David Reedman v. Todd Thomas , 305 F. App'x 544 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 15, 2008
No. 07-13772 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-03467-CV-WSD-1
DAVID REEDMAN,
Petitioner-Appellant,
versus
TODD THOMAS,
Respondent,
JAMES E. DONALD,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 15, 2008)
Before DUBINA, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Petitioner David Reedman, a Georgia prisoner proceeding pro se, appeals
the district court’s dismissal of his pro se habeas corpus petition, which was filed
pursuant to 28 U.S.C. § 2254. Reedman’s § 2254 petition alleged 22 claims of
error. The first 19 counts in his habeas petition alleged errors by the state trial
court, which Reedman previously raised on direct appeal. Counts 20 and 21 in the
petition challenged the Georgia Court of Appeals’s (“GCOA”) decision, and
Count 22 challenged the Georgia Supreme Court’s decision to deny his certiorari
petition.
The district court determined that Reedman had not exhausted Claims 1
through 19, because the passing, general reference that he made in his direct appeal
to federal due process claims was insufficient to provide the GCOA with notice
that he sought to raise federal due process claims with respect to every issue. The
district court further found that the record was devoid of any evidence
demonstrating that Reedman had exhausted Claims 20, 21, and 22. The district
court concluded that it was appropriate to stay and hold the case in abeyance to
allow Reedman the opportunity to exhaust all of his claims through a state habeas
petition. It granted Reedman 20 days from the entry of its order to notify the
district court that he was pursuing state habeas relief in the appropriate court.
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Reedman did not file the state habeas action, and, as a result, the district court
lifted the stay and dismissed the petition due to Reedman’s failure to notify the
court in a timely manner, as instructed in its prior order. We granted a certificate
of appealability on the following issues: (1) whether the district court erred in
concluding that the claims raised by Reedman in his § 2254 petition were
unexhausted in state court; (2) if not, whether the district court erred in declining to
provide Reedman with an opportunity to voluntarily dismiss any unexhausted
claims from his petition; and (3) whether the district court abused its discretion by
dismissing Reedman’s petition for failing to comply with a court order.
On appeal, Reedman first argues that he provided sufficient notice to the
state court that claims 1 through 19 alleged federal constitutional error. Thus, he
contends that these claims are exhausted. He further contends that he presented to
the state court Claims 20 and 21, as those claims were asserted as errors in his
petition to the Georgia Supreme Court for a writ of certiorari, but he concedes that
Claim 22 was not presented in any state court, as it resulted from the actions of the
Georgia Supreme Court in denying his petition. Second, Reedman argues that it
was unnecessary for him to return to the state court to further exhaust his claims,
and the district court erred by refusing to allow him to delete his unexhausted
claims.
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I. Exhaustion of claims
We review de novo a district court’s denial of a habeas petition under § 2254
and its factual findings for clear error. Sims v. Singletary, 155 F.3d 1297, 1304
(11th Cir. 1998). Whether a petitioner exhausted state court remedies is a mixed
question of law and fact, which also is reviewed de novo. Fox v. Kelso, 911 F.2d
563, 568 (11th Cir. 1990).
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). To exhaust state remedies, the petitioner must present fairly
every issued 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). “[F]or purposes of exhausting state
remedies, a claim for relief in habeas corpus must include reference to a specific
federal constitutional guarantee, as well as a statement of the facts that entitle the
petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162-163, 116 S. Ct. 2074,
2081, 135 L. Ed. 2d 457 (1996); McNair v. Campbell, 416 F.3d 1291, 1302 (11th
Cir. 2005) (stating that, “[i]n order to be exhausted, a federal claim must be fairly
presented to the state courts”). Indeed, we “require that a petitioner present[ ]d his
claims to the state court such that a reasonable reader would understand each
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claim’s particular legal basis.” McNair, 416 F.3d at 1302 (quoting Kelley v. Sec’y
for Dep’t of Corr., 377 F.3d, 1344-45 (11th Cir. 2004).
In Mauk v. Lanier, 484 F.3d 1352, 1358 (11th Cir. 2007), we determined
that because the Georgia Supreme Court’s denial of certiorari does not constitute a
ruling on the merits, a petitioner’s presentation of a claim in this manner does not
satisfy the requirement that federal constitutional claims first be fairly presented to
the state court before being brought to the federal court in a habeas petition.
A. Claims 1-19
The record indicates that Reedman did not present his claims to the state
court in a way that would allow a reasonable reader to understand each claim’s
legal basis, and, accordingly, the state court did not have a fair opportunity to
decide these claims. Because there is an available state remedy under which
Reedman can assert all of his unexhausted claims – a state habeas petition – the
district court did not err.
B. Claims 20-22
Even if Reedman presented Claims 20 and 21 to the Georgia Supreme Court
in his petition for a writ of certiorari, this was insufficient to exhaust his state court
remedies on these claims. See Mauk, 484 F.3d at 1358. Further, with regard to
Claim 22, because Reedman conceded below and on appeal that he did not raise
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this claim in any state court, we conclude that the district court properly
determined that it had not been exhausted.
II. Voluntarily dismissal of claims
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. 71 L. Ed.2d 379 (1982).
However, a petitioner “can always amend the petition to delete the unexhausted
claims, rather than returning to state court to exhaust all of his claims.” Id. at 520,
102 S. Ct. at 1204. The Supreme Court later held in Rhines v. Weber, 544 U.S.
269, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2008), that:
it likely would be an abuse of discretion for a district court to deny a
stay and to dismiss a mixed petition if the petitioner had good cause
for his failure to exhaust, his unexhausted claims are potentially
meritorious, and there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics. In such circumstances, the
district court should stay, rather than dismiss, the mixed petition.
Rhines, 544 U.S. at 278, 125 S. Ct. at 1535. Moreover, if “the court determines
that stay and abeyance is inappropriate, the court should allow the petitioner to
delete the unexhausted claims and to proceed with the exhausted claims if
dismissal of the entire petition would unreasonably impair the petitioner's right to
obtain federal relief.” Id. Finally, in Thompson v. Sec'y for the Dep't of Corr., 425
F.3d 1364 (11th Cir. 2005), we held that the choice, which was approved in
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Rhines, of allowing a petitioner to delete the unexhausted claims and proceed with
the exhausted claims if dismissal of the entire petition would unreasonably impair
his rights to obtain federal relief, “should only be offered if a stay is unwarranted.”
Thompson, 425 F.3d at 1366.
In their brief, the respondents concede that although the district court
properly found that grounds 20-22 were unexhausted, Reedman should have been
given the option to delete them. Because the district court declined to give
Reedman that option, it committed reversible error.
Accordingly, we vacate the district court’s judgment and remand this case
with directions that the district court give Reedman the option of deleting all
unexhausted claims.
VACATED and REMANDED.
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