                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-12984                ELEVENTH CIRCUIT
                                                             JULY 9, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                D. C. Docket No. 07-01383-CV-T-24TGW

OSVALDO JAVIER TORRES,



                                                          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
                     _________________________

                               (July 9, 2009)

Before BLACK, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:
      Osvaldo Javier Torres, a Florida prisoner convicted of first-degree murder,

armed burglary, and armed robbery appeals the district court’s denial of his federal

habeas petition.

                          I. Facts and Procedural History

      On January 18, 1997, Torres and three other individuals burglarized the

home of Robert Bryan to steal marijuana and cash. Bryan was bound, hit, and at

the conclusion of the burglary was left face down on the floor. Bryan’s body, still

bound on the floor of his residence, was found on January 25, 1997. He had died

from deprivation of food and water. Torres was indicted in Florida state court for

his role in the crime.

      The only count relevant to this appeal is Count 1, murder in the first degree.

The indictment cited to Florida Statute 782.04(1), a provision that criminalizes

both felony murder and premeditated murder, but only charged Torres with the

unlawful killing of Bryan “while engaged in the perpetration of or in an attempt to

perpetrate the crime or armed burglary and or armed robbery.” Torres’s case went

to trial. During the charge conference, the trial judge stated that she would instruct

the jury as to “two options with First Degree Murder, one is premeditated, one’s

felony.” Torres did not object. In its closing statement, the prosecution did not

mention premeditated murder, instead concluding by arguing “there’s no doubt



                                           2
how Rob Bryan died; there’s no doubt that it’s Felony First Degree Murder.” After

closing arguments, the judge charged the jury that Torres could be convicted of

Count 1 if he committed either felony murder or premeditated murder. Again,

Torres did not object.

       The jury convicted Torres of first-degree murder, armed robbery, and armed

burglary. The verdict form did not ask the jury to specify whether the first-degree

murder verdict was based on felony murder or premeditated murder. The trial

judge sentenced Torres to life imprisonment for this crime. Torres appealed to the

state appellate court, arguing for the first time that the trial judge erred by

instructing the jury on premeditated murder.1 The convictions were affirmed 2 and

the Florida Supreme Court denied Torres’s petition for discretionary review.

       Torres timely filed a petition for writ of habeas corpus in federal district

court, pursuant to 28 U.S.C. § 2254, asserting, inter alia, that he was denied “due

process under the 5th and 14th Amendments when [the] trial court submitted [the]

premeditated murder charge to the jury.” The district court held that this claim was

procedurally barred because Torres did not object to the jury charge at trial, and he

did not show cause and prejudice resulting from the default or that review was


       1
         Torres also raised a number of other alleged errors, none of which are relevant to the
instant appeal.
       2
           The case was remanded, but only for consideration of sentencing issues.

                                                 3
necessary to correct a fundamental miscarriage of justice. The district court

therefore denied Torres’s petition for habeas relief.

         We granted a certificate of appealability (“COA”) limited to the following

issue:

         Whether, in light of Stirone v. United States, 361 U.S. 212, 217, 80
         S.Ct. 270, 4 L.E.2d 252 (1960), the district court erred in finding that
         appellant’s due process rights were not violated when the trial court
         instructed the jury on premeditated murder, which was not charged in
         the indictment returned by the grand jury.

                                II. Standard of Review

         “When examining a district court’s denial of a § 2254 petition, we review

the district court’s factual findings for clear error and its legal determinations de

novo. Mixed questions of law and fact also merit de novo review. Furthermore,

we review de novo whether a particular claim is procedurally defaulted.” Owen v.

Sec’y for Dep’t of Corr., __ F.3d __, 2009 WL 1361488, at *8 (11th Cir. May 18,

2009) (citations, quotations, and editing marks omitted).

         Where a state prisoner’s claim was adjudicated on the merits in state court,

federal courts only may grant habeas relief where the state court’s decision “was

contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States,” or was “based on

an unreasonable determination of the facts in light of the evidence presented in the



                                             4
State court proceedings.” 28 U.S.C. § 2254(d)(1)-(2). The phrase “clearly

established Federal law” refers to “the governing legal principle or principles set

forth by the Supreme Court at the time the state court renders its decision.”

Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Factual findings of the state court

are entitled to a presumption of correctness. 28 U.S.C. § 2254(e).

                                   III. Discussion

      Torres argues that his due process rights were violated when the state court

instructed the jury on premeditated murder, which was not charged in the

indictment. Before reaching the merits of this argument, however, we must

determine whether this issue is procedurally barred.

      Generally, we limit our review to the issues specified in the COA. Murray

v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998). However, in a case where

the district court’s decision was based on procedural default, we should first

address that ruling. Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1258 (11th

Cir. 2002). “Unless we review a district court’s threshold ruling that a claim is

procedurally barred from consideration, it would be a waste of our time to consider

the merits of the claim.” Id.

      A party may procedurally default by failing to preserve a claim for collateral

review. Johnson v. Wainwright, 778 F.2d 623, 628 (11th Cir. 1985). “[A]n



                                          5
adequate and independent finding of procedural default [by the state court] will bar

federal habeas review of the federal claim, unless the habeas petitioner can show

‘cause’ for the default and ‘prejudice attributable thereto,’ or demonstrate that

failure to consider the federal claim will result in a ‘fundamental miscarriage of

justice.’” Harris v. Reed, 489 U.S. 255, 262 (1989) (citations omitted). “The mere

fact that a federal claim might have been procedurally defaulted does not prevent a

federal habeas court from reviewing that claim if the state court did not rely on the

procedural bar as an independent basis for its decision.” Parker v. Sec’y for Dep’t

of Corr., 331 F.3d 764, 771 (11th Cir. 2003). Applying this rule, “a procedural

default does not bar consideration of a federal claim on either direct or habeas

review unless the last state court rendering a judgment in the case ‘clearly and

expressly’ states that its judgment rests on a state procedural bar.” Harris, 489 U.S.

at 263 (citation omitted).

      The Supreme Court, however, has explained that “clearly and expressly”

should not be read “too broadly.” Coleman v. Thompson, 501 U.S. 722, 735

(1991). In Coleman, the Supreme Court concluded that Coleman’s claims were

procedurally barred from federal review even though the state supreme court

dismissed Coleman’s petition without explanation. Id. at 740. The Supreme Court

later explained that the state court’s dismissal in Coleman “clearly and expressly”



                                           6
relied on procedural default because, “although the order was unexplained, the

nature of the disposition (‘dismissed’ rather than ‘denied’) and surrounding

circumstances (in particular the fact that the State had rested its argument entirely

upon a procedural bar), indicated that the basis was procedural default.” Ylst v.

Nunnemaker, 501 U.S. 797, 802 (1991) (discussing Coleman, 501 U.S. 722).

      In the instant case, the state appellate court held that Torres’s claim was

procedurally barred due to failure to comply with the state’s preservation rule. See

Fla. R. Crim. P. 3.390(d). Although the state appellate court never used the word

“preservation,” the surrounding circumstances in this case indicate that the basis

for the state court’s opinion was Torres’s failure to adequately preserve the issue

for appellate review. See Coleman, 501 U.S. at 740. In the state appellate court’s

opinion, it noted at length that Torres never objected to the premeditated murder

charge. The court detailed four different times during which the issue of

premeditated murder was discussed with the trial judge or mentioned before the

jury, each time noting that defense counsel did not object. Torres v. State, 779 So.

2d 393, 394 (Fla. App. 2000). The court also quoted a colloquy that took place at

the charge conference between the trial judge and defense counsel, in which the

trial judge said, “I’m assuming you’re gonna stop me if you have any problems

with any of these [charges,]” and defense counsel responded “Right.” Id. The



                                           7
court then analyzed whether “the giving of the premeditated first-degree murder

instruction constituted fundamental error.” Id. Under Florida law, an error in a

jury instruction is only reviewed for fundamental error if the claim was not

properly preserved. See Hernandez v. State, 919 So. 2d 707, 710 (Fla. App. 2006);

Lane v. State, 861 So .2d 451, 453 (Fla. App. 2003). Although the state court’s

opinion would have been clearer had it stated outright that Torres’s claim was not

preserved for appellate review, the use of the fundamental error standard, when

coupled with the detailed recitation of Torres’s failure to object to the

premeditation charge, indicates that the court found that Torres did not properly

preserve the issue.3

       Because the state court found that Torres procedurally defaulted by failing to

preserve his claim, we may only review the merit of Torres’s claim if he “can show

‘cause’ for the default and ‘prejudice attributable thereto,’ or demonstrate that

failure to consider the federal claim will result in a ‘fundamental miscarriage of

justice.’” Harris, 489 U.S. at 262 (citations omitted). Torres has not shown either.

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


       3
          The state appellate court also provided an alternative holding that even “if error, [the
premeditated murder instruction] did not affect appellant’s substantial rights.” Torres, 779
So. 2d at 394. Under this circuit’s precedent, however, “where a state court has ruled in the
alternative, addressing both the independent state procedural ground and the merits of the federal
claim, the federal court should apply the state procedural bar and decline to reach the merits of
the claim.” Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994).

                                                8
‘objective factor external to the defense impeded counsel’s efforts to comply with

the State’s procedural rule.’” Siebert v. Allen, 455 F.3d 1269, 1272 (11th Cir.

2006) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). “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). Torres

has not identified any such external impediments and, although he raised

ineffective assistance of counsel arguments below, such arguments were rejected

or held procedurally barred and are not properly before this court for

reconsideration.

      To demonstrate a “fundamental miscarriage of justice,” Torres needs to

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

have convicted him.” Id. “A ‘fundamental miscarriage of justice’ occurs in an

extraordinary case, where a constitutional violation has resulted in the conviction

of someone who is actually innocent.” Henderson v. Campbell, 353 F.3d 880, 892

(11th Cir. 2003). Torres has made no such showing. Torres was convicted by the

jury of the felonies of armed burglary and armed robbery. See Fla. Stat.

782.04(1)(a)(2). Torres does not dispute that ample evidence was provided to



                                          9
show that Bryan’s death was the result of activities undertaken by Torres and his

accomplices during the course of these felonies. Such evidence is sufficient to

satisfy the requirements, under Florida law, to convict a defendant of first-degree

felony murder. Id. Consequently, Torres has failed to demonstrate a “fundamental

miscarriage of justice” because there is no evidence that Torres is actually

innocent.

                                   IV. Conclusion

      Having concluded that the issue contained in the COA is procedurally barred

and Torres has failed to show cause and prejudice or a fundamental miscarriage of

justice to overcome the bar, the district court’s denial of Torres’s habeas petition is

affirmed.

      AFFIRMED.




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