           Case: 11-14609   Date Filed: 05/29/2013   Page: 1 of 10


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 11-14609
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 5:08-cv-00299-RS-GRJ

WILLIAM FLOYD GAY,



                                                          Petitioner-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                         Respondent-Appellee.

                       ________________________

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

                              (May 29, 2013)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
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      William Gay, a Florida state prisoner serving a total sentence of 30 years’

imprisonment for aggravated battery, appeals the district court’s denial of his

petition for habeas corpus, pursuant to 28 U.S.C. § 2254. Gay argued during

closing arguments that he did not batter Sheila Finch, but that she had instead

sustained her injuries after she tripped and fell over an oak tree’s roots. In

response to Gay’s argument, the prosecutor argued that nobody testified that Finch

tripped and fell on the oak tree’s roots, and that “not one scintilla” of evidence

supported Gay’s version of events.

      Gay first challenged the prosecutor’s closing arguments as improperly

shifting the burden of proof to Gay in a “motion for rehearing and/or in the

alternative petition for a writ of habeas corpus” with the Florida District Court of

Appeal, after it summarily affirmed the trial court’s denial of his second motion to

vacate under Florida Rule of Criminal Procedure 3.850. The Florida District Court

of Appeal summarily denied Gay’s motion. Gay also raised this same claim in his

subsequent third Rule 3.850 motion, which the trial court summarily denied. The

Florida District Court of Appeal thereafter summarily affirmed on appeal. Gay

then filed the instant habeas petition with the district court, arguing that the

prosecutor’s closing arguments improperly shifted the burden of proof to Gay. The

district court denied Gay’s claim as procedurally defaulted.




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      On appeal, Gay argues that his claim is not procedurally defaulted because

an adequate state procedural basis did not support the state court’s denial of his

claim. Alternatively, he argues that either cause and prejudice or a fundamental

miscarriage of justice excused his procedural default. Gay further argues that the

prosecutor violated Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 1233

(1965), by improperly commenting on his failure to testify in support of his theory

of defense.

      We review de novo a district court’s denial of a habeas petition. McNair v.

Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). Whether a claim is subject to

procedural default is a mixed question of fact and law that we also review de novo.

Doorbal v. Dep’t of Corr., 572 F.3d 1222, 1227 (11th Cir. 2009).

      Where a state adjudicates a habeas petitioner’s claims on the merits, our

review is “highly deferential.” Williams v. Allen, 598 F.3d 778, 787 (11th Cir.

2010). Under such circumstances, a federal court may only grant habeas relief if

the state court’s merits adjudication: “(1) resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or (2) resulted in a decision

that was 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). The

petitioner bears the burden of establishing his right to habeas relief and proving all


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of the facts necessary to demonstrate a constitutional violation. Romine v. Head,

253 F.3d 1349, 1357 (11th Cir. 2001).

      A state-court decision is contrary to federal law if the court arrives at a

conclusion opposite to that reached by the United States Supreme Court on a

question of law, or if the state court decides a case differently than the Supreme

Court has on a materially indistinguishable set of facts. Dingle v. Sec’y for Dep’t

of Corr., 480 F.3d 1092, 1098 (11th Cir. 2007). Likewise, a state-court decision is

an unreasonable application of federal law where the state court identifies the

correct governing legal principle, but unreasonably applies that principle to the

facts of the case before it. See Ventura v. Att’y Gen., Fla., 419 F.3d 1269, 1286

(11th Cir. 2005). Ultimately, a state court’s merits determination precludes federal

habeas relief where fairminded jurists could disagree on whether the state court

correctly decided the claim. See Lawrence v. Sec’y, Fla. Dep’t of Corr., 700 F.3d

464, 476 (11th Cir. 2012), cert. denied, Lawrence v. Crews (U.S. Apr. 15, 2013)

(No. 12-8115).

      An “adjudication on the merits” is any state-court decision that does not rest

solely upon a state procedural bar, including summary dispositions. See Loggins v.

Thomas, 654 F.3d 1204, 1217 (11th Cir. 2011). The Supreme Court has held that

when a federal claim is presented to a state court, federal courts may presume that

the state court adjudicated the petitioner’s claim on the merits absent any


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indication or state-law procedural principles to the contrary. See Harrington v.

Richter, 131 S. Ct. 770, 784–85 (2011). This presumption may be overcome

where there is reason to think some other explanation for the state court’s decision

is more likely. Id. at 785. We have subsequently held that we will presume that

the state court adjudicated the petitioner’s claim on the merits unless the state court

clearly stated that its decision was based solely upon a state procedural rule. See

Loggins, 654 F.3d at 1217.

      A federal court, however, will not review questions of federal law that are

presented in a habeas petition where the state court rested its decision upon a

state-law ground that is both independent of the federal question and adequate to

support the judgment. Doorbal, 572 F.3d at 1227. We apply a three-part test to

determine whether a state-court judgment rested upon an independent and adequate

state-law ground: (1) the last state court rendering judgment must have clearly and

expressly stated that it was relying upon state procedural rules to resolve the

federal claim without reaching the merits; (2) “the state court’s decision must rest

solidly on state law grounds, and may not be intertwined with an interpretation of

federal law”; and (3) “the state procedural rule must be adequate.” Id. (internal

quotation marks omitted). In order to constitute an adequate state-law ground, the

state procedural rule must be firmly established and regularly followed. Payne v.

Allen, 539 F.3d 1297, 1313 (11th Cir. 2008). Nonetheless, a petitioner’s


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procedural default may be excused if he demonstrates cause for his default and

actual prejudice from the alleged constitutional violation. Ward v. Hall, 592 F.3d

1144, 1157 (11th Cir. 2010). His procedural default may also be excused if he

demonstrates a fundamental miscarriage of justice. See Schlup v. Delo, 513 U.S.

298, 314–15, 326–27, 115 S. Ct. 851, 860–61, 867 (1995).

      The Fifth Amendment guards a criminal defendant’s right against

self-incrimination, and to this end, a prosecutor may not comment on the

defendant’s failure to testify. Griffin, 380 U.S. at 615, 85 S. Ct. at 1233. A

defendant’s rights are violated where the prosecutor’s statement was either

“manifestly intended to be a comment on the defendant’s failure to testify,” or “of

such a character that a jury would naturally and necessarily take it to be a comment

on” the defendant’s silence. Isaacs v. Head, 300 F.3d 1232, 1270 (11th Cir. 2002).

We have strictly enforced the defendant’s burden to make such a showing, and the

inquiry is not simply whether a jury possibly or even probably would view the

statement in such a manner. Id. Rather, we must determine only whether the jury

necessarily would have done so. See id. In applying this test, we look to the

context in which the prosecutor made the challenged statement in order to

determine the manifest intention that prompted it, as well as the natural and

necessary impact that it might have upon the jury. Solomon v. Kemp, 735 F.2d

395, 401 (11th Cir. 1984). A comment on the failure of the defense, as opposed to


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the defendant’s failure to testify, to counter or explain the testimony presented or

evidence introduced does not impinge upon a defendant’s privilege against

self-incrimination. Duncan v. Stynchcombe, 704 F.2d 1213, 1215–16 (11th Cir.

1983) (per curiam).

      Griffin errors are subject to harmless error review. See Chapman v.

California, 386 U.S. 18, 24–26, 87 S. Ct. 824, 828–29 (1967) (applying harmless

error review to the defendants’ Griffin claim). While a federal constitutional error

may be considered harmless on direct review if the reviewing court can determine

that it was harmless beyond a reasonable doubt, see Mansfield v. Sec’y, Dep’t of

Corr., 679 F.3d 1301, 1307 (11th Cir. 2012), cert. denied, 133 S. Ct. 861 (2013), a

federal constitutional error is considered harmless on collateral review unless there

is “actual prejudice,” Brecht v. Abrahamson, 507 U.S. 619, 637–38, 113 S. Ct.

1710, 1721–22 (1993) (internal quotation marks omitted). “Actual prejudice”

requires that the error have had a substantial and injurious effect or influence upon

the verdict. Id. Under this standard, an error is not harmless where one is left in

grave doubt as to whether the error substantially and injuriously affected or

influenced the verdict. See O’Neal v. McAninch, 513 U.S. 432, 437–38, 115 S. Ct.

992, 995 (1995).

      Here, as an initial matter, although the state argues that Gay’s federal habeas

petition was untimely, this court did not certify the timeliness of his federal habeas


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petition for appeal. See Diaz v. Sec’y for Dep’t of Corr., 362 F.3d 698, 702 (11th

Cir. 2004) (per curiam) (holding that appellate review in a § 2254 proceeding is

limited to the issues specified in the COA). Although this court may consider

threshold procedural issues despite their absence in the COA, the district court did

not decide the timeliness of Gay’s federal habeas petition in the first instance, and

we therefore decline to address that issue here. See Wright v. Sec’y for Dep’t of

Corr., 278 F.3d 1245, 1258 (11th Cir. 2002) (noting that it would be a waste of

time to consider the merits of the petitioner’s claim unless this court reviewed the

district court’s threshold ruling that the petitioner’s claim was procedurally barred).

      Next, because no state court clearly and expressly stated that it decided

Gay’s Griffin claims solely upon a state procedural rule, it is not clear whether

Gay’s claims are procedurally defaulted. Even assuming arguendo, however, that

Gay’s Griffin claims are not procedurally defaulted, we conclude that they are

meritless. Gay argues that the state improperly commented upon his failure to

testify by arguing that: (1) the jury should base its verdict upon the credible

evidence that it heard from the witness stand; (2) nobody testified that Finch

tripped on the oak tree roots; (3) “not one scintilla” of evidence supported the

theory that Finch tripped on the oak tree roots; and (4) the jury should base its

verdict on the witness testimony and evidentiary exhibits. Gay claims that these

comments are fairly susceptible to being taken as comments on his failure to


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testify, inasmuch as only Gay could provide testimony contradicting Finch’s

factual account. He further argues that a jury would naturally understand the

state’s closing arguments as a comment on his failure to testify. Finally, Gay

contends that the state’s closing arguments prejudiced him because any statement

that is reasonably susceptible to being interpreted as a comment on the defendant’s

silence creates a high risk of error.

      In this case, the prosecutor’s challenged statements were more likely

comments on the failure of Gay’s defense to explain or counter evidence of his

guilt, rather than statements that were manifestly intended to comment on his

failure to testify or that were naturally and necessarily interpreted as such.

Accordingly, a jury would not have necessarily interpreted the state’s arguments as

improper comments on Gay’s failure to testify, but could have plausibly taken

them as comments on the quality of the evidence that Gay in fact presented. The

prosecutor’s closing arguments did not violate Griffin. See Isaacs, 300 F.3d at

1270–71; Duncan, 704 F.2d at 1215–16.

      Even assuming Griffin errors, the trial court’s jury instructions rendered

them harmless. The trial court instructed the jury regarding the state’s burden of

proof on multiple occasions, advising the jury that the state had to prove Gay’s

guilt beyond a reasonable doubt. Conversely, it instructed the jury that Gay

enjoyed a presumption of innocence that remained with him unless the state bore


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its burden to prove his guilt, and that Gay held no burden to prove his innocence,

present evidence, or otherwise prove or disprove anything. Finally, the trial court

instructed the jury that Gay had the fundamental right not to testify, and that the

jury could not hold Gay’s decision not to testify against him in any manner. These

instructions cured any prejudice that may have resulted from the prosecutor’s

closing arguments. As a result, Gay cannot demonstrate that any Griffin error

substantially and injuriously affected or influenced the jury’s verdict. See O’Neal,

513 U.S. at 437–38, 115 S. Ct. at 995; Brecht, 507 U.S. at 637–38, 113 S. Ct. at

1721–22.

      For the foregoing reasons, the state court’s denials of Gay’s Griffin claims

were not contrary to, and did not constitute an unreasonable application of Griffin.

Accordingly, we affirm.

      AFFIRMED.




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