[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 29, 2008
No. 07-11883 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-14206-CV-DLG
CHRIS NEWELL DOWLING,
Petitioner-Appellant,
versus
SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 29, 2008)
Before TJOFLAT, BLACK and HULL, Circuit Judges.
PER CURIAM:
Chris Newell Dowling, a Florida prisoner proceeding pro se, appeals the
denial of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254.1
On appeal, Dowling claims that the state trial court erred in convicting him
of aggravated assault with a deadly weapon because the jury found that he did not
possess a firearm during the commission of the crime. The state responds, in part,
that a firearm is not required for there to be a deadly weapon. The state argues that
the jury’s finding as to the firearm related to whether Dowling would be subject to
a mandatory minimum three-year sentence under Florida Statute
§ 775.087(2)(a)(1)(f), and not to whether Dowling was guilty of aggravated assault
with a deadly weapon. According to the state, the victim’s testimony that Dowling
threatened her with a shotgun supported the finding that Dowling possessed a
deadly weapon. We also note that the evidence at trial included testimony from the
victim that Dowling had a knife (as well as a shotgun) and threatened to use the
knife.
In any event, we conclude that Dowling procedurally defaulted this claim.2
Dowling failed to raise any federal or constitutional issue before the Florida state
1
In reviewing a district court’s denial of a habeas petition, we review de novo questions
of law and mixed questions of law and fact and we review findings of fact for clear error.
Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000).
2
We construe the district court’s Certificate of Appealability, which was granted on the
merits of Dowling’s claim, to encompass the threshold procedural issue of whether that claim
was procedurally defaulted. See McCoy v. United States, 266 F.3d 1245, 1248 n.2 (11th Cir.
2001).
2
courts in either his direct or collateral appeals, including the trial court error he
now raises in his § 2254 petition.3 Thus, Dowling’s claim of trial court error is
unexhausted. Because Dowling cannot seek additional review of this claim in state
court, the district court properly determined that Dowling’s claim was procedurally
defaulted. See Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999).
Furthermore, Dowling has not shown “cause” for the default such that we
may address the claim. See Murray v. Carrier, 477 U.S. 478, 485, 106 S. Ct. 2639,
2644 (1986) (explaining that a federal court may still address a procedurally
defaulted claim if the petitioner shows both “cause” and “prejudice”). Dowling
contends that his appellate counsel’s ineffective assistance was the cause for his
failure to raise federal constitutional claims on direct appeal in state court.
However, Dowling did not raise this particular ineffective assistance of appellate
counsel claim in his petition for state habeas relief. Because Dowling did not raise
his ineffective assistance of appellate counsel claim in state court and is precluded
from seeking additional review of that claim in state court, Dowling’s ineffective
assistance of appellate counsel claim is procedurally defaulted and cannot be
3
Indeed, Dowling made no federal constitutional arguments with regard to this claim in
his pro se § 2254 petition in the district court. However, on appeal Dowling argues for the first
time that the trial court’s judgment of conviction for aggravated assault with a deadly weapon
violated his rights to due process, equal protection and a jury trial under the Fifth, Sixth and
Fourteenth Amendments. Because Dowling’s claim is clearly procedurally defaulted in the state
courts, we need not address the effect of Dowling’s failure to couch his claim in federal
constitutional terms in the district court.
3
considered as cause for the default of his trial court error claim. See Edwards v.
Carpenter, 529 U.S. 446, 450-51, 120 S. Ct. 1587, 1591 (2000) (concluding that a
federal habeas court is barred from considering a procedurally defaulted ineffective
assistance of counsel claim as cause for procedural default of another claim); Hill
v. Jones, 81 F.3d 1015, 1029-31 (11th Cir. 1996).4 Further, because Dowling has
failed to show cause for the procedural default of his trial court error claim, we
need not address whether he showed prejudice. See McCleskey v. Zant, 499 U.S.
467, 502, 111 S. Ct. 1454, 1474 (1991).
Finally, Dowling has not shown a fundamental miscarriage of justice that
would permit us to consider the merits of his procedurally defaulted claim. See
Schlup v. Delo, 513 U.S. 298, 314-15, 115 S. Ct. 851, 860-61 (1995). Dowling
claims that he is actually innocent of the offense with which he has been convicted.
However, Dowling offered no new evidence of actual innocence. See Johnson v.
Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (explaining that the actual
innocence exception is “exceedingly narrow in scope” and requires proof of actual
innocence, not legal innocence).
4
Dowling did not argue cause and prejudice as to his procedurally defaulted ineffective
assistance of appellate counsel claim before the district court. See Edwards, 529 U.S. at 452-53,
120 S. Ct. at 1591-92 (explaining that a petitioner cannot show cause for procedural default of
another claim if the ineffective assistance claim was itself procedurally defaulted unless the
petitioner can show cause and prejudice concerning the defaulted ineffective assistance claim).
4
As Dowling has not overcome the procedural default of his claim, we do not
reach the merits of his claim. For these reasons, the denial of Dowling’s § 2254
petition is affirmed.
AFFIRMED.
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