                                                                     [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT            FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                    No. 07-10996                        MARCH 3, 2009
                              ________________________                 THOMAS K. KAHN
                                                                           CLERK
                      D. C. Docket No. 06-02131-CV-T-26-MAP

TIMOTHY B. COTTRELL,



                                                                      Petitioner-Appellant,

                                           versus

SECRETARY, DOC,
FL ATTORNEY GENERAL,


                                                                  Respondents-Appellees.

                              ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                           _________________________
                                 (March 3, 2009)

Before TJOFLAT and CARNES , Circuit Judges, and HOOD,* District Judge.

PER CURIUM:

       *
        Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
      In this appeal from the denial of federal habeas corpus relief under 28 U.S.C.

§ 2254, we issued a certificate of appealability on two issues:

             1) Whether the district court erred in dismissing Claims 7–12 as
             procedurally barred where the appellant’s post-conviction counsel
             filed, on appeal from the denial of appellant’s Fla.R.Crim.P. 3.850
             motion, a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.
             Ct. 1396 (1967), raising these claims; and


             2) Whether the district court erred in dismissing Claim 13 as
             procedurally barred where the state post-conviction court applied a
             state time-bar rule incorrectly, as conceded by the state.

We will take those questions up in that order.

                                           I.


      The first issue is confused by the fact that the Anders brief that was filed in

this case came not in a direct appeal but in an appeal from the denial of state

collateral relief. The Anders procedures originated from a desire to protect the

Sixth Amendment right to counsel on appeal as of right, and the requirements of

that decision are designed only for direct appeals. See Anders, 386 U.S. at

744–45, 87 S. Ct. at 1400. There is no basis in either the Anders opinion or in the

rationale for that decision for applying its procedures to the appeal of the denial of

state collateral relief, because there is no Sixth Amendment right to counsel in such

appeals, see Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993



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(1987); Barbour v. Haley, 471 F.3d 1222, 1231 (11th Cir. 2006). The Florida

Supreme Court has recognized, as we do, that the Anders procedures apply only to

the first appeal as of right. See In re Anders Briefs, 581 So. 2d 149, 150 (Fla.

1991).

         Nonetheless, the attorney representing Cottrell on his appeal from the denial

of state collateral relief filed in the Florida intermediate appellate court what

purported to be an Anders brief. In that brief, counsel reviewed the claims that had

been raised in the district court, set out the proceedings there, and said that he

“direct[ed] this Court’s attention to the following possible issues,” after which he

described the issues but did not argue that any error had been committed. See

Post-conviction Anders Brief at 10, Cottrell v. State, No. 2D03-1421 (Fla. 2d DCA

Dec. 15, 2003). Instead, in his brief counsel represented to the appellate court that:

“Despite a thorough reading of the record on appeal and a review of the law on

arguable points, the undersigned appellate counsel can find no meritorious

argument to support the contention that the trial court committed significant

reversible error in this case. Consequently, undersigned counsel files this brief

pursuant to Anders v. California, 386 U.S. 738 (1967) . . .” Id. The last line of the

brief states: “It is up to this court to determine whether these issues have merit.”

Id. at 14.



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      We have ourselves held that a brief that mentions issues without arguing that

they entitle the appellant to relief has abandoned those issues. See Flanigan’s

Enters., Inc. v. Fulton County, 242 F.3d 976, 987 (11th Cir. 2001); Rowe v.

Schreiber, 139 F.3d 1381, 1382 n. 1 (11th Cir.1998). The waiver through

abandonment of Claims 7 through 12 based on the failure of counsel’s brief to

argue that there was any reversible error in denying relief as to those claims was

not affected by the brief that Cottrell himself filed in the intermediate appellate

court. That brief mentioned Claims 7 through 12 in the procedural history but put

forth no arguments concerning them and, indeed, did not mention them in its

argument section. See Pro Se Brief of Petitioner, Cottrell v. State, No. 2D03-1421

(Fla. 2d DCA Jan. 15, 2004).

      Because the purported Anders brief abandoned and therefore waived the

issues relating to Claims 7 through 12, the district court did not err in dismissing

the habeas petition insofar as it involved those claims. The district actually

dismissed the claims on the ground that Cottrell’s own brief did not raise any

issues involving Claims 7 through 12. The COA we issued added to that the

question of whether, notwithstanding Cottrell’s failure to raise the issues himself

they were preserved by the purported Anders brief. Our answer is “no.”




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                                           II.

      The second question presented in the COA is whether the district court erred

in dismissing Claim 13 as untimely, since the State now concedes that the claim is

timely. To say that there has been a lot of confusion in regard to this claim

throughout both the state collateral proceeding and the federal habeas proceeding is

an understatement. The central point for us is that at the time the district court

ruled on this claim it did not have the benefit of the State’s concession that the state

post-conviction court had applied the state time-bar rule incorrectly. The district

court may have viewed all of the issues surrounding this claim, including the

procedural bar ones, through that lens. Accordingly, we think that the best course

is to vacate the district court’s decision as to this one claim and remand for further

proceedings in light of the State’s concession that the claim was not, in fact,

untimely asserted in the state courts. We do so without implying any view on any

other questions relating to the claim. We only require that the district court

reconsider it in light of the State’s concession.

                                          III.

      The judgment of the district court is AFFIRMED, except insofar as it

dismissed or denied Claim 13. As to that one claim the judgment is VACATED

and the case is REMANDED for further proceedings consistent with this opinion.



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