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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-10051
Non-Argument Calendar
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D.C. Docket No. 0:16-cv-62309-KMW
PAULIUS TELAMY,
Petitioner-Appellant,
versus
SECRETARY, STATE OF FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 3, 2019)
Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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Paulius Telamy, a Florida prisoner proceeding pro se, appeals the district
court’s dismissal of his Brady v. Maryland,
373 U.S. 83 (1963), claim as
unexhausted in his 28 U.S.C. § 2254 petition. We granted a certificate of
appealability as to whether the district court erred in sua sponte rejecting the state’s
express waiver of exhaustion and dismissing Telamy’s claim as procedurally
barred, without considering the merits of whether a Brady violation occurred. On
appeal, Telamy argues that, under our holding in Vazquez v. Sec’y, Fla. Dep’t of
Corr.,
827 F.3d 964 (11th Cir. 2016), the district court erred by dismissing sua
sponte his Brady claim as unexhausted, in light of the state’s express exhaustion
waiver.
We review a district court’s decision to accept or reject a state’s exhaustion
waiver for abuse of discretion. See Thompson v. Wainwright,
714 F.2d 1495,
1508-09 (11th Cir. 1983) (stating that a district court, in its discretion, may accept
or reject a state’s exhaustion waiver). Generally, a petitioner must exhaust all state
court remedies in order to bring a § 2254 petition in federal court.
Vazquez, 827
F.3d at 966. The exhaustion requirement is met when the petitioner presents the
state court with the same claim that he urges in the federal court, and, if he fails to
exhaust his claim, the result is procedural default, which bars habeas relief.
Id.
We have held that states can waive procedural bar defenses, including
exhaustion, in federal habeas proceedings, although a state’s mere failure to raise
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exhaustion does not constitute a waiver.
Id. “Where a state waives exhaustion, the
district court may consider the procedural bar sua sponte if requiring the petitioner
to return to state court to exhaust his claims serves an important federal interest.”
Id. We have discussed several factors that a district court may consider in
exercising its discretion to accept or reject a state’s exhaustion waiver, including
whether fact finding is involved, how long since petitioner’s conviction and
sentence were imposed, and the comparative status of the federal and state court
dockets, among other things. See
Thompson, 714 F.2d at 1509.
In Vazquez, a state petitioner filed a § 2254 petition, claiming a violation of
his Sixth Amendment Confrontation Clause rights, and, in response, the state
expressly conceded that he had exhausted that claim and addressed the merits of
it.
827 F.3d at 965-66. The district court concluded sua sponte, however, that the
petitioner had not exhausted his Confrontation Clause claim in state court and
denied as barred his habeas petition.
Id. We vacated and remanded, holding that
the district court erred in sua sponte rejecting the state’s express waiver and
dismissing the petitioner’s claim as procedurally barred.
Id. at 967-68.
Specifically, we determined that, in considering the exhaustion issue sua sponte,
the district court did not point to any “important federal interest” or Thompson
factors that required a rejection of the state’s waiver.
Id. at 967. Instead, the
district court purported to “correct” the state’s mistake of fact by dismissing the
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petitioner’s claim as procedurally barred.
Id. However, we stated that, “to the
extent a mistake may have occurred, the state’s exhaustion waiver is more
accurately characterized as a mistake of law,” rather than a mistake of fact that the
district court could correct sua sponte.
Id. (emphasis in original).
The district court here erred by rejecting sua sponte the state’s waiver of
exhaustion without pointing to any important federal interest or Thompson factors
to justify that decision. As in Vazquez, where the state conceded that the petitioner
had exhausted his federal claim and the district court sua sponte rejected that
waiver, the district court here sua sponte rejected the state’s waiver, despite the
state’s explicit concession that Telamy had raised the Brady claim in his third Rule
3.850 motion, without pointing to any “important federal interest” or Thompson
factor to justify that decision. See
id. at 967-68. The record does not support the
state’s argument on appeal that it only conceded that he had raised a “similar
claim.” The state did not make any mention of a similar claim before the district
court.
Moreover, the district court here, like the district court in Vazquez, rejected
the state’s waiver because it simply found the waiver to be “incorrect” and
purported to correct that mistake. The state’s waiver, however, cannot be
characterized as a mistake of fact that the district court could correct. Based on a
review of the state's response to Telamy’s § 2254 petition, the state presumably
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examined the state record, and, in doing so, affirmatively concluded that it did not
need to pursue the exhaustion defense. See
Vazquez, 827 F.3d at 967. Its
understanding of the exhaustion requirement led it to the conclusion that pursuing
the exhaustion defense as to Telamy’s Brady claim was futile.
Although the state now argues on appeal, for the first time, that the Brady
claim was so bare and conclusory that it could not determine exhaustion and truly
waive it, it did not raise that specific defect in response to the § 2254 petition, but
rather, affirmatively stated that Telamy had, in fact, raised that claim in his third
Rule 3.850 motion. Thus, the state was aware of the exhaustion requirement and
communicated to the court its intention not to pursue it, and its exhaustion waiver
is properly characterized as a mistake of law, not of fact. The court erred by
rejecting that waiver without considering the Thompson factors or any important
federal interest. See
Vazquez, 827 F.3d at 967-68. Accordingly, the district court
erred by rejecting that waiver, and we vacate and remand.
VACATED AND REMANDED.
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