                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT            FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 08-13700                   MAR 18, 2009
                          Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                        ________________________

                   D. C. Docket No. 07-00683-CV-CAP-1

WILLIAM DORSEY, JR.,

                                                           Petitioner-Appellant,

                                   versus

FRED BURNETTE,
Warden,

                                                         Respondent-Appellee.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                              (March 18, 2009)

Before BIRCH, HULL and FAY, Circuit Judges.

PER CURIAM:
       William Dorsey, a Georgia state prisoner proceeding pro se, appeals the

denial of his petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254. For

the reasons set forth below, we affirm.

                                     I. BACKGROUND

Before the state courts1

       Dorsey was charged with burglary, child molestation, aggravated child

molestation, rape, kidnaping, false imprisonment, pimping, theft by taking, and

statutory rape based on alleged acts with a 13-year-old girl, “T.H.” At a jury trial,

the state presented the following evidence:

       [I]n June 2002, T.H. ran away from home with a 30-year-old
       acquaintance, Jason Mobuary. The two checked into a room at the
       Western Inn Suites in Forest Park. [Shortly thereafter, Mobuary was
       arrested and jailed, and T.H. remained in the hotel room alone.] On
       June 19, 2002, Dorsey knocked on the hotel room door. When T.H.
       opened the door, Dorsey pushed his way into the room, pushed T.H.
       onto the bed, put his hand over her mouth, removed her clothes, and
       forced her to have sexual intercourse with him and to perform oral sex
       on him.



       1
          The trial and direct-appeal facts recounted below come from the state court of appeals’
opinion affirming Dorsey’s relevant convictions. Neither party submitted on appeal a record of
the state criminal proceedings, but relied instead on the facts recounted in the state court of
appeals’ opinion. Because Dorsey relies on these facts and, therefore, has not met his burden to
rebut their presumptive correctness, we also will rely on these facts. See 28 U.S.C. § 2254(e)(1)
(“In a proceeding instituted by an application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a determination of a factual issue made by a State
court shall be presumed to be correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.”) The post-conviction facts
recounted below are gleaned from exhibits submitted by the state.

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      T.H. occupied the hotel room with Dorsey until July 5, 2002. She did
      not leave the room unless accompanied by him because he threatened
      to kill her, and she was never left alone in the room. When T.H. left
      the hotel room on July 5, 2002, she was seen by a family friend who
      called police and took her to the police station, where T.H. told
      Detectives Purvis and Henry about Dorsey’s actions and selected
      Dorsey out of a photographic lineup.

      [In response to this evidence], Dorsey denied ever touching T.H.
      Dorsey’s girlfriend, Colette Palmer, testified that she and Dorsey
      stayed at the Western Inn Suites for two months until they checked
      out on June 11, 2002. Palmer further testified that Dorsey dropped
      her off at work every day at 8:00 a.m., met her for lunch at 12:00 p.m.,
      and then returned to pick her up at 5:00 p.m. According to Palmer, on
      July 4, 2002, she and Dorsey spent the entire day together hosting a
      barbecue at their apartment.

Dorsey v. State, 593 S.E.2d 945, 946-47 (Ga. Ct. App. 2004).

      Based on this evidence, the jury convicted Dorsey of child molestation,

aggravated child molestation, and statutory rape. Id. The state trial court

sentenced Dorsey to 20 years’ imprisonment for each of his convictions, with the

terms imposed for the child molestation and aggravated child molestation

convictions to be served concurrently. Id.

      Dorsey appealed his convictions and sentences, arguing that “the evidence

was insufficient to support his convictions and that the trial court erred in failing to

merge his conviction of child molestation into his conviction for statutory rape.”

Id. The state court of appeals affirmed as to the sufficiency argument, noting that

T.H.’s testimony supported his convictions, and accepted the merger argument,

                                            3
noting that T.H. testified to one act of sexual intercourse, which formed the basis

for the statutory rape and child molestation charges, and one act of oral sex, which

formed the basis for the aggravated child molestation charge. Id. at 947-48. The

state appellate court vacated Dorsey’s conviction and sentence for child

molestation. Id. at 947.

      Dorsey filed a pro se state habeas petition, arguing, inter alia, that the

evidence was insufficient to support his convictions because T.H. testified that the

alleged sexual conduct involved “force” and, under Georgia state law, statutory

rape and aggravated child molestation applied to consensual acts only. The state

habeas court denied the petition, reasoning that the state appellate court previously

held that Dorsey’s convictions were supported by sufficient evidence. Dorsey filed

an application for a Certificate of Probable Cause to appeal the state habeas court’s

denial to the state supreme court, which the state supreme court denied.

Before the district court

      Dorsey filed the instant pro se § 2254 petition, arguing, inter alia, that the

evidence was insufficient to support his convictions because (1) T.H.’s testimony

was not credible and (2) T.H. testified that the alleged sexual conduct involved

“force” and, under Georgia state law, statutory rape and aggravated child

molestation applied to consensual acts only. The state responded that the state



                                           4
appellate court previously held that Dorsey’s convictions were supported by

sufficient evidence. A magistrate judge recommended denying Dorsey’s § 2254

petition, reasoning that (1) the state court of appeals correctly determined that

T.H.’s testimony, when coupled with her prior consistent statements to police

officers, was sufficient to support Dorsey’s convictions and (2) elements of force,

consent, and resistance were irrelevant to determining guilt of statutory rape. The

district court adopted and affirmed without opinion the magistrate judge’s report

and recommendation. Dorsey filed a motion for reconsideration, which the district

court denied.

      Dorsey filed a motion for a certificate of appealability (“COA”), which the

district court denied. This Court ultimately granted a COA on the limited issue of

“Whether, in light of the jury’s verdict on the charge of forcible rape, there was

sufficient evidence to convict appellant of statutory rape and aggravated child

molestation.” In granting the COA, this Court explained that:

      [V]iewing the evidence in the light most favorable to the prosecution,
      a rational trier of fact could have found that the evidence established
      that the appellant committed the offenses of statutory rape and
      aggravated child molestation. . . . However, the only evidence
      supporting these changes was the victim’s testimony that the appellant
      forcibly raped and sodomized her. Because the jury acquitted
      appellant on the forcible rape charge, it apparently found that any
      sexual contact between appellant and the victim was consensual. No
      evidence was presented at trial to support such a finding.



                                           5
                                   II. DISCUSSION

Whether the issues presented on appeal are properly before us

       The state argues on appeal that it is not clear whether the district court ever

considered the certified issue. Indeed, the COA broadly concerns whether the

evidence was sufficient to support Dorsey’s convictions for statutory rape and

aggravated child molestation. However, given the reasoning included with the

certified issue, it appears that it actually concerns whether the jury, in rejecting

T.H.’s testimony that Dorsey forcibly raped her, necessarily rejected her entire

testimony, such that there remained no other evidence on which to base the

statutory-rape and aggravated-child-molestation convictions. While Dorsey

addressed the broad issue, he never raised this more-narrow issue before the state

courts or the district court.

       Regarding state court exhaustion, 28 U.S.C. § 2254(b) and (c) generally

requires that a defendant exhaust all state court remedies that are available for

challenging his conviction, either on direct appeal or in a state post-conviction

motion. However, pursuant to 28 U.S.C. § 2254(b)(2), “[a]n application for a writ

of habeas corpus may be denied on the merits, notwithstanding the failure of the

applicant to exhaust the remedies available in the courts of the State.” Likewise,

the Supreme Court has held that failure to exhaust state remedies does not deprive



                                            6
an appellate court of jurisdiction to consider the merits of a habeas issue.

Granberry v. Greer, 481 U.S. 129, 131, 107 S.Ct. 1671, 1673-74, 95 L.Ed.2d 119

(1987). The Supreme Court held that, rather, the appellate court should determine

whether the interests of comity and federalism will be better served by addressing

the merits of the issue or requiring additional state and district court proceedings.

Id. at 133-34, 107 S.Ct. at 1674-75. The Supreme Court specifically suggested that

a lack of merit might be a reason to consider an un-exhausted issue. See id. at

133, 107 S.Ct. at 1674. Regarding presentation to the district court, we have

discretion to address issues erroneously included in a COA. See Thomas v.

Crosby, 371 F.3d 782, 784 (11th Cir.2004) (holding that an erroneously issued

COA does not deprive us of appellate jurisdiction); Putman v. Head, 268 F.3d

1223, 1228 (11th Cir. 2001) (holding that, given an erroneous COA, we may retain

jurisdiction and rule on any issues raised by the petitioner that it deems worthy of a

COA).

      Although the certified issue was not exhausted or presented to the district

court, it was addressed by Dorsey pro se on appeal and lacks merit, as discussed

below, such that requiring further proceedings by the state courts and district court

would waste judicial resources. Accordingly, we will exercise our discretion to

address whether the jury necessarily rejected all of T.H.’s testimony, such that



                                           7
there was insufficient evidence to convict Dorsey of statutory rape and child

molestation. See Granberry, 481 U.S. at 131, 107 S.Ct. at 1673-741; Thomas, 371

F.3d 784; Putman, 268 F.3d at 1228.

      On a related note, it is not clear whether Dorsey has limited his appellate

arguments to the certified issue. Generally, our scope of review is limited to the

issues specified in the COA. Murray v. United States, 145 F.3d 1249, 1250-51

(11th Cir. 1998). On appeal, Dorsey touches upon the more-narrow COA issue

described above. However, Dorsey also continues to argue that the evidence was

insufficient to support his convictions because T.H. testified that the alleged sexual

conduct involved “force” and, under Georgia state law, statutory rape and

aggravated child molestation applied to consensual acts only. The latter argument

appears outside the scope of the more-narrow issue. See id. However, it appears

within the broad issue of whether sufficient evidence supported Dorsey’s

convictions. Accordingly, because the COA is broad and Dorsey is a pro se

petitioner, we also will address whether the state court had to prove that T.H.

consented to the sexual conduct and oral sex.

Whether the evidence was sufficient to support Dorsey’s convictions

      We review de novo questions of law and mixed questions of law and fact.




                                           8
Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000).2 Pursuant to § 2254,

       An application for a writ of habeas corpus on behalf of a person in
       custody pursuant to the judgment of a State court shall not be granted
       with respect to any claim that was adjudicated on the merits in State
       court proceedings unless the adjudication of the claim -

               (1) resulted in a decision that was contrary to, or involved
               an unreasonable application of, clearly established
               Federal law, as determined by the Supreme Court of the
               United States; or

               (2) resulted in a decision that was based on an
               unreasonable determination of the facts in light of the
               evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1) and (2).

       Under this standard, a state court decision is “contrary to” clearly established

federal law “if either (1) the state court applied a rule that contradicts the governing

law set forth by Supreme Court case law, or (2) when faced with materially

indistinguishable facts, the state court arrived at a result different from that reached

in a Supreme Court case.” Putman, 268 F.3d at 1241. A state court conducts an

“unreasonable application” of clearly established federal law “if it identifies the


       2
         In the event that we decide to review the merits of an issue that was not exhausted
before the state courts, we review the case de novo, analyzing whether the Supreme Court has
prohibited the complained-of action. See Thompson v. Sec’y for Dep’t of Corr., 517 F.3d 1279,
1283-84 (11th Cir.), petition for cert. filed (U.S. Sept. 26, 2008) (No. 08-7369) (reviewing the
merits of the petitioner’s unexhausted claim that his prolonged confinement on death row
violated his constitutional rights and affirming the denial of the petition “given the total absence
of Supreme Court precedent that a prolonged stay on death row violates the Eighth Amendment
guarantee against cruel and unusual punishment”).


                                                  9
correct legal rule from Supreme Court case law but unreasonably applies that rule

to the facts of the petitioner’s case” or if it “unreasonably extends, or unreasonably

declines to extend, a legal principle from Supreme Court case law to a new

context.” Id. “[A]n ‘unreasonable application’ is an ‘objectively unreasonable’

application.” Id. Indeed, the question is not whether the state “correctly” decided

the issue, but whether its determination was “reasonable,” even if incorrect. See

Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002).

      The Supreme Court has held, in the context of a state prisoner’s challenge of

the sufficiency of the evidence, that the “critical inquiry” is “whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560

(1979), overruled on other grounds by Schlup v. Delo, 513 U.S. 298, 115 S.Ct.

851, 130 L.Ed.2d 808 (1995). The Supreme Court also held that this standard

“must be applied with explicit reference to the substantive elements of the criminal

offense as defined by state law.” Id. at 324 n.16, 99 S.Ct. at 2792 n.16.

      Pursuant to Georgia state law, a person commits statutory rape “when he or

she engages in sexual intercourse with any person under the age of 16 years and

not his or her spouse, provided that no conviction shall be had for this offense on



                                           10
the unsupported testimony of the victim.” O.C.G.A. § 16-6-3(a). A person

commits aggravated child molestation “when he or she does any immoral or

indecent act to or in the presence of or with any child under the age of 16 years

with the intent to arouse or satisfy the sexual desires of either the child or the

person[,]” and the “act physically injures the child or involves an act of sodomy.”

O.C.G.A. § 16-6-4(a), (c). A person commits sodomy when he or she “performs or

submits to any sexual act involving the sex organs of one person and the mouth or

anus of another.” O.C.G.A. § 16-6-2.

      In Strickland v. State, 61 S.E.2d 118, 120 (Ga. 1950), the Georgia Supreme

Court held that the precursor to the modern statutory-rape statute “was intended to

apply only to cases where the act of intercourse was accomplished with the actual

consent or acquiescence of the female, and is to be treated as rape merely because

the female is under the age of consent as therein specified.” 61 S.E.2d at 120. The

Georgia Supreme Court since has held, however, that “considerations of ‘consent'

and ‘force’ and ‘against her will' are irrelevant in a statutory rape case.” Hill v.

State, 271 S.E.2d 802, 807 (Ga. 1980). Indeed, a Georgia appellate court has

affirmed a statutory-rape conviction based, in part, on evidence that a “nurse’s

examination showed [that] the victim [ in question] exhibited physical signs

consistent with recent forced vaginal intercourse.” Northern v. State, 645 S.E.2d



                                           11
701, 704 (Ga. Ct. App. 2007) (emphasis added). Likewise, a Georgia appellate

court has affirmed an aggravated-child-molestation conviction based, in part, on

the “[t]estimony of [an] 11-year old victim that [the] defendant had fondled and

performed oral sex on him, and forced the victim to reciprocate in performing oral

sex on defendant.” Spradlin v. State, 587 S.E.2d 155, 158 (Ga. App. Ct. 2003)

(emphasis added). Finally, pursuant to Georgia law, “the jury [is free to] believe a

part of a witness’s testimony and discredit other parts.” Moore v. State, 661 S.E.2d

868, 869-70 (Ga. Ct. App. 2008).

      Based on the applicable statutes, in order to convict Dorsey of statutory rape

of T.H., the state had to prove that Dorsey and T.H. had sexual intercourse and that

T.H. was less than 16 years old and not married to Dorsey. See O.C.G.A. § 16-6-

3(a). In order to convict Dorsey of aggravated child molestation, the state had to

prove that Dorsey received oral sex from T.H. and that T.H. was less than 16 years

old. See O.C.G.A. §§ 16-6-2, 16-6-4(a), (c). Dorsey does not dispute that T.H.

was less than 16 years old and not married to him. Rather, Dorsey first disputes

whether, in light of the jury’s rejection of T.H.’s testimony that she was forcibly

raped, there was no other evidence that he had sexual intercourse with T.H.

Dorsey, however, can identify no case in which the Supreme Court has held that a

jury’s rejection of an element of a witness’s testimony constitutes a rejection of



                                          12
other elements of the witness’s testimony. Indeed, it appears that the jury was free

to reject that portion of T.H.’s testimony that spoke to “force” being used and

nonetheless accept that portion of T.H.’s testimony that spoke to she and Dorsey

having sexual intercourse and she performing oral sex on Dorsey.

      Dorsey also disputes whether the state had to prove that T.H. consented to

the sexual conduct and oral sex. The state habeas court’s rejection of Dorsey’s

sufficiency argument was not contrary to clearly established federal law. See

Putman, 268 F.3d at 1241. The Supreme Court has held that sufficiency arguments

rely on the state law definition of the elements of a crime, and Georgia state law

does not require that a state prove consent to convict a defendant of statutory rape

or aggravated child molestation. See Jackson, 443 U.S. at 318-19, 99 S.Ct. at

2788-89; Northern, 645 S.E.2d at 704; Spradlin, 587 S.E.2d at 158. Accordingly,

because each of Dorsey’s arguments are without merit, we affirm.

      AFFIRMED.




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