                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 08-15320                   APRIL 23, 2009
                          Non-Argument Calendar            THOMAS K. KAHN
                                                                CLERK
                        ________________________

                   D. C. Docket No. 08-01966-CV-TWT-1

TRACY ANTHONY MILLER,



                                                           Petitioner-Appellant,

                                   versus

BUDDY D. NIX, JR.,
Chairman, Board of Pardons and Parole Member,
HILTON HALL, Warden,


                                                        Respondents-Appellees.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                               (April 23, 2009)

Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:

      Tracy Anthony Miller, a state prisoner, appeals pro se the dismissal of his

petition for a writ of habeas corpus. 28 U.S.C. § 2241. The district court

dismissed Miller’s petition on procedural grounds and later granted Miller a

certificate of appealability to address the merits of one issue in the petition. We

vacate the order that granted Miller a certificate of appealability and remand.

      Miller filed a petition for a writ of habeas corpus that challenged the denial

of parole by the Georgia Board of Pardons and Paroles. Miller argued that the

Board applied retroactively new rules and regulations that violated his rights to due

process, equal protection, and the Ex Post Facto clause, and increased his

punishment in violation of the Eighth Amendment. A magistrate judge

recommended that the district court dismiss sua sponte Miller’s petition on the

ground that Miller’s complaint was not cognizable in a petition for a writ of habeas

corpus. In the alternative, the magistrate judge dismissed the petition because

Miller failed to exhaust his state remedies. The district court overruled Miller’s

objections, adopted the recommendation of the magistrate judge, and dismissed

Miller’s petition.

      Miller filed a notice of appeal and repeated two issues that he raised in his

petition for a writ of habeas corpus. Miller argued that the retroactive application



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of new rules to his application for parole violated the Ex Post Facto clause and the

extension of his sentence constituted cruel and unusual punishment. The district

court treated Miller’s notice of appeal as a motion for a certificate of appealability

and granted a certificate to address “whether the Parole Board . . . violated

[Miller’s] rights under the Ex Post Facto clause of the United States Constitution.”

The district court did not mention in its order the procedural grounds for the

dismissal of Miller’s petition.

      We will not address the merits of Miller’s petition. “When a district court

dismisses a petition [on procedural grounds], it is inappropriate to grant a

[certificate] on the constitutional claim . . . .” Ross v. Moore, 246 F.3d 1299, 1300

(11th Cir. 2001). We VACATE the order that granted Miller a certificate of

appealability and REMAND to the district court for the limited purpose of

determining if a certificate of appealability should be granted to address (1)

whether Miller can challenge the denial of parole by the state parole board in a

petition for a writ of habeas corpus and (2) whether Miller failed to exhaust his

state remedies.

      VACATED and REMANDED.




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