                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                 FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-12064                ELEVENTH CIRCUIT
                                                          JANUARY 26, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                 D. C. Docket No. 06-01331-CV-T-17-EAJ

EDWARD FORD,



                                                          Petitioner-Appellant,

                                  versus

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,


                                                       Respondents-Appellees.


                       ________________________

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

                            (January 26, 2009)

Before TJOFLAT, CARNES and FAY, Circuit Judges.

PER CURIAM:
      Petitioner is a Florida prison inmate. Proceeding pro se, he appeals the

district court’s denial of his petition for a writ of federal habeas corpus. 28 U.S.C.

§ 2254. In relevant part, Petitioner alleges Florida Department of Corrections

(“DOC”) officials denied him due process when they refused his request to review

a videotape during his prison disciplinary proceeding hearing charging him with

unauthorized physical contact. The proceeding resulted in an adverse decision and

the loss of gain time credit.

      The district court found that Petitioner’s due process claim was procedurally

defaulted because the Florida circuit court, agreeing with the State, concluded that

Petitioner waited until after he filed his grievance and appeal to request viewing of

the videotape. The district court therefore declined to address the merits of the

claim. Petitioner applied to the district court for a certificate of appealability

(“COA”). The court denied his application, but we granted a COA on the issue of

“whether the district court erred in denying appellant’s due process challenge to

disciplinary action taken by the Department of Corrections as procedurally

defaulted.”

      Petitioner argues, here, that his administrative institutional grievance

contradicts the State’s contention that he did not ask the warden on administrative

appeal to review the videotape. He cites to various cases that deal with exhaustion



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of state court remedies and argues in his “statement of the issues” that the district

court erred by improperly deciding the disputed factual issue of whether his claim

is procedurally barred. Further, he requests this court to liberally construe his

§ 2254 petition. Finally, he claims that the district court erred by improperly

deciding disputed facts by adopting the State’s response to his habeas petition even

though the response was contradicted by the evidence.

      The issue of whether a habeas petitioner’s claims are subject to the doctrine

of procedural default is a mixed question of law and fact that we review de novo.

Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). The pleadings of a pro se

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

2006). A procedural default arises when the state court correctly applies a

procedural principle of state law and concludes that the petitioner’s claim is barred.

Bailey v. Nagle, 172 F.3d 1299, 1302 (11th Cir. 1999). When a state court refuses

to address the merits of a state prisoner’s claims based on state law, the federal

habeas court is precluded from hearing the merits absent a showing of cause for the

default and actual prejudice, or that the failure to consider the claim would result in

a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 749-

50, 111 S.Ct. 2546, 2564-65, 115 L.Ed.2d 640 (1991); see also Alderman v. Zant,

22 F.3d 1541, 1549 (11th Cir. 1994) (holding that if the state court addresses both



                                           3
the procedural default and the merits of a federal claim in the alternative, a federal

court should apply the state procedural bar and decline to reach the merits of the

claim). A federal court must determine “whether the last state court rendering

judgment clearly and expressly stated that its judgment rested on a [state]

procedural bar.” Bailey, 172 F.3d at 1303.

         We have set forth a three-part test to determine whether a state court’s

procedural ruling constitutes an independent and adequate state rule of decision.

Judd, 250 F.3d at 1313. “First, the last state court rendering a judgment in the case

must clearly and expressly state that it is relying on state procedural rules to

resolve the federal claim without reaching the merits of that claim.” Id. Second,

the state court’s decision must rest entirely on state law grounds and not be

“intertwined with an interpretation of federal law.” Id. Third, the state procedural

rule must be adequate. Id. The adequacy requirement has been interpreted to

mean that the rule must be firmly established and regularly followed, that is, not

applied in an arbitrary or unprecedented fashion. Id.; see also Ford v. Georgia, 498

U.S. 411, 423-25, 111 S.Ct. 850, 857-58, 112 L.Ed.2d 935 (1991) (holding that the

state court could not procedurally bar a claim through retroactive application of a

rule that did not exist at the time the rule would have applied to the petitioner’s

case).



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       The Florida circuit court relied on an unknown rule that seemingly holds that

the proper time for a prisoner to request that a videotape be reviewed at a prison

disciplinary hearing is either before or at the actual disciplinary hearing, but not

after the disciplinary hearing. Neither the State, the Florida circuit court, Florida

appellate court, or the district court cites to the rule, however. Without knowing

the basis for the state’s ruling, it is impossible for us to determine if the state court

ruling constituted an independent and adequate state ground. Additionally, the

record does not provide us with any other basis for affirmance of the district

court’s decision. Accordingly, we remand the case to the district court to

determine what state procedural rule was relied upon and whether that rule

constituted an independent and adequate state ground.

       VACATED AND REMANDED.




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