Case: 17-11864 Date Filed: 11/21/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-11864 Non-Argument Calendar ________________________
D.C. Docket No. 8:14-cv-00070-MSS-TBM
FRANK BRYANT,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(November 21, 2018)
Before WILSON, MARTIN, and NEWSOM, Circuit Judges.
PER CURIAM: Case: 17-11864 Date Filed: 11/21/2018 Page: 2 of 8
Frank Bryant, proceeding pro se, appeals from the district court’s denial of
his petition under 28 U.S.C. § 2254 for a writ of habeas corpus. This Court
granted a certificate of appealability to Bryant on one issue: whether the district
court erred in dismissing Bryant’s claim that there was insufficient evidence to
support his conviction for second-degree murder on the basis that it was
unexhausted in state court. On appeal, Bryant admits that his claim was not
exhausted, but argues that exceptions exist to excuse his procedural default. We
affirm the district court’s denial because (1) Bryant abandoned his challenge to the
district court’s determination that his claim was unexhausted by conceding on
appeal that his claim was indeed unexhausted, and (2) the arguments he puts forth
in this appeal—that exceptions to the exhaustion doctrine apply—were not
presented to the district court, and we ordinarily do not address arguments raised
for the first time on appeal.
In 2004, Bryant was charged with one count of second degree murder. At
trial, after the close of the government’s case, Bryant moved for a judgment of
acquittal, arguing that the State failed to prove that Bryant acted out of hatred, ill
will, spite, or an evil intent as required by Florida’s second-degree murder statute.
The state court denied his motion, and the jury subsequently convicted him. After
the verdict was entered, Bryant filed a written motion for a judgment of acquittal or
new trial, renewing his argument that the State failed to establish the ill will,
2 Case: 17-11864 Date Filed: 11/21/2018 Page: 3 of 8
hatred, spite, or evil intent element of second-degree murder. The state court
denied his motion.
On direct appeal, Bryant again argued, among other things, that there was
insufficient evidence to support his conviction for second-degree murder. Bryant
claimed that “[t]he United State Constitution requires that criminal convictions
must rest upon a determination that the defendant is guilty beyond a reasonable
doubt of every element of the crime with which he has been charged.” In support
of this proposition, Bryant cited a Florida case, see State v. Harbaugh, 754 So. 2d
691, 694 (Fla. 2000), and a United States Supreme Court case also cited by
Harbaugh, see United States v. Gaudin, 515 U.S. 506, 509–10, 115 S. Ct. 2310
(1995).1 Bryant proceeded to argue that, based on Florida statutes and case law, he
should have been convicted only of manslaughter. Florida’s Second District Court
of Appeals disagreed, and summarily affirmed the lower court.
Next, Bryant filed a motion for post-conviction relief pursuant to Rule 3.850
of the Florida Rules of Criminal Procedure. He raised numerous claims, including
1 Taken together, Bryant’s statement read: “The United State Constitution requires that criminal convictions must rest upon a determination that the defendant is guilty beyond a reasonable doubt of every element of the crime with which he has been charged.” State v. Harbaugh, 754 So. 2d 691, 694 (Fla. 2000) (citing United States v. Gaudin, 515 U.S. 506, 509–10, 115 S. Ct. 2310 (1995)). 3 Case: 17-11864 Date Filed: 11/21/2018 Page: 4 of 8
a sufficiency of the evidence claim. 2 The state court denied Bryant’s Rule 3.850
motion, reasoning, in relevant part, that it was improper to bring a sufficiency of
the evidence claim in post-conviction proceedings and that Bryant should have
raised that claim on direct appeal. Bryant appealed the denial and the Florida
Second District Court of appeals affirmed.
Finally, Bryant filed the instant federal habeas petition pursuant to 28 U.S.C.
§ 2254, challenging his conviction for second-degree murder with a weapon and
resulting life sentence on several grounds. In relevant part, he argued that the State
did not prove every element of his conviction because it did not establish that he
had committed the crime with the necessary ill will, hatred, spite, or evil intent.
In response, the State argued that the federal district court should dismiss the
claim, as it was unexhausted in state court. Specifically, the state argued that,
although Bryant raised the sufficiency of the evidence claim during his direct
criminal appeal, he did not raise it as a federal constitutional issue. Rather, he
vaguely stated “[t]he United State Constitution requires that criminal convictions
must rest upon a determination that the defendant is guilty beyond a reasonable
doubt of every element of the crime with which he has been charged.” In support
2 Bryant also brought an ineffective assistance of counsel claim and alleged a Giglio violation, see Giglio v. United States, 405 U.S. 150 (1972). 4 Case: 17-11864 Date Filed: 11/21/2018 Page: 5 of 8
of this contention, Bryant referenced only one federal case (in an embedded
citation) and otherwise relied solely on state law.
The district court agreed with the State’s argument and, consequently,
denied Bryant’s § 2254 petition. The district court reasoned that, because Bryant
only made arguments based on state law in his direct appeal, he failed to alert the
state court to an alleged federal constitutional violation; thus, his federal
sufficiency of the evidence claim is procedurally barred. Furthermore, the district
court continued, Bryant failed to offer any evidence that would excuse the
procedural default.
Bryant timely appealed the district court’s order denying his petition. He
now concedes that he failed to exhaust his sufficiency of the evidence claim, but
argues that this failure is statutorily excused by § 2254(b)(1)(B) of the Judicial
Code. Section 2254(b)(1)(B) provides an exception to the exhaustion requirement
if (1) “there is an absence of available State corrective process,” or
(2) “circumstances exist that render such process ineffective to protect the rights of
the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i), (ii). Bryant maintains that the lack
of corrective process exception applies because (1) he was foreclosed from
presenting his sufficiency of the evidence claim on direct appeal due to his trial
counsel’s failure to preserve it for appellate review; (2) Florida courts do not
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Case: 17-11864 Date Filed: 11/21/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-11864 Non-Argument Calendar ________________________
D.C. Docket No. 8:14-cv-00070-MSS-TBM
FRANK BRYANT,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(November 21, 2018)
Before WILSON, MARTIN, and NEWSOM, Circuit Judges.
PER CURIAM: Case: 17-11864 Date Filed: 11/21/2018 Page: 2 of 8
Frank Bryant, proceeding pro se, appeals from the district court’s denial of
his petition under 28 U.S.C. § 2254 for a writ of habeas corpus. This Court
granted a certificate of appealability to Bryant on one issue: whether the district
court erred in dismissing Bryant’s claim that there was insufficient evidence to
support his conviction for second-degree murder on the basis that it was
unexhausted in state court. On appeal, Bryant admits that his claim was not
exhausted, but argues that exceptions exist to excuse his procedural default. We
affirm the district court’s denial because (1) Bryant abandoned his challenge to the
district court’s determination that his claim was unexhausted by conceding on
appeal that his claim was indeed unexhausted, and (2) the arguments he puts forth
in this appeal—that exceptions to the exhaustion doctrine apply—were not
presented to the district court, and we ordinarily do not address arguments raised
for the first time on appeal.
In 2004, Bryant was charged with one count of second degree murder. At
trial, after the close of the government’s case, Bryant moved for a judgment of
acquittal, arguing that the State failed to prove that Bryant acted out of hatred, ill
will, spite, or an evil intent as required by Florida’s second-degree murder statute.
The state court denied his motion, and the jury subsequently convicted him. After
the verdict was entered, Bryant filed a written motion for a judgment of acquittal or
new trial, renewing his argument that the State failed to establish the ill will,
2 Case: 17-11864 Date Filed: 11/21/2018 Page: 3 of 8
hatred, spite, or evil intent element of second-degree murder. The state court
denied his motion.
On direct appeal, Bryant again argued, among other things, that there was
insufficient evidence to support his conviction for second-degree murder. Bryant
claimed that “[t]he United State Constitution requires that criminal convictions
must rest upon a determination that the defendant is guilty beyond a reasonable
doubt of every element of the crime with which he has been charged.” In support
of this proposition, Bryant cited a Florida case, see State v. Harbaugh, 754 So. 2d
691, 694 (Fla. 2000), and a United States Supreme Court case also cited by
Harbaugh, see United States v. Gaudin, 515 U.S. 506, 509–10, 115 S. Ct. 2310
(1995).1 Bryant proceeded to argue that, based on Florida statutes and case law, he
should have been convicted only of manslaughter. Florida’s Second District Court
of Appeals disagreed, and summarily affirmed the lower court.
Next, Bryant filed a motion for post-conviction relief pursuant to Rule 3.850
of the Florida Rules of Criminal Procedure. He raised numerous claims, including
1 Taken together, Bryant’s statement read: “The United State Constitution requires that criminal convictions must rest upon a determination that the defendant is guilty beyond a reasonable doubt of every element of the crime with which he has been charged.” State v. Harbaugh, 754 So. 2d 691, 694 (Fla. 2000) (citing United States v. Gaudin, 515 U.S. 506, 509–10, 115 S. Ct. 2310 (1995)). 3 Case: 17-11864 Date Filed: 11/21/2018 Page: 4 of 8
a sufficiency of the evidence claim. 2 The state court denied Bryant’s Rule 3.850
motion, reasoning, in relevant part, that it was improper to bring a sufficiency of
the evidence claim in post-conviction proceedings and that Bryant should have
raised that claim on direct appeal. Bryant appealed the denial and the Florida
Second District Court of appeals affirmed.
Finally, Bryant filed the instant federal habeas petition pursuant to 28 U.S.C.
§ 2254, challenging his conviction for second-degree murder with a weapon and
resulting life sentence on several grounds. In relevant part, he argued that the State
did not prove every element of his conviction because it did not establish that he
had committed the crime with the necessary ill will, hatred, spite, or evil intent.
In response, the State argued that the federal district court should dismiss the
claim, as it was unexhausted in state court. Specifically, the state argued that,
although Bryant raised the sufficiency of the evidence claim during his direct
criminal appeal, he did not raise it as a federal constitutional issue. Rather, he
vaguely stated “[t]he United State Constitution requires that criminal convictions
must rest upon a determination that the defendant is guilty beyond a reasonable
doubt of every element of the crime with which he has been charged.” In support
2 Bryant also brought an ineffective assistance of counsel claim and alleged a Giglio violation, see Giglio v. United States, 405 U.S. 150 (1972). 4 Case: 17-11864 Date Filed: 11/21/2018 Page: 5 of 8
of this contention, Bryant referenced only one federal case (in an embedded
citation) and otherwise relied solely on state law.
The district court agreed with the State’s argument and, consequently,
denied Bryant’s § 2254 petition. The district court reasoned that, because Bryant
only made arguments based on state law in his direct appeal, he failed to alert the
state court to an alleged federal constitutional violation; thus, his federal
sufficiency of the evidence claim is procedurally barred. Furthermore, the district
court continued, Bryant failed to offer any evidence that would excuse the
procedural default.
Bryant timely appealed the district court’s order denying his petition. He
now concedes that he failed to exhaust his sufficiency of the evidence claim, but
argues that this failure is statutorily excused by § 2254(b)(1)(B) of the Judicial
Code. Section 2254(b)(1)(B) provides an exception to the exhaustion requirement
if (1) “there is an absence of available State corrective process,” or
(2) “circumstances exist that render such process ineffective to protect the rights of
the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i), (ii). Bryant maintains that the lack
of corrective process exception applies because (1) he was foreclosed from
presenting his sufficiency of the evidence claim on direct appeal due to his trial
counsel’s failure to preserve it for appellate review; (2) Florida courts do not
entertain sufficiency of the evidence claims in post-conviction proceedings, and
5 Case: 17-11864 Date Filed: 11/21/2018 Page: 6 of 8
therefore his failure to bring that claim in his post-conviction motion is excused;
and (3) no possibility of state relief is still available.
Furthermore, Bryant argues that his case is analogous to Martinez v. Ryan,
where the Supreme Court announced a limited exception to the exhaustion
doctrine. 566 U.S. 1, 132 S. Ct. 1309 (2012). In Martinez, the Supreme Court
determined that a state petitioner’s failure to exhaust his state remedies is excused
where: (1) a state requires a prisoner to raise ineffective-trial-counsel claims at an
initial-review collateral proceeding; (2) the prisoner failed to properly raise
ineffective-trial-counsel claims in his state initial-review collateral proceeding; (3)
the prisoner did not have collateral counsel or his counsel was ineffective; and
(4) failing to excuse the prisoner’s procedural default would cause the prisoner to
lose a substantial ineffective-trial-counsel claim. See id.
When examining a district court’s denial of a § 2254 habeas petition, we
review questions of law and mixed questions of law and fact de novo and findings
of fact for clear error. Grossman v. McDonough, 466 F.3d 1325, 1335 (11th
Cir. 2006). Exhaustion presents a mixed question of law and fact and thus is
subject to de novo review. Fox v. Kelso, 911 F.2d 563, 568 (11th Cir. 1990). Pro
se briefs are read liberally, but a pro se litigant abandons issues not raised in his
initial brief. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam);
see also United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003)
6 Case: 17-11864 Date Filed: 11/21/2018 Page: 7 of 8
(providing that issues not prominently addressed by an appellant, even if properly
preserved in the court below, will be considered abandoned); Atkins v. Singletary,
965 F.2d 952, 955 n.1 (11th Cir. 1992) (concluding that a § 2254 petitioner
abandoned issues raised before the district court by failing to brief them on appeal
and therefore refusing to consider those issues). Furthermore, we do “not consider
issues or arguments raised for the first time on appeal.” Ferguson v. Sec’y for
Dep’t of Corr., 580 F.3d 1183, 1193 (11th Cir. 2009).
On appeal, Bryant does not challenge the district court’s finding that he
failed to exhaust his federal insufficiency of the evidence claim in state court. He
concedes that he failed to properly exhaust this claim, abandoning any challenge to
the district court’s finding that he failed to exhaust his federal claim in state court,
so we do not need to address the issue. Timson, 518 F.3d at 874; Jernigan, 341
F.3d at 1283 n.8; Atkins, 965 F.2d at 955 n.1. Furthermore, the arguments that
Bryant makes on appeal—that his failure to exhaust falls within an exhaustion
exception—were not presented to the district court, and we ordinarily do not
address arguments raised for the first time on appeal. Ferguson, 580 F.3d at 1193.
Because Bryant has abandoned any challenge to the district court’s determination
that his claim was not properly exhausted in state court and his arguments
regarding the exhaustion exceptions are not properly before us, we affirm the
district court’s denial of Bryant’s petition.
7 Case: 17-11864 Date Filed: 11/21/2018 Page: 8 of 8
AFFIRMED.