Abdul Rashid Isaac v. Augusta SMP Warden, Attorney General, State of Georgia , 470 F. App'x 816 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-12336 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 27, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 5:10-cv-00252-CAR-CHW
ABDUL RASHID ISAAC,
llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,
versus
AUGUSTA SMP WARDEN,
ATTORNEY GENERAL, STATE OF GEORGIA,
lllllllllllllllllllllllllllllllllllllll lRespondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(April 27, 2012)
Before DUBINA, Chief Judge, TJOFLAT and KRAVITCH, Circuit Judges.
PER CURIAM:
Appellant Abdul Rashid Isaac, incarcerated and proceeding pro se, appeals
the district court’s dismissal without prejudice of his 28 U.S.C. § 2254 petition for
writ of habeas corpus. We granted a certificate of appealability on two issues:
Whether the district court violated Clisby v. Jones, 960 F.2d 925,
936 (11th Cir. 1992), in its order dismissing Isaac’s federal habeas
petition without prejudice, by failing to resolve those claims for
relief that did not rely upon Garza v. State, 670 S.E.2d 73 (Ga.
2008)?
Whether the district court erred in failing to make findings as to
whether a stay and abeyance was warranted in Isaac’s case, pursuant
to Rhines v. Weber, 544 U.S. 269, 277, 125 S. Ct. 1528, 1535, 161
L. Ed. 2d 440 (2005), and Thompson v. Sec’y for Dep’t of Corr., 425
F.3d 1364, 1366 (11th Cir. 2005)?
I.
In a 28 U.S.C. § 2254 proceeding, the district court’s legal conclusions are
reviewed de novo, but its findings of fact are reviewed only for clear error.
Osborne v. Terry, 466 F.3d 1298, 1304-05 (11th Cir. 2006). We liberally construe
pro se pleadings. Diaz v. United States, 930 F.2d 832, 834 (11th Cir. 1991). We
will not, however, review on appeal any issue not raised in the parties’ initial
briefs, deeming such issues to be abandoned. United States v. Day, 405 F.3d 1293,
1294 n.1 (11th Cir. 2005). Further, review in a § 2254 proceeding is limited to the
issues specified in the certificate of appealability. Diaz v. Sec’y, Dep’t of Corr.,
362 F.3d 698, 702 (11th Cir. 2004).
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The district court must resolve all claims for relief raised in a § 2254 petition
for habeas corpus, regardless of whether habeas relief is granted or denied. Clisby
v. Jones, 960 F.2d at 936. Before bringing a habeas action in federal court,
however, the petitioner must exhaust all state court remedies that are available for
challenging his conviction, either on direct appeal or in a state post-conviction
motion. See 28 U.S.C. § 2254(b), (c). If a petitioner fails to exhaust state remedies,
the district court should dismiss the petition without prejudice to allow exhaustion.
See Rose v. Lundy, 455 U.S. 509, 519-20, 102 S. Ct. 1198, 1203-05, 71 L. Ed. 2d
379 (1982). A mixed petition, containing both exhausted and unexhausted claims,
also should be dismissed without prejudice to allow the petitioner to either exhaust
state remedies, bring a new petition presenting only the exhausted claims, or
amend the petition to remove any unexhausted claims. Id. at 519-20, 102 S. Ct. at
1204. To fully exhaust state remedies, the petitioner must “fairly present[]” every
issue raised in his 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, 103 L. Ed. 2d 380 (1989); see also Pope v. Rich, 358 F.3d 852, 854
(11th Cir. 2004) (ruling that, following a denial of a state habeas petition, a
Georgia prisoner must file an application for a certificate of probable cause with
the Georgia Supreme Court in order to fully exhaust state remedies).
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When it is obvious, however, that the unexhausted claims would be
procedurally barred in state court due to a state-law procedural default, the court
should treat those claims as having no basis for federal habeas relief and address
the exhausted claims. Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998).
“This step should not be taken if there is a reasonable possibility that an exception
to the procedural bar may still be available to the petitioner.” Id. at 737.
Here, Isaac does not clearly raise on appeal, and has thus abandoned, any
argument regarding potential error under Clisby. Although he cites Clisby for the
relevant legal proposition that a district court must resolve all constitutional claims
presented in a habeas petition before granting or denying relief, he does not appear
to offer any argument that the court actually erred under this standard.
Regardless, even assuming for the sake of discussion that Isaac properly
raised the argument, we conclude from the record that the district court did not err
under Clisby in dismissing his entire petition without prejudice. The court did not
affirm or deny the petition on the basis of certain claims for relief, leaving others
unresolved. Rather, the court dismissed Isaac’s entire § 2254 petition without
prejudice to allow for complete exhaustion of his claims in state court, in
accordance with Lundy. Although the court focused on the unexhausted Garza
claims in dismissing Isaac’s petition, its reasoning - that the “mixed petition” was
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improperly filed in federal court - necessarily encompassed all claims.
Moreover, we conclude that Isaac’s additional arguments regarding the
validity of his convictions and sentences are outside the scope of his COA.
II.
Ordinarily, a “mixed petition,” containing both exhausted and unexhausted
claims, should be dismissed without prejudice to allow the petitioner to either
exhaust state remedies, bring a new petition presenting only the exhausted claims,
or amend the petition to remove any unexhausted claims. Lundy, 455 U.S. at 519-
20, 102 S. Ct. at 1203-05. In the event that such a dismissal would result in any
subsequent petition being time-barred under the statutory one-year limitations
period, the district court may employ a “stay-and-abeyance” procedure, whereby
the court would stay the timely filed petition and hold it in abeyance while the
petitioner returns to state court to exhaust all of his previously unexhausted claims.
Rhines v. Weber, 544 U.S. at 275-78, 125 S. Ct. at 1533-35; see also 28 U.S.C.
§ 2244(d)(1) (establishing a one-year filing limitation for state prisoners). This
procedure should be available only in limited circumstances, but is appropriate
where (1) there was good cause for the petitioner’s failure to exhaust his claims
first in state court, (2) the unexhausted claims are not plainly meritless, and
(3) there is no indication that the petitioner engaged in intentionally dilatory
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litigation tactics. Rhines, 544 U.S. at 277-78, 125 S. Ct. at 1535.
If the district court determines that stay and abeyance is inappropriate and
dismissal of the entire petition would unreasonably impair the petitioner’s right to
obtain federal relief, the court should allow the petitioner to delete the unexhausted
claims and to proceed solely on the exhausted claims. Id. at 278, 125 S. Ct. at
1535. We have held that a district court, when considering a mixed § 2254 petition
under Rhines, must first determine whether a stay is unwarranted before offering
the petitioner the choice to proceed with only the exhausted claims or face
dismissal of his entire petition. Thompson v. Sec’y, Dep’t of Corr., 425 F.3d 1364,
1365-66 (11th Cir. 2005) (applying Rhines where petitioner filed a mixed petition
on the last day of the statutory one-year filing deadline and subsequently moved
for a stay and abeyance).1
Here, we conclude from the record that the district court erred in not
considering whether a stay and abeyance was appropriate because a subsequent
§ 2254 petition would be time-barred.2 28 U.S.C. § 2244(d)(1), (2). Due to this
1
The relevant factual history for this case is set forth in Thompson v. Sec’y, Dep’t of
Corr., 320 F.3d 1228, 1229 (11th Cir. 2003), judgment vacated by Thompson v. Crosby, 544
U.S. 957, 125 S. Ct. 1722, 161 L. Ed. 2d 596 (2005).
2
Respondents concede in their brief that the district court should have made findings
regarding whether a stay and abeyance was warranted in Issac’s case. See Red Brief at 6, 11.
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statutory filing limitation, the dismissal of Isaac’s petition, although purportedly
without prejudice, could effectively operate as a bar to refiling and deprive Isaac of
his ability to obtain federal review. Further, Isaac specifically requested a stay and
abeyance in his response to the state’s motion to dismiss. Therefore, the district
court should have determined whether a stay and abeyance was warranted or, if
not, whether to allow Isaac to proceed solely on his exhausted claims.
For the aforementioned reasons, the district court’s judgment is affirmed in
part, vacated in part, and remanded for further proceedings consistent with this
opinion.
AFFIRMED in part, VACATED in part, and REMANDED.
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