                                                                    [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-13951
                                        Non-Argument Calendar
                                      ________________________

                                D.C. Docket No. 1:10-cv-23519-MGC



MANUEL DE JESUS CASTRO,

llllllllllllllllllllllllllllllllllllllll                         Petitioner-Appellant,

                                               versus

EVERGLADES CORRECTIONAL INSTITUTE,

llllllllllllllllllllllllllllllllllllllll                         Respondent-Appellee.

                                     ________________________

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

                                           (July 16, 2012)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
       State prisoner Manuel De Jesus Castro, proceeding pro se, appeals the

district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C.

§ 2254. On appeal, Castro argues that he was denied effective assistance of

counsel during the “critical stages” of his plea proceeding because he did not

understand the consequences of his guilty plea. Castro claims that his trial counsel

advised Castro to plead guilty even though counsel knew that Castro did not

always understand what counsel was saying and thus did not understand the

consequences of his guilty plea. The district court determined that this claim was

procedurally barred because a state court had concluded that Castro failed to

timely raise the claim.1 The district court granted a certificate of appealability on

this issue.

       When reviewing the district court’s denial of a habeas petition, we review

questions of law and mixed questions of law and fact de novo and findings of fact

for clear error. Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000).

       Under Florida Rule of Criminal Procedure 3.850, a defendant is permitted to

file a post-conviction motion to vacate, set aside, or correct his sentence if the

judgment was entered or the sentence was imposed in violation of the Constitution


       1
               By not raising it in his initial brief, Castro has abandoned the argument that his
counsel in a previous Rule 3.850 hearing was ineffective. See United States v. Jernigan, 341
F.3d 1273, 1283 n.8 (11th Cir. 2003).

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or laws of the United States or the State of Florida, or if his plea was involuntary.

Fla. R. Crim. P. 3.850(a)(1), (5). Generally, the defendant’s Rule 3.850 motion is

time-barred unless it is filed within the two-year period after his conviction(s) and

sentence(s) became final. Fla. R. Crim. P. 3.850(b). An exception to the two-year

time limitation applies if “the facts on which the claim is predicated were

unknown to the movant or the movant’s attorney and could not have been

ascertained by the exercise of due diligence.” Fla. R. Crim. P. 3.850(b)(1).

      A federal claim is subject to procedural default when the state court applies

an independent and adequate ground of state procedure to conclude that the

petitioner’s federal claim is barred. See Bailey v. Nagle, 172 F.3d 1299, 1302-03

(11th Cir. 1999). A state’s procedural ruling rests on independent and adequate

state grounds if: (1) the last state court rendering a judgment in a case clearly and

expressly states that it is relying on state procedural rules to resolve the federal

claim without reaching the claim’s merits; (2) the rule relied upon is not

intertwined with federal law; and (3) the state law is adequate, meaning that it is

not applied in an arbitrary or unprecedented fashion. Judd v. Haley, 250 F.3d

1308, 1313 (11th Cir. 2001). If a state court finds that a petitioner’s claims are

procedurally defaulted after applying an adequate and independent state law, a

federal court is obligated to respect the state court’s decision unless the petitioner

                                           3
can demonstrate cause for the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to consider his claims will

result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S.

722, 750, 111 S. Ct. 2546, 2565 (1991).

      Ordinarily, to demonstrate “cause,” the appellant must “show that some

objective factor external to the defense impeded [the petitioner]’s efforts to

comply with the State’s procedural rule.” Siebert v. Allen, 455 F.3d 1269, 1272

(11th Cir. 2006) (quotation omitted). “Such external impediments include

evidence that could not reasonably have been discovered in time to comply with

the rule; interference by state officials that made compliance impossible; and

ineffective assistance of counsel at a stage where the petitioner had a right to

counsel.” Mize v. Hall, 532 F.3d 1184, 1190 (11th Cir. 2008). Prejudice means

that “there is at least a reasonable probability that the result of the proceeding

would have been different” had the constitutional violation not occurred.

Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003).

      To demonstrate a “fundamental miscarriage of justice,” a defendant must

show that, “in light of new evidence, it is probable that no reasonable juror would

have convicted him.” Mize, 532 F.3d at 1190. “A ‘fundamental miscarriage of

justice’ occurs in an extraordinary case, where a constitutional violation has

                                           4
resulted in the conviction of someone who is actually innocent.” Henderson, 353

F.3d at 892.

        Here, the state trial court denied Castro’s claim of ineffective assistance of

counsel because Castro’s post-conviction motion raising that issue was untimely,

having come several years after the deadline had passed for filing under Florida

Rule 3.850. Castro has not contended that this timeliness rule is intertwined with

federal law or was applied in an arbitrary or unprecedented fashion. See Judd, 250

F.3d at 1313. Accordingly, the state court applied an independent and adequate

ground of state law to deny Castro’s claim of ineffective assistance of trial

counsel. See Bailey, 172 F.3d at 1302-03. This claim will be procedurally

defaulted unless Castro can demonstrate cause and actual prejudice, or a

fundamental miscarriage of justice. See Coleman, 501 U.S. at 750, 111 S. Ct. at

2565.

        Castro has not demonstrated cause or actual prejudice in order to overcome

the procedural bar. He does not dispute the state court’s determination that he had

filed the post-conviction motion raising this claim approximately four and a half

years after his conviction was final, or that Rule 3.850(b) provides a two-year

statute of limitations for this claim. Although Castro asserts that the facts upon

which this claim relies did not reasonably exist during the two-year limitations

                                            5
period, Castro reasonably should have known, at some point within two years after

his conviction became final, that his lack of English comprehension had affected

his understanding of the plea agreement. In addition, Castro has made no attempt

to demonstrate that his trial counsel’s alleged ineffectiveness with respect to this

claim substantially prejudiced his outcome. See Henderson, 353 F.3d at 892.

Castro also has not demonstrated a “fundamental miscarriage of justice,” as he has

not shown that he was actually innocent of the crimes for which he was convicted.

See id.

      Because Castro has not overcome the procedural default, there is no basis

for federal habeas corpus relief.

      AFFIRMED.




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