                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                             FEBRUARY 21, 2008
                               No. 07-11088                  THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                  D. C. Docket No. 05-00135-CV-1-MP-WCS

GOMEZ T. COOK,


                                                            Petitioner-Appellant,

                                     versus

WALTER A. MCNEIL,

                                                           Respondent-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        _________________________

                             (February 21, 2008)

Before TJOFLAT, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

     Gomez T. Cook appeals the dismissal of his petition for a writ of habeas
corpus. We granted a certificate of appealability to address whether Cook’s due

process claims are procedurally barred. The district court concluded that Cook did

not exhaust the claims and denied relief. We affirm.

                                I. BACKGROUND

      Cook, a Florida prisoner, was convicted of armed robbery. Fla. Stat. Ann. §

813.13 (West 1992). At Cook’s trial, the State presented evidence that Cook

entered an Albertson’s grocery store and attempted to conceal two bottles of wine

or champagne, each worth about $115, in the waistband of his pants. The store

manager, Stephen Gregory, observed Cook’s actions and confronted Cook before

he reached the front door. Cook shoved Gregory away, then removed one bottle

from his waistband and threw it on the ground, where it “exploded.” As Cook left,

he repeated the same action with the second bottle of alcohol and walked toward an

idling getaway car. Gregory pursued Cook, who turned around and threatened

Gregory with a knife that had a three to four-inch blade. Gregory retreated and

Cook escaped. The robbery and confrontation outside the store were observed by

at least one other store employee and were captured on videotape by the

surveillance system of the store. The videotape was played for the jury at trial and

the driver of Cook’s getaway car testified that she saw Cook brandish a knife at

Gregory.



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      After the State rested, Cook moved for a judgment of acquittal and argued

that the state had failed to establish a prima facie case of robbery. The trial court

denied the motion. Cook presented the testimonies of two witnesses that they did

not see Cook in possession of a knife. The jury found Cook guilty of armed

robbery, and the trial court sentenced him to a term of life imprisonment “under the

Prison Release Reoffender Act.”

      On direct appeal, Cook argued that the trial court erroneously denied his

motion for a judgment of acquittal. Cook argued the evidence did not establish

that the knife he used was a deadly weapon, he possessed a knife before he

“abandoned” the bottles of alcohol, or the knife was used “in the course of the

taking” as required by state statute. The Florida appellate court affirmed Cook’s

conviction without opinion.

      Cook filed in a state court a petition for post-conviction relief and

challenged the effectiveness of his trial counsel’s representation. The trial court

denied relief, and the appellate court affirmed without opinion.

      Cook filed a petition for a writ of habeas corpus in the district court in which

he repeated his claims of ineffective assistance of counsel. The State responded

that Cook’s ineffectiveness claims were without merit. Cook filed an amended

petition and argued that his rights under the “Fourteenth Amendment of the United



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States Constitution and Johnson v. Florida, [391 U.S. 596,] 88 S. Ct. 1713

[(1968)],” were violated when the trial court denied his motion for a judgment of

acquittal because he was not in possession of the knife until after he “abandoned”

the bottles of alcohol, the knife was “statutorily excluded from the definition of a

deadly weapon,” and the knife was “not used ‘in the course of’ the robbery.” The

State argued in three separate responses that Cook did not prove the decision was

contrary to or an unreasonable application of clearly established federal law,

Cook’s due process argument was procedurally defaulted and lacked merit, and

Cook’s characterization of the knife as a deadly weapon was a matter of state law.

      The magistrate judge stated in a Report and Recommendation that Cook

failed to exhaust his argument that his conviction violated the federal guarantee of

due process and Cook could not establish prejudice to excuse that procedural

default. The magistrate judge concluded that Cook was not entitled to relief for his

ineffectiveness claims because the decisions were not contrary to or an

unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052 (1984). Cook admitted in his objections to the Report and Recommendation

that his due process claim had not been exhausted in the state courts, but he argued

that the claim should be reviewed on the merits.

      The district court adopted the Report and Recommendation and agreed that



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Cook failed to exhaust his due process claim and could not prove prejudice to

excuse that procedural default. The district court also stated that, even if the claim

had been exhausted, it was without merit. The district court ruled that Cook did

not prove the adjudication of his ineffectiveness claims by the state courts was

contrary to or an unreasonable application of Strickland.

                           II. STANDARD OF REVIEW

      We review the denial of a habeas corpus petition de novo. McNair v.

Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). This appeal is governed by the

Antiterrorism and Effective Death Penalty Act, which requires a state prisoner to

exhaust all available state court remedies, either on direct appeal or in a state post-

conviction proceeding. 28 U.S.C. § 2254(b)–(c). The exhaustion doctrine requires

the petitioner to “fairly present” his federal claims to the state courts in a manner to

alert them that the ruling under review violated a federal constitutional right.

Duncan v. Henry, 513 U.S. 364, 365–66, 115 S. Ct. 887, 888 (1995) (quoting

Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512 (1971)).

                                  III. DISCUSSION

      Cook presents two arguments on appeal. First, Cook contends that his

sentence is unconstitutionally disproportionate under the Eighth Amendment.

Second, Cook appeals the decision by the district court to dismiss his due process



                                            5
issue as procedurally defaulted. We address each argument in turn.

     A. Cook’s Eighth Amendment Argument is Outside the Scope of the COA.

      Cook argues for the first time on appeal that his sentence is “grossly

disproportionate” to his crime, under the Eighth Amendment, because the

sentencing judge did not believe that he committed robbery with a deadly weapon.

Our scope of review is limited to those issues presented in the certificate of

appealability. Murry v. U.S., 145 F.3d 1249, 1250–51 (11th Cir. 1998). Cook’s

argument is outside the scope of the COA and is not properly before this Court.

We dismiss it.

                 B. Cook Did Not Exhaust His Due Process Argument.

      “Habeas petitioners generally cannot raise claims in federal court if those

claims were not first exhausted in state court.” McNair, 416 F.3d at 1302 (citing

28 U.S.C. § 2254(b)(1); Kelly v. Sec’y for Dept. of Corr., 377 F.3d 1317, 1343

(11th Cir. 2004)). The petitioner must “‘fairly present[]’ to the state courts the

‘substance’ of his federal habeas corpus claim.” Anderson v. Harless, 459 U.S. 4,

6, 103 S. Ct. 276, 277 (1982) (citing Picard, 404 U.S. at 275, 278, 92 S. Ct. at 512,

513). Exhaustion is not satisfied “merely” if the petitioner presents the state court

with “all the facts necessary to support the claim” or even if a “somewhat similar

state-law claim was made.” Kelly, 377 F.3d at 1344 (citing Anderson, 459 U.S. at



                                           6
6, 103 S. Ct. at 277). The petitioner must instead “present his claims to the state

courts such that they are permitted the ‘opportunity to apply controlling legal

principles to the facts bearing upon his constitutional claim.’” Id. (quoting Picard,

404 U.S. at 277, 92 S. Ct. at 513).

      Cook failed to exhaust his argument that his conviction violated the federal

guarantee of due process. Cook admitted in his objection to the Report and

Recommendation that the claim was defaulted, but he now argues that the absence

of “magical terminology” or reliance on “federal precedents” does not preclude

habeas review. Cook’s argument fails because he did not “alert the [state] court to

the alleged federal nature of [his] claim.” Baldwin v. Reese, 541 U.S. 27, 33, 124

S. Ct. 1347, 1351 (2004). He cited exclusively to state cases and all of his

substantive arguments addressed Florida law. Although Florida courts assess the

sufficiency of the evidence under the standard applied in Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979), the tenor of Cook’s narrow arguments

that challenged the characterization of his knife and the sequence of his actions

under the Florida statute did not bring a federal claim about due process to the

attention of the state appellate court. Because Cook failed to exhaust his federal

claim and offered no cause or prejudice to excuse the failure to exhaust, his

argument is procedurally defaulted.



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      Even if Cook exhausted his due process claim, it is meritless. To obtain

relief, Cook was required to establish either that the state courts applied a standard

contrary to federal law or that they applied that precedent in an unreasonable

manner. 28 U.S.C. § 2254(d)(1). The decision of the state courts was not an

unreasonable application of clearly established federal law. Compare Jackson, 443

U.S. at 319, 99 S. Ct. at 2789, with Simmons v. State, 934 So. 2d 1100, 1111 (Fla.

2006). The evidence, viewed in a light most favorable to the prosecution,

establishes that Cook took possession of two bottles of alcohol owned by

Albertson’s grocery store, destroyed the bottles, and to effectuate his getaway,

threatened the store manager with a knife. A rational juror could have found Cook

guilty beyond a reasonable doubt of robbery with a deadly weapon.

                                 IV. CONCLUSION

      The denial of Cook’s habeas corpus petition is AFFIRMED.




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