                                                             [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________
                                                            FILED
                                                   U.S. COURT OF APPEALS
                                No. 11-14965
                                                     ELEVENTH CIRCUIT
                            Non-Argument Calendar        JULY 3, 2012
                          ________________________        JOHN LEY
                                                           CLERK
                    D.C. Docket No. 5:10-cv-00189-RH-GRJ



KURTIS ROY JETER,

                                                              Petitioner-Appellant,

                                      versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                             Respondent-Appellee.

                         ________________________

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

                                  (July 3, 2012)

Before CARNES, EDMONDSON, and FAY, Circuit Judges.

PER CURIAM:

     Kurtis Roy Jeter, a Florida state prisoner proceeding pro se, filed a petition
for a writ of habeas corpus under 28 U.S.C. § 2254. The district court dismissed

the petition as procedurally defaulted. Jeter contends that was error because he

has shown cause for the default.

                                          I.

      In September 2006 Jeter pleaded no contest in Florida state court to two

counts of felony battery. That court convicted him and sentenced him to two

concurrent five-year terms of probation. Jeter did not appeal. In 2008 his

probation was revoked and he was sentenced to five years imprisonment because

he did not submit required monthly reports, failed a drug test, changed his address

without notifying his probation officer, and did not attend a required therapy

program.

      In May 2009, Jeter filed a pro se motion for post-conviction relief under Fla.

R. Crim. P. 3.850(b)(3) alleging: (1) his felony battery convictions violated the

Double Jeopardy Clause of the Fifth Amendment; (2) his plea was coerced; and

(3) ineffective assistance of counsel because his attorney allowed him to plead no

contest, did not preserve issues for appeal, and did not file a timely post-

conviction motion. The state court denied his petition as untimely, and the Florida

First District Court of Appeal affirmed that denial without a written opinion.

      In July 2010 Jeter filed a petition under 28 U.S.C. § 2254 seeking relief on

                                          2
the same grounds that he had alleged in his Rule 3.850 motion. The State moved

to dismiss the petition.

      The district court granted the state’s motion to dismiss. It concluded that

the claims Jeter asserted in his Rule 3.850 motion were procedurally defaulted

because he had not timely filed that motion. Jeter alleged that he had hired an

attorney to file his Rule 3.850 motion, that the attorney had not done so, and that

he was diligent and did all he could to ensure the attorney performed as promised.

In support of that allegation, Jeter submitted two affidavits from members of his

family. The court accepted all of that as true, but it concluded that Jeter had not

shown facts amounting to a miscarriage of justice, nor had he shown cause for the

procedural default. The district court granted a certificate of appealability limited

to the question of whether his attorney’s alleged professional misconduct could

constitute cause for the state-court procedural default.

                                         II.

      The district court’s finding that a claim is procedurally barred is a mixed

question of law and fact that we review de novo. Ogle v. Johnson, 488 F.3d 1364,

1368 (11th Cir. 2007). A state court’s rejection of a petitioner’s constitutional

claim on adequate and independent state procedural grounds will generally

preclude any federal habeas review of that claim, Ward v. Hall, 592 F.3d 1144,

                                          3
1156 (11th Cir. 2010), and the Florida court’s rejection of Jeter’s petition as

untimely under Rule 3.850 is a rejection on adequate and independent state

procedural grounds, see Whiddon v. Dugger, 894 F.2d 1266, 1267–68 (11th Cir.

1990).

       A federal habeas court may review the merits of a procedurally defaulted

claim if the petitioner shows cause for the procedural default and actual prejudice

from it. See Ward, 592 F.3d at 1157. To show cause, a petitioner must

demonstrate some objective factor external to the defense that impeded his effort

to raise the claim properly in state court. Murray v. Carrier, 477 U.S. 478, 488,

106 S.Ct. 2639, 2645 (1986).

       Here, Jeter alleges that he retained counsel to file a Rule 3.850 motion, but

the attorney did not file the motion before the deadline, maybe because the

attorney had died. The Florida court denied Jeter’s Rule 3.850 motion as

untimely, however, because it found that Jeter had not retained counsel to file a

post-conviction motion.1 We presume that finding is correct absent clear and

convincing evidence that it is not. See 28 U.S.C. § 2254(e)(1). We cannot say


       1
          Under Florida law, a Rule 3.850 petitioner has two years after the judgment and
sentence become final to file a Rule 3.850 motion, but that time period is extended by two years
if the petitioner retained counsel to file the motion and counsel’s neglect led to an untimely
filing. Fla. R. Crim. P. 3.850(b). The Florida court did not grant Jeter the two year extension
because it found he had not retained counsel to file a post-conviction motion.

                                                4
that two affidavits from Jeter’s family members and Jeter’s own assertions provide

clear and convincing evidence that the Florida court’s finding was incorrect.

Therefore, we defer to that finding. Because Jeter did not retain counsel to file a

Rule 3.850 motion, it follows that counsel’s alleged professional misconduct

cannot provide cause to excuse Jeter’s procedural default.2

       AFFIRMED.




       2
        The district court also granted Jeter a certificate of appealability as to whether his §
2254 petition was timely. Because we affirm the dismissal of the petition on the grounds of
procedural default, we do not address the timeliness issue.

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