[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-12088

Non-Argument Calendar

________________________

D.C. Docket No. 1:13-cv-21884-DLG

CHARLES J. EATO, 

 Petitioner-Appellant,

 versus

SECRETARY, DEPARTMENT OF CORRECTIONS, 

 Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(July 28, 2015)

Before MARCUS, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM: 

Case: 14-12088 Date Filed: 07/28/2015 Page: 1 of 3 
2

Charles J. Eato, a state prisoner represented by counsel, appeals the district 

court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 

and the dismissal without prejudice of his motion for newly-discovered evidence 

and fraud upon the court under Federal Rule of Civil Procedure 60(d). On appeal, 

Eato argues that he exhausted his claims before the Florida state courts by filing 

certain motions before his trial that were “within the spectrum” of the claims in his 

§ 2254 petition. After careful consideration of the briefs and the record, we affirm.

We review de novo a district court’s grant or denial of a habeas corpus 

petition. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010). Before bringing a 

habeas corpus action in federal court, the petitioner must exhaust all state court 

remedies available for challenging his conviction. 28 U.S.C. § 2254(b)(1)(A), (c). 

Federal courts may treat unexhausted claims as procedurally defaulted, even absent 

a state court determination to that effect, if it is clear from state law that any future 

attempt at exhaustion would be futile. Bailey v. Nagle, 172 F.3d 1299, 1305 (11th 

Cir. 1999). In Florida, a motion for postconviction relief cannot be “based on 

grounds that could have or should have been raised at trial and, if properly 

preserved, on direct appeal of the judgment and sentence.” Fla. R. Crim. P. 

3.850(c); Smith v. State, 453 So. 2d 388, 389 (Fla. 1984).

Eato raises seven claims in his petition: (1) the insufficiency of the charging 

document violated his constitutional rights; (2) the trial court’s violation of Florida 

Case: 14-12088 Date Filed: 07/28/2015 Page: 2 of 3 
3

Rule of Criminal Procedure 3.220 constituted a substantial violation of his 

constitutional rights; (3) the trial court violated his constitutional rights by 

circumventing the rules and procedures for Frye1 requirements and admitting DNA 

evidence; (4) the trial court erred by denying his pretrial motion to dismiss for 

entrapment by estoppel; (5) the trial court erred by denying a requested jury 

instruction based on entrapment by estoppel; (6) the prosecutor made improper 

comments during closing argument that deprived Eato of his fundamental right to a 

fair trial; and (7) the trial court circumvented Florida law, which resulted in 

cumulative error. All of the claims could have been brought on direct appeal, but 

Eato did not respond to his appointed attorney’s Anders2 brief. Eato, therefore,

failed to exhaust his remedies in the state courts, so his claims are procedurally 

defaulted. The district court correctly denied his § 2254 petition and dismissed his 

Rule 60 motion. 28 U.S.C. § 2254(b)(1)(A).

AFFIRMED.

 1 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

2 Anders v. California, 386 U.S. 738 (1967).

Case: 14-12088 Date Filed: 07/28/2015 Page: 3 of 3