                                                                           [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-12005         ELEVENTH CIRCUIT
                                                                     JUNE 27, 2012
                                        Non-Argument Calendar
                                                                      JOHN LEY
                                      ________________________
                                                                       CLERK

                           D.C. Docket No. 8:08-cv-00254-SDM-TBM



DOYLE G. GALIN,

llllllllllllllllllllllllllllllllllllllll                         Petitioner - Appellant,

                                           versus

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

llllllllllllllllllllllllllllllllllllllll                         Respondents - Appellees.

                                     ________________________

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

                                               (June 27, 2012)

Before BARKETT, WILSON, and PRYOR, Circuit Judges.

PER CURIAM:
      Doyle Galin, a Florida state prisoner proceeding pro se, appeals the district

court’s denial of his 28 U.S.C. § 2254 petition. We granted a certificate of

appealability (COA) to determine whether the district court erred when it found

four of Galin’s claims unexhausted and therefore procedurally barred.

                                    I. Background

      In Florida state court, Galin was convicted by a jury of two counts and

sentenced on each count to fifteen years in prison and one year of probation, to run

concurrently. These convictions and sentences were summarily affirmed on direct

appeal. Galin v. State, 819 So. 2d 764 (Fla. Dist. Ct. App. 2002) (per curiam).

Galin then filed a pro se motion for state postconviction relief pursuant to Florida

Rule of Criminal Procedure 3.850 wherein he raised seventeen constitutional

grounds for relief, including (1) ineffective assistance of trial counsel for failure to

investigate the facts of the case (Claim 1); (2) ineffective assistance of trial

counsel for failure to include Galin in the jury-selection process (Claim 3); (3)

ineffective assistance of trial counsel for failure to impeach the victim (Claim 7);

and (4) trial counsel’s conflict of interest by obtaining automobile assistance from

the victim’s relative, who was an automobile mechanic (Claim 8). The state court

granted an evidentiary hearing on several of the claims raised in his Rule 3.850

motion, but not on the claims recited above. Following the evidentiary hearing,

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the state postconviction court denied relief on all claims. Through counsel, Galin

appealed the denial. As regards the four claims listed above, Galin argued that the

trial court erred in failing to grant an evidentiary hearing. The state appellate court

summarily affirmed the denial of his postconviction relief. Galin v. State, 919 So.

2d 444 (Fla. Dist. Ct. App. 2005) (per curiam).

      Galin filed a pro se § 2254 petition in federal district court raising thirty-

one grounds for relief, including the claims he raised in his Rule 3.850 motion as

claims 1, 3, 7, and 8 (renumbered in his habeas petition as 5, 7, 12, and 11,

respectively). The district court found these four claims unexhausted, reasoning

that Galin only challenged the state trial court’s denial of an evidentiary hearing

rather than the denial of the substance of his claims in his state postconviction

appeal. Because the district court found these claims unexhausted, it dismissed

them as procedurally barred. We granted a COA to determine whether the district

court erred when it found claims 5, 7, 11, and 12 of Galin’s § 2254 petition

unexhausted.

                              II. Standard of Review

      When considering the district court’s denial of a habeas petition, we

conduct a de novo review of questions of law and mixed questions of law and fact.

Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000) (per curiam). We review

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the district court’s findings of fact for clear error. Id. The district court’s

conclusion as to whether a petitioner exhausted his state court remedies is a mixed

question of law and fact, and as such we review it de novo. Fox v. Kelso, 911 F.2d

563, 568 (11th Cir. 1990).

                                    III. Discussion

      Federal habeas relief is available to correct only those custodial injuries

resulting from violations of the Constitution or laws or treaties of the United

States. 28 U.S.C. § 2254(a). Before filing a federal habeas petition, a state

prisoner must exhaust state court remedies, either on direct appeal or in a state

postconviction motion. 28 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. Mason v. Allen, 605

F.3d 1114, 1119 (11th Cir. 2010) (per curiam) (citing Castille v. Peoples, 489 U.S.

346, 351, 109 S.Ct. 1056, 1060 (1989)).

      Exhaustion does not require a petitioner to raise more in a state appellate

court than could reasonably be granted by that court. Henry v. Dep’t of Corr., 197

F.3d 1361, 1368 (11th Cir. 1999). Where, as in Florida, “state procedure makes it

appropriate for a petitioner to request an evidentiary hearing” on appeal before

arguing the merits of his case and requesting a new trial, “the difference between a

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request for an evidentiary hearing in state court and a request for a federal writ

under § 2254 . . . is not enough to render a petitioner’s constitutional claims

unexhausted.” Id. at 1367.

      Under Florida Rule of Criminal Procedure 3.850, a defendant is permitted to

file a postconviction motion to vacate, set aside, or correct his sentence if the

judgment was entered or the sentence imposed in violation of the Constitution or

laws of the United States or the State of Florida. Fla. R. Crim. P. 3.850(a)(1).

Rule 3.850 requires the state court to determine whether an evidentiary hearing is

required or whether the motion may be denied without a hearing. Fla. R. Crim. P.

3.850(d).

      Henry is instructive here. There, the petitioner raised two claims of

ineffective assistance of trial counsel in his Rule 3.850 motion and on appeal

alleged error in the postconviction court’s failure to hold an evidentiary hearing.

Henry, 197 F.3d at 1363. In Henry’s § 2254 habeas petition, he raised the same

ineffective assistance of counsel allegations he raised in his initial Rule 3.850

motion, and the district court found those claims procedurally barred because he

failed to exhaust his claims in state court. Id. There, we determined that under

Florida Rule of Criminal Procedure 3.850, a state court appeal requesting only an

evidentiary hearing sufficed to have exhausted Henry’s claims in state court for

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the purposes of § 2254. Id. at 1368.

      Our holding in Henry makes clear that failure to raise substantive arguments

when appealing a Florida court’s denial of an evidentiary hearing on a Rule 3.850

motion does not render a claim unexhausted. Id. at 1367–68. Galin’s appellate

Rule 3.850 brief sets forth a factual basis for his claims and a legal argument as to

why he was entitled to an evidentiary hearing. We therefore find that his claims

were properly exhausted in state court, and the district court erred in denying those

claims.

      VACATED AND REMANDED.




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