the state court’s decision must rest solidly on state law 

grounds and not be intertwined with an interpretation of federal law; and (3) the 

 3

In reviewing the district court’s denial of a § 2254 petition, we review de novo questions 

of law and mixed questions of law and fact, and we review findings of fact for clear error. 

Raleigh v. Sec’y, Fla. Dep’t of Corrs., 827 F.3d 938, 948 (11th Cir. 2016). Whether a state 

prisoner is procedurally barred from raising particular claims is a mixed question of law and fact 

that we review de novo. Bailey v. Nagle, 172 F.3d 1299, 1302 (11th Cir. 1999).

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state procedural rule must be adequate, meaning it was not applied arbitrarily or in 

an unprecedented way. Id. at 1119-20; Judd v. Haley, 250 F.3d 1308, 1313 (11th 

Cir. 2001).

As to the first requirement, a state appellate court’s per curiam affirmance of 

a state trial court’s ruling explicitly based on a procedural default is a clear and 

express statement of the appellate court’s reliance on an independent and adequate 

state ground. See Tejada v. Dugger, 941 F.2d 1551, 1558 (11th Cir. 1991); 

Harmon v. Barton, 894 F.2d 1268, 1273 (11th Cir. 1990); see also Ylst v. 

Nunnemaker, 501 U.S. 797, 803, 111 S. Ct 2590, 2594 (1991) (“[W]here . . . the 

last reasoned opinion on the claim explicitly imposes a procedural default, we will 

presume that a later decision rejecting the claim did not silently disregard that bar 

and consider the merits.”).

As to the third requirement, this Court has said that the “state court’s 

procedural rule cannot be ‘manifestly unfair’ in its treatment of the petitioner’s 

federal constitutional claim to be considered adequate for the purposes of the 

procedural default doctrine,” Judd, 250 F.3d at 1313, and that the state procedural 

rule must be “correctly applie[d],” see Bailey v. Nagle, 172 F.3d 1299, 1302 (11th 

Cir. 1999).

B. Florida Procedural Rules

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Under Florida law and as relevant here, a prisoner may amend his Rule 

3.850 motion to raise new claims at any time prior to the entry of an order 

disposing of the Rule 3.850 motion, provided that the amendment is filed within 

two years of the date on which his judgment and sentence became final. Fla. R. 

Crim. P. 3.850(b), (e). A judgment and sentence become final for purposes of Rule 

3.850 on the date the mandate issues on direct appeal. Beaty v. State, 684 So. 2d 

206, 207 (Fla. Dist. Ct. App. 1996). A Rule 3.850 motion must include, among 

other things, the nature of the relief sought and a brief statement of the facts and 

other conditions relied on in support of the motion. Fla. R. Crim. P. 3.850(c)(6)-

(7).

Florida has adopted the prison mailbox rule for pro se Rule 3.850 motions. 

Haag v. State, 591 So. 2d 614, 617 (Fla. 1992). Thus, under the mailbox rule, a 

pro se prisoner’s Rule 3.850 motion is “deemed filed at the moment in time when 

the inmate loses control over the document by entrusting its further delivery or 

processing to agents of the state,” which usually “occurs when the inmate places 

the document in the hands of prison officials.” Id.

If the institution in which the inmate is housed has a system designed for 

legal mail that records the date on which a document is delivered for mailing, and 

the inmate uses that system, the document is presumed to be filed on the date 

recorded. Fla. R. App. P. 9.420(2)(A). If the inmate’s institution does not have 

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such a system, or does not record the date on which the document was delivered 

for mailing, Florida courts “presume that a legal document submitted by an inmate 

is timely filed if it contains a certificate of service showing that the pleading was 

placed in the hands of prison or jail officials for mailing on a particular date,” and 

the pleading would be timely if it had been received and filed by the court on that 

date. Thompson v. State, 761 So. 2d 324, 326 (Fla. 2000); see also Fla. R. App. P.

9.420(2)(B). The burden then shifts to the state to prove that the document was not 

timely placed in prison officials’ hands for mailing.4

 Thompson, 761 So. 2d at 

326.

C. Analysis

The unusual circumstances presented in this case make for a somewhat 

complicated procedural default analysis. Ultimately, however, we disagree with 

the district court’s conclusion that Morell’s claims in Ground Three are 

unexhausted and procedurally defaulted. We explain why below.

 4

We note that in Haag, the Florida Supreme Court stated that, upon the denial of a Rule 

3.850 motion as untimely, “the burden is on the pro se inmate to timely assert and prove that the 

petition was delivered to prison authorities within the requisite time limits.” Haag, 591 So. 2d at 

617 n.3. That statement was made, however, only in reference to the denial of Rule 3.850 

motions that are untimely on their face and denied for that reason. See id. (“Unless it appears on 

the face of the pleading that it was timely received by the prison officials, our opinion does not 

mean that the court must inquire into whether every late-filed pro se petition meets the test of the 

mailbox rule.”). That is to say, we understand Haag and Thompson to hold that (1) where a Rule 

3.850 motion on its face appears timely under the prison mailbox rule, the state bears the burden 

of proving untimeliness, but (2) where a Rule 3.850 motion on its face appears untimely, the 

prisoner bears the burden of proving its timely delivery to prison officials for mailing. See id.; 

Thompson, 761 So. 2d at 326.

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First, under the particular facts here, Morell’s Amended Rule 3.850 motion 

was timely “filed” with the state habeas court under the prison mailbox rule. Both 

the certificate of service and the prison mailroom date stamp on Morell’s Amended 

Rule 3.850 motion reflect that the motion was delivered for mailing on February 

24. We recognize that the date on the certificate of service is February 24, 2016,

while the prison date stamp says February 24, 2015. But we know from another 

pleading (the motion to supplement) delivered to prison officials for mailing on the 

same day (February 24) that the 2015 year is a typographical error in the stamp. 

Specifically, Morell’s motion to supplement, which the state habeas court did 

receive on April 4, 2016, likewise bore the date of February 24, 2016 on the 

certificate of service but the prison stamp was dated February 24, 2015. As 

recounted above, the state habeas court determined that Morell’s motion to 

supplement was “filed February 24, 2016, pursuant to the ‘mailbox rule,’”

consistent with the February 24, 2016 date listed on Morell’s certificate of service. 

On April 12, 2016, the state habeas court promptly ruled on the motion to 

supplement, another indication that it was filed on February 24, 2016 (not the 

prison date stamp of February 24, 2015 on the motion to supplement).

Thus, the state having presented no evidence to the contrary, Morell’s 

Amended Rule 3.850 motion, which bore a certificate of service dated February 

24, 2016, should likewise be deemed as having been filed on February 24, 2016. 

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See Fla. R. App. P. 9.420(2)(A); Haag, 591 So. 2d at 617; Thompson, 761 So. 2d 

at 326. And that February 24, 2016 filing of the Amended Rule 3.850 motion was 

timely under Florida law, as it was filed: (1) prior to the state habeas court’s March 

14, 2016 order denying Morell’s original Rule 3.850 motion; and (2) within two 

years of the April 22, 2015 issuance of the mandate in his direct appeal, the date on 

which his judgment and sentence became final. Fla. R. Crim. P. 3.850(b), (e);

Beaty, 684 So. 2d at 207. In short, Morell did attempt to give the state courts a full 

opportunity to address the four ineffective assistance of counsel claims in Ground 

Three. The mere fact that Morell’s attempt to present his four ineffective 

assistance claims in the state habeas court was unsuccessful through no fault of his 

own does not render those claims unexhausted for purposes of federal habeas 

review. See O’Sullivan, 526 U.S. at 845, 119 S. Ct. at 1732.

There remains, however, the question of whether Morell’s Ground Three 

claims, though exhausted, are nonetheless procedurally defaulted because the state 

courts denied those claims on an independent and adequate state procedural 

ground—namely, because Morell’s motion to supplement did not detail the claims 

he sought to raise in an Amended Rule 3.850 motion. Because the Second DCA 

summarily affirmed the state habeas court’s decision and denied Morell’s “Motion 

Pursuant to Manifest Injustice” without further explanation, we presume that the 

Second DCA relied on the same procedural ground as the state habeas court with 

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respect to Morell’s Ground Three ineffective assistance claims. See Ylst, 501 U.S. 

at 803, 111 S. Ct at 2594; Tejada, 941 F.2d at 1558. The first two requirements for 

an independent and adequate state ground are thus clearly satisfied here. The last 

state court to rule on the issue (the Second DCA) relied on a procedural ground, 

and that procedural ruling was not intertwined with the merits of Morell’s federal 

claims. See Mason, 605 F.3d at 1119-20.

We conclude, however, on the unique facts of this case, that the third 

requirement is not satisfied here because the state procedural rule was not 

“correctly applied” by the Second DCA in this case. See Bailey, 172 F.3d at 1302. 

To be sure, the state habeas court was correct that Morell’s February 24, 2016 

motion to supplement itself did not identify the amended claims he sought to raise. 

But Morell’s February 24, 2016 Amended Rule 3.850 motion, which bore the same 

certificate of service (February 24, 2016) and same prison date stamp (February 

24, 2015) and which was to have accompanied his motion to supplement, did

contain specific allegations detailing the additional claims he sought to raise, as 

required by Rule 3.850. See Fla. R. Crim. P. 3.850(c)(6)-(7). Not having Morell’s 

amended motion before it, the state habeas court cannot be faulted for denying 

Morell’s motion to supplement on the ground that it failed to specify his claims. 

Unlike the state habeas court, however, the Second DCA did receive a copy of the 

Amended Rule 3.850 motion with Morell’s “Motion Pursuant to Manifest 

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Injustice,” and as such was made aware that Morell had timely and properly filed 

an Amended Rule 3.850 motion that did set forth the amended Ground Three 

claims that Morell sought to raise. In the face of that documentation, it was error 

for the Second DCA to deny Morell’s Ground Three claims on the procedural 

ground relied upon by the state habeas court.

Though not factually identical, we find the Second DCA’s decision in King 

v. State, 153 So. 3d 966 (Fla. Dist. Ct. App. 2014), instructive on this point. In 

King, many of the defendant’s claims in his original Rule 3.850 motion were 

stricken with leave to amend. Id. at 966. When the state habeas court did not 

receive a timely amendment, however, it entered an order denying relief. Id. On 

appeal to the Second DCA, King filed a notice to the court accompanied by an 

amended Rule 3.850 motion with a certificate of service “reflecting that the motion 

was indeed timely filed under the mailbox rule, although it apparently did not 

reach the [state habeas] court.” Id. at 966-67 (citation omitted). Because the state 

habeas court had not received King’s amended motion, the Second DCA affirmed 

the denial of King’s original Rule 3.850 motion “without prejudice to King to 

refile his amended motion with the postconviction court.” Id. at 967. The Second 

DCA further instructed that, “[s]hould King elect to refile his motion, the 

postconviction court should presume his motion was filed on the date listed on the 

certificate of service.” Id.

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Here, like the defendant in King, Morell (1) timely filed an amended Rule 

3.850 motion that for some reason never reached the state habeas court and 

(2) notified the Second DCA of that fact on appeal. As in King, then, the Second 

DCA should have provided Morell another opportunity to pursue his Ground Three 

claims before the state habeas court. In failing to do so, the Second DCA did not 

“correctly appl[y]” state procedural rules and, consequently, Morell’s Ground 

Three claims are not barred from federal habeas review by an independent and 

adequate state procedural ruling. See Bailey, 172 F.3d at 1302.

III. CONCLUSION

Because we conclude that Morell’s Ground Three claims (the four 

ineffective assistance claims) are exhausted and not otherwise procedurally 

defaulted, we vacate the district court’s denial of those claims and remand this case 

to the district court for the limited purpose of addressing Morell’s Ground Three 

claims.

VACATED AND REMANDED.

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