          Case: 18-12027   Date Filed: 09/05/2019   Page: 1 of 10


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-12027
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 6:16-cv-01586-PGB-TBS



JOHN HILL HAWTHORNE,

                                                        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
                     ________________________

                           (September 5, 2019)

Before MARTIN, NEWSOM, and ANDERSON, Circuit Judges.
                Case: 18-12027       Date Filed: 09/05/2019      Page: 2 of 10


PER CURIAM:

      John Hill Hawthorne, a counseled Florida state prisoner, appeals the district

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

Court granted Hawthorne a Certificate of Appealability (“COA”) on one issue:

whether, in light of Wilson v. Sellers, 583 U.S. ____, 138 S. Ct. 1188 (2018), the

District Court erred by not properly deferring to the state court opinion in denying

two of Hawthorne’s claims for habeas relief. After careful review, we vacate and

remand in part and affirm in part the district court’s denial of Hawthorne’s § 2254

petition.

                                               I.

      A jury convicted Hawthorne of second-degree murder with a weapon in

violation of Fla. Stat. §§ 782.04(2) and 775.087(1). During the trial, the state

presented and the trial court admitted evidence of Hawthorne’s statements made

during a custodial interrogation after he received the following Miranda 1 warning:

      And what I’m gonna do is you have the right to remain silent. I’m
      gonna read you your rights. You’ve heard them on TV before. I’m
      sure you’ve heard them. Anything you say can be used against you in
      a court of law. You have the right to an attorney, to talk to him before
      doing that, before questioning. If you can’t afford one, one will be
      appointed to you. If you can’t afford one, like I said, one will be
      provided to you.




      1
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
                                                2
              Case: 18-12027    Date Filed: 09/05/2019    Page: 3 of 10


After the jury returned a guilty verdict, the state court sentenced Hawthorne to 38-

years imprisonment followed by five years of probation. Hawthorne appealed his

conviction and sentence. On October 18, 2011, Florida’s Fifth District Court of

Appeal (“Fifth DCA”) per curiam affirmed Hawthorne’s conviction. Hawthorne v.

State, 84 So. 3d 331 (Fla. 5th DCA 2011) (per curiam) (unpublished).

      On December 12, 2012, Hawthorne filed a counseled motion for post-

conviction relief in Florida state court under Florida Rule of Criminal Procedure

3.850. He raised seven claims of ineffective assistance of trial counsel not at issue

in this appeal. On January 2, 2014, Hawthorne filed a counseled supplement to his

Rule 3.850 motion, raising another claim of ineffective assistance of counsel. In

the supplement, he argued his trial counsel was ineffective for failing to move to

suppress the statements he made during the custodial interrogation because his

Miranda warning was insufficient.

      On April 21, 2014, Hawthorne filed a second counseled supplement to his

Rule 3.850 motion, raising a ninth claim of ineffective assistance of counsel. In his

second supplement, Hawthorne argued his trial counsel was ineffective for failing

to move to suppress statements he made during the custodial interrogation because

those statements were obtained in violation of the Sixth Amendment. Hawthorne

explained that his family hired an attorney after he was taken into police custody;

the attorney contacted the police department several times during the course of

                                          3
             Case: 18-12027     Date Filed: 09/05/2019     Page: 4 of 10


Hawthorne’s interrogation; and the officers denied Hawthorne access to and failed

to advise him that his attorney was trying to reach him.

      On January 7, 2015, the state court struck Hawthorne’s supplemental claims

as untimely, but with leave to amend. Hawthorne’s post-conviction counsel then

filed an amended supplement to Hawthorne’s Rule 3.850 motion, explaining that

although Hawthorne asked him to file both of the supplemental claims, he

negligently failed to timely file them. As evidence, Hawthorne’s post-conviction

counsel attached a letter Hawthorne sent him within the two-year statute of

limitations for Rule 3.850 motions. See Fla. R. Crim. P. 3.850(b). In the letter,

Hawthorne requested his post-conviction counsel “please add” the Miranda

warning claim but stated that the Sixth Amendment claim was “another thing

[post-conviction counsel] might want to consider adding.”

      The state court denied both of Hawthorne’s supplemental claims. For

Hawthorne’s Miranda warning claim, the state court ruled the Miranda warning, as

given, reasonably conveyed his Miranda rights consistent with Florida v. Powell,

559 U.S. 50, 130 S. Ct. 1195 (2010), and Rigterink v. State, 66 So. 3d 866 (Fla.

2011). For Hawthorne’s Sixth Amendment claim, the state court determined it was

untimely because Hawthorne never affirmatively asked his post-conviction counsel

to file it. Hawthorne appealed the state court’s denial of his Rule 3.850 motion,




                                         4
              Case: 18-12027    Date Filed: 09/05/2019    Page: 5 of 10


and the Fifth DCA per curiam affirmed. Hawthorne v. State, 198 So. 3d 637 (Fla.

5th DCA 2016) (per curiam) (unpublished).

      Hawthorne then filed a § 2254 petition in the district court, raising, among

other things, his Miranda warning and Sixth Amendment claims for relief. The

district court denied Hawthorne’s petition and dismissed his case with prejudice.

In doing so, the district court dismissed Hawthorne’s Miranda warning claim for a

different reason than the one articulated by the state court—that is, his counsel

“strategically chose to use Hawthorne’s statement to the police [for his] self-

defense case” and “[r]easonable strategic decisions are virtually unchallengeable

on habeas review.” Beyond that, the district court ruled the state post-conviction

court reasonably determined Hawthorne’s Sixth Amendment claim was untimely;

Hawthorne failed to properly exhaust his state court remedies because the claim

was untimely; and Hawthorne’s failure to exhaust was not excused under Martinez

v. Ryan, 566 U.S. 1, 132 S. Ct. 1309 (2012). Hawthorne now appeals the district

court’s determinations regarding his Miranda warning and Sixth Amendment

claims for habeas relief.

                                         II.

      Our review of the district court’s denial of Hawthorne’s petition is

“governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective

Death Penalty Act of 1996 (‘AEDPA’), which establishes a ‘highly deferential

                                          5
              Case: 18-12027     Date Filed: 09/05/2019    Page: 6 of 10


standard’ for state court judgments.” Pardo v. Sec’y, Fla. Dep’t of Corr., 587 F.3d

1093, 1098 (11th Cir. 2009) (quoting Williams v. Allen, 542 F.3d 1326, 1336 (11th

Cir. 2008)). Under that standard, a federal court may grant habeas relief only if

the state court’s decision was (1) contrary to, or involved an unreasonable

application of, clearly established federal law, as determined by the Supreme Court

of the United States, or (2) based on an unreasonable determination of the facts in

light of the evidence presented to the state court. Id.; 28 U.S.C. §§ 2254(d)(1), (2).

An unreasonable application of federal law occurs when the state court arrives at a

conclusion in conflict with a rule enunciated by the Supreme Court when

confronted by “a set of materially indistinguishable facts,” or identifies the correct

governing legal rule, but “unreasonably applies that principle to the facts of the

prisoner’s case.” Cox v. McNeil, 638 F.3d 1356, 1360 (11th Cir. 2011) (per

curiam) (quotation marks omitted).

      “We review de novo the District Court’s decision about whether the state

court’s ruling was contrary to federal law, involved an unreasonable application of

federal law, or was based on an unreasonable determination of the facts.”

Consalvo v. Sec’y for Dep’t of Corr., 664 F.3d 842, 844 (11th Cir. 2011) (per

curiam). We also review de novo mixed questions of law and fact, such as claims

of ineffective assistance of counsel or whether a petitioner exhausted his state court

remedies before filing a § 2254 petition. Pardo, 587 F.3d at 1098; Vazquez v.

                                           6
              Case: 18-12027     Date Filed: 09/05/2019    Page: 7 of 10


Sec’y, Fla. Dep’t of Corr., 827 F.3d 964, 967 (11th Cir. 2016). We review findings

of fact for clear error. Pardo, 587 F.3d at 1098.

                                         III.

      Hawthorne argues the district court erred in denying his Miranda claim

because the district court failed to apply the “look-through requirement” articulated

by the Supreme Court in Wilson. He contends the district court erred in finding its

own rationale to dismiss his Miranda claim. We agree.

      “When a district court reviews a state court’s decision under AEDPA, it

must first consider the claim as it was presented to the state court.” Whatley v.

Warden, 927 F.3d 1150, 1181 (11th Cir. 2019); 28 U.S.C. § 2254(d)(1). Next, the

district court must consider the state court’s decision, determining whether the

state court unreasonably applied Supreme Court precedent or made an

unreasonable determination of the facts. Id. Only if the district court determines

the state court’s decision “was based on an unreasonable application of Supreme

Court precedent . . . [or] an unreasonable determination of the facts” can the

district court review the claim de novo. Id.

      Wilson informs our analysis. In Wilson, the Supreme Court explained that

when the last state court to consider a constitutional issue provides a “reasoned

opinion,” district courts are to “review[] the specific reasons given by the state

court and defer[] to those reasons if they are reasonable.” 138 S. Ct. at 1192. But

                                           7
              Case: 18-12027    Date Filed: 09/05/2019    Page: 8 of 10


if the most recent state court opinion “does not come accompanied with those

reasons,” district courts must “look through” the decision to the last reasoned state

court decision and presume the earlier one provides the relevant rationale. Id.

(quotation marks omitted).

      Under this precedent, the district court erred in denying Hawthorne’s

Miranda claim. The district court did not analyze, much less “look through” the

Fifth DCA’s decision to the rationale used by the state trial court to deny

Hawthorne’s Rule 3.850 motion. See id. Although the district court highlighted

the state court’s conclusion that “there was no reasonable probability that a motion

to suppress would have been granted,” the district court did not examine, discuss,

or evaluate whether Hawthorne’s Miranda warning was sufficient as a matter of

clearly established federal law. When it failed to conduct this evaluation, the

district court failed to do what AEDPA and precedent require district courts to do

in reviewing § 2254 petitions. See Whatley, 927 F.3d at 1181. A district court

must first begin with the claim presented before the state court and then determine

whether the state court unreasonably applied Supreme Court precedent or

unreasonably determined the facts. See id. Only then—and if the state court did

so—can a district court undertake a de novo review of a petitioner’s § 2254 claim.

Here, the district court did no such thing and, instead, undertook a de novo review

of Hawthorne’s Miranda warning at the outset. In doing so, the district court erred.

                                          8
               Case: 18-12027      Date Filed: 09/05/2019     Page: 9 of 10


       Not so for Hawthorne’s Sixth Amendment claim. Hawthorne argues the

district court erred in determining his Sixth Amendment claim was barred by

Martinez v. Ryan, 566 U.S. 1, 132 S. Ct. 1309 (2012). But because Hawthorne is

an unsuccessful habeas petitioner, the scope of our review, absent exceptional

circumstances,2 is limited to the issues specified in the COA. Williams v. McNeil,

557 F.3d 1287, 1290 nn. 3 & 4 (11th Cir. 2009); Kuenzel v. Allen, 488 F.3d 1341,

1343 (11th Cir. 2007) (per curiam). This Court granted Hawthorne a COA on one

issue pertaining to his Sixth Amendment claim—that is, “[w]hether the district

court erred, in light of Wilson . . . by not properly deferring to the state court

opinion denying Hawthorne’s . . . Fla. R. Crim. P. 3.850 motion, such that it erred

in denying [Hawthorne’s Sixth Amendment claim] of his 28 U.S.C. § 2254

petition.” Our review, therefore, is limited to whether the district court erred in

applying Wilson to Hawthorne’s Sixth Amendment claim.

       Hawthorne conceded before the district court he defaulted his Sixth

Amendment claim. The district court therefore did not need to “look through” the

Fifth DCA’s decision to analyze whether Hawthorne procedurally defaulted his

Sixth Amendment claim. See Wilson, 138 S. Ct. at 1192; see also Ylst v.




       2
         On appeal, Hawthorne does not argue this is an “exceptional circumstance” that might
warrant expanding his COA. And we do not think it is one. See Mays v. United States, 817 F.3d
728, 732–33 (11th Cir. 2016) (per curiam). As a result, we decline to consider Hawthorne’s
Martinez arguments.
                                             9
               Case: 18-12027       Date Filed: 09/05/2019       Page: 10 of 10


Nunnemaker, 501 U.S. 797, 111 S. Ct. 2590 (1991) (holding that if “the last

reasoned opinion on [a habeas] claim explicitly imposes a procedural default,”

federal courts “will presume that a later decision rejecting the claim did not silently

disregard that bar”). As a result, the district court did not err under Wilson here.

       For these reasons, we vacate and remand Hawthorne’s Miranda claim for the

district court to determine whether the state court unreasonably applied Supreme

Court precedent. However, we affirm the district court’s denial of Hawthorne’s

Sixth Amendment claim because the district court committed no error under

Wilson in reviewing it. 3

       VACATED AND REMANDED IN PART AND AFFIRMED IN PART.




       3
          If the district court determines upon remand that the state court unreasonably applied
Supreme Court precedent, the district court should undertake a de novo review of Hawthorne’s
Miranda warning claim. See Whatley, 927 F.3d at 1181. If the district court reaches this point
of the § 2254(d) analysis, the district court may also consider in the first instance if an
evidentiary hearing is necessary on the question of whether trial counsel strategically chose to
use Hawthorne’s custodial statements in his self-defense case.
                                                10
