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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-14609
Non-Argument Calendar
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D.C. Docket No. 5:08-cv-00299-RS-GRJ
WILLIAM FLOYD GAY,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
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(May 29, 2013)
Before CARNES, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
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William Gay, a Florida state prisoner serving a total sentence of 30 years’
imprisonment for aggravated battery, appeals the district court’s denial of his
petition for habeas corpus, pursuant to 28 U.S.C. § 2254. Gay argued during
closing arguments that he did not batter Sheila Finch, but that she had instead
sustained her injuries after she tripped and fell over an oak tree’s roots. In
response to Gay’s argument, the prosecutor argued that nobody testified that Finch
tripped and fell on the oak tree’s roots, and that “not one scintilla” of evidence
supported Gay’s version of events.
Gay first challenged the prosecutor’s closing arguments as improperly
shifting the burden of proof to Gay in a “motion for rehearing and/or in the
alternative petition for a writ of habeas corpus” with the Florida District Court of
Appeal, after it summarily affirmed the trial court’s denial of his second motion to
vacate under Florida Rule of Criminal Procedure 3.850. The Florida District Court
of Appeal summarily denied Gay’s motion. Gay also raised this same claim in his
subsequent third Rule 3.850 motion, which the trial court summarily denied. The
Florida District Court of Appeal thereafter summarily affirmed on appeal. Gay
then filed the instant habeas petition with the district court, arguing that the
prosecutor’s closing arguments improperly shifted the burden of proof to Gay. The
district court denied Gay’s claim as procedurally defaulted.
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On appeal, Gay argues that his claim is not procedurally defaulted because
an adequate state procedural basis did not support the state court’s denial of his
claim. Alternatively, he argues that either cause and prejudice or a fundamental
miscarriage of justice excused his procedural default. Gay further argues that the
prosecutor violated Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 1233
(1965), by improperly commenting on his failure to testify in support of his theory
of defense.
We review de novo a district court’s denial of a habeas petition. McNair v.
Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). Whether a claim is subject to
procedural default is a mixed question of fact and law that we also review de novo.
Doorbal v. Dep’t of Corr., 572 F.3d 1222, 1227 (11th Cir. 2009).
Where a state adjudicates a habeas petitioner’s claims on the merits, our
review is “highly deferential.” Williams v. Allen, 598 F.3d 778, 787 (11th Cir.
2010). Under such circumstances, a federal court may only grant habeas relief if
the state court’s merits adjudication: “(1) resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted in a decision
that was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The
petitioner bears the burden of establishing his right to habeas relief and proving all
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of the facts necessary to demonstrate a constitutional violation. Romine v. Head,
253 F.3d 1349, 1357 (11th Cir. 2001).
A state-court decision is contrary to federal law if the court arrives at a
conclusion opposite to that reached by the United States Supreme Court on a
question of law, or if the state court decides a case differently than the Supreme
Court has on a materially indistinguishable set of facts. Dingle v. Sec’y for Dep’t
of Corr., 480 F.3d 1092, 1098 (11th Cir. 2007). Likewise, a state-court decision is
an unreasonable application of federal law where the state court identifies the
correct governing legal principle, but unreasonably applies that principle to the
facts of the case before it. See Ventura v. Att’y Gen., Fla., 419 F.3d 1269, 1286
(11th Cir. 2005). Ultimately, a state court’s merits determination precludes federal
habeas relief where fairminded jurists could disagree on whether the state court
correctly decided the claim. See Lawrence v. Sec’y, Fla. Dep’t of Corr., 700 F.3d
464, 476 (11th Cir. 2012), cert. denied, Lawrence v. Crews (U.S. Apr. 15, 2013)
(No. 12-8115).
An “adjudication on the merits” is any state-court decision that does not rest
solely upon a state procedural bar, including summary dispositions. See Loggins v.
Thomas, 654 F.3d 1204, 1217 (11th Cir. 2011). The Supreme Court has held that
when a federal claim is presented to a state court, federal courts may presume that
the state court adjudicated the petitioner’s claim on the merits absent any
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indication or state-law procedural principles to the contrary. See Harrington v.
Richter, 131 S. Ct. 770, 784–85 (2011). This presumption may be overcome
where there is reason to think some other explanation for the state court’s decision
is more likely. Id. at 785. We have subsequently held that we will presume that
the state court adjudicated the petitioner’s claim on the merits unless the state court
clearly stated that its decision was based solely upon a state procedural rule. See
Loggins, 654 F.3d at 1217.
A federal court, however, will not review questions of federal law that are
presented in a habeas petition where the state court rested its decision upon a
state-law ground that is both independent of the federal question and adequate to
support the judgment. Doorbal, 572 F.3d at 1227. We apply a three-part test to
determine whether a state-court judgment rested upon an independent and adequate
state-law ground: (1) the last state court rendering judgment must have clearly and
expressly stated that it was relying upon state procedural rules to resolve the
federal claim without reaching the merits; (2) “the state court’s decision must rest
solidly on state law grounds, and may not be intertwined with an interpretation of
federal law”; and (3) “the state procedural rule must be adequate.” Id. (internal
quotation marks omitted). In order to constitute an adequate state-law ground, the
state procedural rule must be firmly established and regularly followed. Payne v.
Allen, 539 F.3d 1297, 1313 (11th Cir. 2008). Nonetheless, a petitioner’s
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procedural default may be excused if he demonstrates cause for his default and
actual prejudice from the alleged constitutional violation. Ward v. Hall, 592 F.3d
1144, 1157 (11th Cir. 2010). His procedural default may also be excused if he
demonstrates a fundamental miscarriage of justice. See Schlup v. Delo, 513 U.S.
298, 314–15, 326–27, 115 S. Ct. 851, 860–61, 867 (1995).
The Fifth Amendment guards a criminal defendant’s right against
self-incrimination, and to this end, a prosecutor may not comment on the
defendant’s failure to testify. Griffin, 380 U.S. at 615, 85 S. Ct. at 1233. A
defendant’s rights are violated where the prosecutor’s statement was either
“manifestly intended to be a comment on the defendant’s failure to testify,” or “of
such a character that a jury would naturally and necessarily take it to be a comment
on” the defendant’s silence. Isaacs v. Head, 300 F.3d 1232, 1270 (11th Cir. 2002).
We have strictly enforced the defendant’s burden to make such a showing, and the
inquiry is not simply whether a jury possibly or even probably would view the
statement in such a manner. Id. Rather, we must determine only whether the jury
necessarily would have done so. See id. In applying this test, we look to the
context in which the prosecutor made the challenged statement in order to
determine the manifest intention that prompted it, as well as the natural and
necessary impact that it might have upon the jury. Solomon v. Kemp, 735 F.2d
395, 401 (11th Cir. 1984). A comment on the failure of the defense, as opposed to
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the defendant’s failure to testify, to counter or explain the testimony presented or
evidence introduced does not impinge upon a defendant’s privilege against
self-incrimination. Duncan v. Stynchcombe, 704 F.2d 1213, 1215–16 (11th Cir.
1983) (per curiam).
Griffin errors are subject to harmless error review. See Chapman v.
California, 386 U.S. 18, 24–26, 87 S. Ct. 824, 828–29 (1967) (applying harmless
error review to the defendants’ Griffin claim). While a federal constitutional error
may be considered harmless on direct review if the reviewing court can determine
that it was harmless beyond a reasonable doubt, see Mansfield v. Sec’y, Dep’t of
Corr., 679 F.3d 1301, 1307 (11th Cir. 2012), cert. denied, 133 S. Ct. 861 (2013), a
federal constitutional error is considered harmless on collateral review unless there
is “actual prejudice,” Brecht v. Abrahamson, 507 U.S. 619, 637–38, 113 S. Ct.
1710, 1721–22 (1993) (internal quotation marks omitted). “Actual prejudice”
requires that the error have had a substantial and injurious effect or influence upon
the verdict. Id. Under this standard, an error is not harmless where one is left in
grave doubt as to whether the error substantially and injuriously affected or
influenced the verdict. See O’Neal v. McAninch, 513 U.S. 432, 437–38, 115 S. Ct.
992, 995 (1995).
Here, as an initial matter, although the state argues that Gay’s federal habeas
petition was untimely, this court did not certify the timeliness of his federal habeas
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petition for appeal. See Diaz v. Sec’y for Dep’t of Corr., 362 F.3d 698, 702 (11th
Cir. 2004) (per curiam) (holding that appellate review in a § 2254 proceeding is
limited to the issues specified in the COA). Although this court may consider
threshold procedural issues despite their absence in the COA, the district court did
not decide the timeliness of Gay’s federal habeas petition in the first instance, and
we therefore decline to address that issue here. See Wright v. Sec’y for Dep’t of
Corr., 278 F.3d 1245, 1258 (11th Cir. 2002) (noting that it would be a waste of
time to consider the merits of the petitioner’s claim unless this court reviewed the
district court’s threshold ruling that the petitioner’s claim was procedurally barred).
Next, because no state court clearly and expressly stated that it decided
Gay’s Griffin claims solely upon a state procedural rule, it is not clear whether
Gay’s claims are procedurally defaulted. Even assuming arguendo, however, that
Gay’s Griffin claims are not procedurally defaulted, we conclude that they are
meritless. Gay argues that the state improperly commented upon his failure to
testify by arguing that: (1) the jury should base its verdict upon the credible
evidence that it heard from the witness stand; (2) nobody testified that Finch
tripped on the oak tree roots; (3) “not one scintilla” of evidence supported the
theory that Finch tripped on the oak tree roots; and (4) the jury should base its
verdict on the witness testimony and evidentiary exhibits. Gay claims that these
comments are fairly susceptible to being taken as comments on his failure to
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testify, inasmuch as only Gay could provide testimony contradicting Finch’s
factual account. He further argues that a jury would naturally understand the
state’s closing arguments as a comment on his failure to testify. Finally, Gay
contends that the state’s closing arguments prejudiced him because any statement
that is reasonably susceptible to being interpreted as a comment on the defendant’s
silence creates a high risk of error.
In this case, the prosecutor’s challenged statements were more likely
comments on the failure of Gay’s defense to explain or counter evidence of his
guilt, rather than statements that were manifestly intended to comment on his
failure to testify or that were naturally and necessarily interpreted as such.
Accordingly, a jury would not have necessarily interpreted the state’s arguments as
improper comments on Gay’s failure to testify, but could have plausibly taken
them as comments on the quality of the evidence that Gay in fact presented. The
prosecutor’s closing arguments did not violate Griffin. See Isaacs, 300 F.3d at
1270–71; Duncan, 704 F.2d at 1215–16.
Even assuming Griffin errors, the trial court’s jury instructions rendered
them harmless. The trial court instructed the jury regarding the state’s burden of
proof on multiple occasions, advising the jury that the state had to prove Gay’s
guilt beyond a reasonable doubt. Conversely, it instructed the jury that Gay
enjoyed a presumption of innocence that remained with him unless the state bore
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its burden to prove his guilt, and that Gay held no burden to prove his innocence,
present evidence, or otherwise prove or disprove anything. Finally, the trial court
instructed the jury that Gay had the fundamental right not to testify, and that the
jury could not hold Gay’s decision not to testify against him in any manner. These
instructions cured any prejudice that may have resulted from the prosecutor’s
closing arguments. As a result, Gay cannot demonstrate that any Griffin error
substantially and injuriously affected or influenced the jury’s verdict. See O’Neal,
513 U.S. at 437–38, 115 S. Ct. at 995; Brecht, 507 U.S. at 637–38, 113 S. Ct. at
1721–22.
For the foregoing reasons, the state court’s denials of Gay’s Griffin claims
were not contrary to, and did not constitute an unreasonable application of Griffin.
Accordingly, we affirm.
AFFIRMED.
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