           Case: 14-12088   Date Filed: 07/28/2015   Page: 1 of 3


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-12088
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 1:13-cv-21884-DLG



CHARLES J. EATO,

                                                          Petitioner-Appellant,

                                  versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

                                                         Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (July 28, 2015)

Before MARCUS, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Charles J. Eato, a state prisoner represented by counsel, appeals the district

court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254

and the dismissal without prejudice of his motion for newly-discovered evidence

and fraud upon the court under Federal Rule of Civil Procedure 60(d). On appeal,

Eato argues that he exhausted his claims before the Florida state courts by filing

certain motions before his trial that were “within the spectrum” of the claims in his

§ 2254 petition. After careful consideration of the briefs and the record, we affirm.

      We review de novo a district court’s grant or denial of a habeas corpus

petition. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010). Before bringing a

habeas corpus action in federal court, the petitioner must exhaust all state court

remedies available for challenging his conviction. 28 U.S.C. § 2254(b)(1)(A), (c).

Federal courts may treat unexhausted claims as procedurally defaulted, even absent

a state court determination to that effect, if it is clear from state law that any future

attempt at exhaustion would be futile. Bailey v. Nagle, 172 F.3d 1299, 1305 (11th

Cir. 1999). In Florida, a motion for postconviction relief cannot be “based on

grounds that could have or should have been raised at trial and, if properly

preserved, on direct appeal of the judgment and sentence.” Fla. R. Crim. P.

3.850(c); Smith v. State, 453 So. 2d 388, 389 (Fla. 1984).

      Eato raises seven claims in his petition: (1) the insufficiency of the charging

document violated his constitutional rights; (2) the trial court’s violation of Florida


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Rule of Criminal Procedure 3.220 constituted a substantial violation of his

constitutional rights; (3) the trial court violated his constitutional rights by

circumventing the rules and procedures for Frye 1 requirements and admitting DNA

evidence; (4) the trial court erred by denying his pretrial motion to dismiss for

entrapment by estoppel; (5) the trial court erred by denying a requested jury

instruction based on entrapment by estoppel; (6) the prosecutor made improper

comments during closing argument that deprived Eato of his fundamental right to a

fair trial; and (7) the trial court circumvented Florida law, which resulted in

cumulative error. All of the claims could have been brought on direct appeal, but

Eato did not respond to his appointed attorney’s Anders 2 brief. Eato, therefore,

failed to exhaust his remedies in the state courts, so his claims are procedurally

defaulted. The district court correctly denied his § 2254 petition and dismissed his

Rule 60 motion. 28 U.S.C. § 2254(b)(1)(A).

      AFFIRMED.




1
      Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
2
      Anders v. California, 386 U.S. 738 (1967).
                                              3
