           Case: 13-11136   Date Filed: 07/07/2014   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-11136
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 3:13-cv-00178-MMH-TEM



RAYMOND CLAUDIO,

                                                          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
                     ________________________

                              (July 7, 2014)

Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Raymond Claudio, now a former Florida state prisoner proceeding pro se,

appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition

for failure to exhaust state remedies. Claudio, who filed this § 2254 petition while

he was still in state custody, filed a motion to excuse exhaustion due to alleged

lengthy delays in adjudicating his still-pending state post-conviction motion, and

the district court sua sponte dismissed the case without requiring a response from

the state or having a record of Claudio’s state post-conviction proceedings. We

granted a certificate of appealability (“COA”) on the following issues:

      (1)    Whether, in light of this Court’s decision in Long v. United
             States, 626 F.3d 1167, 1168 (11th Cir. 2010), the district court
             violated Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992), by
             failing to address Claudio’s claim that he was entitled to be
             excused from the exhaustion requirement, pursuant to 28
             U.S.C. § 2254(b)(1)(B);

      (2)    If the district court did not violate Clisby v. Jones, whether the
             court erred in determining, without obtaining the state record or
             holding an evidentiary hearing, that Claudio had not shown
             circumstances that demonstrate that he should be excused from
             exhaustion pursuant to § 2254(b)(1)(B); and

      (3)    If the district court did not err in concluding that Claudio was
             required to exhaust his state remedies, whether the court erred
             in failing to hold the claims in abeyance, rather than dismiss
             them without prejudice, as it appears that Claudio’s release
             from prison may prevent him from meeting the “in custody”
             requirement when he refiles his § 2254 petition after exhausting
             his state remedies.

      We review de novo a district court’s legal conclusions in a § 2254

proceeding, and review for clear error its findings of fact. Osborne v. Terry, 466
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F.3d 1298, 1304-05 (11th Cir. 2006). A habeas petitioner must be “in custody” for

the district court to have subject matter jurisdiction over a habeas petition attacking

the state conviction, meaning that “the state must exercise some control over the

petitioner to satisfy the ‘in custody’ requirement.” 28 U.S.C. § 2254(a); Stacey v.

Warden, Apalachee Corr. Inst., 854 F.2d 401, 403 (11th Cir. 1988).

      A state prisoner must exhaust all state remedies that are available for

challenging his conviction prior to bringing a habeas action in federal court.

28 U.S.C. § 2254(b)(1)(A), (c). A state prisoner is excused from the exhaustion

requirement if (1) “there is an absence of available State corrective process,” or

(2) “circumstances exist that render such process ineffective to protect the rights of

the applicant.” Id. § 2254(b)(1)(B)(i), (ii). In a case decided before the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we stated that

that “[s]tate remedies will be found ineffective and a federal habeas petitioner will

be excused from exhausting them in the case of unreasonable, unexplained state

delays in acting on the petitioner’s motion for state relief.” Cook v. Fla. Parole &

Prob. Comm’n, 749 F.2d 678, 680 (11th Cir. 1985); see also Galtieri v.

Wainwright, 582 F.2d 348, 354 n.12 (5th Cir. 1978) (en banc) (noting, in a

pre-AEDPA case, that exhaustion is not required where “the state procedures do

not afford swift vindication” or “state procedural snarls or obstacles preclude an

effective state remedy”) (citation omitted); Dixon v. State of Fla., 388 F.2d 424,


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425-26 (5th Cir. 1968) (holding, in a pre-AEDPA case, that an “inordinate and

unjustified delay in the state corrective process may well result in the frustration of

petitioner’s rights and be such a circumstance as to render [the exhaustion] process

ineffective,” and remanding the case to the district court to determine whether a

19-month delay in state court was justifiable).

      The district court has the discretion to deny a § 2254 petition on the merits

even if the petitioner did not exhaust his state remedies. 28 U.S.C. § 2254(b)(2).

However, the state is not deemed to have waived the exhaustion requirement

unless the state expressly waives that requirement through counsel. Id.

§ 2254(b)(3).

      If a petitioner fails to exhaust state remedies, the district court should

dismiss the petition without prejudice to allow exhaustion. Rose v. Lundy, 455

U.S. 509, 519-20, 102 S.Ct. 1198, 1203-05, 71 L.Ed.2d 379 (1982). In the event

that such a dismissal would result in any subsequent petition being barred from

federal habeas review, the district court has discretion to employ a

“stay-and-abeyance” procedure, whereby the court would stay the timely filed

petition and hold it in abeyance while the petitioner returns to state court to exhaust

all of his previously unexhausted claims. Rhines v. Weber, 544 U.S. 269, 275-79,

125 S.Ct. 1528, 1533-35, 161 L.Ed.2d 440 (2005). The Supreme Court explained

that such a procedure “should be available only in limited circumstances,” and only


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is appropriate when (1) there was good cause for the petitioner’s failure to exhaust

his claims first in state court, (2) the unexhausted claims are not plainly meritless,

and (3) there is no indication that the petitioner engaged in intentionally dilatory

litigation tactics. Id. at 277-78, 125 S.Ct. at 1535.

      The district court must resolve all claims for relief raised in a § 2254 petition

for habeas corpus, regardless of whether habeas relief is granted or denied. Clisby,

960 F.2d at 936. A claim is defined as “any allegation of a constitutional

violation.” Id. In Long, we considered whether the district court violated Clisby

by failing to address Long’s claim that he was entitled to statutory tolling of the

limitations period. Long, 626 F.3d at 1168. We concluded that Clisby’s

requirement that district courts address all claims also required the courts to

resolve all claims that petitioners raise regarding tolling of the limitations period,

and we held that the district court in Long’s case had violated Clisby. Id. at 1170.

In reaching this conclusion, we noted that:

      [I]n a post-conviction case, the district court must develop a record
      sufficient to facilitate our review of all issues pertinent to an
      application for a COA and, by extension, the ultimate merit of any
      issues for which a COA is granted. If the post-conviction motion or
      petition is dismissed as untimely, the district court must create a
      record that will facilitate meaningful appellate review of the
      correctness of the procedural ruling, the merit of the underlying
      substantive claims, or
      both . . . .




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Id. Additionally, district courts must “facilitate meaningful appellate review by

developing adequate factual records and making sufficiently clear findings as to

the key issues.” Id. We vacated and remanded the case for the district court to

consider Long’s arguments in favor of statutory tolling. Id.

       In his motion to excuse exhaustion, Claudio alleged circumstances that may

have rendered exhaustion of his claims in state court ineffective to protect his

rights. However, we cannot determine whether the district court correctly

dismissed the case because there is no factual record or factual findings on which

to evaluate the dismissal. Accordingly, after review of the record and

consideration of Claudio’s brief on appeal, we vacate the district court’s sua sponte

dismissal and remand the case for the district court to make adequate factual

findings with regard to Claudio’s motion to excuse exhaustion. On remand, if the

district court finds that Claudio has not yet fully exhausted his state court remedies,

it should also consider whether the stay-and-abeyance procedure is appropriate,

given that Claudio has fully completed his sentence since he filed his § 2254

petition.

       Because we vacate the district court’s dismissal pursuant to Issue 2 of the

COA, we decline to reach the issues raised in Issues 1 and 3 of the order granting a

COA.

       VACATED AND REMANDED.


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