Shelton R. Thomas v. Macon SP Warden

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13358
Non-Argument Calendar
____________________
SHELTON R. THOMAS,
Petitioner-Appellant,
versus
MACON SP WARDEN,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:22-cv-00437-CAP
____________________
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2 Opinion of the Court 22-13358
Before ROSENBAUM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Shelton Thomas, a prisoner at Georgia’s Macon State Prison
proceeding pro se, appeals the dismissal without prejudice of his pe-
tition for habeas corpus under 28 U.S.C. § 2254. We granted a cer-
tificate of appealability on the question of “[w]hether the district
court erred in concluding that Thomas’s 28 U.S.C. § 2554 petition
was unexhausted in its entirety, and, if so, whether the court
abused its discretion in dismissing the § 2254 petition without prej-
udice.” (11th Cir. dkt., doc. 13 at 2–3). Thomas argues that the
district court erred in determining his grounds for relief were un-
exhausted because: (1) all were presented to the Georgia Supreme
Court at some point, even if the case in which some were raised
was disposed of on other grounds; (2) the state waived exhaustion
in state habeas proceedings; (3) his claims need not be exhausted
because the state courts are unduly delayed in resolving them; and
(4) even if some of his claims are unexhausted, the district court
should have granted a stay and abeyance rather than dismissing his
petition.
We review the denial or grant of habeas corpus relief de
novo. Pope v. Sec’y, Fla. Dep’t of Corr., 752 F.3d 1254, 1261 (11th Cir.
2014). We also “review questions of law and mixed questions of
law and fact de novo, while district court findings of fact are re-
viewed for clear error.” Id. “Exhaustion presents a mixed question
of law and fact.” Fox v. Kelso, 911 F.2d 563, 568 (11th Cir. 1990). In
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22-13358 Opinion of the Court 3
the case of a mixed petition, asserting some exhausted and some
unexhausted claims for habeas relief, whether to grant a stay and
abeyance or dismiss is reviewed for abuse of discretion. Rhines v.
Weber, 544 U.S. 269, 279 (2005). Abuse of discretion occurs where
the district court applies an incorrect legal standard, follows incor-
rect procedures, or makes a factual finding that is clearly erroneous.
Mincey v. Head, 206 F.3d 1106, 1137 (11th Cir. 2000).
To be eligible for federal habeas relief, a state prisoner must
have exhausted “the remedies available in the courts of the state,”
unless such remedies are absent or ineffective. 28 U.S.C.
§ 2254(b)(1). This means that “state prisoners must give the state
courts one full opportunity to resolve any constitutional issues by
invoking one complete round of the State’s established appellate
review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
Thus, “to properly exhaust a claim, the petitioner must fairly pre-
sent[] every issue raised in his federal petition to the state’s highest
court, either on direct appeal or on collateral review.” Mason v. Al-
len, 605 F.3d 1114, 1119 (11th Cir. 2010) (quotation omitted).
Under Georgia law, a state habeas petition may not be
brought until the petitioner’s conviction is final. Horton v. Wilkes,
302 S.E.2d 94, 96 (Ga. 1983), disapproved of in part on other grounds
by Stubbs v. Hall, 840 S.E.2d 407 (Ga. 2020). For Georgia law pur-
poses, a conviction is not final until no further direct appellate re-
view is available. Stubbs v. Hall, 840 S.E.2d 407, 412 (Ga. 2020).
Exhaustion is excused under absent or ineffective state pro-
cess prongs “in the case of unreasonable, unexplained state delays
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4 Opinion of the Court 22-13358
in acting on the petitioner’s motion for state relief.” 28
U.S.C.§ 2254(b)(1)(B)(i)–(ii); Cook v. Fla. Parole & Prob. Comm’n, 749
F.2d 678, 679–80 (11th Cir. 1985). A delay of fifteen months is suf-
ficient to raise the possibility that exhaustion should be excused be-
cause state avenues towards relief are absent or ineffective. Rheuark
v. Wade, 540 F.2d 1282, 1283 (5th Cir. 1976)1 (vacating and remand-
ing “with instructions to determine if the delay in preparing a tran-
script of Rheuark’s state trial has been justifiable. If not, the district
court should proceed to the merits of appellant’s claim for habeas
relief.”); see also Breazeale v. Bradley, 582 F.2d 5, 6 (5th Cir. 1978)
(“Breazeale’s state habeas petition has been completely dormant
for over one year, and the state has offered us no reason for its tor-
por. Under these circumstances, the unexplained delay requires us
to say that the state remedy is ineffective.”). While 28 U.S.C.
§ 2254(b) has been reorganized since caselaw established that delay
can make state processes ineffective, the operative text regarding
the absence or ineffectiveness of state corrective processes is iden-
tical. Compare 28 U.S.C. § 2254(b)(1)(B)(i)–(ii), with 28 U.S.C.
§ 2254(b) (1966).
“When a federal habeas petition raises a claim that has not
been exhausted in state proceedings, the district court ordinarily
must either dismiss the petition . . . or grant a stay and abeyance to
allow the petitioner to exhaust the unexhausted claim.” Ogle v.
1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc), this
Court adopted as binding precedent all of the decisions of the former Fifth
Circuit handed down prior to the close of business on September 30, 1981.
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22-13358 Opinion of the Court 5
Johnson, 488 F.3d 1364, 1370 (11th Cir. 2007) (citations omitted).The
Supreme Court has held that a district court abuses its discretion
when it dismisses instead of staying “a mixed petition if the peti-
tioner 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.”
Rhines, 544 U.S. at 278. “[I]f . . . 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. The district court
is required to consider the Rhines factors. See Thompson v. Sec’y for
Dep’t of Corr., 425 F.3d 1364, 1366 (11th Cir. 2005).
The district court erred in concluding that all of Thomas’s
claims were unexhausted and dismissing his petition. First,
Thomas may have exhausted a number of claims on direct appeal.2
He is not required to complete an additional round of state habeas
review for any claim raised on direct appeal. Second, while
Thomas’s remaining claims are unexhausted, there is an issue of
whether delays in processing Thomas’s refiled state habeas (filed
on December 17, 2021) might be deemed to excuse exhaustion. See
Rheuark, 540 F.2d at 1283; Breazeale, 582 F.2d at 6. The delay since
December 17, 2021, was not addressed by the district court and
2 It is unclear whether Thomas raised the same claims in his second direct ap-
peal because the record is incomplete. On remand, the district court should
ascertain which claims have been exhausted.
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6 Opinion of the Court 22-13358
should be addressed by the district court in the first instance. Third,
even if exhaustion of Thomas’s remaining claims is required, the
district court abused its discretion by failing to consider whether to
stay (as opposed to dismissing without prejudice) and in failing to
address the Rhines requirement with respect to a petitioner’s op-
portunity to dismiss his unexhausted claims. See Rhines, 544 U.S.
at 278; Thompson, 425 F.3d at 1366.
For the foregoing reasons, the judgment of the district court
is vacated and remanded to the district court for further proceed-
ings not inconsistent with this opinion.3
VACATED AND REMANDED.
3 Thomas’s Motion for the Court to Order the State to File Relevant Tran-
scripts and Court Records is DENIED.
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