                                                                 [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT                           FILED
                                                                    U.S. COURT OF APPEALS
                                      _____________                   ELEVENTH CIRCUIT
                                                                          January 7, 2010
                                                                            JOHN LEY
                                       No. 07-15857                      ACTING CLERK
                                      _____________

                       D.C. Docket No. 05-00487-CV-J-33-MCR

MICHAEL HITCHCOCK,

                                                                 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
                                   ____________

                                     (January 7, 2010)

Before MARCUS and HILL, Circuit Judges, and VOORHEES,* District Judge.


______________________
       *Honorable Richard L.Voorhees, United States District Judge for the Western District of
North Carolina, sitting by designation.
HILL, Circuit Judge:

      Michael Hitchcock appeals the dismissal of his petition for habeas corpus

relief, asserting that the district court erred in holding certain of his claims to be

defaulted from federal review. For the following reasons, we agree.

                                                I.

      Michael Hitchcock was convicted of sexual battery and his direct appeal

was denied. His counseled state habeas petition, filed pursuant to Rule 3.850,

Florida Rules of Criminal Procedure, asserted five claims of ineffective assistance

of counsel, the first of which included twelve sub-claims.1 Following an

evidentiary hearing, the state trial court denied relief.

      Hitchcock’s counsel appealed and filed his initial brief in the First District

Court of Appeals of Florida (the “First DCA”). One month later, and prior to the

State’s response, Hitchcock filed a pro se motion styled “Request for Stay of

Proceedings and Leave to File Supplement[al] Initial Brief” (the “Supplemental

Motion”) in which he asserted the following: his counsel did not provide him with

a copy of the brief before filing it; his counsel’s brief failed to raise several of the

claims raised in the 3.850 motion; he had demanded by letter that his counsel file a

supplemental brief asserting all claims raised and ruled upon in the Rule 3.850


      1
          There were actually three 3.850 motions; the others were amended versions.

                                                2
motion; and counsel had refused to do so. Hitchcock’s motion adopted by

reference his Rule 3.850 motion and the transcript of the evidentiary hearing held

on the motion. Hitchcock’s motion sought leave from the Florida First DCA,

which had jurisdiction over his appeal, to either file the supplemental brief

asserting the omitted claims pro se, or for an order directing his counsel to do so.

       The First DCA denied Hitchcock’s motion, without comment except to cite

to Dagostino v. State, 675 So.2d 194 (Fla. 4th DCA 1996), in which the Fourth

DCA held that it had the discretion in a direct appeal to reject an appellant’s pro

se filing when the appellant was represented by counsel.

       Subsequently, Hitchcock, pro se, filed the instant habeas petition, in which

he sought to raise all the 3.850 claims that the state trial court denied, including

those his 3.850 counsel refused to appeal and which the First DCA refused to

allow him to appeal pro se. The district court dismissed the petition with

prejudice, holding, inter alia, that the 3.850 claims that Hitchcock’s counsel had

refused to appeal had not ben exhausted in state court.2 Since those claims would

now be procedurally barred in state court, the district court held that they were

defaulted from federal habeas review.



       2
        The district court considered on the merits and denied the claims that were raised on
appeal by Hitchcock’s 3.850 counsel and denied by the First DCA.

                                                3
      Pursuant to 28 U.S.C. § 2253(c), we granted a certificate of appealability on

the following issue:

      Whether the district court properly dismissed [Hitchcock’s claims] as
      procedurally defaulted for Hitchcock’s failure to fairly present them
      in state court, where Hitchcock raised those claims in his state habeas
      petition, instructed counsel to appeal the state trial court’s denial of
      those claims, and requested permission from the state appellate court
      to file a pro se supplemental brief raising the claims counsel refused
      to raise in the initial brief. See Clemmons v. Delo, 124 F.3d 944, 948-
      49 (8th Cir. 1997).3

                                               II.

      Where a state habeas petitioner asserts a claim that was not considered on

its merits by the state court, either on direct appeal or on collateral attack, he has

not exhausted that claim as required by 28 U.S.C. § 2254(b) and (c). Castille v.

Peoples, 489 U.S. 346, 351 (1989). Where any further attempt to exhaust that

claim in state court would be futile because a state rule of procedure now bars

consideration of that claim, the claim is “procedurally barred” in state court and

may be “procedurally defaulted” in federal court. Coleman v. Thompson, 501 U.S.

722, 735 n.1 (1991) (“[I]f the petitioner failed to exhaust state remedies and the

court to which the petitioner would be required to present his claims in order to

meet the exhaustion requirement would now find the claims procedurally barred . .



      3
          We appointed counsel for the purpose of oral argument.

                                                4
. there is a procedural default for purposes of federal habeas . . .”). Claims

asserted in a federal habeas petition, but which are procedurally barred in state

court, are precluded from federal review. Id.

      Not all claims that are procedurally barred in state court, however, are

precluded from federal review. In order for a claim to be procedurally defaulted in

federal court, the state court rule of procedure barring state court review must be

both “independent of the federal question and adequate to support the [state-court]

judgment.” Cone v. Bell, 129 S. Ct. 1769, 1780 (2009) (quoting Coleman, 501

U.S. at 729); see also Harris v. Reed, 489 U.S. 255, 260 (1989). Furthermore, the

independence and adequacy of the state rule of procedure that bars federal habeas

review “is itself a federal question.” Lee v. Kemna, 534 U.S. 362, 375 (2002)

(emphasis added) (quoting Douglas v. Alabama, 380 U.S. 415, 422 (1965).

“[F]ederal habeas courts must ascertain for themselves if the petitioner is in

custody pursuant to a state court judgment that rests on independent and adequate

state grounds.” Cone, 129 S. Ct. at 1780 (quoting Coleman, 501 U.S. at 736).

      In order to be “adequate” to bar federal habeas review of a constitutional

claim, the state procedural rule must be “firmly established and regularly

followed.” James v. Kentucky, 466 U.S. 341, 348-49 (1984); Payne v. Allen, 539

F.3d 1297, 1312-13 (11th Cir. 2008). The state’s application of a procedural bar

                                          5
“must be faithfully and regularly applied, and must not be manifestly unfair in its

treatment of a petitioner’s federal constitutional claim.” Card v. Dugger, 911 F.2d

1494, 1516-17 (11th Cir. 1990) (citation and quotation omitted). The faithful and

regular application of a firmly established rule provides the due process notice

necessary for the application of the rule to bar federal review of a claim raised in

violation of the rule. Lee, 534 U.S. at 389. Ordinarily, violation of such “firmly

established and regularly followed” state procedural rules will be adequate to

foreclose review of the federal claim. Id.

       The Court has instructed us to disregard, however, state procedures that are

neither firmly established nor regularly followed. In two cases, where the rule

asserted to bar state court review was not codified, the Court refused to find the

rule adequate to bar federal review. James, 466 U.S. at 351 (reversing dismissal

of claim where barred by Kentucky case law rule requiring request for

“admonition” rather than “instruction”); NAACP v. Alabama ex rel. Patterson, 357

U.S. 449, 457-58 (1958) (reversing dismissal of claim barred by Alabama case law

rule requiring review by mandamus rather than the requested certiorari). In James,

the rule, was not “clear,” 466 U.S. at 346, and in Patterson, the “petitioner could

not fairly be deemed to have been apprised of [the rule’s] existence.” 357 U.S. at

457.

                                          6
      Furthermore, the Court has instructed that a rule is not “regularly followed”

if it is not consistently applied and enforced. Johnson v. Mississippi, 486 U.S.

578, 587 (1988); see also Maples v. Allen, 586 F.3d 879, 888 (11th Cir. 2009). A

state rule that is applied in an “arbitrary or unprecedented fashion,” is not adequate

to bar federal review. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001).

Finally, there are “exceptional cases in which exorbitant application of a generally

sound rule renders the state ground inadequate” to bar adjudication of the federal

claim. Lee, 534 U.S. at 376 (citing Davis v. Wechsler, 263 U.S. 22, 24 (1923)).

      The refusal of the First DCA to permit the pro se filing of Hitchcock’s

federal claims omitted by counsel from his appeal of the 3.850 motion satisfies

none of the requirements for an “adequate” or “independent” state ground of

decision. First, at the time Hitchcock filed his Supplemental Motion, there was no

Florida Rule of Appellate Procedure, no published internal operating procedure in

the First DCA, and no published district court of appeals opinion forbidding a pro

se brief in Hitchcock’s circumstances. The Florida Supreme Court had not

promulgated a Florida Rule of Appellate Procedure prohibiting or otherwise

addressing the Florida intermediate appellate courts’ consideration of pro se briefs




                                          7
filed on direct or collateral appeal by persons represented by counsel.4 Nor had

any of the Florida district courts of appeal included such a rule within their

published Internal Operating Procedures. Nor was there a single published

opinion by a Florida district court dating prior to March 2004 (when Hitchcock

filed his motion in the state court) in which a Florida district court denied a motion

for leave to file a pro se brief filed by an appellant with counsel in a post-

conviction appeal.

       The First DCA’s citation of Dagostino is not to the contrary. In Dagostino,

the Fourth DCA held only that it had discretion to reject a pro se pleading filed in

a direct appeal where appellant was represented by counsel. 675 So. 2d at 195. In

Whitfield v. State, 517 So. 2d 23, 23-24 (Fla. 1st DCA 1987), the First DCA itself

recognized that such an appellant would not be denied the opportunity to assert his

ineffective assistance of counsel claims because he could do so later in a 3.850

motion. The Florida court said that “[i]f the issue is viable, appellant’s remedy, as

he recognizes in his motion, lies in collateral proceedings, alleging ineffective

assistance of appellate counsel.” Id. The First DCA’s citation to Dagostino, then,


       4
         In Davis v. State, 789 So. 2d 978, 981(Fla. 2001), the Florida Supreme Court adopted a
rule that it would accept pro se briefs submitted by persons with counsel only under certain
limited circumstances. The rule, however, expressly was not applied to the district courts of
appeal. The Florida Supreme Court noted that all Florida appellate courts had discretion to
determine whether they would accept pro se briefs. Id.

                                               8
did not apply a firmly established rule prohibiting pro se briefs by counseled

appellants in Florida 3.850 proceedings. Nor, of course, was it even binding on

the First DCA, which denied Hitchcock’s motion.

      What was binding on the district court, however, is the Fifth Circuit’s

holding in McBride v. Estelle, 507 F.2d 903, 904 (5th Cir. 1975), that a petitioner’s

filing of a supplemental pro se brief in addition to the brief filed by counsel was

presentation enough to satisfy the jurisdictional requirements of § 2254.5 In

McBride, the Fifth Circuit held that submission of a pro se brief by the petitioner

in the state court “supplemental to one filed by counsel” was “‘presentation’ . . . .

enough to satisfy the jurisdictional requirements of § 2254.” Id. at 904 (affirming

dismissal on other grounds). See also Kifer v. Uchtman, 165 Fed. Appx. 465, 467-

69 (7th Cir. 2006) (pro se motion to supplement qualifies as fairly presenting claim

and “this determination is consistent with the decision of every court of appeals to

address similar circumstances”); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997)

(“A petitioner may satisfy the exhaustion requirement by presenting his federal

claim in a pro se supplemental brief, even if he has an attorney”).

      The State cites absolutely no authority for its repeated assertion that the

First DCA has a rule prohibiting the filing of pro se briefs and consideration of


      5
          The State acknowledges, but does not discuss, this binding precedent.

                                                 9
them on the merits. The only Florida cases cited in its brief, at all, are Dagostino,

which is a Fourth DCA case, and Davis, a Florida Supreme Court case, which

Hitchcock concedes has such a rule. Every other case in its brief is from a federal

circuit court of appeals. Even if a federal case could establish that Florida has

such a firmly established and regularly followed rule – which it could not – most

of the cases are from other circuits.

       Furthermore, assuming arguendo that Dagostino did apply a “rule” barring

pro se briefs in counseled appeals, such a rule had not been “regularly followed”

by the Florida district courts of appeals prior to March 2004, even in direct

appeals. See, e.g., Erickson v. State, 565 So. 2d 328, 334-37 (Fla. 4th DCA 1990)

(reversing lower court on basis of issue raised in “pro se supplemental brief” but

not raised in appellant’s counsel’s brief); Barclay v. Singletary, 642 So. 2d 583,

585-86 (Fla. 3d DCA 1994) (holding barred on motion for post-conviction relief

claims raised in prior pro se brief filed on direct appeal while represented by

counsel).6

       Furthermore, in the case cited to us by the panel that granted the certificate


       6
        We do not imply that a DCA’s firmly established rule that it has the discretion to reject
pro se pleadings from counseled petitioners would not be an adequate state ground to bar federal
review. See Beard v. Kindler, 130 S. Ct. 612, 618 (2009). Here there was no First DCA rule,
and the Fourth DCA’s rule prohibited such briefs, but was not consistently applied by Florida’s
intermediate appellate courts, even in the Fourth District.

                                               10
of appealability, the Eighth Circuit, on facts virtually identical to those in this

case, held that a petitioner’s federal habeas petition claim was not procedurally

barred even though that claim had been raised only in a pro se brief that the

Missouri Supreme Court refused to accept on the grounds that he was represented

by counsel. Clemmons v. Delo, 124 F.3d 944, 947 (8th Cir. 1997). In reversing the

district court on this issue, the court said:

      No rule of court or reported Missouri case of which we are aware
      specifies the circumstances under which Missouri appellate courts
      allow pro se briefs. A state procedural rule must be regularly adhered
      to if it is to be an adequate state ground supporting a procedural bar.
      Sometimes Missouri courts allow pro se briefs, and sometimes they
      do not. That is their prerogative. But in the absence of regularly
      applied criteria, the decision not to allow such a brief cannot be said
      to rest on a regularly applied rule of state procedural law.

Id. at 948 n.3 (internal citation omitted).

      In a similar 2006 case, the Eighth Circuit reversed another district court’s

finding of procedural default, finding that “the state has not demonstrated that

since our decision in Clemmons the Missouri Supreme Court has provided a clear

and ascertainable rule.” Winfield v. Roper, 460 F.3d 1026, 1036-37 (8th Cir.

2006). The court urged the Missouri Supreme Court to formally codify a rule

regarding pro se briefs from counseled appellants. Id. at 1037 n.5.

      The Eighth Circuit later distinguished Clemmons in upholding a district



                                              11
court finding of procedural default based on a pro se filing in a Missouri appellate

court, because, unlike the Missouri Supreme Court, the intermediate Missouri

appellate courts did have published rules prohibiting the filing of pro se briefs by

counseled appellants. See Hall v. Luebbers, 296 F.3d 685, 695 (8th Cir. 2002).

      Finally, even if there were a Florida DCA rule prohibiting pro se briefs by

counseled petitioners, its application on the facts of this case would be

“exorbitant,” see Lee, 534 U.S. at 376, and pointlessly severe. See NAACP v.

Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964). Hitchcock did everything he

could to exhaust his federal claims in the state courts. Rejection of them now

would work an injustice.

                                          III.

      No DCA had a rule prohibiting pro se briefs by counseled appellants at the

time Hitchcock filed his motion. The First DCA did not cite binding authority for

its rejection of his motion. In light of the failure of the Florida courts of appeals to

have a firmly established and regularly applied rule prohibiting such briefs at the

time Hitchcock filed his supplemental motion, we hold that the Florida judgment

dismissing the 3.850 claims does not rest on an adequate state rule of decision and

that, therefore, Hitchcock’s federal claims are not barred from our review.

      REVERSED AND REMANDED for further proceedings not inconsistent

with the opinion.


                                           12
