               Case: 15-10321       Date Filed: 07/01/2016     Page: 1 of 8


                                                                               [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 15-10321
                             ________________________

                         D.C. Docket No. 1:12-cv-22307-JEM

MAIKER VAZQUEZ,

                                                       Petitioner - Appellant,

versus

SECRETARY,
FLORIDA DEPARTMENT OF CORRECTIONS,

                                                       Respondent - Appellee.

                             ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           ________________________


                                      (July 1, 2016)



Before MARCUS, DUBINA and MELLOY, ∗ Circuit Judges.

MELLOY, Circuit Judge:



∗
  Honorable Michael J. Melloy, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
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       State prisoner Maiker Vazquez appeals from the district court’s denial of his

petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. In his

petition, Vazquez claimed that the state trial court erred by admitting hearsay

evidence in violation of his rights under the Sixth Amendment’s Confrontation

Clause. The district court found sua sponte that Vazquez was procedurally barred

from bringing this claim because he had not exhausted available state court

remedies. Because we find that the state waived exhaustion, we vacate the district

court’s order and remand for a decision on the merits of Vazquez’s claim.


                                       I. Background


       In 2001, Vazquez was involved in a drug deal which resulted in the death of

another participant. As a result, the State of Florida charged Vazquez with first-

degree murder, attempted first-degree murder, and attempted kidnaping with a

firearm. During Vazquez’s jury trial, a detective testified for the state about the

murder investigation.         In response to a question on cross examination by

Vazquez’s attorney, the detective indicated that Jackie Gonzalez, an acquaintance

of Vazquez, told him about a plan between Vazquez and his co-defendant to

kidnap the victim. Defense counsel objected to the detective’s answer and moved

for a mistrial. The trial court denied the motion and directed the jury to “disregard

that last comment . . . it was not responsive to the question.” Gonzalez did not

testify at trial.
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       Ultimately, the jury convicted Vazquez of second-degree murder and

attempted kidnaping. On August 3, 2007, the trial court sentenced Vazquez to 38

years in prison on the second-degree murder charge to be served concurrently with

a term of 15 years in prison on the attempted kidnaping charge. Vazquez appealed

his conviction to Florida’s Third District Court of Appeal. The state appellate

court denied relief. Vazquez v. State, 8 So. 3d 432, 434 (Fla. Dist. Ct. App. 2009).

Vazquez also sought and was denied state postconviction relief.


       Vazquez then filed the instant habeas corpus petition in the United States

District Court for the Southern District of Florida on June 21, 2012. Vazquez

alleged a number of issues, including ineffective assistance of counsel and a

violation of his rights under the Sixth Amendment’s Confrontation Clause. In

response, the state presented arguments as to the merits of Vazquez’s claims and

expressly conceded that Vazquez had satisfied the exhaustion requirement. 1 The

district court, adopting a magistrate judge’s report and recommendation, concluded

sua sponte that Vazquez had not exhausted his Confrontation Clause claim in the

state courts. The district court, therefore, denied Vazquez’s habeas petition. The




1
  Specifically, before the district court, the state noted: “The Claims of the subject petition have
been raised at the state level by way of Petitioner’s direct appeal and motion for post conviction
relief. The denial [sic] of the claims were appealed and affirmed. Thus, the claims were fairly
presented to the state court and are exhausted.” Response to Order to Show Cause at 13–14,
Vazquez v. Sec’y Fla. Dep’t of Corr., 12-cv-22307-JEM (S.D. Fla. Sept. 14, 2012).
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district court granted Vazquez a Certificate of Appealability as to his Confrontation

Clause claim.


      On appeal, Vazquez makes two alternative arguments regarding exhaustion:

(1) the state waived its exhaustion defense by conceding that Vazquez had

exhausted his state remedies and addressing the claims on the merits; and (2)

Vazquez exhausted his state remedies by identifying his Confrontation Clause

claim in a state court brief.


                                    II. Discussion


      Generally, in order to bring a § 2254 habeas corpus petition in federal court,

a petitioner must exhaust all state court remedies. Kelley v. Sec’y for Dep’t of

Corr., 377 F.3d 1317, 1343 (11th Cir. 2004); 28 U.S.C. § 2254(b)(1)(A). The

exhaustion requirement is satisfied when the petitioner “present[s] the state courts

with the same claim he urges upon the federal courts.” McNair v. Campbell, 416

F.3d 1291, 1302 (11th Cir. 2005) (quoting Picard v. Connor, 404 U.S. 270, 275

(1971)). If a petitioner fails to exhaust his federal habeas claims in state court, the

result is procedural default, which bars habeas relief. O’Sullivan v. Boerckel, 526

U.S. 838, 848 (1999). Whether a claim has been properly exhausted is “a mixed

question of law and fact that we review de novo.” Mauk v. Lanier, 484 F.3d 1352,



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1357 n.3 (11th Cir. 2007) (citing Fox v. Kelso, 911 F.2d 563, 568 (11th Cir.

1990)).


      “[S]tates can waive procedural bar defenses in federal habeas proceedings,”

including exhaustion. Hills v. Washington, 441 F.3d 1374, 1376 (11th Cir. 2006)

(per curiam).    However, a state’s mere “failure to raise exhaustion does not

constitute a waiver under AEDPA, which mandates that ‘[a] State shall not be

deemed to have waived the exhaustion requirement . . . unless the State, through

counsel, expressly waives the requirement.’” McNair, 416 F.3d at 1304 (emphasis

added) (quoting 28 U.S.C. § 2254(b)(3)). Where a state waives exhaustion, the

district court may consider the procedural bar sua sponte if “requiring the

petitioner to return to state court to exhaust his claims serves an important federal

interest.” Esslinger v. Davis, 44 F.3d 1515, 1524 (11th Cir. 1995). In Thompson

v. Wainwright, the Eleventh Circuit discussed several factors a district court may

consider in exercising its discretion to accept or reject a state’s exhaustion waiver,

including:


      whether extensive or minimal fact finding is involved or only
      questions of law on an already adequate record and, if fact finding is
      involved, whether it may be done as part of a federal hearing required
      on other issues[;] . . . how long since petitioner’s conviction and
      sentence were imposed, how long state exhaustion will require, and
      the comparative status of the dockets of federal and state courts[; and]
      . . . whether there are fundamental state policies at stake in the case or
      threshold issues of undecided state law.

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714 F.2d 1495, 1509 (11th Cir. 1983).


      The United States Supreme Court has examined whether waivers are

effective in the habeas context with regard to the statute of limitations. In Day v.

McDonough, the Court determined that a district court was permitted to raise sua

sponte a statute-of-limitations defense because the state had inadvertently

concluded the petition was timely and, thus, had not expressly waived the defense.

547 U.S. 198, 211 (2006). The Court attributed the state’s failure to address the

defense to “an inadvertent error, a miscalculation” of the statute-of-limitations

period. Id. By contrast, in Wood v. Milyard, the Supreme Court found a court of

appeals abused its discretion by sua sponte considering a timeliness issue when the

state had “deliberately steered the District Court away from the question and

towards the merits of [the] petition.” 132 S. Ct. 1826, 1835 (2012). In other

words, “the State knew it had an ‘arguable’ statute of limitations defense,” but

chose not to pursue it. Id.


      On appeal, the state now claims its statement as to exhaustion, supra note 1,

was an inadvertent mistake of fact and was not intended to expressly waive the

exhaustion requirement. Based on our review of the state’s district court brief, we

presume that the state examined the state court record and, in doing so,

affirmatively concluded it need not pursue an exhaustion defense. Unlike Day, the

state’s conclusion in the present case that Vazquez had exhausted his remedies did
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not rely on a mistake of fact. If anything, the state’s understanding of the law

relating to the exhaustion requirement led to the conclusion that, correctly or not,

pursuing the exhaustion defense would be without merit.2 Therefore, we conclude

the state was aware of the exhaustion arguments and communicated to the court its

intention not to pursue them. See Wood, 132 S. Ct. at 1835. Thus, we conclude

the state expressly waived exhaustion.


       Further, in considering the exhaustion issue sua sponte, the district court did

not point to any “important federal interest” or Thompson factors that required a

rejection of the state’s waiver. Instead, the district court purported to “correct” the

state’s mistake of fact by dismissing Vazquez’s claim as procedurally barred. As

we indicated above, to the extent a mistake may have occurred, the state’s

exhaustion waiver is more accurately characterized as a mistake of law.

Accordingly, the district court erred in rejecting the state’s express waiver and

dismissing Vazquez’s petition.




2
  Vazquez contends he satisfied the exhaustion requirement by (1) citing two Florida state cases
involving federal Confrontation Clause issues; (2) citing the Sixth Amendment; and (3) stating
that the state court “violate[d] [his] right to confront the witness[]” and “took away [his] rights
under the confrontation clause.” Whether these references to the Confrontation Clause constitute
“makeshift needles in the haystack,” McNair, 416 F.3d at 1303, or grounds sufficient to exhaust
Vazquez’s state law remedies is a close question that we need not decide in light of the state’s
concession.
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       Because the district court did not make alternative findings regarding the

merits of Vazquez’s claim, we vacate the district court’s order denying habeas

relief and remand for consideration of the merits of Vazquez’s claim. 3


                                        III. Conclusion


       Based on the foregoing analysis, we vacate the judgment of the district court

and remand for further proceedings consistent with this opinion.




       3
          Because we conclude that reversal is appropriate based on Vazquez’s waiver argument,
it is not necessary to reach his alternate argument that he did, in fact, present his claim to the
state courts.


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