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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-11298
Non-Argument Calendar
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D.C. Docket No. 4:14-cv-00187-HLM
WILLIAM L. COBB, JR.,
Petitioner-Appellant,
versus
COMMISSIONER BRIAN OWENS,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(March 12, 2018)
Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
William Cobb, Jr., a state prisoner proceeding pro se, appeals the district
court’s denial of Claim 2 of his 28 U.S.C. § 2254 petition, which was an
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ineffective-assistance-of-appellate-counsel claim. We granted a certificate of
appealability as to whether the district court erred when it concluded that Claim 2
was unexhausted and procedurally barred -- and, notably, both Cobb and the state
agree on appeal that the district court erred in concluding that Claim 2 was
unexhausted and procedurally barred. After careful review, we vacate and remand.
We review the district court’s denial of a § 2254 petition de novo. McNair
v. Campbell,
416 F.3d 1291, 1297 (11th Cir. 2005). Further, exhaustion and
procedural default present mixed questions of law and fact, subject to de novo
review. Fox v. Kelso,
911 F.2d 563, 568 (11th Cir. 1990); Judd v. Haley,
250 F.3d
1308, 1313 (11th Cir. 2001).
Before bringing a habeas action in federal court, a petitioner must exhaust all
state court remedies that are available for challenging his conviction and sentence,
either on direct appeal or in a state post-conviction motion. 28 U.S.C. §
2254(b)(1); O’Sullivan v. Boerckel,
526 U.S. 838, 842 (1999). To satisfy the
exhaustion requirement, a petitioner must “fairly present federal claims to the state
courts” to give the courts an “opportunity to pass upon and correct alleged
violations of its prisoners’ federal rights.” Duncan v. Henry,
513 U.S. 364, 365
(1995) (quotations and brackets omitted). Exhaustion is not met when the
petitioner has merely been through the state courts or presented all the facts
necessary to support his claim. Kelley v. Sec’y for Dep’t of Corr.,
377 F.3d 1317,
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1343–44 (11th Cir. 2004). To properly raise a federal constitutional claim in state
court, a petitioner must make the state court aware that the claim presents federal
constitutional issues by articulating the constitutional theory serving as the basis
for relief. Zeigler v. Crosby,
345 F.3d 1300, 1307 (11th Cir. 2003).
A federal claim is subject to procedural default if: (1) a state court applied an
independent and adequate ground of state procedure to rule that the petitioner’s
federal claim was barred; or (2) the petitioner never raised a claim in state court,
and it is obvious that the unexhausted claim would now be procedurally barred
under state procedural rules. Bailey v. Nagle,
172 F.3d 1299, 1302–03 (11th Cir.
1999). Exhaustion or procedural default may be excused if the movant establishes
(1) cause for not raising the claim of error on direct appeal and actual prejudice
from the alleged error, or (2) a fundamental miscarriage of justice, meaning actual
innocence. McKay v. United States,
657 F.3d 1190, 1196 (11th Cir. 2011).
The Constitution provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for his defen[s]e.” U.S.
Const. amend. VI. To establish a claim of ineffective assistance of counsel, the
defendant must show that: (1) counsel’s performance was deficient; and (2) the
deficient performance prejudiced the defense. Strickland v. Washington,
466 U.S.
668, 687 (1984).
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After a careful review of the record on appeal, we agree with both parties
that the district court erred when it denied Claim 2 as unexhausted and
procedurally defaulted. As the record reveals, Claim 2 in Cobb’s federal petition
corresponded to a portion of Ground 10 in his state petition. In Claim 2, Cobb
argued that appellate counsel was deficient for failing to raise on direct appeal the
issue of impermissible hearsay statements, and as a result, his Sixth and Fourteenth
Amendment rights were violated. Similarly, in Ground 10, Cobb objected to
inadmissible hearsay evidence and argued, in part, that his counsel was ineffective
on appeal, in violation of the Sixth and Fourteenth Amendments. Thus, Cobb
made the state habeas court aware that his claim presented federal constitutional
issues, because he articulated a constitutional theory serving as the basis for relief -
- namely, ineffective assistance of appellate counsel under the Sixth and
Fourteenth Amendments.
Ziegler, 345 F.3d at 1307. On this record, he fairly
presented his constitutional claims and gave the court an “opportunity to pass upon
and correct” the alleged violation.
Duncan, 513 U.S. at 365. Accordingly, the
district court erred in determining that Claim 2 had not been raised as a claim of
ineffective assistance of appellate counsel before the state court.
Moreover, the district court erred in concluding that Claim 2 was subject to
procedural default. While the state habeas court found that Cobb’s ineffective-
assistance-of-trial-counsel claim was procedurally barred, it did not make this kind
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of finding about his ineffective-assistance-of-appellate-counsel claim in Ground
10.
Judd, 250 F.3d at 1313. As the record shows, the state habeas court divided
Ground 10 into two claims, which it analyzed separately: ineffective assistance of
appellate counsel, and ineffective assistance of trial counsel. It found that the
ineffective-assistance-of-trial-counsel claim was barred on state procedural
grounds, but, importantly, it concluded that the ineffective-assistance-of-appellate-
counsel claim -- which is what Cobb now raises in Claim 2 -- failed under
Strickland. Thus, the state habeas court did not dismiss this claim on an
independent and adequate ground of state procedure, and the district court erred by
construing it in that way.
Bailey, 172 F.3d at 1302–03.
Accordingly, we vacate the judgment without prejudice and remand to the
district court for reconsideration of Claim 2.
VACATED AND REMANDED.
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