                                                          [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                  JANUARY 23, 2008
                                                  THOMAS K. KAHN
                            No. 07-12376
                                                       CLERK
                         Non-Argument Calendar
                       ________________________

                D. C. Docket No. 05-00747-CV-T-17-MSS

HUGH GILBERT MARTIN,


                                                 Petitioner-Appellant,

                                  versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,


                                                 Respondents-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                            (January 23, 2008)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      Appellant Hugh Gilbert Martin, a Florida state prisoner serving sentences for

attempted sexual battery, false imprisonment, and tampering with a witness,

appeals the district court’s denial of his pro se § 2254 habeas petition. We granted

a certificate of appealability (“COA”) on three issues: (1) whether the district court

erred, or abused its discretion, in disregarding the State’s written waiver of an

exhaustion defense; (2) if not, whether the district court correctly found that eight

of Martin’s claims were unexhausted in state court because he failed to raise them

there; and (3) whether the district court erred in denying Martin’s claim that his

constitutional right to a speedy trial was violated.

                                           I.

      In June 2005, Martin, proceeding pro se, filed the present federal habeas

corpus petition under 28 U.S.C. § 2254, raising 12 claims for relief and indicating

that he raised none of them through a post-conviction motion or petition for habeas

corpus in a state trial court, although he stated that all issues had been raised on

direct appeal. One of the claims alleged that Martin’s Sixth Amendment right to a

speedy trial was violated.

      The State responded, denying that Martin was entitled to relief. According

to the State, all claims raised in Martin’s petition were raised on direct appeal, but

no collateral proceeding occurred under Fla.R.Crim.P. 3.850. Nevertheless, the



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State noted that it “[did] not assert the exhaustion doctrine.” The State also

asserted that a speedy trial violation did not occur.

      After reviewing Martin’s state court record, the district court found that

Martin failed to exhaust the federal dimension of eight of his claims. The court

stated that “[t]he exhaustion of the federal dimension of a habeas claim is a

statutory requirement that cannot be waived by this Court.” The district court did

not address the merits of the eight claims. Instead, it found that the eight claims

were procedurally barred and denied relief.

      The district court also found habeas relief was not warranted on Martin’s

speedy trial claim because there had been no deprivation of his federal

constitutional rights. More specifically, the court considered the four factors from

Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972), and found that the Florida

appellate court’s decision that Martin’s speedy trial rights were not violated was

not contrary to or an unreasonable application of clearly established federal law or

an unreasonable determination of the facts of the case and denied relief.

Ultimately, the district court denied all of Martin’s claims with prejudice. We

subsequently granted a COA as to the three issues noted above.

                                           II.

      “We review de novo a district court’s grant or denial of a habeas corpus



                                           3
petition.” McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). Exhaustion

presents a mixed question of law and fact, subject to de novo review. Fox v. Kelso,

911 F.2d 563, 568 (11th Cir. 1990). The pleadings of a pro se litigant are liberally

construed. See Pugh v. Smith, 465 F.3d 1295, 1300 (11th Cir. 2006) (liberally

construing a pro se petitioner’s § 2254 pleadings).

         Generally, a habeas petitioner cannot raise a claim in federal court if the

claim was not first exhausted in state court. 28 U.S.C. § 2254(b)(1); Kelley v.

Sec’y for Dep’t of Corr., 377 F.3d 1317, 1343 (11th Cir. 2004). Exhaustion

protects the “States’ sovereign power to punish offenders and their good-faith

attempts to honor constitutional rights.” Engle v. Isaac, 456 U.S. 107, 128, 102 S.

Ct. 1558, 1572 (1982).

         The exhaustion requirement is satisfied when the petitioner properly raised

the issue in state court, even if the court did not rule on it. Smith v. Digmon, 434

U.S. 332, 333-34, 98 S. Ct. 597, 599 (1978). “It is settled that a habeas petitioner

need not have sought state habeas relief so long as he has exhausted his direct

appeal remedies.” Pedrero v. Wainwright, 590 F.2d 1383, 1387 n.2 (5th Cir.

1979).       1




         1
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to October 1, 1981.

                                                4
      “The teeth of the exhaustion requirement comes from its handmaiden, the

procedural default doctrine. If the petitioner has failed to exhaust state remedies

that are no longer available, that failure is a procedural default which will bar

federal habeas relief,” unless one of two exceptions apply: cause and prejudice or

fundamental miscarriage of justice. Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir.

2001). If the petitioner never raised the claim in state court, and it is obvious that

the unexhausted claim would be procedurally barred in state court, “the exhaustion

requirement and procedural default principles combine to mandate dismissal.”

Bailey v. Nagle, 172 F.3d 1299, 1303 (11th Cir. 1999).

      “Acting through their attorneys general, states can waive procedural bar

defenses in federal habeas proceedings.” Hills v. Washington, 441 F.3d 1374,

1376 (11th Cir. 2006). The requirement that habeas claims be exhausted is not

jurisdictional and may be waived by the state. Davis v. Dugger, 829 F.2d 1513,

1521 (11th Cir. 1987). A district court may not dismiss a habeas petition for

failure to exhaust state remedies unless the state first responds and raises an

exhaustion defense or waives exhaustion. Id. If the state waives exhaustion, the

district court may invoke 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, 1524-26 (11th Cir. 1995) (holding that invoking



                                           5
the bar served no important federal interest). An example of an important federal

interest occurs where the case presents an issue on which an unresolved question of

fact or of state law might have an important bearing and both comity and judicial

efficiency require complete exhaustion to ensure that the district court may

ultimately review the issue on a fully informed basis. Id. at 1524 n.34.

      Nevertheless, the district court should assume that the waiver by the state is

justified and should not invoke the bar sua sponte without giving the petitioner an

opportunity to show cause for the default. Id. at 1528; see also Thompson v.

Wainwright, 714 F.2d 1495, 1509-10 (11th Cir. 1983) (vacating and remanding

where we could not determine if the district court rejected the state’s waiver on the

ground that exhaustion could not be waived or because exhaustion would aid

federal review).

      Finally, we may affirm for any reason supported by the record even if not

relied upon by the district court. See Williams v. Bd. of Regents of the Univ. Sys. of

Ga., 477 F.3d 1282, 1301 (11th Cir. 2007).

      Here, the State explicitly waived exhaustion as a defense and did so

permissibly, and the district court appears to have erroneously disregarded the

State’s waiver on the ground that exhaustion may not be waived if the federal

aspects of a petitioner’s claims have not been fully developed at the State level.



                                           6
Furthermore, the district court never gave Martin an opportunity to show cause for

default before determining that exhaustion barred eight of his claims. The district

court also did not make alternative findings regarding the merits of the eight

claims, and although we can “affirm on any basis” in some cases, here, the absence

of findings means that we cannot determine the merits of the eight claims.

Accordingly, we vacate the district court’s order denying habeas relief in this

respect and remand for further proceedings. We also do not consider whether the

district court correctly found that eight of Martin’s claims were unexhausted in

state court as a result of his failure to raise them there.

                                            III.

       With respect to Martin’s speedy trial claim under the Constitution, the

district court could not grant habeas relief on that under 28 U.S.C. § 2254(d) unless

the adjudication in state court “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law . . . or

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.” A state court’s

decision is contrary to clearly established federal law if the state court: (1) arrives

at a conclusion opposite to that reached by the Supreme Court on a question of

law; or (2) decides a case differently than the Supreme Court on a set of materially



                                             7
indistinguishable facts. Ventura v. Attorney General, Fla., 419 F.3d 1269, 1280-81

(11th Cir. 2005). A state court’s decision is an unreasonable application of clearly

established federal law if the state court identifies the correct governing legal

principle from decisions of the Supreme Court, but applies it in an objectively

unreasonable manner to the facts of the petitioner’s case. Id. at 1286. The

determination of a factual issue made by a state court is presumed correct and the

petitioner has the burden of rebutting that presumption by clear and convincing

evidence. 28 U.S.C. § 2254(e)(1).

      The Sixth Amendment to the Constitution provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right to a speedy . . . trial.” U.S. C ONST.

amend. VI. In determining whether a defendant’s right to a speedy trial was

violated, the following four factors are considered: (1) the length of delay; (2) the

reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to

the defendant. Barker, 407 U.S. at 530, 92 S. Ct. at 2192.

      “The first factor serves a triggering function; unless some ‘presumptively

prejudicial’ period of delay occurred, we need not conduct the remainder of the

analysis.” United States v. Register, 182 F.3d 820, 827 (11th Cir. 1999). “A delay

is considered presumptively prejudicial as it approaches one year” from indictment

to trial. United States v. Schlei, 122 F.3d 944, 987 (11th Cir. 1997); see also



                                           8
United States v. Harris, 376 F.3d 1282, 1290 (11th Cir. 2004) (a delay of 18

months is presumptively prejudicial). When calculating the length of delay, any

period of delay caused by the petitioner should be excluded. Hill v. Wainwright,

617 F.2d 375, 378 (5th Cir. 1980).

       Different weights are assigned to different reasons for delay. Barker, 407

U.S. at 531, 92 S. Ct. at 2192. A deliberate attempt to hinder the defense is

weighted heavily against the State, negligence or overcrowded courts are weighted

less heavily against the State, and legitimate reasons like a missing witness justify

an appropriate delay. Id. at 531, 534, 92 S. Ct. at 2192, 2194 (noting that the

illness of a witness was a strong excuse for delay). Pretrial delay is often

inevitable and “wholly justifiable” because the State may need time to, inter alia,

collect witnesses against the accused. Doggett v. United States, 505 U.S. 647, 656,

112 S. Ct. 2686, 2693 (1992). “Between diligent prosecution and bad-faith delay,

official negligence in bringing an accused to trial occupies the middle ground.” Id.

at 656-57, 112 S. Ct. at 2693 (reversing our decision that failure to demonstrate

actual prejudice excuses negligence). Whether and how a defendant asserts his

right to a speedy trial is also part of the balancing test. Barker, 407 U.S. at 532,

534-35, 92 S. Ct. at 2192, 2194 (defendant waited more than three years before

asserting his right to a speedy trial).



                                           9
      In this circuit, if the State pursued prosecution with reasonable diligence

then the defendant must show actual prejudice to prevail on a Sixth Amendment

speedy trial claim. Harris, 376 F.3d at 1290. Moreover, even if all three Barker

factors weigh against the State, if they do not do so heavily then the petitioner must

demonstrate actual prejudice to prevail. See United States v. Ingram, 446 F.3d

1332, 1338 (11th Cir. 2006) (direct appeal context). In determining prejudice, the

crime charged and the proof existing on the date of indictment should be

considered. Id. at 1339. “[T]he delay that can be tolerated for an ordinary street

crime is considerably less than for a serious, complex conspiracy charge.” Barker,

407 U.S. at 531, 92 S. Ct. at 2192. Three additional factors should be considered:

(1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and

concern of the accused; and (3) limiting the possibility that the defense will be

impaired. Id. at 532, 92 S. Ct. at 2193. The last factor is the most important. Id.

      The federal Speedy Trial Act, 18 U.S.C. §§ 3161-3174, does not apply to

state court proceedings. See United States v. Bell, 833 F.2d 272, 277 (11th Cir.

1987) (noting that the Speedy Trial Act clock started running only after a federal

indictment was returned, even though federal authorities were involved in earlier

related state proceedings). Instead, as a Florida prisoner, Martin’s rights were

governed by Florida’s speedy trial rules. These rules are also not controlling



                                          10
because they are not based on clearly established federal law, having been

promulgated by Florida and not the Supreme Court, although they are relevant in

examining whether an unreasonable determination of the facts occurred in light of

the evidence below. See 28 U.S.C. § 2254(d); Ventura, 419 F.3d at 1280-81, 1286.

      Here, the central question is whether the determination by the Florida courts

that Martin was not deprived of the right to a speedy trial was contrary to or

involved an unreasonable application of clearly established federal law. See 28

U.S.C. § 2254(d).

      The length of delay from the time the information was filed until the time of

trial was approximately sixteen months (from December 2000 until April 2002)

and is presumptively prejudicial based on applicable caselaw, despite the district

court’s contrary finding. See Register, 182 F.3d at 827. The record indicates that

several reasons for the delay existed and Martin was to blame in part because,

among other things, he filed an interlocutory appeal and requested that the trial

judge recuse himself. To the extent that the delays were primarily caused by the

State’s inability to get a witness to testify, a problem with a witness justifies an

appropriate delay. See Doggett, 505 U.S. at 656, 112 S. Ct. at 2693. Moreover, to

the extent all three Barker factors weighed against the State, they did not do so

heavily, and Martin had to demonstrate actual prejudice to prevail. See Ingram,



                                           11
446 F.3d at 1338.

       Martin did not establish actual prejudice. See Barker, 407 U.S. at 531, 92

S.Ct. at 2192. This is primarily because he alleged no facts and introduced no

evidence showing that his defense was impaired by the delay. See id.

Accordingly, we conclude that the district court did not err in finding that the state

court adjudication did not result in a decision that was contrary to or involve an

unreasonable application of clearly established federal law, or one involving an

unreasonable determination of the facts, and we affirm the denial of Martin’s

petition in this respect.

       VACATED AND REMANDED IN PART; AFFIRMED IN PART.




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