                                                            [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 06-10646
                                                               December 13, 2006
                           Non-Argument Calendar              THOMAS K. KAHN
                         ________________________                 CLERK

                     D. C. Docket No. 04-00644-CV-BH-B

LOUIS JENKINS,



                                                            Petitioner-Appellant,

                                     versus

STEPHEN BULLARD,

                                                            Respondent-Appellee.



                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                        _________________________

                             (December 13, 2006)

Before BLACK, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

     Louis Jenkins, an Alabama prisoner proceeding pro se, appeals the district
court’s denial of his federal habeas petition, which he filed pursuant to 28 U.S.C. §

2254. In his petition, Jenkins raised the following claims: (1) the trial court erred

by overruling his objection to the autopsy photographs; (2) the trial court erred by

denying his motion for directed verdict of acquittal based on an improper jury

instruction regarding intent; (3) the trial court erred by denying his motion for

judgment of acquittal based on insufficiency of the evidence; and (4) his appellate

counsel was ineffective because she failed to raise claims that Jenkins’s trial

counsel was ineffective. The district court found that Jenkins’s claims were

procedurally defaulted.

      We granted a certificate of appealability on the following issues:

      (1)    Whether the district court erred by finding that appellant’s
             claims relating to the alleged errors committed by the state trial
             court were procedurally barred?

      (2)    Whether the district court erred by finding that appellant’s
             claims of ineffective assistance of appellate counsel were
             procedurally barred?

      Before filing a federal habeas action, a state prisoner must exhaust state

court remedies, either on direct appeal or in a state post-conviction motion. 28

U.S.C. § 2254(b), (c). Exhaustion presents a mixed question of law and fact,

subject to de novo review. Fox v. Kelso, 911 F.2d 563, 568 (11th Cir. 1990). To

exhaust state remedies, the petitioner must fairly present every issue raised in his



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federal petition to the state’s highest court, either on direct appeal or on collateral

review. Castille v. Peoples, 489 U.S. 346, 351, 109 S. Ct. 1056, 1060 (1989). 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 beyond a petition or 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).

      Generally, when a petitioner has failed to exhaust state remedies, the district

court should dismiss the petition without prejudice to allow exhaustion. Rose v.

Lundy, 455 U.S. 509, 519–20, 102 S. Ct. 1198, 1203–04 (1982). Where, however,

the claim presented is procedurally defaulted, the court need not dismiss to permit

exhaustion but should dismiss on procedural default grounds. Snowden v.

Singletary, 135 F.3d 732, 736 (11th Cir. 1998). The issue of whether a habeas

petitioner’s claims are subject to the doctrine of procedural default is a mixed

question of law and fact that we review de novo. Judd v. Haley, 250 F.3d 1308,

1313 (11th Cir. 2001).

      Generally, procedural default can arise in two ways: (1) when the state court

applies a state procedural rule to bar consideration of the federal claim; or (2) when

the petitioner never raised the claim in state court, but it is obvious that the state



                                            3
courts would hold it to be procedurally barred if it were raised now. Bailey v.

Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999). Federal habeas courts are

precluded from deciding the merits of a claim that is procedurally barred, except in

two circumstances. One is where the petitioner makes a showing of adequate

cause and actual prejudice, and the other is where the failure to consider the claim

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

U.S. 722, 749–50, 111 S. Ct. 2546, 2564–65 (1991); Marek v. Singletary, 62 F.3d

1295, 1301-02 (11th Cir. 1995).

                     A. Claims Involving State Trial Court Actions

         The State argues, and the district court concluded, that Jenkins’ trial level

claims were procedurally barred because he failed to raise those claims adequately

during his direct appeal to the Alabama Court of Criminal Appeals or, after that

court affirmed his conviction, in his certiorari petition to the Alabama Supreme

Court.

         After Jenkins was convicted of manslaughter and sentenced as a habitual

offender to life imprisonment, the trial court appointed counsel to represent him on

appeal. Counsel filed a brief with the Alabama Court of Criminal Appeals

pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), asserting

that there were no meritorious issues to raise on appeal and requesting that the



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court allow her to withdraw as counsel. As the Anders procedure requires, counsel

did note in her brief that there were several possible issues that might be raised,

including: (1) the trial court’s denial of Jenkins’ motion for directed verdict based

on the jury instruction regarding intent; (2) the trial court’s overruling of Jenkins’

objection to the introduction of autopsy photos; and (3) the trial court’s denial of

Jenkins’ motion for judgment of acquittal based on the sufficiency of the evidence.

Nevertheless, the brief stated that those issues did not have arguable merit. Under

the Anders procedure if the reviewing court agrees with counsel, and after

conducting an independent review of the record concludes that there are no issues

of arguable merit, it may grant counsel’s motion to withdraw and either dismiss the

appeal or affirm the judgment. Id. at 744, 87 S. Ct. at 1400. That is what the Court

of Criminal Appeals did.

        The Court of Criminal Appeals’ judgment affirming Jenkins’ conviction and

sentence reflects a decision by it that the issues flagged by Jenkins’ counsel in her

Anders brief were meritless, and that there was no error of any kind in the record.

What the Seventh Circuit said in a different but related context makes sense here as

well:

        It makes no difference that his claim had been presented in his direct
        appeal in an Anders brief on the basis of which we dismissed the
        appeal as frivolous. Presented is presented, whether in an Anders
        brief or in any other format; and if an appeal is dismissed as frivolous,

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      that is a binding adjudication that the claims presented in it had no
      merit at all, rather than an invitation to refile.

White v. United States, 371 F.3d 900, 902–03 (7th Cir. 2004). There was no

failure to exhaust in the Court of Criminal Appeals, and when Jenkins

unsuccessfully sought certiorari review in the Alabama Supreme Court on the

ground that the Court of Criminal Appeals decision was error, he completed the

exhaustion of his state court remedies insofar as his trial level claims are

concerned. Accordingly, the district court should have decided the trial level

claims on the merits.

               B. Claims of Ineffective Assistance of Appellate Counsel

      Jenkins’ claims that his appellate counsel rendered ineffective assistance are

a different story. Those claims were not, and of course could not have been, raised

during the direct appeal. However, they could be raised in Jenkins’ state collateral

proceedings.

      Alabama Rule of Criminal Procedure 32.1 permits defendants who have

been convicted of a criminal offense to petition for relief from their convictions on

the basis of one of six specified grounds. Ala. R. Crim. P. 32.1. Rule 32.3

provides that, in the Rule 32 petition, “[t]he petitioner shall have the burden of

pleading and proving by a preponderance of the evidence the facts necessary to

entitle the petitioner to relief.” Id. R. 32.3. Likewise, Rule 32.6(b) provides that:

                                           6
      [t]he petition must contain a clear and specific statement of the
      grounds upon which relief is sought, including full disclosure of the
      factual basis of those grounds. A bare allegation that a constitutional
      right has been violated and mere conclusions of law shall not be
      sufficient to warrant any further proceedings.

Id. R. 32.6(b). To underscore this final point, Rule 32.7(d) allows the state

collateral court to dismiss the petition “[i]f the court determines that the petition is

not sufficiently specific.” Id. R. 32.7(d).

      Jenkins filed a Rule 32 petition in Alabama state court claiming that his

appellate counsel was ineffective for not raising on direct appeal Jenkins’

ineffective assistance of trial counsel claims, but the state collateral court dismissed

the petition under Rule 32.7(d) because it did not meet the specificity requirements

of Rules 32.3 and 32.6(b). The Court of Criminal Appeals affirmed the dismissal

of Jenkins’ Rule 32 petition, concluding that the collateral court did not err in

summarily dismissing the petition under Rule 32.7(d) because Jenkins’ petition

was procedurally barred for not including specific facts which entitled him to

relief, and in any case the petition lacked merit.

      Federal courts do not review a procedurally defaulted state collateral claim

in a § 2254 petition if: (1) the petitioner failed to substantially comply with a state

procedural rule, Lee v. Kenna, 534 U.S. 362, 375–76, 382, 122 S. Ct. 877, 885,

889 (2002); (2) the last state court to review the claim clearly and expressly stated



                                              7
that its judgment rested on the petitioner’s failure to substantially comply with the

state procedural rule; and (3) the rule was firmly established and regularly followed

when applied by the state court. Judd, 250 F.3d AT 1313; Hill v. Jones, 81 F.3d

1015, 1022 (11th Cir. 1996). Applied here, the district court was correct to dismiss

Jenkins’ claim as procedurally defaulted.

      First, Jenkins’ Rule 32 petition, on its face, did not comply with the

specificity requirements of Rules 32.3 and 32.6(b). To properly raise an

ineffective assistance of appellate counsel claim, Jenkins should have alleged

specific facts showing that his appellate counsel’s performance was deficient—that

counsel’s decisions were so unreasonable that they could not be considered as part

of the appellate strategy—and that the deficiency made a difference to the outcome

of the proceeding. See Strickland v. Washington, 466 U.S. 668, 687, 689, 694, 104

S. Ct. 2052, 2064–65, 2068 (1984).

      Jenkins’ only allegations in this Rule 32 petition were that his appellate

counsel was ineffective for not raising the following errors or omission of his trial

counsel during the direct appeal:

      [That] (1) [t]rial counsel improperly argued her motion for judgment
      of acquittal in that, she did not argue that the petitioner was either
      guilty of murder or not guilty of murder; (2) [t]rial counsel argued in
      her motion for judgment of acquittal, insufficiency of the evidence
      regarding the petitioner’s intent, but did not argue any other grounds;
      (3) [t]rial counsel failed to argue . . . that there was a fatal variance,

                                            8
      between evidence presented at trial, and the charge as embra[c]ed in
      the indictment, because all evidence presented at trial pointed to
      Assault in the First Degree, where the victim’s death was due to a
      delay in medical attention; (4) [t]rial counsel failed to argue . . . that
      the State had failed to prove the [e]lement of [i]ntent, which is a
      [s]tatutory [e]lement of the offense of [m]urder . . .; (5) [t]rial counsel
      failed to object to all of the State[’]s requested jury charges where the
      requested jury charges were a misstatement of the law; (6) [t]rial
      counsel should not have asked for certain jury charges, where the
      requested jury charges were aimed at a defense for murder as opposed
      to a[n] acquittal of the murder charge due to a failure of the state to
      prove the intentional murder statue; [and] (7) [t]rial counsel was
      ineffective for [failing] to move for a judgment in favor of the petition
      on the grounds that the State had failed to meet its burden of proof to
      the petitioner’s guilt on murder.

      The problem for Jenkins is that these claims were no more than “bare

allegation[s] that a constitutional right has been violated and mere conclusions of

law.” Ala. R. Crim. P. 32.6(b). That is, they lacked the requisite specificity that

Alabama requires for Rule 32 petitions. For example, Jenkins alleged in his

petition that his trial counsel was ineffective for moving for judgment of acquittal

on only one ground, but “did not argue any other grounds.” Yet, Jenkins did not

specifically allege what other bases his trial counsel should have included in the

motion for judgment of acquittal or the factual predicate for these alternative bases.

Jenkins also alleged that his trial counsel failed to object to certain jury

instructions, which, according to Jenkins, were misstatements of law. Yet, Jenkins

did not specifically allege which jury instructions were misstatements of the law or



                                            9
why they were so. Jenkins next alleged that his trial counsel should not have

requested certain jury instructions related to the murder charge. Yet, Jenkins did

not specifically allege in his Rule 32 petition which jury instructions his counsel

should not have requested. Finally, Jenkins failed to allege, in even the barest of

ways, what prejudice he suffered as a result of his trial counsel’s purported errors,

given that the jury rejected the murder charge. He was convicted of manslaughter

and acquitted of murder.

      (Additionally, Jenkins himself raised many of the same trial errors in his

own direct appeal brief to the Court of Criminal Appeals that he complains counsel

failed to raise. Those issues were rejected as meritless on direct appeal, which is

not surprising since they involve a charge for which he was acquitted.)

      As to the second part of the procedural default rule, the Court of Criminal

Appeals clearly and expressly stated that its judgment affirming the dismissal of

Jenkins’ Rule 32 petition rested on his failure to comply with Rules 32.3 and

32.6(b). Quoting from the lower court’s order dismissing the petition, the Court of

Criminal Appeals wrote that Jenkins’ “claims fail to meet the requirements of

specificity in pleadings as required by Rule 32.3 and further stressed by Rule

32.6(b).” “Because . . . Jenkins’s claims were . . . procedurally barred,” the Court

of Criminal Appeals concluded, “the [lower] court did not err in summarily



                                          10
denying the petition pursuant to Rule 32.7(d).”

      As to the third part of the procedural default rule, Rules 32.3 and 32.6(b)

have been firmly established and regularly followed by the Alabama courts. The

Court of Criminal Appeals has consistently affirmed, as it did with Jenkins, lower

court decisions that have summarily dismissed Rule 32 petitions that do not

include specific facts which would entitle the petitioner to collateral relief. See,

e.g., Shaw v. State, ___ So. 2d ___, 2006 WL 825142, *2 (Ala. Crim. App. Mar.

24, 2006); Tubbs v. State, 931 So. 2d 66, 68 (Ala. Crim. App. 2005); Boyd v.

State, 913 So. 2d 1113, 1126–32 (Ala. Crim. App. 2003); Chambers v. State, 884

So. 2d 15, 18–19 (Ala. Crim. App. 2003).

      Finally, Jenkins has not demonstrated that there was cause for, and that he

was prejudiced by, his procedural default, or that the procedural bar, if applied

here, would work a fundamental miscarriage of justice. Jenkins did not refer in his

§ 2254 petition to any objective factors that would indicate that he was impeded

from complying with Rules 32.3 and 32.6(b). See Henderson v. Campbell, 353

F.3d 880, 892 (11th Cir. 2003) (“[t]o establish ‘cause’ for procedural default, a

petitioner must demonstrate that some objective factor external to the defense

impeded the effort to raise the claim properly in the state court”). The fact that he

is proceeding pro se with his § 2254 petition is insufficient to establish cause. Nor



                                           11
did Jenkins establish, or even allege, any prejudice he suffered because of his

counsel’s alleged deficient performance.

      Jenkins did not allege in his § 2254 petition that he is actually innocent of

the crime for which he has been convicted, which is a threshold requirement of the

fundamental miscarriage of justice exception to the procedural default rule. See

Henderson, 353 F.3d at 892 (“[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”). Accordingly, the district court did not err

in dismissing Jenkins’ ineffective assistance of appellate counsel claims as

procedurally defaulted.

                                    C. Conclusion

      For the foregoing reasons, we VACATE the part of the district court’s order

dismissing Jenkins’ ineffective assistance of trial counsel claims and REMAND for

consideration of these claims in light of our decision. As to the part of the district

court’s order dismissing Jenkins’ ineffective assistance of appellate counsel claims,

we AFFIRM.




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