           Case: 11-13411   Date Filed: 02/11/2013   Page: 1 of 10

                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 11-13411
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:10-cv-21871-PCH



LEONARD WAYNE TAYLOR,

                                                          Petitioner-Appellant,

                                  versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL OF FLORIDA,

                                                       Respondents-Appellees.

                      ________________________

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

                            (February 11, 2013)

Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      Leonard Wayne Taylor, a Florida prisoner proceeding pro se, appeals the

denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus based on the

finding that many of his claims were procedurally defaulted. We granted Taylor’s

motion for a certificate of appealability (“COA”) as to the following two issues:

      (1)    Whether the district court’s finding that Claims 5 and 21 were
             procedurally defaulted was correct, in light of the fact that the
             state court reviewed these claims on direct appeal?

      (2)    Whether the state post-conviction court’s procedural ruling as
             to Claims 1, 2, 9, 13, 14, 15, 16, 17, and 18 of Taylor’s 28
             U.S.C. § 2254 petition rested on independent and adequate
             state grounds, and, accordingly, whether the district court’s
             finding that these claims were procedurally defaulted on federal
             review was correct?

      On appeal, Taylor first argues that the district court erroneously determined

that Claims 5 and 21 were procedurally defaulted because he raised those claims in

his brief on direct appeal in state court. Taylor next argues that Claims 1, 2, 9, 13,

14, 15, 16, 17, and 18 were not procedurally barred because he raised those claims

in his state petition for writ of habeas corpus, in which he raised a claim of

ineffective assistance of counsel. Finally, Taylor argues the merits of his claims.

      “When examining a district court’s denial of a § 2254 petition, we review

the district court’s factual findings for clear error and its legal determinations de

novo.” Owen v. Sec’y for Dep’t of Corr., 568 F.3d 894, 907 (11th Cir. 2009).

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Whether a claim is subject to the doctrine of procedural default is a mixed

question of fact and law that we review de novo. Greene v. Upton, 644 F.3d 1145,

1154 (11th Cir. 2011), cert. denied, 132 S. Ct. 1767 (2012).

      A state prisoner must have “exhausted the remedies available in the courts

of the State” unless “there is an absence of available State corrective process” or

“circumstances exist that render such process ineffective to protect [his] rights.”

28 U.S.C. § 2254(b)(1). “It is well established that federal courts will not review

questions of federal law presented in a habeas petition when the state court’s

decision rests upon a state-law ground that is independent of the federal question

and adequate to support the judgment.” Cone v. Bell, 556 U.S. 449, 465, 129 S.

Ct. 1769, 1780, 173 L. Ed. 2d 701 (2009) (quotation omitted). The Supreme Court

has held that “when a petitioner fails to raise his federal claims in compliance with

relevant state procedural rules, the state court’s refusal to adjudicate the claim

ordinarily qualifies as an independent and adequate state ground for denying

federal review.” Id. “The adequacy of the procedural bar is not a matter of state

law, but is itself a federal question.” Doorbal v. Dep’t of Corr., 572 F.3d 1222,

1227 (11th Cir. 2009) (quotation omitted).

      We apply the following three-part test to determine whether a state court

decision rested upon an “independent and adequate” ground under state law:

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      First, the last state court rendering a judgment in the case must clearly
      and expressly state that it is relying on state procedural rules to
      resolve the federal claim without reaching the merits of that claim.
      Secondly, the state court’s decision must rest solidly on state law
      grounds, and may not be “intertwined with an interpretation of federal
      law.” Finally, the state procedural rule must be adequate; i.e., it must
      not be applied in an arbitrary or unprecedented fashion or be
      manifestly unfair.

Id. (citations and alteration omitted).

      We may affirm the district court’s ruling on any ground supported by the

record. See Peoples v. Campbell, 377 F.3d 1208, 1235-36 (11th Cir. 2004)

(determining that the district court erred in determining that an ineffective

assistance of counsel claim was procedurally defaulted, but opting to decide the

claim instead of remanding it to the district court for an evidentiary hearing).

I.    Claims 5 and 21

      Our review of the denial of a § 2254 petition is governed by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Windom v.

Sec’y, Dep’t of Corr., 578 F.3d 1227, 1247 (11th Cir. 2009). Under the AEDPA’s

“highly deferential standard for reviewing state court judgments,” we may not

grant habeas relief on claims previously adjudicated on the merits by a state court

unless the state court adjudication resulted in a decision that was “(1) contrary to,

or involved an unreasonable application of, clearly established Federal law, as



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determined by the Supreme Court of the United States; or (2) was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” Id. (quotation omitted); see also 28 U.S.C. § 2254(d).

“The phrase ‘clearly established Federal law’ refers to the governing legal

principle or principles set forth by the Supreme Court at the time the state court

renders its decision.” Walker v. Hadi, 611 F.3d 720, 723 (11th Cir. 2010)

(quotation omitted).

      The district court concluded that Claims 5 and 21 were procedurally

defaulted. This finding was error because the state appellate court addressed

Claims 5 and 21 on the merits of the direct appeal. See Parker v. Sec’y for Dept.

of Corr., 331 F.3d 764, 771 (11th Cir. 2003) (“This Court has further clarified that

a federal claim is not barred on federal habeas review if the state courts actually

reject a claim on the merits.”). However, we may affirm the district court’s ruling

for any grounds supported by the record, see Peoples, 377 F.3d at 1235-36, and we

proceed below to evaluate the merits of these claims. Because we conclude that

Claims 5 and 21 fail on the merits, we affirm the district court’s denial of Taylor’s

§ 2254 petition with respect to these two claims.

      A.     Claim 5




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      In Taylor’s § 2254 petition, he argued that the trial court erred in rejecting

his proposed jury instruction on lost or abandoned property. He argues that,

because his defense was that he found the stolen property on the side of the road

after it had already been stolen, the jury should have been instructed on the Florida

Statute’s definition of “lost property” and “abandoned property.”

      The inquiry by a habeas court in a due process challenge to jury instructions

“is not whether the challenged instructions were undesirable, erroneous, or even

universally condemned,” but rather, “whether the instructions so infected the

entire trial that the resulting conviction violates due process.” Jamerson v. Sec’y

for Dep’t of Corr., 410 F.3d 682, 690 (11th Cir. 2005) (quotations omitted).

“Where a requested jury instruction is already covered by the charges given,

failure to give the requested charge is not error at all, much less constitutional

error.” Rodriguez v. Wainwright, 740 F.2d 884, 885 (11th Cir. 1984).

      The district court did not err in not permitting Taylor’s proposed jury

instruction. With respect to Taylor’s theft charge, the jury was specifically

instructed that it must find beyond a reasonable doubt that Taylor “knowingly,

unlawfully” obtained the property and that he did so with the “intent to either

temporarily or permanently deprive” the owner of her right to the property or to

appropriate it for his or another’s use. Accordingly, if the jury believed Taylor’s

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testimony at trial that he found this property on the ground after it had been stolen

and that he believed that he was able to keep the property for himself, the jury was

able to find that he was not guilty of theft because he did not “knowingly,

unlawfully” obtain the property with the intent to deprive. See id. The state

court’s ruling on Claim 5 was not a decision that was contrary to, or involved an

unreasonable application of, clearly established federal law. See Windom, 578

F.3d at 147.

      B.       Claim 21

      Taylor also argued in his § 2254 petition that the trial court erred in

overruling his objection to the prosecutor’s use of a peremptory challenge to strike

an African American juror.

      In Batson v. Kentucky, the Supreme Court held that a prosecutor’s use of

peremptory strikes to preclude persons from serving on juries on account of their

race violates the Equal Protection Clause of the Fourteenth Amendment. 476 U.S.

79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed. 2d 69 (1986). The Court has established a

three-step analysis in evaluating a Batson claim. Id. at 96-98, 106 S. Ct. at

1722-24.

      First, the defendant must make out a prima facie case by showing that
      the totality of the relevant facts gives rise to an inference of
      discriminatory purpose. Second, once the defendant has made out a

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      prima facie case, the burden shifts to the State to explain adequately
      the racial exclusion by offering permissible race-neutral justifications
      for the strikes. Third, if a race-neutral explanation is tendered, the
      trial court must then decide . . . whether the opponent of the strike has
      proved purposeful racial discrimination.

Johnson v. California, 545 U.S. 162, 168, 125 S. Ct. 2410, 2416, 162 L. Ed. 2d

129 (2005) (internal quotation marks, citations, and footnotes omitted).

      At the second step, the court evaluates only the “facial validity of the

prosecutor’s explanation,” and unless a discriminatory intent is “inherent in the

prosecutor’s explanation, the reason offered will be deemed race neutral.” Purkett

v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 1771, 131 L. Ed. 2d 834 (1995)

(quotation omitted). The third step “involves evaluating ‘the persuasiveness of the

justification’ proffered by the prosecutor, but ‘the ultimate burden of persuasion

regarding racial motivation rests with, and never shifts from, the opponent of the

strike.’” Rice v. Collins, 546 U.S. 333, 338, 126 S. Ct. 969, 974, 163 L. Ed. 2d

824 (2006) (citation omitted). “[A] federal habeas court can only grant [a habeas]

petition if it was unreasonable to credit the prosecutor’s race-neutral explanations

for the Batson challenge.” Id.

      Here, during voir dire, the State used a peremptory challenge to strike an

African American juror because the juror’s brother was a police officer. Despite

Taylor’s objection that it was not a fair concern for the State that a juror knew

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someone in law enforcement, the trial court struck the juror. The trial court’s

determination that the State’s proffered reason was genuinely race neutral was not

unreasonable as an individual’s understanding of the criminal justice system could

be a reason that a prosecutor would not want that individual on the jury. See id. at

341-42, 126 S. Ct. at 976 (“Reasonable minds reviewing the record might disagree

about the prosecutor’s credibility, but on habeas review that does not suffice to

supercede the trial court’s credibility determination.”). The state court’s ruling on

Claim 21 was not a decision that was contrary to, or involved an unreasonable

application of, clearly established federal law. See Windom, 578 F.3d at 147.

      Accordingly, we affirm the district court’s denial of Taylor’s § 2254 petition

as to Claims 5 and 21.

II.   Claims 1, 2, 9, 13, 14, 15, 16, 17, and 18

      As an initial matter, we have “already concluded that the procedural

requirements of Florida’s Rule 3.850 constitute independent and adequate state

grounds under the applicable law.” LeCroy v. Sec’y, Fla. Dep’t of Corr., 421 F.3d

1237, 1260 n.25 (11th Cir. 2005) (citing Whiddon v. Dugger, 894 F.2d 1266,

1267-68 (11th Cir. 1990)). In LeCroy, we held that because the petitioner did not

raise his claim on direct appeal in the state court, “the State 3.850 Court’s refusal

to consider” the petitioner’s claim “as procedurally barred rested on an

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independent and adequate state ground that precludes federal habeas consideration

of this issue.” Id. at 1260.

      Because Taylor did not raise Claims 1, 2, 9, 13, 14, 15, 16, 17, and 18 on

direct appeal to the state court, the district court’s determination that those claims

were procedurally defaulted rested on an independent and adequate state ground.

Taylor further argues that these claims were not procedurally defaulted because, in

his state habeas petition, he argued that his counsel had been ineffective for failing

to include these claims in Taylor’s brief on direct appeal. However, this argument

is without merit because, for purposes of exhaustion of state remedies, a

substantive claim is “separate and distinct” from an ineffective assistance of

counsel claim based on the substantive claim. See id. at 1260 n.24; see also Pietri

v. Fla. Dep’t of Corr., 641 F.3d 1276, 1289 (11th Cir. 2011), cert. denied, 132 S.

Ct. 1551 (2012).

      Based on our review of the record and consideration of the parties’ briefs,

we affirm.1

      AFFIRMED.




      1
              Taylor’s Motion for Leave to File Reply Brief Out of Time is GRANTED.

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