Hafez v. Frazier , 440 F. App'x 751 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-10787 SEP 08, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 2:09-cv-00055-WCO
MAHMOUD HAFEZ,
Petitioner - Appellant,
versus
WARDEN DAVID FRAZIER,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 8, 2011)
Before EDMONDSON, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Mahmoud Hafez, a Georgia prisoner, appeals the district court’s dismissal
of his pro se 28 U.S.C. § 2254 habeas corpus petition for failure to exhaust his
state administrative remedies. Reversible error has been shown; we vacate and
remand for additional proceedings.
Hafez filed a state habeas petition, and -- following an evidentiary hearing
held on 18 February 2009 -- the state court stated that it planned to deny the
petition. Hafez then filed his federal habeas corpus petition, pursuant to section
2254, on 8 April 2009. The district court dismissed the federal habeas petition as
procedurally barred, concluding that Hafez failed to exhaust his administrative
remedies because he had not applied for a certificate of probable cause (“CPC”)
from the Georgia Supreme Court.1 We granted a certificate of appealability
(“COA”) as to the following issue:
Whether Ga. Sup. Ct. R. 40, as amended, has any effect on this
Court’s holding in Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004),
that a Georgia prisoner must file an application for a certificate of
probable cause with the Georgia Supreme Court challenging the
denial of his state habeas petition in order to exhaust his state
remedies and thereby avoid a procedural default and, if so, whether
the district court erred by finding that Hafez’s claims were
unexhausted.
1
In doing so, the district court found that the state habeas corpus court issued a final order
denying Hafez’s petition on 18 February 2009, and the 30-day period for filing an application for
a CPC expired on 20 March 2009.
2
On 22 September 2010 -- shortly before Hafez filed his opening brief in this
appeal -- the state habeas court issued a final order denying his state habeas
petition. Hafez filed a timely application for a CPC with the Georgia Supreme
Court, which was denied.
“Although we will not decide any issue not specified in the COA, we will
construe the issue specification in light of the pleadings and other parts of the
record.” Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998). We will
read the COA to encompass procedural issues that must be resolved before we can
reach the underlying claim. See McCoy v. United States, 266 F.3d 1245, 1248 n.2
(11th Cir. 2001).
The issue specified in the COA assumed that Hafez failed to file properly an
application for a CPC with the Georgia Supreme Court. Thus, before we can
address the underlying issue set forth in the COA, we must first determine whether
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that assumption was correct -- and construe the COA to encompass that issue.2
See id.We review a district court’s denial of a habeas petition de novo, and its
findings of fact for clear error. Nelson v. Schofeld, 371 F.3d 768, 769-70 (11th
Cir. 2004). A finding is clearly erroneous when, considering all the evidence, we
are “left with the definite and firm conviction that a mistake has been committed.”
Anderson v. City of Bessemer City, 105 S.Ct. 1504, 1511 (1985).
Respondent concedes -- and the record shows -- that the district court
clearly erred when it concluded that the state habeas court entered a final order
denying Hafez’s state habeas petition and that the time for filing an application for
a CPC expired, before Hafez filed his section 2254 petition. We are convinced
that a mistake has been committed, and we vacate and remand for additional
proceedings.
VACATED AND REMANDED.
2
On appeal, Hafez also argues that (1) he is not required to appeal the denial of his state
habeas petition to exhaust his state remedies because Ga. Sup. Ct. R. 40 supersedes our decision
in Pope; and, in the alternative (2) the state habeas court’s extraordinary delay in issuing its final
order constitutes good cause to excuse him from Pope’s exhaustion requirements. He also
contends that we should certify the following question to the Georgia Supreme Court: “Under
Georgia law, is review by the Georgia Supreme Court following the denial of a state habeas
petition an ‘available’ avenue of review for the purposes of determining whether a litigant has
properly exhausted his state court remedies?” Because Hafez has filed a timely application for
CPC with the Georgia Supreme Court and that application has been denied, these issues are
dismissed as moot. See Soliman v. United States, 296 F.3d 1237, 1242 (11th Cir. 2002).
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