           Case: 18-11210   Date Filed: 05/06/2019   Page: 1 of 6


                                                        [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                            No. 18-11210
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 6:16-cv-01258-PGB-TBS



JORGE NIEVES, JR.,

                                                          Petitioner-Appellant,

                                  versus

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

                                                       Respondents-Appellees.

                      ________________________

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

                              (May 6, 2019)

Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Jorge Nieves, Jr., a Florida 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”) on the issue of whether the district court erred in dismissing

Nieves’s Claim 5, in which he argued that his counsel was ineffective for failing to

request a “stand-your-ground” hearing, on the grounds that it was unexhausted and

procedurally defaulted.

      We review mixed questions of fact and law de novo and findings of fact for

clear error. Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000). Whether a

petitioner exhausted state court remedies is a mixed question of law and fact,

which we review de novo. Fox v. Kelso, 911 F.2d 563, 568 (11th Cir. 1990). Pro

se pleadings are held to a less stringent standard than those drafted by attorneys

and are, thus, liberally construed. Tannenbaum v. United States, 148 F.3d 1262,

1263 (11th Cir. 1998).

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

all state court remedies that are available for challenging his conviction. 28 U.S.C.

§ 2254(b), (c). A failure to exhaust occurs “when a petitioner has not fairly

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

direct appeal or on collateral review.” Pope v. Sec’y for Dep’t of Corr., 680 F.3d

1271, 1284 (11th Cir. 2012) (quotation marks and brackets omitted).




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      “In Florida, exhaustion usually requires not only the filing of a [Fla. R.

Crim. P.] 3.850 motion, but an appeal from its denial.” Leonard v. Wainwright,

601 F.2d 807, 808 (11th Cir. 1979). 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. See Fla. R. Crim. P. 3.850(f).

      To exhaust a claim, it is not sufficient that the petitioner has been through

the state courts or that all the facts necessary to support his claim were before the

state courts. Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1343-44 (11th Cir.

2004). Rather, the petitioner must have “afford[ed] the state courts a meaningful

opportunity to consider the allegations of legal error.” Pope, 680 F.3d at 1286

(quotation marks and brackets omitted). The claim will be exhausted as long as the

substance of the claim was presented to the state courts, “despite variations in

the . . . factual allegations urged in its support.” Id. (quotation marks omitted). We

have determined that courts should use “flexibility in determining whether

defendants have met the exhaustion requirement.” Id. (quotation marks and

brackets omitted). Thus, even if there is variation between them, the issue remains

exhausted if the federal claim’s legal basis and specific factual foundation is the

same as it was presented in the state court. Id.; see also Henry v. Dep’t of Corr.,

197 F.3d 1361, 1367 (11th Cir. 1999) (“The exact presentation of the claims in the

state and federal courts may vary some.”).


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      In Henry, the petitioner raised two ineffective-assistance-of-counsel claims

in a Rule 3.850 motion that was denied by the state court. 197 F.3d at 1363. The

petitioner appealed the denial of his Rule 3.850 motion, characterizing the issue as

whether the trial court erred in denying his motion without an evidentiary hearing.

Id. He then filed a § 2254 petition in federal court, raising the same ineffective-

assistance-of-counsel claims. Id.

      We noted that Florida state procedures made it appropriate for a petitioner to

request an evidentiary hearing before requesting a new trial, making “the

difference between a request for an evidentiary hearing in state court and a request

for a federal writ under § 2254 (in practical effect here, a request for a new trial)”

insufficient to “render a petitioner’s constitutional claims unexhausted.” Id. at

1367. Thus, we determined, in relevant part, that the petitioner had exhausted his

ineffective-assistance-of-counsel claims because “a request for an evidentiary

hearing on ineffective-assistance-of-counsel claims is plainly enough an argument

that the petitioner [had] evidence to show his entitlement to a new trial.” Id.

Specifically, we determined that the “difference between a request for an

evidentiary hearing and a request for more substantial relief, both premised on the

same constitutional claim, is not material to the exhaustion inquiry.” Id. We also

noted that if Florida procedure required more of a petitioner in a Rule 3.850

motion, then a request for an evidentiary hearing alone might not be enough to


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exhaust his claims. Id. at 1368. But, because Florida’s Rule 3.850 provided that

the trial judge determined how much procedural attention a Rule 3.850 motion

warrants, the petitioner was not required to be more specific in his request for relief

in his post-conviction motion to exhaust his claims. Id.

      A district court reviewing an unexplained state-court decision on the merits

should “look through” that decision to the last related state-court decision that

provides a relevant rationale and presume that the unexplained decision adopted

the same reasoning. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The state

may rebut this presumption by showing that the unexplained decision most likely

relied on different grounds than the reasoned decision below. Id.

      The district court erred in dismissing as unexhausted and procedurally

defaulted Nieves’s claim that his counsel was ineffective for failing to request a

hearing on his stand-your-ground motion. Specifically, while Nieves characterized

this claim on appeal from the state court’s denial of his Rule 3.850 post-conviction

motion raising the same claim as the state court’s error in failing to order an

evidentiary hearing on his counsel’s ineffectiveness, our decision in Henry, 197

F.3d at 1367-68, compels our conclusion that Nieves’s characterization of his

claim to the state appellate court was sufficient to exhaust Claim 5 which Nieves

now brings in federal court. In other words, the same constitutional claim was

fairly presented and exhausted in state court. Moreover, the record demonstrates


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that the state trial and appellate courts were both afforded a meaningful

opportunity to consider Nieves’s allegations of error.

      VACATED AND REMANDED. 1




1
      Nieves’ motion to strike portions of the Appellees’ brief is DENIED.
                                              6
