Maiker Vazquez v. Secretary, Florida Department of Corrections, 827 F.3d 964

In 2001 Vazquez participated in a drug transaction that resulted in another participant's death; he was charged in Florida with first-degree murder, attempted first-degree murder, and attempted kidnapping with a firearm.
At trial a detective testified that Jackie Gonzalez (an acquaintance of Vazquez) told him about a plan by Vazquez and a co-defendant to kidnap the victim; Gonzalez did not testify and defense counsel objected and sought a mistrial; the court denied mistrial and instructed the jury to disregard the comment.
The jury convicted Vazquez of second-degree murder and attempted kidnapping; he was sentenced to concurrent terms totaling 38 years and unsuccessfully appealed in Florida state courts and sought postconviction relief.
Vazquez filed a § 2254 habeas petition in federal district court asserting, inter alia, a Confrontation Clause (Sixth Amendment) violation based on the detective's hearsay testimony.
In the district court the State expressly conceded that Vazquez had exhausted his state remedies and argued the merits; nonetheless the district court sua sponte concluded Vazquez had not exhausted and denied habeas relief; Vazquez appealed.
The Eleventh Circuit held the State had expressly waived the exhaustion defense (its concession was a deliberate legal position, not an inadvertent factual mistake) and the district court erred in rejecting that waiver; the case was vacated and remanded for consideration of the merits.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State waived the exhaustion requirement for a § 2254 claim by conceding exhaustion and addressing the merits	Vazquez argued the State explicitly conceded exhaustion in its district-court filing, so exhaustion was waived and the federal court should decide the merits	State initially conceded exhaustion but later claimed that concession was an inadvertent mistake and thus not an express waiver	The Eleventh Circuit held the State expressly waived exhaustion (a deliberate legal choice), so the district court erred by sua sponte finding non-exhaustion and dismissing the petition
Whether the district court may sua sponte raise exhaustion despite an express state waiver	Vazquez argued the court should accept the State's waiver and reach the merits	The State later argued the concession was mistaken and the court should treat the claim as unexhausted	Court held that absent important federal interests or Thompson factors favoring rejection of waiver, the district court should not override an express waiver; no such justification was found

Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317 (11th Cir. 2004) (exhaustion required for § 2254 petitions)
McNair v. Campbell, 416 F.3d 1291 (11th Cir. 2005) (exhaustion requires presenting same claim to state courts)
Picard v. Connor, 404 U.S. 270 (1971) (definition of fair presentation/exhaustion)
O’Sullivan v. Boerckel, 526 U.S. 838 (1999) (failure to exhaust can cause procedural default)
Mauk v. Lanier, 484 F.3d 1352 (11th Cir. 2007) (standard of review for exhaustion determinations)
Hills v. Washington, 441 F.3d 1374 (11th Cir. 2006) (states may waive procedural defenses including exhaustion)
Esslinger v. Davis, 44 F.3d 1515 (11th Cir. 1995) (district court may accept state waiver only when appropriate considering federal interests)
Thompson v. Wainwright, 714 F.2d 1495 (11th Cir. 1983) (factors a court may consider in accepting/rejecting a state's exhaustion waiver)
Day v. McDonough, 547 U.S. 198 (2006) (district courts may raise statute-of-limitations sua sponte when state's concession was inadvertent)
Wood v. Milyard, 132 S. Ct. 1826 (2012) (courts should not sua sponte raise defenses when the State deliberately refrained from asserting them)
Vazquez v. State, 8 So. 3d 432 (Fla. Dist. Ct. App. 2009) (state appellate denial of relief on direct appeal)