           Case: 13-12403    Date Filed: 09/12/2014    Page: 1 of 3


                                                      [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-12403
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 2:12-cv-00202-LGW-JEG



SHARMILA MELISSA POWELL,

                                                            Petitioner-Appellant,

                                  versus

BELINDA DAVIS,

                                                          Respondent-Appellee.

                      ________________________

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

                            (September 12, 2014)

Before TJOFLAT, WILSON and ROSENBAUM, Circuit Judges.

PER CURIAM:
              Case: 13-12403     Date Filed: 09/12/2014     Page: 2 of 3


      On November 30, 2012, Sharmila Powell, a Georgia prison inmate serving

concurrent life sentences for felony murder and armed robbery, petitioned pro se

the District Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. At the

time, Powell had pending in the state trial court a motion for new trial. That is, she

had not yet appealed her convictions to the Georgia Supreme Court.

      The District Court dismissed Powell’s petition without prejudice for failure

to exhaust state remedies. She filed a notice of appeal, and a judge of this court

issued a certificate of appealability (COA) on one issue:

      Whether the district court erred in dismissing without prejudice
      Powell’s 28 U.S.C. § 2254 petition on exhaustion grounds.

      Section 2253(c)(2) of Title 28 of the U. S. Code, which governs appeals in

28 U.S.C. § 2254 proceedings, states, in pertinent part:

      (a) In a habeas corpus proceeding . . . before a district judge, the final
      order shall be subject to review, on appeal, by the court of appeals for
      the circuit in which the proceeding is held.
      ....

      (c)(1) Unless a circuit justice or judge issues a certificate of
      appealability, an appeal may not be taken to the court of appeals from-
      -
             (A) the final order in a habeas corpus proceeding in
             which the detention complained of arises out of process
             issued by a State court; or


      (2) A certificate of appealability may issue under paragraph (1) only if
      the applicant has made a substantial showing of the denial of a
      constitutional right.


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         (3) The certificate of appealability under paragraph (1) shall indicate
         which specific issue or issues satisfy the showing required by
         paragraph (2).


         The COA before us does not satisfy the subsection (c)(2) and (3)

requirement because even if we were to assume that Powell has a right to litigate a

§ 2254 petition containing unexhausted claims, such right is not provided by the

U.S. Constitution. And because Powell has not yet sought to appeal her

convictions to the Georgia Supreme Court,1 we cannot know whether Powell’s trial

court denied her a right provided by the U.S. Constitution.

         In sum, because the COA does not list as an issue the denial of a federal

constitutional right and because Powell cannot show that the state trial court denied

her such a right, we must vacate the COA as improvidently granted and dismiss

this appeal.

         DISMISSED.




         1
             Cf. Hittson v. GDCP Warden, ___ F.3d ____, 2014 WL 3513033 at ⃰ 14-15 C.A. 11
(Ga.).
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