                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             February 19, 2008
                             No. 07-11892                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                 D. C. Docket No. 06-00542-CV-T-24-EAJ

LEROY MCKINZIE,



                                                          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
                     _________________________

                           (February 19, 2008)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      Appellant Leroy McKinzie, a Florida prisoner proceeding pro se, appeals the

district court’s decision to dismiss, as procedurally barred, his claim in his 28

U.S.C. § 2254 petition that the state trial court erred in denying his motion for

judgment of acquittal on the charge of carrying a concealed weapon. We granted a

Certificate of Appealability (“COA”) on the issue of “whether the district court

erred in denying as procedurally barred appellant’s claim that the evidence was

insufficient to support his conviction.” On appeal, McKinzie argues that the

substance of his argument before the state courts was that the State had failed to

meet its burden of establishing that he had concealed a firearm in a location that

was not his residence. He argued that his claim was one of insufficient evidence,

and it was fairly presented to the state courts. He contended that he referred to the

due process reasonable doubt standard before the state courts, which provided them

with an opportunity to address his federal constitutional rights.

      We conduct a de novo review of a district court’s determination that a

habeas petitioner is procedurally barred from raising a claim in federal court.

Atwater v. Crosby, 451 F.3d 799, 809 (11th Cir. 2006), cert. denied, 127 S. Ct. 951

(2007). In Jackson v. Virginia, the Supreme Court held that a state prisoner’s

claim that the evidence in support of his conviction was insufficient to have led a

rational trier of fact to find him guilty beyond a reasonable doubt constitutes a



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federal constitutional claim that is cognizable in a federal habeas proceeding,

“assuming that state remedies have been exhausted, and that no independent and

adequate state ground stands as a bar.” 443 U.S. 307, 321, 99 S. Ct. 2781, 2790

(1979) (internal citations omitted).

      As Jackson indicates, before bringing a habeas petition in federal court, the

petitioner must exhaust all state court remedies that are available for challenging

his conviction, either on direct appeal or in a state post-conviction motion, 443

U.S. at 322-23, 99 S. Ct. at 2791; 28 U.S.C. §§ 2254(b), (c). To exhaust state

remedies, the petitioner must “fairly present[]” his federal claims to the state court,

providing it with “an opportunity to apply controlling legal principles to the facts

bearing upon them.” Henry v. Dep’t of Corr., 197 F.3d 1361, 1366 (11th Cir.

1999) (internal quotation and citation omitted). “If state courts are to be given the

opportunity to correct alleged violations of prisoners’ federal rights, they must . . .

be alerted to the fact that the prisoners are asserting claims under the United States

Constitution.” Duncan v. Henry, 513 U.S. 364, 365-66, 115 S. Ct. 887, 888

(1995). However, the petitioner is not necessarily required to cite “book and verse

on the federal constitution.” Picard v. Connor, 404 U.S. 270, 278, 92 S. Ct. 509,

513 (1971) (citation omitted). The Supreme Court has held that “ordinarily a state

prisoner does not ‘fairly present’ a claim to a state court if that court must read



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beyond a petition or a brief (or a similar document) that does not alert it to the

presence of a federal claim in order to find material, such as a lower court opinion

in the case, that does so.” Baldwin v. Reese, 541 U.S. 27, 32, 124 S. Ct. 1347,

1351 (2004). “It is not enough that all the facts necessary to support the federal

claim were before the state courts, or that a somewhat similar state-law claim was

made.” Anderson v. Harless, 459 U.S. 4, 6, 103 S. Ct. 276, 277, 74 L. Ed. 2d 3

(1982).

      “The purpose of a motion for judgment of acquittal is to test the legal

sufficiency of the evidence presented by the [S]tate.” Harris v. State, 954 So.2d

1260, 1261 (Fla. Dist. Ct. App. 2007). The Florida Supreme Court has held that

there is “sufficient evidence to sustain a conviction if, after viewing the evidence in

the light most favorable to the State, a rational trier of fact could find the existence

of the elements of the crime beyond a reasonable doubt.” Baugh v. State, 961

So.2d 198, 204 (Fla. 2007). The statutory provisions with respect to a concealed

firearm do not apply when an individual possesses the firearm within his own

home. Fla. Stat. § 790.25(3)(n) (2006).

      We may review the merits of a claim in the first instance when a district

court improperly finds that a claim is procedurally barred. See Peoples v.

Campbell, 377 F.3d 1208, 1235-36 (11th Cir. 2004).



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      In reviewing a state court’s decision denying habeas relief, we are prohibited

from granting habeas relief unless the state 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 in the

State court proceeding.” 28 U.S.C. § 2254(d). Moreover, factual findings of state

courts are presumed to be correct, and the petitioner can rebut them only by clear

and convincing evidence. See 28 U.S.C. § 2254(e)(1).

      A state court decision is “contrary to” clearly established federal law if either

“(1) the state court applied a rule that contradicts the governing law set forth by

Supreme Court case law, or (2) when faced with materially indistinguishable facts,

the state court arrived at a result different from that reached in a Supreme Court

case.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). An “unreasonable

application” of clearly established federal law may occur if the state court

“identifies the correct legal rule from Supreme Court case law but unreasonably

applies that rule to the facts of the petitioner’s case.” Id. “An unreasonable

application may also occur if a state court unreasonably extends, or unreasonably

declines to extend, a legal principle from Supreme Court case law to a new

context.” Id. A state court’s summary, unexplained rejection of a constitutional



                                           5
issue qualifies as an adjudication that is entitled to deference. Wright v. Sec’y for

Dep’t of Corr., 278 F.3d 1245, 1254 (11th Cir. 2002). For § 2254(d)(1) to apply,

the state court is required only to reject a claim on the merits, not to provide an

explanation. Id. at 1255. A state court decision “that does not rest on procedural

grounds alone is an adjudication on the merits, regardless of the form in which it is

expressed.” Id. at 1255-56.

      The Supreme Court has held that, in an appeal that challenges the

sufficiency of the evidence, the “critical inquiry” is “whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.

Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2788-89. The Supreme Court noted that

it is the duty of the trier of fact “to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts,” and

a reviewing court may not substitute its judgment as to whether it believes the

evidence to be sufficient to sustain a conviction. Id. In weighing the sufficiency of

the evidence, it is not required that the evidence rule out every hypothesis except

that of guilt beyond a reasonable doubt. Martin v. State of Alabama, 730 F.2d 721,

724 (11th Cir. 1984).

      Florida law prohibits an individual from “carry[ing] a concealed firearm on



                                            6
or about his or her person.” Fla. Stat. § 790.01(2) (1995). A concealed firearm is

defined “as any firearm carried on or about a person in such a manner as to conceal

the firearm from the ordinary sight of another person.” Dorelus v. State, 747 So.2d

368, 370 (Fla. 1999) (quoting Fla. Stat. § 790-001(2)). The firearm need not be

absolutely invisible. Id. at 370-371.

      Here, necessarily underlying the state court decisions was a determination

that the evidence was sufficient to uphold a concealment conviction, a standard

identical to federal sufficiency review. Accordingly, we conclude that the district

court erred in finding this claim procedurally barred. However, the evidence in

this case, viewed in a light most favorable to the prosecution, demonstrates that a

rational juror could have found McKinzie guilty beyond a reasonable doubt of

concealing a firearm. The state courts did not unreasonably apply Jackson.

      Because we conclude from the record that McKinzie’s underlying due

process claim is without merit, we affirm the denial of habeas relief.

      AFFIRMED.




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