USCA11 Case: 22-12401 Document: 25-1 Date Filed: 02/01/2024 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12401
Non-Argument Calendar
____________________
FRANK CARTER, JR.,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:21-cv-00797-LC-ZCB
____________________
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2 Opinion of the Court 22-12401
Before ROSENBAUM, GRANT, and BRASHER, Circuit Judges.
PER CURIAM:
Petitioner Frank Carter, Jr., is a Florida state prisoner. Carter
has filed in federal court a petition for a writ of habeas corpus alleg-
ing that his state conviction and sentence violate his federal consti-
tutional rights. See 28 U.S.C. § 2254. As relevant for this appeal,
Carter asserts in his habeas petition that his trial attorney per-
formed ineffectively by failing to move for an evidentiary hearing
under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993).
The district court dismissed Carter’s Daubert-based claim as
procedurally defaulted. Under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), a state prisoner typically must
exhaust the relevant state’s available post-conviction remedies be-
fore pursuing a federal habeas petition. 28 U.S.C. § 2254(b)(1)(A).
When a state prisoner fails to raise and litigate a habeas claim in
state post-conviction proceedings, that claim is unexhausted and
thus cannot be pursued in federal court. See Bailey v. Nagle, 172 F.3d
1299, 1303 (11th Cir. 1999). The Daubert-based claim first appeared
in Carter’s second state post-conviction petition, and the state
courts dismissed that claim as procedurally defaulted. Accordingly,
there is no doubt that the Daubert-based claim was procedurally de-
faulted under AEDPA.
In certain circumstances, however, a procedural default can
be equitably excused. The Supreme Court held in Martinez v. Ryan
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22-12401 Opinion of the Court 3
that a procedurally defaulted claim can nonetheless proceed if the
procedural default was caused either by ineffective counsel in the
earlier post-conviction proceeding or by the fact that “there was no
counsel . . . in that proceeding . . . .” 566 U.S. 1, 17 (2012). Carter’s
state post-conviction petitions were all filed pro se. But the district
court did not consider whether Martinez applied to Carter’s Daub-
ert-based habeas claim.
We granted a certificate of appealability limited to the fol-
lowing question: “Whether the district court erred in failing to con-
sider Martinez v. Ryan, 566 U.S. 1 (2012), as a basis to excuse Carter’s
procedural default of [the Daubert-based claim] of his § 2254 peti-
tion?” The issue for our review is narrow. We do not decide today
whether Carter’s Daubert-based claim is meritorious. We do not
even decide today whether Martinez excuses Carter’s procedural
default. Today, we decide only whether Carter’s pro se filings in the
district court were sufficient to raise a Martinez argument that
should have been addressed below.
The district court did not err in failing to apply Martinez to
Carter’s Daubert-based claim because Carter waited too long to
even attempt to raise a Martinez-style argument. The first time that
Carter even arguably raised Martinez or otherwise argued for an
excuse of the procedural default of the Daubert-based claim was
when he filed objections to the magistrate judge’s recommenda-
tion that the habeas petition be denied. By failing to argue the point
earlier—i.e., when Respondent answered the petition and argued
for denial on procedural default grounds—Carter forfeited the
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4 Opinion of the Court 22-12401
procedural default issue. We have made clear that district courts
are under no obligation to consider arguments raised for the first
time in an objection to a magistrate judge’s report and recommen-
dation. Williams v. McNeil, 557 F.3d 1287, 1290–92 (11th Cir. 2009).
And when a district court declines to address an untimely raised
issue, that issue has been forfeited for appellate review. Knight v.
Thompson, 797 F.3d 934, 937 n.1 (11th Cir. 2015) (citing Williams,
557 F.3d at 1291).
The district court’s denial of Carter’s habeas petition is
AFFIRMED.