              Case: 18-12301    Date Filed: 04/28/2020   Page: 1 of 3



                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-12301
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 6:14-cv-00989-RBD-TBS

SCOTT ALLAN MOSER,

                                                              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
                         ________________________

                                 (April 28, 2020)

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

PER CURIAM:

      Scott Moser, a Florida prisoner convicted of two counts of aggravated assault

with a firearm and one count of shooting at or within, or into, an occupied vehicle,
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challenges the district court’s denial of his 28 U.S.C. § 2254 petition. The district

court granted a certificate of appealability on whether the exception established in

Martinez v. Ryan, 566 U.S. 1 (2017), excuses procedurally defaulted claims of

ineffective assistance of appellate counsel. On appeal, Moser argues that the district

court erred in finding that the Martinez exception did not apply to excuse his

procedurally defaulted claims of ineffective assistance of appellate counsel. After

careful review, we affirm.

      We review the district court’s denial of a § 2254 petition de novo. McNair v.

Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). Further, exhaustion and procedural

default present mixed questions of law and fact, subject to de novo review. Fox v.

Kelso, 911 F.2d 563, 568 (11th Cir. 1990); Judd v. Haley, 250 F.3d 1308, 1313 (11th

Cir. 2001). Under the prior precedent rule, we are bound to follow prior binding

precedent “unless and until it is overruled by our court en banc or by the Supreme

Court.” United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008).

Appellate courts are bound by controlling Supreme Court precedent. United States

v. Johnson, 921 F.3d 991, 1001 (11th Cir. 2019).

      In Martinez, the Supreme Court established an exception to the requirement

under the Antiterrorism and Effective Death Penalty Act that requires all petitioners

to exhaust all available remedies in state court. The Court held:

      Where, under state law, claims of ineffective assistance of trial counsel
      must be raised in an initial-review collateral proceeding, a procedural
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      default will not bar a federal habeas court from hearing a substantial
      claim of ineffective assistance at trial if, in the initial-review collateral
      proceeding, there was no counsel or counsel in that proceeding was
      ineffective.

Martinez, 566 U.S. at 17. Under Martinez, a petitioner must still establish that

the underlying claim is “substantial” and has “merit” before the procedural

default can be excused. Id. at 14.

      In Davila v. Davis, the Supreme Court considered whether the Martinez

exception allowed a federal court to hear a substantial, but procedurally defaulted,

claim of ineffective assistance of appellate counsel. 137 S. Ct. 2058, 2065 (2017).

The Court held that Martinez did not extend or apply to excuse procedurally

defaulted claims of ineffective assistance of appellate counsel. Id. at 2065-70.

      As Moser acknowledges, his argument that the Martinez exception applies to

ineffective-assistance-of-appellate-counsel claims is foreclosed by Supreme Court

precedent. See id. That precedent is binding, even if it was wrongly decided, as

Moser argues. Accordingly, the district court did not err in finding that Moser’s

procedurally defaulted claims of ineffective assistance of appellate counsel were not

excusable under Martinez, and we affirm.

      AFFIRMED.




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