440 F. App'x 751
11th Cir.2011Background
- Hafez, a Georgia prisoner, filed a pro se §2254 petition after state habeas proceedings.
- The district court dismissed for failure to exhaust state remedies, citing lack of CPC filing.
- An evidentiary hearing was held Feb. 18, 2009; the state court indicated it planned to deny the petition.
- Hafez filed federal habeas petition on April 8, 2009, during state proceedings.
- The Eleventh Circuit granted a COA on whether Rule 40 and Pope required CPC exhaustion and whether district court erred.
- A later state habeas order denied relief; Hafez filed a CPC with the Georgia Supreme Court, which was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion via CPC under Pope and Rule 40 | Hafez complied with exhaustion by timely CPC filing. | District court correctly found no CPC timely filed. | Remanded; court must resolve CPC filing issue before underlying claims. |
Key Cases Cited
- Pope v. Rich, 358 F.3d 852 (11th Cir. 2004) (establishes exhaustion via CPC with Georgia Supreme Court)
- Murray v. United States, 145 F.3d 1249 (11th Cir. 1998) (the court will construe COA to encompass necessary procedural issues)
- McCoy v. United States, 266 F.3d 1245 (11th Cir. 2001) (limits scope of issues under COA to those specified)
- Soliman v. United States, 296 F.3d 1237 (11th Cir. 2002) (mootness and exhaustion-related questions when CPC denied)
- Nelson v. Schofeld, 371 F.3d 768 (11th Cir. 2004) (standard of review for habeas denial findings)