[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ August 13, 2002
THOMAS K. KAHN
No. 00-12203 CLERK
________________________
D. C. Docket No. 97-00555 CV-FAM
MELVEE TUCKER,
Petitioner-Appellant,
versus
DEPT. OF CORRECTIONS,
Michael W. Moore, Secretary,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 13, 2002)
Before CARNES, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
We recently held that the discretionary review exhaustion rule of O’Sullivan
v. Boerckel, 526 U.S. 838, 119 S. Ct. 1728 (1999), applies to 28 U.S.C. § 2254
petitioners from Alabama, even those whose direct appeals were completed before
that decision was released. See Smith v. Jones, 256 F.3d 1135 (11th Cir. 2001),
cert. denied, 122 S.Ct. 1081 (2002). We left open the question of whether the rule
would also apply to § 2254 petitioners seeking review of Florida convictions, and
today we answer a small part of that question.
Melvee Tucker was convicted in 1978 for the 1974 murder of a convenience
store clerk during a robbery, and he is currently serving a life sentence for that
crime. In his direct appeal, Tucker argued that the following six actions of the trial
court were error:
(1) failure to dismiss the indictment because it contained
no allegation of venue, (2) failure to dismiss the
indictment because delay in prosecution violated
appellant’s rights to due process, (3) failure to dismiss
the indictment because of under representation on the
grand jury of Blacks, Latins, and females, (4) failure to
suppress his confession as the product of an illegal arrest
or as not voluntarily given, (5) failure to grant a mistrial
for prejudicial prosecutorial comment, and (6) refusal to
instruct on a lesser-included offense to which the statute
of limitations had run....
2
Tucker v. State, 417 So.2d 1006, 1009 (Fla. Dist. Ct. App. 1982). All six of those
points of error were rejected by Florida’s Third District Court of Appeal in a
divided decision. Id. Although the intermediate appellate court did affirm Tucker’s
conviction and sentence, it certified to the Florida Supreme Court “a question of
great public importance” – an action that under Florida’s constitutional and rule
provisions invoked the appellate jurisdiction of the Florida Supreme Court –
having to do with the first of Tucker’s six points of error, the one involving the
failure of the indictment to specify the place of the crime. Id. at 1013; see also id.
at 1020 n.16 (Jorgenson, J., dissenting).
In the Florida Supreme Court, the parties addressed in their initial briefs the
issue that had been certified and then, six months later, they filed additional briefs
discussing an unrelated other issue that the intermediate appellate court had
discussed at length and rejected. That other issue had to do with the trial court’s
refusal to give a lesser included offense instruction requested by Tucker because
the statute of limitations had run on the lesser offense, which had been Tucker’s
sixth point of error before the intermediate appellate court. Tucker, 417 So.2d at
1010 - 13; Tucker v. State, 459 So.2d 306, 309 (Fla. 1984). Nothing in the record
indicates that the briefing of that other issue was done at Tucker’s initiative instead
of at the direction of the Florida Supreme Court. In its opinion, the Court
3
discussed and decided adversely to Tucker both the issue raised in the certified
question from the intermediate appellate court and the additional issue as well. Id.
It did not address any of the other four issues that Tucker had raised in the
appellate court as points of error 2, 3, 4, and 5.
After a number of other state court proceedings that are not relevant to the
issues before us, in 1997 Tucker filed in federal district court a 28 U.S.C. § 2254
petition seeking relief from his Florida conviction and sentence on 16 grounds,
four of which involved the same claims of error that he had presented to the state
intermediate appellate court but that were not decided by the Florida Supreme
Court. Citing O’Sullivan v. Boerckel, 526 U.S. 838, 119 S. Ct. 1728 (1999), the
district court held that those four claims were procedurally barred from federal
court review because Tucker had abandoned them on direct appeal by not raising
them before the Florida Supreme Court. The district court rejected the remaining
claims in Tucker’s habeas petition for one reason or another, the result being
denial of any relief.
A judge of this Court granted a certificate of appealability on the issue of
whether by failing to raise before the Florida Supreme Court four of the points of
error he unsuccessfully argued before the intermediate appellate court, Tucker had
failed to exhaust those four claims with the result that he is procedurally barred
4
from having them decided on the merits in a federal habeas proceeding. In other
words, does the Boerckel rule apply to those four claims in these circumstances?
In 1980, Article V of the Florida Constitution was amended “to limit[] the
supreme court’s appellate, discretionary, and original jurisdiction to cases that
substantially affect the law of the state.” Fla. R. App. P. 9.030, Committee Notes,
1980 Amendment. Under the terms of that amendment, there are two separate
ways in which the Florida Supreme Court may review a decision of a district court
of appeal. The first, commonly referred to as “conflict jurisdiction,” provides that
the Florida Supreme Court:
May review any decision of a district court of appeal that expressly
declares valid a state statute, or that expressly construes a provision of
the state or federal constitution, or that expressly affects a class of
constitutional or state officers, or that expressly and directly conflicts
with a decision of another district court of appeal or of the supreme
court on the same question of law.
Fla. Const. Art. V, § 3(b)(3). Conflict jurisdiction does not require certification by
the district court of appeal. It permits review, however, only when the Florida
Supreme Court finds that certain prescribed conditions are satisfied: when it
perceives an actual or potential conflict within the law of the state. This case does
not involve, and we do not address, the question of whether and under what
circumstances the Boerckel exhaustion doctrine may require a Florida prisoner to
5
seek state supreme court review pursuant to that court’s conflict jurisdiction, i.e.,
under Art. V, § 3(b)(3).
The second way in which the Florida Supreme Court may review the
decision of a district court of appeal, and the one relevant here, is pursuant to so-
called “certified question” jurisdiction. Under that provision of the state
constitution, the Florida Supreme Court:
May review any decision of a district court of appeal that passes upon
a question certified by it to be of great public importance, or that is
certified by it to be in direct conflict with a decision of another district
court of appeal.
Fla. Const. Art. V § 3(b)(4). In Tucker’s case, the district court of appeal certified
a question to be “of great public importance” – the question having to do with the
indictment’s failure to specify the place in which the crime was committed. In
other words, it was the “certified question jurisdiction” provision of section
3(b)(4), not the “conflict jurisdiction” provision of section 3(b)(3), under which
Tucker was able to obtain Florida Supreme Court review in his appeal.
There is nothing in Fla. Const. Art. V § 3(b)(4) indicating that a petitioner
has the right to seek review of additional issues piggyback style. Nor did any of
the case law existing at that time give a petitioner such a right when the
jurisdictional basis for review was § 3(b)(4).
6
The only decision at the time indicating that the Florida Supreme Court
could go beyond the precise question that gave rise to its jurisdiction was Savoie v.
State, 422 So.2d 308 (Fla. 1982), and that was a case in which jurisdiction to
review existed under Art. V § 3(b)(3) based on a conflict in decisions, not under §
3(b)(4) based on a certified question from a district court of appeals. Id. at 309-10
(“We find conflict, as acknowledged by the district court in its opinion . . . . We
have jurisdiction. Art. V, § 3(b)(3), Fla. Const.”). Savoie established that the
Florida Supreme Court has discretion to decide other issues when it reviews a case
pursuant to its section 3(b)(3) conflict jurisdiction. See id. at 310 (“[O]nce we
accept jurisdiction over a cause in order to resolve a legal issue in conflict, we may,
in our discretion, consider other issues properly raised and argued before this
Court.” (emphasis added)). But Tucker’s was not a conflict jurisdiction case.
Moreover, the Savoie decision was not released until November 10, 1982, which
was after Tucker had filed his opening brief in the Florida Supreme Court.
Of course, Tucker did file in April of 1983 an additional brief addressing
one of the remaining five issues he had raised in the intermediate appellate court,
but there is no indication that he filed that brief of his own initiative.1 So, we do
1
Having some familiarity with how appellate courts operate, we believe that
the briefing of the issue probably was at the direction of the Florida Supreme
Court, instead of the result of some motion Tucker filed. Under the circumstances
7
not know if the existence of the additional brief evidences that at the time it was
filed a defendant in a certified question jurisdiction case had the right to seek
review of issues beyond the one certified, instead of simply the obligation to obey
whatever briefing directions the Florida Supreme Court issued.
In the absence of a stronger indication that there was at the time an
established right to seek review in those circumstances, the Boerckel rule does not
it appears to be the kind of issue that the Court probably realized, well into
deciding the certified question issue, that it needed to decide as well. The fact that
the issue was briefed so long after the initial briefs were filed also supports this
theory. Although we only have Tucker’s additional brief in the record before us,
the cover of it indicates that the State was to file a response brief thereafter.
The cover of the brief addressing the other issue states that the case is “on
petition for discretionary review,” but that tells us nothing. The Florida Rules of
Appellate Procedure uses the discretionary terminology to refer to all issues the
Florida Supreme Court reviews on the basis of conflict jurisdiction or certified
question jurisdiction. For example, Rules 9.120 and 9.900 (d) direct attorneys to
file a notice invoking the supreme court’s “discretionary jurisdiction” after the
district court of appeal has certified a question. Rule 9.030(a) divides the supreme
court’s jurisdiction into three kinds: appeal, discretionary, and original.
“Discretionary jurisdiction” includes both conflict jurisdiction under section
3(b)(3) and certified question jurisdiction under section 3(b)(4) of Article V of the
Florida Constitution. It is “discretionary” because the supreme court is not
required to hear any issue that reaches it under the provisions of section 3(b)(3)
and (4). By contrast, in cases arising pursuant to the court’s “appeal
jurisdiction”—for example, in capital cases or in cases expressly declaring a state
statute or constitutional provision invalid—the court is required to hear the case.
Finally, the court’s “original jurisdiction” refers to its power to issue, for example,
writs of prohibition to courts and writs of mandamus and quo warranto to state
officers and agencies.
8
apply. It requires that state prisoners invoke “one complete round of the State’s
established appellate review process” and use “the State’s established appellate
review procedures,” but it does not require resort to any “extraordinary
procedures.” 526 U.S. at 845, 119 S.Ct. at 1732 - 33. The method of review
involved in the Boerckel case was “a normal, simple, and established part of the
State’s appellate review process.” Id. at 1733. Petitioning or moving the Florida
Supreme Court to piggyback onto a certified question issue the decision of
additional issues was not a normal and established part of Florida appellate
procedure, at least not in 1982 and 1983.2
The judgment of the district court is REVERSED, and the case is
REMANDED for further proceedings consistent with this opinion.
2
Since Tucker’s case was before the Florida Supreme Court, it has released
decisions holding that it does have discretion in certified question cases to decide
other issues. See Fulton County Administrator v. Sullivan, 753 So.2d 549, 553
n.3 (Fla. 1999) (“Given our jurisdiction on the basis of the certified question, we
have jurisdiction over all of the issues raised in this case.”); Feller v. State, 637
So.2d 911, 914 (Fla. 1994) (“Having jurisdiction on the basis of the certified
questions, we have jurisdiction over all issues.”). Those decisions came out too
late to be relevant to our analysis, and we have no occasion to decide now whether
the Boerckel rule would apply to a prisoner whose case came before the Florida
Supreme Court on a certified question basis after those decisions had been issued.
Nor do we have any occasion to decide in this case any Boerckel issues
relating to exercise of the Florida Supreme Court’s conflict or other jurisdiction
under Art. V, § 3(b)(3).
9
10
BARKETT, Circuit Judge, concurring:
Although I concur in the majority opinion, I write separately to note,
additionally, that it would make no difference if Tucker’s appeal had taken place
after the Florida Supreme Court announced that it possesses jurisdiction to
consider issues beyond the one presented by the certified question. See Feller v.
State, 637 So.2d 911, 914 (Fla. 1994) (“Having jurisdiction on the basis of the
certified questions, we have jurisdiction over all issues.”). The exhaustion inquiry
under O’Sullivan v. Boerckel requires us to look only to what occurred (or failed to
occur) in the course of the “standard review process.” 526 U.S. 838, 844 (1999);
see also Dixon v. Dormire, 263 F.3d 774, 778 (8th Cir. 2001). Thus, if a
proceeding lies outside of the normal appellate process, a petitioner’s failure to
present every claim in that proceeding will not constitute a lack of exhaustion
under Boerckel. See Boerckel, 526 U.S. at 844. Because proceedings pursuant to
the Florida Supreme Court’s certified question jurisdiction constitute an
extraordinary procedure beyond the scope of standard appellate review, I conclude
that a petitioner’s failure to present all of his claims there, even after Feller, does
not constitute a lack of exhaustion.
As Boerckel explained, the exhaustion doctrine is rooted in the idea of
comity. See Boerckel, 526 U.S. at 844. The Court found that comity requires
11
prisoners to raise all federal constitutional claims in the state’s “standard review
process” because otherwise the state courts might be deprived of a “full and fair
opportunity to resolve federal claims before those claims are presented to the
federal courts . . . .” Id. at 845. But the requirement extends only to proceedings
that fall within the normal system of appellate review, because as long as the
claims were raised there, the state courts have been given a fair opportunity to
review those claims and order any necessary relief. See id. at 844 (explaining that
“[28 U.S.C.] Section 2254(c) requires only that state prisoners give state courts a
fair opportunity to act on their claims.” (emphasis in original)). To require
prisoners to raise all of their claims in extraordinary proceedings in addition to
proceedings that are part of the standard review process not only is not required by
the doctrine of comity, but actually disserves the interests of comity by
transforming state proceedings that have distinctive and narrower purposes into
general forums for the relitigation of claims that have already been fully
adjudicated in the course of normal appellate procedures.
Boerckel examined whether the exhaustion doctrine requires state prisoners
to seek certiorari review, or in other words, to seek review in the state supreme
court when that court has discretionary control over its docket. See id. at 843
(“The particular question posed by this case is whether a prisoner must seek review
12
in a state court of last resort when that court has discretionary control over its
docket.” (emphasis added)). The decisive fact for the Boerckel Court was that the
Illinois Supreme Court possesses unlimited discretion to hear any case it wishes.
The Court in Boerckel observed that no Illinois rule controlled or measured the
supreme court’s discretion, id. at 846, and that the supreme court “has the
opportunity to decide which cases it will consider on the merits.” Id. (emphasis in
original). The Court thus reasoned that, because the Illinois Supreme Court has the
power to hear any case that is presented to it, it is part of the state’s normal system
of appellate review, and a prisoner’s failure to raise his claims in a petition for
certiorari could deprive Illinois of a full and fair opportunity to adjudicate the
claims prior to federal review.
In Florida, the decision of the district court of appeal is the final decision in
the course of the normal appellate process. There is no general certiorari review by
which the supreme court has the power to hear any case it pleases; the supreme
court does not have, in Boerckel’s words, “discretionary control over its docket.”
Id. at 843. The court does not have unfettered discretion “to decide which cases it
will consider on the merits” because review pursuant to section 3(b)(4) is available
only after a district court of appeal elects to certify a question to the court. If a
question is not certified by the district court of appeal, the supreme court will be
13
unable to hear the case. In other words, the control over the supreme court’s docket
lies with the district courts of appeal, rather than with the supreme court itself.
Furthermore, a district court of appeal may certify a question for supreme court
review only under very limited circumstances: the question must be “of great public
importance,” or the decision must be in “direct conflict” with the decision of
another district court of appeal. See Fla. Const. Art. V § 3(b)(4). In light of the fact
that the supreme court does not have discretion to hear any case it pleases, and of
the limited purposes served by certified question proceedings, it cannot be said that
those proceedings are part of the standard review process.
Florida’s constitutional design gives the supreme court an opportunity to
resolve a question of “great public importance” when a district court of appeal
certifies that the question satisfies that condition. Although Feller indicates that the
supreme court possesses jurisdiction to decide other issues that it may consider
necessary to its decision, Feller’s simple statement regarding jurisdiction certainly
does not describe certified question proceedings as a forum for the relitigation of all
claims. On the contrary, the supreme court repeatedly refuses to address any claim
beyond the scope of the certified question. See, e.g., Major League Baseball v.
Morsani, 790 So. 2d 1071, 1080 n.26 (Fla. 2001) (“We decline to address the other
claim . . . because it is outside the scope of the certified question and was not the
14
basis of our discretionary review. As a rule, we eschew addressing a claim that was
not first subjected to the crucible of the jurisdictional process set forth in article V,
section 3, Florida Constitution.”); Crocker v. Pleasant, 778 So. 2d 978 (Fla. 2001);
Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000); Friedrich v. State, 767 So. 2d
451 (Fla. 2000); Barber v. State, 775 So. 2d 258 (Fla. 2000); Fulton County Adm’r
v. Sullivan, 753 So. 2d 549 (Fla. 1999); McMullen v. State, 714 So. 2d 368 (Fla.
1998); Beach v. Great Western Bank, 692 So. 2d 146 (Fla. 1997); W.R. Grace &
Co. v. Waters, 638 So. 2d 502 (Fla. 1994); Jeffries v. State, 610 So. 2d 440 (Fla.
1992); Stephens v. State, 572 So. 2d 1387 (Fla. 1991); State v. Simpson, 554 So. 2d
506 (Fla. 1989).
Boerckel makes clear that, under the exhaustion doctrine, it remains with the
states to define what procedures are part of the normal system of state appellate
review. 526 U.S. at 848-49. In my view, the determinative issue in this case is that
both the constitutional design of the Florida Supreme Court’s jurisdiction and the
statements of that court make clear that certified question jurisdiction is an
extraordinary procedure for resolving questions of great public importance, and not
a forum for relitigating every claim.1 Because the certified question proceeding lies
1
The fact that Tucker’s appeal took place long before Feller was decided
certainly renders irrelevant any argument that Feller created a new exhaustion
obligation. But since I find that argument unpersuasive in any event, I see little
15
outside of the normal appellate process, and because the district court of appeal is
the forum with the responsibility for full adjudication of the case, the state courts
have not been deprived of a fair opportunity to review a petitioner’s federal
constitutional claims simply because every claim is not raised again in the certified
question proceeding. Consequently, it does not create an exhaustion problem in the
federal courts.
reason to consider only pre-Feller cases.
16