           Case: 17-12518   Date Filed: 05/23/2019   Page: 1 of 13


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-12518
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:15-cv-01096-GKS-GJK



KYLE A. KEYS,

                                                         Petitioner - Appellant,

                                  versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                      Respondents - Appellees.

                       ________________________

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

                              (May 23, 2019)

Before TJOFLAT, JORDAN and JILL PRYOR, Circuit Judges.

PER CURIAM:
                  Case: 17-12518      Date Filed: 05/23/2019        Page: 2 of 13


      Kyle Keys filed a habeas petition under 28 U.S.C. § 2254 claiming that the

State of Florida violated Giglio v. United States, 405 U.S. 150 (1972), by failing to

disclose information he could have used to impeach a prosecution witness. We are

barred from considering his claim, however, because he has procedurally defaulted

it, and we therefore affirm the dismissal with prejudice of his petition.

             I.      FACTUAL AND PROCEDURAL BACKGROUND

A. The Crime and the Trials

      Keys was tried three times for first-degree murder and robbery with a

firearm. His acquaintance Toris Oliver did not testify at the first two trials, which

ended in a hung jury and a mistrial, respectively. At the third trial, Oliver testified

that he and Keys pulled into the grounds of an apartment building to let Keys out

to ask a woman for a cigarette. Oliver saw Keys approach the woman with a gun

and try to grab her purse, then heard two gunshots and the woman screaming for

help, and then saw her fall. When Keys returned to the car with a billfold and cell

phone, Oliver asked if he had shot the lady, and Keys replied, “I shot in the air.”

Doc. 12-18 at 49. 1 Later, after learning that the woman had died, Oliver

confronted Keys, who said that he had not meant to shoot her and that “the gun just

went off.” Id. at 54. On direct, cross, and redirect examination, Oliver denied that




      1
          “Doc #” refers to the numbered entries on the district court’s docket.

                                                 2
              Case: 17-12518    Date Filed: 05/23/2019    Page: 3 of 13


the prosecution had offered him anything in exchange for his testimony. Keys’s

third trial ended in his convictions on the murder and robbery charges.

      After the verdict, Keys’s trial lawyer received a letter from Oliver admitting

that he had lied on the stand when he denied having received anything from the

prosecution in exchange for his testimony. Oliver enclosed a letter from his own

lawyer to himself regarding a conversation she had with the prosecution about the

possibility of a deal in which the State would ask for a lower sentence if Oliver

testified against Keys.

B. Keys’s Motion Under Florida Rule of Criminal Procedure 3.850

      Through counsel, Keys filed a post-conviction motion pursuant to Florida

Rule of Criminal Procedure 3.850 arguing that Oliver’s letter and enclosure were

newly discovered evidence that undermined the validity of the jury verdict. The

contents of Keys’s Rule 3.850 motion are essential to our resolution of the instant

appeal, so we describe them in detail.

      In his five-paragraph argument, Keys raised a single claim titled “Newly

discovered evidence.” Doc. 12-27 at 74. The first two paragraphs described

Oliver’s trial testimony and his post-trial letter and enclosure. The third paragraph

quoted the standard for a newly discovered evidence claim under Florida law. See

Burns v. State, 858 So. 2d 1229, 1230 (Fla. Dist. Ct. App. 2003). Keys argued he

met both prongs of the standard: (1) the evidence of Oliver’s deal with the


                                          3
              Case: 17-12518    Date Filed: 05/23/2019    Page: 4 of 13


prosecution was newly discovered because Keys could not have learned of it

earlier through due diligence; and (2) introduction of the new evidence to impeach

Oliver would “probably produce an acquittal” on retrial, especially since the first

trial—at which Oliver did not testify—ended in a hung jury. Doc. 12-27 at 74-75;

see also Burns, 858 So. 2d at 1230.

      The fourth paragraph contained a large block quotation from a U.S. Court of

Appeals for the Ninth Circuit case to illustrate “the importance of informing the

jury that a prosecution witness has been offered a lenient sentence in exchange for

his or her testimony.” Doc. 12-27 at 75. That Ninth Circuit case and four other

federal cases Keys cited all discussed Giglio claims. See Carriger v. Stewart,

132 F.3d 463, 479 (9th Cir. 1997) (en banc) (quoting United States v. Bernal-

Obeso, 989 F.2d 331, 333-34 (9th Cir. 1993)); Brown v. Wainwright, 785 F.2d

1457, 1466 (11th Cir. 1986); United States v. Barham, 595 F.2d 231, 242-43 (5th

Cir. 1979); Tassin v. Cain, 482 F. Supp. 2d 764, 775 (E.D. La. 2007). Keys

introduced the other citations to argue that Oliver’s testimony was “inherently

untrustworthy,” that “it [wa]s probable that [Keys] would be acquitted” if Keys

could use the new evidence to impeach Oliver on retrial, and that “[c]ourts . . .

have consistently held that [post-trial] disclosure of a deal between the prosecution

and the prosecution’s key witness entitles the defendant to a new trial.” Doc. 12-

27 at 76 & n.2 (internal quotation marks omitted).


                                          4
              Case: 17-12518     Date Filed: 05/23/2019    Page: 5 of 13


      Citing only Florida state cases, the fifth and final paragraph requested an

evidentiary hearing to determine whether the post-trial evidence qualified as newly

discovered and whether it would likely lead to an acquittal if used in a retrial.

Keys later amended his Rule 3.850 motion to attach Oliver’s letter and its

enclosure, Oliver’s letter from his lawyer.

      The Florida circuit court denied Keys’s Rule 3.850 motion. In his motion

for rehearing, Keys described his claim as a “newly discovered evidence claim.”

Doc. 12-28 at 25. His only argument was that the court failed to appreciate that

Oliver’s letter and enclosure were newly discovered, and the only case he cited

was a Florida state case on the deadline for filing a motion for rehearing. See

Whipple v. State, 867 So. 2d 433 (Fla. Dist. Ct. App. 2004). The circuit court

denied his motion for rehearing. On appeal to the Florida district court of appeal,

Keys again captioned his claim as a “newly discovered evidence claim.” Doc. 12-

28 at 35, 43. Most of his appellate brief was copied verbatim from his Rule 3.850

motion, including his citations to Carriger, Bernal-Obeso, Brown, Barham, and

Tassin. The only new substance was the addition of a few paragraphs citing only

Florida state cases and arguing that Oliver’s letter and enclosure qualified as newly

discovered evidence. The Florida district court summarily affirmed the denial of

Keys’s Rule 3.850 motion. His motion for rehearing again referred to his “newly

discovered evidence claim” and argued that Oliver’s letter and enclosure were


                                           5
               Case: 17-12518       Date Filed: 05/23/2019     Page: 6 of 13


newly discovered. Doc. 12-28 at 53. The Florida district court summarily denied

that motion.

C. Keys’s Habeas Petition Under 28 U.S.C. § 2254

       After the Florida district court of appeal denied Keys’s motion for rehearing,

Keys filed his § 2254 petition in federal district court. That petition raised two

claims; only the first is before us.2 Keys titled that claim “Violation pursuant to

Giglio v. United States, 405 U.S. 150 (1972).” Doc. 1 at 6. He explained that

Giglio stands for the proposition that due process requires the prosecution to

disclose material evidence the defense can use to impeach a government witness,

and then he used the same block quotation from Carriger and citations to Bernal-

Obeso, Barham, Brown, and Tassin that he used in his Rule 3.850 motion. He

requested an evidentiary hearing to develop the factual basis for his Giglio claim, 3

but the district court dismissed his petition with prejudice. This is Keys’s appeal.




       2
         Because Keys makes no argument to this Court regarding the second claim contained in
his § 2254 petition—that the state trial court erred in denying Keys’s motion for acquittal—he
has abandoned that claim. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681-82
(11th Cir. 2014).
       3
        The same counsel who filed Keys’s Rule 3.850 and subsequent state post-conviction
motions filed his § 2254 petition.

                                              6
              Case: 17-12518    Date Filed: 05/23/2019    Page: 7 of 13


                         II.   STANDARD OF REVIEW

      We review de novo the mixed question of law and fact of whether a § 2254

petitioner has procedurally defaulted a claim. Ogle v. Johnson, 488 F.3d 1364,

1368 (11th Cir. 2007).

                               III.   DISCUSSION

      The district court correctly dismissed with prejudice Keys’s § 2254 petition

because he failed to fairly present his Giglio claim to the Florida post-conviction

courts, resulting in an uncured procedural default.

      Federal habeas petitioners must “fairly present[]” their federal claims to the

state courts, Picard v. Connor, 404 U.S. 270, 275 (1971), to give the state courts a

“meaningful opportunity” to consider any federal bases for relief, Vasquez v.

Hillery, 474 U.S. 254, 257 (1986). Otherwise, the claims are procedurally

defaulted, and federal courts may not review the claims on their merits. See

Coleman v. Thompson, 501 U.S. 722, 731-32, 735 n.1 (1991). Keys failed to

comply with this requirement throughout the litigation of his Rule 3.850 motion.

To begin with, the presentation of his Rule 3.850 motion would not have alerted a

state court that Keys intended to raise a Giglio claim. He captioned his claim

“Newly discovered evidence,” Doc. 12-27 at 74; cited the state law standard for

bringing a newly discovered evidence claim; argued that he could meet the two-

pronged standard—(1) newly discovered evidence that would (2) “probably


                                          7
                Case: 17-12518   Date Filed: 05/23/2019   Page: 8 of 13


produce an acquittal on retrial,” Burns, 858 So. 2d at 1230; and requested an

evidentiary hearing to develop the factual basis for his claim. He cited federal

cases that cited Giglio, but he cited those cases only to support his contention that

he could meet the second prong of a Florida law newly discovered evidence

claim—showing that the new evidence would “probably produce an acquittal on

retrial.” Id.

       Moreover, had Keys properly presented a Florida law newly discovered

evidence claim and a Giglio claim to the state courts, he would have alerted the

Florida courts to the lower standard for sustaining a Giglio claim as contrasted with

the Florida law claim. Doing so would have given the Florida courts the

opportunity to grant his Giglio claim even if they denied his newly discovered

evidence claim. A Florida law newly discovered evidence claim requires that the

new evidence be “such that it would probably produce an acquittal on retrial,”

Burns, 858 So. 2d at 1230, whereas a Giglio claim requires only a “reasonable

likelihood that the false testimony could have affected the judgment of the jury,”

United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir. 1995) (internal quotation

marks omitted). Florida law’s standard for relief based on newly discovered

evidence is far more stringent than Giglio’s standard. But Florida law’s standard is

practically indistinguishable from the materiality standard under Brady v.

Maryland, 373 U.S. 83 (1963)—“reasonable probability that, had the evidence


                                          8
                Case: 17-12518       Date Filed: 05/23/2019        Page: 9 of 13


been disclosed to the defense, the result . . . would have been different.” United

States v. Bagley, 473 U.S. 667, 682 (1985). Because Giglio’s materiality standard

is “more defense-friendly” than Brady’s, Alzate, 47 F.3d at 1109-10, it is also more

defense-friendly than Florida’s standard for a newly discovered evidence claim.

       If Keys had wanted to present a Giglio claim to the Florida courts, he would

have called attention to Giglio’s more defense-friendly materiality standard. This

would have given the Florida courts an opportunity to grant his Giglio claim even

if they decided his Florida law newly discovered evidence claim lacked merit.

Keys’s failure to mention Giglio’s materiality standard in his Rule 3.850 motion is

strong evidence that he failed to fairly present his Giglio claim to the Florida

courts. 4

       Keys’s case resembles McNair v. Campbell, 416 F.3d 1291 (11th Cir. 2005).

There, McNair’s state court post-conviction motion argued that the jury had

improperly considered extrinsic evidence in violation of Alabama law, id. at 1303,

which requires the court to determine that the extraneous evidence “might have

unlawfully influenced” the jury, Ex parte Troha, 462 So. 2d 953, 954 (Ala. 1984)

(internal quotation marks omitted). We observed that the materiality standard in a


       4
         After Keys filed his Rule 3.850 motion, a Florida appellate court issued an opinion
discussing at length the differences between a Florida law newly discovered evidence claim and
a Giglio claim. See Cueto v. State, 88 So. 3d 1064, 1067 (Fla. Dist. Ct. App. 2012). Although
Keys did not have the benefit of Cueto, the caselaw setting out the different materiality standards
was available to him.

                                                 9
               Case: 17-12518       Date Filed: 05/23/2019      Page: 10 of 13


federal extraneous evidence claim is even lower—extraneous evidence is

“presumptively prejudicial”—but the petitioner “never mentioned, much less

argued, th[at] federal standard.” McNair, 416 F.3d at 1303. And, just as

“McNair’s reliance on state law continued when he went before the Alabama

Supreme Court,” id., Keys consistently referred to his claim as a “newly

discovered evidence claim” throughout his state court post-conviction litigation. 5

Our conclusion that McNair failed to “fairly present his federal constitutional claim

to the state court,” id. at 1304, applies equally here.

       Keys contends that his citations to federal cases citing Giglio sufficed to

fairly present a Giglio claim in his Rule 3.850 motion. The U.S. Supreme Court

has stated that “[a] litigant wishing to raise a federal issue can easily indicate the

federal law basis for his claim in a state-court petition . . . by citing in conjunction

with the claim . . . a case deciding such a claim on federal grounds.” Baldwin v.

Reese, 541 U.S. 27, 32 (2004). But Baldwin concerned a § 2254 petitioner who

raised an ineffective assistance of counsel claim to the state courts; failed to

specify whether the basis for that claim was state law, federal law, or both; and

then sought to raise a federal ineffective assistance of counsel claim in federal



       5
          Doc. 12-27 at 88 (amendment to Rule 3.850 motion); Doc. 12-28 at 2 (reply to state’s
response to Rule 3.850 motion), 25 (motion for rehearing before Florida circuit court), 35, 43
(appellate brief to Florida district court of appeal), 53 (motion for rehearing before Florida
district court of appeal).

                                               10
               Case: 17-12518     Date Filed: 05/23/2019   Page: 11 of 13


court. Id. at 29-30. In other words, Baldwin addressed a situation in which the

federal habeas court had to determine whether the § 2254 petitioner had raised only

a state law claim to the state courts or also the federal law analog to that state law

claim.

         That is not the situation we face here. The federal analog of a Florida law

newly discovered evidence claim is a federal newly discovered evidence claim.

See United States v. Scrushy, 721 F.3d 1288, 1304-05 (11th Cir. 2013) (elements:

“(1) the evidence must be newly discovered and have been unknown to the

defendant at the time of trial; (2) the evidence must be material, and not merely

cumulative or impeaching; (3) the evidence must be such that it would probably

produce an acquittal; and (4) the failure to learn of such evidence must be due to

no lack of due diligence on the part of the defendant”). Giglio, by contrast,

concerns a situation where the government knew or should have known of evidence

in its possession that the defense could have used to impeach a government

witness. See Bagley, 473 U.S. at 676 (“Impeachment evidence . . . falls within the

Brady rule. See Giglio . . . .”); id. at 678 (explaining that Brady concerns

“information favorable to the accused that had been known to the prosecution but

unknown to the defense”); Ford v. Hall, 546 F.3d 1326, 1331 (11th Cir. 2008)

(setting forth the “knew[] or should have known” standard for “Giglio error,

[which is] a species of Brady error”). The requirement that a § 2254 petitioner


                                           11
               Case: 17-12518        Date Filed: 05/23/2019        Page: 12 of 13


fairly present his federal claims to the state courts is not satisfied where he raised

only a “somewhat similar state-law claim” in the state courts. Anderson v.

Harless, 459 U.S. 4, 6 (1982). Keys’s Florida law newly discovered evidence

claim was not “somewhat similar” to a Giglio claim. Thus Baldwin’s generous

language cannot help Keys.

       Given Keys’s presentation of his Florida law newly discovered evidence

claim to the state courts and the significant difference in the materiality standards

between that claim and a Giglio claim, we conclude that Keys failed to fairly

present his Giglio claim to the state courts. See Picard, 404 U.S. at 275. Under

Florida law, “claims that could have been raised in a prior postconviction motion

are procedurally barred.” Rivera v. State, 187 So. 3d 822, 832 (Fla. 2015) (internal

quotation marks omitted). Because Keys has deprived the Florida courts of the

opportunity to consider his Giglio claim, he has procedurally defaulted it, and he

has made no argument for cause and prejudice or a fundamental miscarriage of

justice to overcome the default. See Coleman, 501 U.S. at 731-32, 735 n.1, 750.

Due to this uncured procedural default, Keys’s Giglio claim provides “no basis for

federal habeas relief,” Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998),

and the district court properly dismissed with prejudice his § 2254 petition.6


       6
        The district court ruled in the alternative that Keys’s Giglio claim fails on the merits.
We need not reach the district court’s alternative ruling because we conclude that Keys has
procedurally defaulted this claim. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364
                                                 12
               Case: 17-12518       Date Filed: 05/23/2019      Page: 13 of 13


                                  IV.     CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s dismissal with

prejudice of Keys’s § 2254 petition.

       AFFIRMED.




(11th Cir. 2007) (“We may affirm the district court’s judgment on any ground that appears in the
record . . . .”).

                                               13
