[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-16271 March 22, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00210 CV-CAR-5
JOHN HART,
Petitioner-Appellant,
versus
VICTOR WALKER,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(March 22, 2006)
Before ANDERSON, DUBINA and HILL, Circuit Judges.
PER CURIAM:
The magistrate judge dismissed the instant habeas petition in a report and
recommendation which provided only “that petitioner’s claims have never been
reviewed on direct appeal or by a state habeas court since petitioner’s direct appeal
merely challenged the trial court’s denial of his motion to withdraw his guilty
plea.” The district court adopted the recommendation, and entered judgment
dismissing. Hart appeals. This court granted a certificate of appealability on the
following issue only: whether the district court erred in dismissing without
prejudice appellant’s 28 U.S.C. § 2254 petition for failure to exhaust state
remedies.
The court below apparently accepted the respondent’s argument that a direct
appeal from a denial of a motion to withdraw a guilty plea cannot exhaust the
claims thus litigated. As respondent now concedes on appeal, the court below
erred in this regard. It is apparent that at least some of petitioner’s claims were
fully exhausted in the litigation before the state trial court with respect to
petitioner’s attempt to withdraw his guilty plea, and it is also apparent that at least
some of petitioner’s claims were fairly presented to the state appellate court, thus
fully exhausting same. We decline to undertake ourselves to parse the litigation
before the state trial court in connection with the withdrawal proceedings or the
appeal therefrom to determine which of petitioner’s instant claims have been fully
exhausted, and which perhaps have not. We prefer for the district court to
undertake that analysis in the first instance.
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Accordingly, the judgment of the district court is vacated and the case is
remanded for further proceedings not inconsistent with this opinion. If on remand,
the district court concludes that this is a mixed petition (i.e., containing both
exhausted and unexhausted claims), then petitioner shall have the option to decide
whether to dismiss with prejudice any unexhausted claims and continue forthwith
to litigate the exhausted claims in federal court. If petitioner elects to attempt to
exhaust such unexhausted claims in state court, then, the district court shall
consider the factors set out in Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528
(2005), to determine whether to stay the instant petition and hold it in abeyance
pending exhaustion, or whether to dismiss the mixed petition without prejudice.
VACATED AND REMANDED.
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