[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 21, 2008
No. 07-11088 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00135-CV-1-MP-WCS
GOMEZ T. COOK,
Petitioner-Appellant,
versus
WALTER A. MCNEIL,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(February 21, 2008)
Before TJOFLAT, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Gomez T. Cook appeals the dismissal of his petition for a writ of habeas
corpus. We granted a certificate of appealability to address whether Cook’s due
process claims are procedurally barred. The district court concluded that Cook did
not exhaust the claims and denied relief. We affirm.
I. BACKGROUND
Cook, a Florida prisoner, was convicted of armed robbery. Fla. Stat. Ann. §
813.13 (West 1992). At Cook’s trial, the State presented evidence that Cook
entered an Albertson’s grocery store and attempted to conceal two bottles of wine
or champagne, each worth about $115, in the waistband of his pants. The store
manager, Stephen Gregory, observed Cook’s actions and confronted Cook before
he reached the front door. Cook shoved Gregory away, then removed one bottle
from his waistband and threw it on the ground, where it “exploded.” As Cook left,
he repeated the same action with the second bottle of alcohol and walked toward an
idling getaway car. Gregory pursued Cook, who turned around and threatened
Gregory with a knife that had a three to four-inch blade. Gregory retreated and
Cook escaped. The robbery and confrontation outside the store were observed by
at least one other store employee and were captured on videotape by the
surveillance system of the store. The videotape was played for the jury at trial and
the driver of Cook’s getaway car testified that she saw Cook brandish a knife at
Gregory.
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After the State rested, Cook moved for a judgment of acquittal and argued
that the state had failed to establish a prima facie case of robbery. The trial court
denied the motion. Cook presented the testimonies of two witnesses that they did
not see Cook in possession of a knife. The jury found Cook guilty of armed
robbery, and the trial court sentenced him to a term of life imprisonment “under the
Prison Release Reoffender Act.”
On direct appeal, Cook argued that the trial court erroneously denied his
motion for a judgment of acquittal. Cook argued the evidence did not establish
that the knife he used was a deadly weapon, he possessed a knife before he
“abandoned” the bottles of alcohol, or the knife was used “in the course of the
taking” as required by state statute. The Florida appellate court affirmed Cook’s
conviction without opinion.
Cook filed in a state court a petition for post-conviction relief and
challenged the effectiveness of his trial counsel’s representation. The trial court
denied relief, and the appellate court affirmed without opinion.
Cook filed a petition for a writ of habeas corpus in the district court in which
he repeated his claims of ineffective assistance of counsel. The State responded
that Cook’s ineffectiveness claims were without merit. Cook filed an amended
petition and argued that his rights under the “Fourteenth Amendment of the United
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States Constitution and Johnson v. Florida, [391 U.S. 596,] 88 S. Ct. 1713
[(1968)],” were violated when the trial court denied his motion for a judgment of
acquittal because he was not in possession of the knife until after he “abandoned”
the bottles of alcohol, the knife was “statutorily excluded from the definition of a
deadly weapon,” and the knife was “not used ‘in the course of’ the robbery.” The
State argued in three separate responses that Cook did not prove the decision was
contrary to or an unreasonable application of clearly established federal law,
Cook’s due process argument was procedurally defaulted and lacked merit, and
Cook’s characterization of the knife as a deadly weapon was a matter of state law.
The magistrate judge stated in a Report and Recommendation that Cook
failed to exhaust his argument that his conviction violated the federal guarantee of
due process and Cook could not establish prejudice to excuse that procedural
default. The magistrate judge concluded that Cook was not entitled to relief for his
ineffectiveness claims because the decisions were not contrary to or an
unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052 (1984). Cook admitted in his objections to the Report and Recommendation
that his due process claim had not been exhausted in the state courts, but he argued
that the claim should be reviewed on the merits.
The district court adopted the Report and Recommendation and agreed that
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Cook failed to exhaust his due process claim and could not prove prejudice to
excuse that procedural default. The district court also stated that, even if the claim
had been exhausted, it was without merit. The district court ruled that Cook did
not prove the adjudication of his ineffectiveness claims by the state courts was
contrary to or an unreasonable application of Strickland.
II. STANDARD OF REVIEW
We review the denial of a habeas corpus petition de novo. McNair v.
Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). This appeal is governed by the
Antiterrorism and Effective Death Penalty Act, which requires a state prisoner to
exhaust all available state court remedies, either on direct appeal or in a state post-
conviction proceeding. 28 U.S.C. § 2254(b)–(c). The exhaustion doctrine requires
the petitioner to “fairly present” his federal claims to the state courts in a manner to
alert them that the ruling under review violated a federal constitutional right.
Duncan v. Henry, 513 U.S. 364, 365–66, 115 S. Ct. 887, 888 (1995) (quoting
Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512 (1971)).
III. DISCUSSION
Cook presents two arguments on appeal. First, Cook contends that his
sentence is unconstitutionally disproportionate under the Eighth Amendment.
Second, Cook appeals the decision by the district court to dismiss his due process
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issue as procedurally defaulted. We address each argument in turn.
A. Cook’s Eighth Amendment Argument is Outside the Scope of the COA.
Cook argues for the first time on appeal that his sentence is “grossly
disproportionate” to his crime, under the Eighth Amendment, because the
sentencing judge did not believe that he committed robbery with a deadly weapon.
Our scope of review is limited to those issues presented in the certificate of
appealability. Murry v. U.S., 145 F.3d 1249, 1250–51 (11th Cir. 1998). Cook’s
argument is outside the scope of the COA and is not properly before this Court.
We dismiss it.
B. Cook Did Not Exhaust His Due Process Argument.
“Habeas petitioners generally cannot raise claims in federal court if those
claims were not first exhausted in state court.” McNair, 416 F.3d at 1302 (citing
28 U.S.C. § 2254(b)(1); Kelly v. Sec’y for Dept. of Corr., 377 F.3d 1317, 1343
(11th Cir. 2004)). The petitioner must “‘fairly present[]’ to the state courts the
‘substance’ of his federal habeas corpus claim.” Anderson v. Harless, 459 U.S. 4,
6, 103 S. Ct. 276, 277 (1982) (citing Picard, 404 U.S. at 275, 278, 92 S. Ct. at 512,
513). Exhaustion is not satisfied “merely” if the petitioner presents the state court
with “all the facts necessary to support the claim” or even if a “somewhat similar
state-law claim was made.” Kelly, 377 F.3d at 1344 (citing Anderson, 459 U.S. at
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6, 103 S. Ct. at 277). The petitioner must instead “present his claims to the state
courts such that they are permitted the ‘opportunity to apply controlling legal
principles to the facts bearing upon his constitutional claim.’” Id. (quoting Picard,
404 U.S. at 277, 92 S. Ct. at 513).
Cook failed to exhaust his argument that his conviction violated the federal
guarantee of due process. Cook admitted in his objection to the Report and
Recommendation that the claim was defaulted, but he now argues that the absence
of “magical terminology” or reliance on “federal precedents” does not preclude
habeas review. Cook’s argument fails because he did not “alert the [state] court to
the alleged federal nature of [his] claim.” Baldwin v. Reese, 541 U.S. 27, 33, 124
S. Ct. 1347, 1351 (2004). He cited exclusively to state cases and all of his
substantive arguments addressed Florida law. Although Florida courts assess the
sufficiency of the evidence under the standard applied in Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979), the tenor of Cook’s narrow arguments
that challenged the characterization of his knife and the sequence of his actions
under the Florida statute did not bring a federal claim about due process to the
attention of the state appellate court. Because Cook failed to exhaust his federal
claim and offered no cause or prejudice to excuse the failure to exhaust, his
argument is procedurally defaulted.
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Even if Cook exhausted his due process claim, it is meritless. To obtain
relief, Cook was required to establish either that the state courts applied a standard
contrary to federal law or that they applied that precedent in an unreasonable
manner. 28 U.S.C. § 2254(d)(1). The decision of the state courts was not an
unreasonable application of clearly established federal law. Compare Jackson, 443
U.S. at 319, 99 S. Ct. at 2789, with Simmons v. State, 934 So. 2d 1100, 1111 (Fla.
2006). The evidence, viewed in a light most favorable to the prosecution,
establishes that Cook took possession of two bottles of alcohol owned by
Albertson’s grocery store, destroyed the bottles, and to effectuate his getaway,
threatened the store manager with a knife. A rational juror could have found Cook
guilty beyond a reasonable doubt of robbery with a deadly weapon.
IV. CONCLUSION
The denial of Cook’s habeas corpus petition is AFFIRMED.
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