*1 in case have been re- The result this would to the exhaustion “exception” an rule recog- reality just it is but in the same if there were no exhaustion quirement, bar procedural is a when there nition that state remedies doctrine. court from a state prevent would claim, if that even relief on
granting meritorious, there is no effective is
claim petitioner to ex- remedy left for
state case, have in this That is what we
haust. applica- is not doctrine
so the exhaustion
ble. applica- were the exhaustion doctrine
If ble, would be dismissal of result proper America, UNITED STATES to re- in order prejudice the case without Plaintiff-Appellee, by pur- to seek relief quire petitioner court remedies. remaining state suing his prejudice, be without would dismissal HUNTER, Michael Jon Defendant- were unsuccessful petitioner because if Appellant. remedies, he could return his state No. 97-6903. claims. Instead of court with his federal prejudice, dismissing the case without Appeals, United States Court of the habe- in this case denied court district Eleventh Circuit. the case with and dismissed petition as April is the correct disposition That prejudice. has no effective petitioner where a
one exhaust and the remedies left
state ei- concludes his claims are court
district case, or, procedur- this meritless as in
ther
ally barred. opinion this Court’s blurs
Unfortunately, confuses the between and
the distinction exhaus- bar and procedural
doctrines Consider, the state- example,
tion. never petitioner simply that: “if the
ment court, it in state
raised a claim claim that the unexhausted would
obvious barred due to a state procedurally
now be default, the federal court procedural
law filing in
may petitioner’s foreclose the court; requirement the exhaustion
state principles combine procedural default Op. at 1303. That dismissal.”
to mandate in other statements result in this case is imply that the
least exhaustion require- in on the part
based has no petitioner It not. The
ment. remedies left to ex- state court
effective procedurally all
haust. His claims another state court or
defaulted one accordingly, they pro- are
proceeding, consideration fed-
cedurally barred case, bar procedural is a This
eral court. remedies of state case.
not an exhaustion *2 away from
was located almost 100 miles yield- the scene of the arrest. This search bag- drugs, plastic ed no but hundreds of vials, gies, mixing over a glass hundred rec- spoons, diluting agents, transaction ords, and five firearms were recovered. result, As a Hunter was also with being a felon in of a firearm. possession The sentencing court found that the evi dence recovered from Hunter’s home dem he engaging drug onstrated was traf home, ficking from his and such conduct was relevant to sentencing. United States Hunter, 980 F.Supp. (M.D.Ala.1997). The court concluded it could group drug charges four with the 3D1.2, gun charge § under U.S.S.G. which AL, James, Montgomery, for Susan G. provides that involving counts “[a]ll sub Defendant-Appellant. stantially the same harm shall be grouped Pitt, Redding Atty., U.S. Laura L. Fore- together.” Multiple counts involve sub hand, AL, Atty., Montgomery, Asst. U.S. “[wjhen stantially the same harm one of for Plaintiff-Appellee. the counts embodies conduct that is treat in,
ed as a specific offense characteristic or to, adjustment other guideline applica ble to another of the counts.” U.S.S.G. 3D1.2(c). HATCHETT, § Judge, Before Chief specific A firearm is a CARNES, *, Judge, Circuit and FARRIS drug characteristic of a count under Judge. Senior Circuit 2D1.1(b)(1). Since the gun in the in stant case was found 100 miles from the FARRIS, Judge: Senior Circuit scene of the conduct for which Hunter was charged, we must gun decide whether that Background substantially involves the same harm as Michael Jon Hunter was convicted of the other charges. Hunter challenges only four counts of possession of narcotics with propriety counts, of grouping these intent to distribute in violation of 21 U.S.C. which led to his sentence of 57 months. 841(a)(1). pled guilty He and was sen- prison. tenced to 57 months in Discussion Hunter was after selling arrested sever- The district court’s findings of fact grams amphetamine al to a confidential error, are reviewed for clear and its con Prattville, informant of the Alabama Police law, clusions of including application of the Department. The transaction took place sentencing guidelines, are reviewed de automobile, where Hunter’s he was novo. United States v. inject arrested while preparing himself (11th Cir.1997). 1388, 1389 with a A subsequent controlled substance. Specific offense characteristic en yielded search signifi- of the automobile cash, hancements cant under U.S.S.G. quantities drugs, and records later, days possession Two of a drug statutorily transactions. au- firearm are home, Hunter’s which proper thorities searched a dangerous “[i]f pos- was * Farris, Senior U.S. Circuit Honorable Jerome nation. Circuit, sitting by Judge desig- for the Ninth nor person Eleventh was neither on defendant’s are two recent There
sessed.”
Id. at
drugs.
proximity
found in
discussing “possession”
cases
Circuit
Cooper,
n. 1.
In
context.
this
(11th Cir.1997), the defendant
inconsistencies, Cooper
Despite arguable
offenses
drug trafficking
In
yield
holdings.
consistent
and Smith
*3
Id.
found in a warehouse.
drugs
on
based
we stated that an enhancement
Cooper,
Cooper’s
searched
police
When
at 846.
at
proper
“present
where the firearm was
warehouse,
the
miles from
house several
Cooper,
charged
the site of the
conduct.”
warehouse,
cash,
a
key
a
to the
they found
at
States v.
(citing
111 F.3d
847
drugs
the
to that in which
similar
suitcase
(11th Cir.1995)).
Hall,
46 F.3d
63
stored,
Id. We vacat
guns.
and two
were
Sentencing
the 1991
Guideline
Recognizing
the
that
court determination
ed a district
that
deleting
amendment
the restriction
in relation to the
possessed
were
firearms
the
during
the
be
possessed
must
that
and
stated
offense
drug
.
conviction,
recently
offense of
we
clarified
2D1.1(b)(1)
to
requires
government
Ҥ
the
Smith,
In
we
Cooper.
our statement
the
of
evidence
by
preponderance
a
show
be
found that a firearm enhancement is “to
at the site of
present
firearm was
that the
possessed
firearm is
applied whenever a
(citing
Id. at 847
charged conduct.”
the
of
relevant to the offense
during conduct
(11th
Hall,
63
(cit-
Smith,
considered the district that case for court to conclude a firearm en applied offense and drag paraphernalia in Hunter’s found factually Id. at 1390. We hancement. part was of the same of con- home course noting that Smith Cooper by distinguished (i.e. possession he distrib- with him when duct intent to the firearm had ute) he for which was the firearm convict- Cooper whereas arrested 1310 panel question
ed. Its statements as to the enhancement later that give “free to 2D1.1(b)(1) pursuant consideration”); to U.S.S.G. fresh see also McDonald’s Robertson, proper. Corp. v. (ex Cir.1998)(Carnes, J., concurring)
AFFIRMED.
why
plaining
“dicta in our
is not
opinions
binding
anyone
any
on
purpose”). The
CARNES,
Judge, concurring:
Circuit
then,
question,
Cooper
is what is the
hold
Cooper,
United States v.
ing,
merely
and what is
spe
dicta. More
Cir.1997),
says
that
cifically, the question is did Cooper hold
Ҥ
requires
government to
that possession of a dangerous weapon
by
show
of the
preponderance
evidence
during relevant
away
conduct
from the site
present
the firearm was
at the site of
of the offense conduct
support
could not
the charged
government
conduct.” The
*4
2D1.1(b)(1)
§
dangerous weapon enhance
did not and could not show that
in this
ment?
case, yet
the district court applied the
2D1.1(b)(1)
§
dangerous weapon enhance
Cooper
The answer is
did not and could
quoted language
that,
ment.
If the
from the
not have held
because the issue was
Cooper opinion
holding,
was a
we would be
not presented by the facts in Cooper. The
required to vacate the sentence in this case
holdings
prior
of a
decision can
only
reach
resentencing
and remand for
without the
as far as the facts and
pre-
circumstances
enhancement.
sented to the Court
in the case which
produced that decision. There was no
that,
required
We would be
to do
be
proof the weapons found away from the
law,
cause under our
operating
circuit’s
we
site of the
Cooper
conduct in
holding
prior panel
must follow the
of a
possessed
conduct,
during relevant
so the
See,
even
wrong.
e.g.,
if we believe it is
panel in that case did not have
Carver,
(11th
before it
Wascura v.
the issue of
possession
whether
during rel-
Cir.1999)(noting that we had no occasion to
2D1.1(b)(1).
evant conduct
satisfy
could
pass on a
of a
party’s
prior pan
criticism
It is true that
decision,
Cooper opinion says
the
el’s
because
are
that
by
“we
bound
the
the
[prior]
possession must be at
regardless
decision
of whether
the site of
we
the
it”);
agree
Steele,
with
States v.
conduct for the
United
enhancement
to
(11th Cir.1998)
1316,
1317-18
be applicable, and that
certainly
statement
(“Under
rule,
prior panel precedent
our
implies
a
possession off-site during relevant
panel cannot
a prior
overrule
one’s holding conduct is insufficient. But
implica-
that
even though
wrong.”).
convinced it is
dicta,
tion is only
because it is not neces-
sary to the result the Court reached in the
But
prior precedent
while the
rule re
See, e.g.,
case.
American Bank and Trust
quires us to
holding
follow the
of an earlier
855,
Co. v. Dallas County,
871,
463 U.S.
decision, it
require
does not
us to follow
3369, 3379,
103 S.Ct.
1311 consideration, fresh question the Giving and Stephen S. OLSON possession that majority the agree I Olson, Henrietta relevant during weapon dangerous aof and 2D1.1(b)(1) pur is sufficient conduct not also weapon the when even poses, and Katherine Cahoon Peter S. charged con of the at the site possessed Cahoon, L. meaning give we By so holding, duct. guidelines amendment Gaus, E. Marion W. Gaus and Elden require deleted during possessed be ment v. conviction, States see United Lutter, Audrey B. Jon G. Lutter 1389-90 F.3d Plaintiffs-Appellants, No. 394 Amendment Cir.l997)(discussing v. effect), ourselves with align and we its STATES, Defendant-Appellee. UNITED circuits that have least six other 98-5066, 98-5065, 98-5053, Nos. conclusion, David see the same reached and 98-5110. 98-5067 (1st States, Appeals, Court of United States Wetwattana, Cir.1998); *5 Circuit. Federal (7th Cir.1996); 280, Unit 284 n. 6 94 F.3d 764, 767-68 Ortega, v.
ed States Feb. Vital, 68 (2d Cir.1996); v. States United Cir.1995); States 114, 119 F.3d Cir. Roederer,
v. Falesbork, 5 F.3d
1993); States (4th Cir.1993);
Willard,
1990). one does not—bind do what of dicta
concerned, cannot in Hall was the firearm because panel. layers later Two charged conduct. site of