EKDAHL

v.

SECRETARY, DEPARTMENT OF CORRECTIONS

(Doc. 12-2, Ex. 9.) Ekdahl challenged his conviction in a motion under Rule 3.850, Florida Rules of Criminal Procedure, for postconviction relief. (Doc. 12-2, Ex. 11.) The postconviction court summarily denied the motion without an evidentiary hearing, (Doc.

12-2, Ex. 14), and the district court of appeals affirmed in a per curiam decision, (Doc. 12- 2, Ex. 18). Ekdahl filed a successive motion under Rule 3.850, which the state court denied because Ekdahl failed to amend. (Doc. 12-2, Exs. 22–24.)

On June 8, 2016, Ekdahl filed his Petition for Writ of Habeas Corpus under § 2254. (Doc. 1.) Respondent initially––but erroneously––opposed the Petition as time-barred. (Doc. 8.) After determining that the Petition was timely, an earlier order directed

Respondent to answer and administratively closed the case. (Doc. 11.) Respondent now argues that the only ground for relief is unexhausted and procedurally barred from federal review. (Doc. 12.) After Ekdahl did not reply (even after an extension of time), the case was re-opened, (Doc. 16), and later re-assigned to me, (Doc. 17.)

B. Factual History1

In November 2011, Ekdahl was living in a motel with his girlfriend and her two daughters. Ekdahl made money by selling his girlfriend’s prescription pain medications,

Samuel Martinez-Pratt to the motel and gave him some drugs. Ekdahl told his girlfriend’s daughters that he planned to rob Pratt and needed their assistance. Under his direction, the daughters lured Pratt to a nearby vacant home and Ekdahl followed. Once inside,

Ekdahl hit Pratt with a baseball bat, knocking him to the floor and hitting him several more times before directing one of the daughters to grab Pratt’s wallet. Upon returning to the motel, the daughters discovered that there was no money in the wallet, and when they told Ekdahl, Ekdahl forced the girls to return with him to the house. Upon entering the house, Ekdahl hit Pratt with a piece of lumber and continued hitting him after he had fallen. Ekdahl then removed Pratt’s shorts to search for valuables. The next morning

Ekdahl returned to the house to look for his cellphone and discovered that Pratt was dead.

II. EXHAUSTION AND PROCEDURAL DEFAULT

A federal habeas petitioner must exhaust each claim by raising the claim in state court before presenting the claim in a federal petition. 28 U.S.C. § 2254(b)(1)(A); , 561 U.S. 320, 340 (2010) (“A petitioner may not raise in federal court an error that he failed to raise properly in state court in a challenge to the judgment reflecting the error.”); , 526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.”). A petitioner satisfies this exhaustion requirement if he fairly presents the claim in each appropriate state court and alerts that court to the federal nature of the claim. , 592 F. 3d 1144, 1156 (11th Cir. 2010) (“[I]n order to exhaust state remedies, a petitioner must fairly present every issue raised in his federal petition to the state’s highest court [and] the state court petition must make the state courts aware that the claims asserted do, in fact, raise federal constitutional issues.”). “Mere similarity of claims is insufficient to exhaust.” , 513 U.S. 364, 366 (1995). In his Petition, Ekdahl alleges that trial counsel rendered ineffective assistance by submitting a voluntary intoxication instruction and by not filing a notice of intent to assert an insanity defense. Although similar, Ekdahl alleged different claims in state court: that counsel was ineffective for not objecting to the voluntary intoxication instruction;² not requesting an instruction on insanity based on long term use of intoxicants;3 and not investigating his mental health.4 Thus, in state court Ekdahl complained about counsel not

A habeas petitioner may overcome the procedural bar to federal review if he can establish the exception for either cause and prejudice or a fundamental miscarriage of justice. , 256 F. 3d 1135, 1138 (11th Cir. 2001). A petitioner shows cause for a procedural default when he demonstrates “that some objective factor external to the defense impeded the effort to raise the claim properly in the state court.” , 169 F. 3d 695, 703 (11th Cir. 1999). A petitioner demonstrates prejudice by showing that

“there is at least a reasonable probability that the result of the proceeding would have been different” absent the constitutional violation. , 353 F. 3d 880, 892 (11th Cir. 2003). “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.” Because Ekdahl makes no attempt to show either “cause and prejudice” or “manifest injustice,” the two claims of ineffective assistance of counsel in ground one are procedurally barred from federal review on the merits.⁵

III. CERTIFICATE OF APPEALABILITY

A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Instead, a district court or court of appeals must first issue a COA. “A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To obtain a COA, Ekdahl must show that reasonable jurists would find debatable this Court’s determination that the ground in the petition is procedurally barred. , 529 U.S. 473, 484 (2000). Ekdahl has not made the requisite showing. Finally, because Ekdahl is not entitled to a COA, he is not entitled to appeal in forma pauperis.

pate Gnph Mizelle United States District Judge