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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-11210
Non-Argument Calendar
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D.C. Docket No. 6:16-cv-01258-PGB-TBS
JORGE NIEVES, JR.,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 6, 2019)
Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Jorge Nieves, Jr., a Florida prisoner proceeding pro se, appeals the district
court’s denial of his 28 U.S.C. § 2254 petition. We granted a certificate of
appealability (“COA”) on the issue of whether the district court erred in dismissing
Nieves’s Claim 5, in which he argued that his counsel was ineffective for failing to
request a “stand-your-ground” hearing, on the grounds that it was unexhausted and
procedurally defaulted.
We review mixed questions of fact and law de novo and findings of fact for
clear error. Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000). Whether a
petitioner exhausted state court remedies is a mixed question of law and fact,
which we review de novo. Fox v. Kelso, 911 F.2d 563, 568 (11th Cir. 1990). Pro
se pleadings are held to a less stringent standard than those drafted by attorneys
and are, thus, liberally construed. Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998).
Before bringing a habeas action in federal court, the petitioner must exhaust
all state court remedies that are available for challenging his conviction. 28 U.S.C.
§ 2254(b), (c). A failure to exhaust occurs “when a petitioner has not fairly
presented every issue in his federal petition to the state’s highest court, either on
direct appeal or on collateral review.” Pope v. Sec’y for Dep’t of Corr., 680 F.3d
1271, 1284 (11th Cir. 2012) (quotation marks and brackets omitted).
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“In Florida, exhaustion usually requires not only the filing of a [Fla. R.
Crim. P.] 3.850 motion, but an appeal from its denial.” Leonard v. Wainwright,
601 F.2d 807, 808 (11th Cir. 1979). Rule 3.850 requires the state court to
determine whether an evidentiary hearing is required or whether the motion may
be denied without a hearing. See Fla. R. Crim. P. 3.850(f).
To exhaust a claim, it is not sufficient that the petitioner has been through
the state courts or that all the facts necessary to support his claim were before the
state courts. Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1343-44 (11th Cir.
2004). Rather, the petitioner must have “afford[ed] the state courts a meaningful
opportunity to consider the allegations of legal error.” Pope, 680 F.3d at 1286
(quotation marks and brackets omitted). The claim will be exhausted as long as the
substance of the claim was presented to the state courts, “despite variations in
the . . . factual allegations urged in its support.” Id. (quotation marks omitted). We
have determined that courts should use “flexibility in determining whether
defendants have met the exhaustion requirement.” Id. (quotation marks and
brackets omitted). Thus, even if there is variation between them, the issue remains
exhausted if the federal claim’s legal basis and specific factual foundation is the
same as it was presented in the state court. Id.; see also Henry v. Dep’t of Corr.,
197 F.3d 1361, 1367 (11th Cir. 1999) (“The exact presentation of the claims in the
state and federal courts may vary some.”).
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In Henry, the petitioner raised two ineffective-assistance-of-counsel claims
in a Rule 3.850 motion that was denied by the state court. 197 F.3d at 1363. The
petitioner appealed the denial of his Rule 3.850 motion, characterizing the issue as
whether the trial court erred in denying his motion without an evidentiary hearing.
Id. He then filed a § 2254 petition in federal court, raising the same ineffective-
assistance-of-counsel claims. Id.
We noted that Florida state procedures made it appropriate for a petitioner to
request an evidentiary hearing before requesting a new trial, making “the
difference between a request for an evidentiary hearing in state court and a request
for a federal writ under § 2254 (in practical effect here, a request for a new trial)”
insufficient to “render a petitioner’s constitutional claims unexhausted.” Id. at
1367. Thus, we determined, in relevant part, that the petitioner had exhausted his
ineffective-assistance-of-counsel claims because “a request for an evidentiary
hearing on ineffective-assistance-of-counsel claims is plainly enough an argument
that the petitioner [had] evidence to show his entitlement to a new trial.” Id.
Specifically, we determined that the “difference between a request for an
evidentiary hearing and a request for more substantial relief, both premised on the
same constitutional claim, is not material to the exhaustion inquiry.” Id. We also
noted that if Florida procedure required more of a petitioner in a Rule 3.850
motion, then a request for an evidentiary hearing alone might not be enough to
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exhaust his claims. Id. at 1368. But, because Florida’s Rule 3.850 provided that
the trial judge determined how much procedural attention a Rule 3.850 motion
warrants, the petitioner was not required to be more specific in his request for relief
in his post-conviction motion to exhaust his claims. Id.
A district court reviewing an unexplained state-court decision on the merits
should “look through” that decision to the last related state-court decision that
provides a relevant rationale and presume that the unexplained decision adopted
the same reasoning. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The state
may rebut this presumption by showing that the unexplained decision most likely
relied on different grounds than the reasoned decision below. Id.
The district court erred in dismissing as unexhausted and procedurally
defaulted Nieves’s claim that his counsel was ineffective for failing to request a
hearing on his stand-your-ground motion. Specifically, while Nieves characterized
this claim on appeal from the state court’s denial of his Rule 3.850 post-conviction
motion raising the same claim as the state court’s error in failing to order an
evidentiary hearing on his counsel’s ineffectiveness, our decision in Henry, 197
F.3d at 1367-68, compels our conclusion that Nieves’s characterization of his
claim to the state appellate court was sufficient to exhaust Claim 5 which Nieves
now brings in federal court. In other words, the same constitutional claim was
fairly presented and exhausted in state court. Moreover, the record demonstrates
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that the state trial and appellate courts were both afforded a meaningful
opportunity to consider Nieves’s allegations of error.
VACATED AND REMANDED. 1
1
Nieves’ motion to strike portions of the Appellees’ brief is DENIED.
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