Case: 14-12088 Date Filed: 07/28/2015 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-12088
Non-Argument Calendar
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D.C. Docket No. 1:13-cv-21884-DLG
CHARLES J. EATO,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 28, 2015)
Before MARCUS, WILLIAM PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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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
2
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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 Frye 1 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 Anders 2 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).
3