            Case: 17-11298    Date Filed: 03/12/2018   Page: 1 of 5


                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 17-11298
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 4:14-cv-00187-HLM

WILLIAM L. COBB, JR.,

                                                            Petitioner-Appellant,


                                    versus


COMMISSIONER BRIAN OWENS,

                                                          Respondent-Appellee.

                        ________________________

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

                              (March 12, 2018)

Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

     William Cobb, Jr., a state prisoner proceeding pro se, appeals the district

court’s denial of Claim 2 of his 28 U.S.C. § 2254 petition, which was an
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ineffective-assistance-of-appellate-counsel claim.    We granted a certificate of

appealability as to whether the district court erred when it concluded that Claim 2

was unexhausted and procedurally barred -- and, notably, both Cobb and the state

agree on appeal that the district court erred in concluding that Claim 2 was

unexhausted and procedurally barred. After careful review, we vacate and remand.

      We review the district court’s denial of a § 2254 petition de novo. McNair

v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005).          Further, exhaustion and

procedural default present mixed questions of law and fact, subject to de novo

review. Fox v. Kelso, 911 F.2d 563, 568 (11th Cir. 1990); Judd v. Haley, 250 F.3d

1308, 1313 (11th Cir. 2001).

      Before bringing a habeas action in federal court, a petitioner must exhaust all

state court remedies that are available for challenging his conviction and sentence,

either on direct appeal or in a state post-conviction motion.            28 U.S.C. §

2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To satisfy the

exhaustion requirement, a petitioner must “fairly present federal claims to the state

courts” to give the courts an “opportunity to pass upon and correct alleged

violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365

(1995) (quotations and brackets omitted).       Exhaustion is not met when the

petitioner has merely been through the state courts or presented all the facts

necessary to support his claim. Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317,


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1343–44 (11th Cir. 2004). To properly raise a federal constitutional claim in state

court, a petitioner must make the state court aware that the claim presents federal

constitutional issues by articulating the constitutional theory serving as the basis

for relief. Zeigler v. Crosby, 345 F.3d 1300, 1307 (11th Cir. 2003).

      A federal claim is subject to procedural default if: (1) a state court applied an

independent and adequate ground of state procedure to rule that the petitioner’s

federal claim was barred; or (2) the petitioner never raised a claim in state court,

and it is obvious that the unexhausted claim would now be procedurally barred

under state procedural rules. Bailey v. Nagle, 172 F.3d 1299, 1302–03 (11th Cir.

1999). Exhaustion or procedural default may be excused if the movant establishes

(1) cause for not raising the claim of error on direct appeal and actual prejudice

from the alleged error, or (2) a fundamental miscarriage of justice, meaning actual

innocence. McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011).

      The Constitution provides that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to have the Assistance of Counsel for his defen[s]e.” U.S.

Const. amend. VI. To establish a claim of ineffective assistance of counsel, the

defendant must show that: (1) counsel’s performance was deficient; and (2) the

deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.

668, 687 (1984).




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      After a careful review of the record on appeal, we agree with both parties

that the district court erred when it denied Claim 2 as unexhausted and

procedurally defaulted. As the record reveals, Claim 2 in Cobb’s federal petition

corresponded to a portion of Ground 10 in his state petition. In Claim 2, Cobb

argued that appellate counsel was deficient for failing to raise on direct appeal the

issue of impermissible hearsay statements, and as a result, his Sixth and Fourteenth

Amendment rights were violated. Similarly, in Ground 10, Cobb objected to

inadmissible hearsay evidence and argued, in part, that his counsel was ineffective

on appeal, in violation of the Sixth and Fourteenth Amendments. Thus, Cobb

made the state habeas court aware that his claim presented federal constitutional

issues, because he articulated a constitutional theory serving as the basis for relief -

- namely, ineffective assistance of appellate counsel under the Sixth and

Fourteenth Amendments. Ziegler, 345 F.3d at 1307. On this record, he fairly

presented his constitutional claims and gave the court an “opportunity to pass upon

and correct” the alleged violation. Duncan, 513 U.S. at 365. Accordingly, the

district court erred in determining that Claim 2 had not been raised as a claim of

ineffective assistance of appellate counsel before the state court.

      Moreover, the district court erred in concluding that Claim 2 was subject to

procedural default. While the state habeas court found that Cobb’s ineffective-

assistance-of-trial-counsel claim was procedurally barred, it did not make this kind


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of finding about his ineffective-assistance-of-appellate-counsel claim in Ground

10. Judd, 250 F.3d at 1313. As the record shows, the state habeas court divided

Ground 10 into two claims, which it analyzed separately: ineffective assistance of

appellate counsel, and ineffective assistance of trial counsel. It found that the

ineffective-assistance-of-trial-counsel claim was barred on state procedural

grounds, but, importantly, it concluded that the ineffective-assistance-of-appellate-

counsel claim -- which is what Cobb now raises in Claim 2 -- failed under

Strickland.   Thus, the state habeas court did not dismiss this claim on an

independent and adequate ground of state procedure, and the district court erred by

construing it in that way. Bailey, 172 F.3d at 1302–03.

      Accordingly, we vacate the judgment without prejudice and remand to the

district court for reconsideration of Claim 2.

      VACATED AND REMANDED.




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