                                                      [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                              FEB 7, 2007
                              No. 05-16399                 THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                 D. C. Docket No. 05-00271-CV-ORL-31JGG

ELI H. CORTES,



                                                           Petitioner-Appellant,

                                   versus

DONALD SHERMAN GLADISH,
SECRETARY, DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,


                                                       Respondents-Appellees.


                        ________________________

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

                             (February 7, 2007)

Before WILSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:

                                            I.

       Eli Cortes, a Florida state prisoner proceeding pro se, appeals the district

court’s dismissal of his petition for habeas relief, brought pursuant to 28 U.S.C.

§ 2254.

                                            II.

       Cortes was convicted of multiple counts of heroin trafficking and sentenced

to thirty years imprisonment. His convictions were affirmed on direct appeal.

Cortes v. State, 827 So.2d 1012 (Fla. Dist. Ct. App. 2002). Cortes then filed a

motion for post-conviction relief under Florida Rule of Criminal Procedure

(“Rule”) 3.850, alleging ineffective assistance of counsel for (a) failure to

challenge the state prosecutor’s jurisdiction, (b) conflict of interest, (c) failure to

file a motion to suppress testimony, (d) failure to move for judgment of acquittal,

and (e) failure to challenge the sentence after the written sentence differed from the

oral pronouncement. The state court summarily denied the motion on the merits

without an evidentiary hearing. Cortes then filed a notice of appeal from the denial

of his Rule 3.850 motion, but his appellate brief addressed only the conflict of

interest and sentencing issues. The state court affirmed. Cortes v. State, 857 So.

2d 893 (Fla. Dist. Ct. App. 2003). Thereafter, Cortes filed a Rule 3.800 motion to



                                             2
correct an illegal sentence and a state habeas petition, both of which were denied.

He then filed the instant § 2254 petition in federal district court alleging the same

five issues raised in his Rule 3.850 motion.

      The state responded to the § 2254 petition by arguing that Cortes had not

exhausted his state remedies with respect to issues (a), (c), and (d) because, when

he appealed the denial of his state post-conviction motion, his appellate brief did

not address these issues. The state further asserted that Cortes could not show

cause and prejudice or a miscarriage of justice to overcome the default. The

district court dismissed the petition. The district court denied issue (b) on the

merits, concluded that it could not review issue (e) because federal courts cannot

review a state’s alleged failure to adhere to its own sentencing procedures, and

found that issues (a), (c), and (d) were procedurally defaulted because Cortes had

not raised them in his appeal from the denial of his Rule 3.850 motion and Cortes

could not show cause and prejudice or a miscarriage of justice to overcome the

default.

      Cortes requested a certificate of appealability (“ COA”), which both the

district court and this court denied. Upon reconsideration, this court granted a

COA on the following issue: Whether the district court erred in finding appellant’s

ineffective-assistance-of-counsel claims procedurally defaulted because appellant,



                                           3
in appealing the summary denial of his Fla. R. Crim. P. 3.850 motion for post-

conviction relief, failed to address those claims in his appellate brief, filed pursuant

to Fla. R. App. P. 9.14(b)(2)(C)?

                                                III.

       We review a district court’s denial of a habeas corpus petition de novo.1

Fortenberry v. Haley, 297 F.3d 1213, 1219 (11th Cir. 2002). A district court’s

dismissal of a habeas claim for procedural default is also reviewed de novo. Id.

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).

                                                IV.

       Cortes argues that the district court erred by dismissing his § 2254 petition

because he exhausted all issues by appealing the denial of his state Rule 3.850

motion. He argues that he was not required to file an appellate brief when he

appealed the denial of the 3.850 motion, and that his decision to file a brief

focusing on two of the issues did not render the remaining issues abandoned.

       Before filing a federal habeas action, a state prisoner must exhaust state

court remedies, either on direct appeal or in a state post-conviction motion. 28



       1
         Cortes filed his petition after the effective date of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-32, 110 Stat. 1214 (1996), and, therefore, the
provisions of that act govern this appeal.

                                                 4
U.S.C. § 2254(b), (c). To exhaust state remedies, the petitioner must fairly present

every issue raised in his federal petition to the state’s highest court, either on direct

appeal or on collateral review. Catille v. Peoples, 489 U.S. 346, 351, 109 S.Ct.

1056, 1060 (1989).

      Generally, procedural default can arise in two ways: (1) where the state court

correctly applies a procedural default principle of state law to arrive at the

conclusion that the petitioner's federal claims are barred; or (2) when the petitioner

never raised the claim in state court, and it is obvious that the state courts would

hold it to be procedurally barred if it were raised now. Federal habeas courts are

precluded from deciding the merits of a claim that is procedurally barred, except in

two circumstances: (1) where the petitioner makes a showing of adequate cause

and actual prejudice, or (2) where 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 (1991); Marek v. Singletary, 62 F.3d 1295, 1301-02 (11th

Cir. 1995).

      In this case, Florida Rule of Appellate Procedure 9.141(b)(2) provides that in

appeals from the summary judgment denial of a Rule 3.850 motion without an

evidentiary hearing, “[n]o briefs or oral argument shall be required, but any

appellant’s brief shall be filed within 15 days of the filing of the notice of appeal.



                                            5
The court may request a response from the appellee before ruling.” Fla. R. App. P.

9.141(b)(2)(c).

       Cortes’s appeal did not follow an evidentiary hearing, and, therefore, he was

not required to file an appellate brief. Furthermore, his decision to do so and to

address only some of the issues does not waive the remaining issues raised in his

Rule 3.850 motion. See Webb v. State, 757 So.2d 608, 609 (Fla. Dist. Ct. App.

2000). Therefore, Cortes did exhaust his state remedies prior to filing his § 2254

petition. In contrast, had Cortes received an evidentiary hearing, his failure to

address issues in his appellate brief would constitute a waiver.2

       Although the state court reached the merits of Cortes’s issues (a), (c), and (d)

when it denied the post-conviction motion, the district court made no factual

findings when it dismissed these claims as procedurally defaulted.

       Accordingly, we VACATE and REMAND and instruct the district court to

address Cortes’s issues (a), (c), and (d).




       2
         The various cases cited by the government to support its claims that Webb is
inconsistent with other Florida case law is misplaced as the other cases involve defendants who
received an evidentiary hearing.

                                                6
