                                                                 [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 11-12161            ELEVENTH CIRCUIT
                                        Non-Argument Calendar       NOVEMBER 14, 2011
                                      ________________________           JOHN LEY
                                                                          CLERK
                           D.C. Docket No. 8:10-cv-01292-EAK-TGW



DERRICK D. GILBERT,

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
                                 ________________________

                                           (November 14, 2011)

Before MARCUS, MARTIN and FAY, Circuit Judges.

PER CURIAM:

         Derrick Gilbert, a Florida prisoner serving a total 20-year sentence after
pleading nolo contendere to various offenses, appeals pro se the district court’s

denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.

Gilbert initially had raised five claims in his habeas petition. Subsequently, he

expanded his petition to include an additional claim, namely, that the state violated

his due process rights by breaching a plea agreement. Before the district court

ruled on his petition, however, Gilbert filed a motion to withdraw the plea-

agreement claim, indicating that he had not exhausted state remedies with respect

to that claim, but was in the process of doing so. The district court then issued an

order denying Gilbert’s § 2254 petition on all of his five initial claims. The court

did not address the plea-agreement claim in its order, but simply granted Gilbert’s

motion to withdraw. We granted a certificate of appealability (“COA”) on the

following issue: whether the district court erred by granting Gilbert’s motion to

withdraw the plea-agreement claim and denying his five remaining claims, rather

than dismissing his entire § 2254 petition pursuant to Rose v. Lundy, 455 U.S. 509,

102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

      In reviewing a district court’s denial of a § 2254 habeas petition, we review

questions of law de novo. Grossman v. McDonough, 466 F.3d 1325, 1335 (11th

Cir. 2006). The Supreme Court held in Rose that, when a prisoner raises both

exhausted and unexhausted claims in his federal habeas petition, a district court

                                          2
must dismiss the petition without prejudice, “leaving the prisoner with the choice

of returning to state court to exhaust his claims or of amending or resubmitting the

habeas petition to present only exhausted claims to the district court.” Rose, 455

U.S. at 510, 519-20, 102 S.Ct. at 1199, 1204; Snowden v. Singletary, 135 F.3d

732, 736 (11th Cir. 1998).

      Judging from the context of Gilbert’s motion to withdraw, it is evident that

he did not intend to delete the plea-agreement claim from his petition and to

proceed only with the exhausted claims, as doing so almost certainly would have

barred the plea-agreement claim from federal habeas review. See 28 U.S.C.

§ 2244(b)(2) (imposing heavy restrictions on filing successive habeas petitions);

see also United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990) (“Federal

courts have long recognized that they have an obligation to look behind the label

of a motion filed by a pro se inmate and determine whether the motion is, in effect,

cognizable under a different remedial statutory framework.”).

      Certainly, when a petitioner seeks habeas review on both exhausted and

unexhausted claims, a district court need not always dismiss the entire petition

without prejudice. For instance, “when it is obvious that the unexhausted claims

would be procedurally barred in state court,” a district court may “forego the

needless ‘judicial ping-pong’ and just treat those claims now barred by state law as

                                         3
no basis for federal habeas relief.” Snowden, 135 F.3d at 736. Moreover, a habeas

petition “may be denied on the merits, notwithstanding the failure of the applicant

to exhaust” state remedies. 28 U.S.C. § 2254(b)(2); Thompson v. Sec’y for Dep’t

of Corr., 517 F.3d 1279, 1283-84 (11th Cir. 2008).1

       In this case, the district court took none of the above alternatives, but simply

granted Gilbert’s motion to withdraw the plea-agreement claim without an

explanation, making it very difficult, if not impossible, for Gilbert to seek future

federal habeas relief on that claim. See 28 U.S.C. § 2244(b)(2). We express no

judgment on the procedural or substantive viability of the claim, and dismissing

Gilbert’s entire habeas petition under Rose may not be necessary. See 28 U.S.C.

§ 2254(b)(2); Snowden, 135 F.3d at 736. However, it is the district court’s

responsibility to make the appropriate determinations in the first place. See

Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000) (“If there is an issue that

the district court did not decide in the first instance, it is not properly before this

Court.”). Accordingly, we vacate the district court’s grant of Gilbert’s motion to

withdraw and remand for further proceedings.

       1
           A district court may also grant a “stay and abeyance” of a § 2254 petition to allow the
exhaustion of claims. Thompson v. Sec’y for Dep’t of Corr., 425 F.3d 1364, 1365-66 (11th Cir.
2005). However, this remedy is available only in “limited circumstances,” namely, “if (1) the
petitioner had good cause for failing to exhaust the claims in state court; (2) the unexhausted claims
are potentially meritorious; and (3) there is no indication that the petitioner engaged in intentionally
dilatory litigation tactics.” Id. (quotations omitted).

                                                   4
VACATED and REMANDED.




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