                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            AUG 9, 2007
                             No. 06-15773                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                D. C. Docket No. 03-01829-CV-T-30-MAP

KENNETH DARITY,



                                                          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
                     _________________________

                             (August 9, 2007)

Before TJOFLAT, BARKETT and HULL, Circuit Judges.

PER CURIAM:
      Kenneth Darity, a Florida prisoner proceeding pro se, appeals the district

court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Darity

filed his petition after the effective date of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), Pub.L.No. 104-132, 110 Stat. 1214 (1996), and

the provisions of that act therefore govern this appeal. We granted a certificate of

appealability on the issue of whether the district court erred in finding that Darity’s

claims of ineffective assistance of trial counsel were procedurally barred because

he failed to properly identify them as issues of federal law in his appellate brief

before the state appellate court considering his Fla.R.Crim.P. 3.850 motion.

      We review de novo a district court’s denial of a § 2254 habeas corpus

petition. 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. Whether a petitioner exhausted state court remedies is a mixed question of law

and fact, which is also reviewed de novo. Fox v. Kelso, 911 F.2d 563, 568 (11th

Cir. 1990).

      Before seeking a federal writ of habeas corpus, a state prisoner must, exhaust

all available state remedies, see 28 U.S.C. § 2254(b)(1)(A), giving the state the

opportunity to correct its alleged violations of federal rights, Baldwin v. Reese, 541

U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004). “To provide the State



                                           2
with the necessary opportunity, the prisoner must fairly present his claim in each

appropriate state court (including a state supreme court with powers of

discretionary review), thereby alerting that court to the federal nature of the claim.”

Id. (citations and quotations omitted). “‘Thus, to exhaust state remedies fully the

petitioner must make the state court aware that the claims asserted present federal

constitutional issues.’” Jimenez v. Fla. Dep’t of Corr., 481 F.3d 1337, 1342 (11th

Cir. 2007) (quoting Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998)).

“A litigant wishing to raise a federal issue can easily indicate the federal law basis

for his claim in a state court petition or brief, for example, by citing in conjunction

with the claim the federal source of law on which he relies or a case deciding such

a claim on federal grounds, or by simply labeling the claim ‘federal.’” Baldwin,

541 U.S. at 32, 124 S.Ct. at 1351. If unexhausted claims in a § 2254 petition

“would be procedurally barred in state court under the state’s law of procedural

default, the federal court may consider the barred claims as having no basis for

federal habeas relief.” Jimenez, 481 F.3d at 1342.

      Under these standards, we find that the district court erred in determining

that Darity’s claims of ineffective assistance of trial counsel were procedurally

barred. The district court found that Darity had failed to exhaust because, while he

had fairly presented these claims in his original state postconviction motion under



                                           3
Rule 3.850, he had not fairly presented them as federal claims in his appellate

brief. However, the state trial court summarily denied Darity’s Rule 3.850 motion

without an evidentiary hearing. Florida Rule of Appellate Procedure

9.141(b)(2)(C) provides that, in an appeal from the summary denial of a Rule

3.850 motion without an evidentiary hearing, “[n]o briefs or oral argument shall be

required.” Fla.R.App.P. 9.141(b)(2)(C). As such, a petitioner who does file a brief

in an appeal of the summary denial of a Rule 3.850 motion does not waive any

issues not addressed in the brief. See Webb v. State, 757 So.2d 608, 609 (Fla. Dist.

Ct. App. 2000) (holding that a claim in a Rule 3.850 motion had not been waived

by the appellant’s failure to argue it in his initial brief because the motion had been

denied without an evidentiary hearing). Therefore, regardless of whether or how

Darity identified his claims to the state appellate court, he did exhaust his state

remedies prior to filing the instant § 2254 petition, and these claims are not

procedurally barred.

      We express no opinion on the merits of Darity’s petition, and vacate and

remand to allow the district court to address in the first instance the merits of

Darity’s claims of ineffective assistance of trial counsel.

      VACATED AND REMANDED.




                                            4
