           Case: 19-10051   Date Filed: 10/03/2019   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-10051
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:16-cv-62309-KMW



PAULIUS TELAMY,

                                                          Petitioner-Appellant,

                                 versus

SECRETARY, STATE OF FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                      Respondents-Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (October 3, 2019)

Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 19-10051     Date Filed: 10/03/2019    Page: 2 of 5


      Paulius Telamy, a Florida prisoner proceeding pro se, appeals the district

court’s dismissal of his Brady v. Maryland, 373 U.S. 83 (1963), claim as

unexhausted in his 28 U.S.C. § 2254 petition. We granted a certificate of

appealability as to whether the district court erred in sua sponte rejecting the state’s

express waiver of exhaustion and dismissing Telamy’s claim as procedurally

barred, without considering the merits of whether a Brady violation occurred. On

appeal, Telamy argues that, under our holding in Vazquez v. Sec’y, Fla. Dep’t of

Corr., 827 F.3d 964 (11th Cir. 2016), the district court erred by dismissing sua

sponte his Brady claim as unexhausted, in light of the state’s express exhaustion

waiver.

      We review a district court’s decision to accept or reject a state’s exhaustion

waiver for abuse of discretion. See Thompson v. Wainwright, 714 F.2d 1495,

1508-09 (11th Cir. 1983) (stating that a district court, in its discretion, may accept

or reject a state’s exhaustion waiver). Generally, a petitioner must exhaust all state

court remedies in order to bring a § 2254 petition in federal court. Vazquez, 827

F.3d at 966. The exhaustion requirement is met when the petitioner presents the

state court with the same claim that he urges in the federal court, and, if he fails to

exhaust his claim, the result is procedural default, which bars habeas relief. Id.

      We have held that states can waive procedural bar defenses, including

exhaustion, in federal habeas proceedings, although a state’s mere failure to raise


                                           2
               Case: 19-10051     Date Filed: 10/03/2019    Page: 3 of 5


exhaustion does not constitute a waiver. Id. “Where a state waives exhaustion, the

district court may consider the procedural bar sua sponte if requiring the petitioner

to return to state court to exhaust his claims serves an important federal interest.”

Id. We have discussed several factors that a district court may consider in

exercising its discretion to accept or reject a state’s exhaustion waiver, including

whether fact finding is involved, how long since petitioner’s conviction and

sentence were imposed, and the comparative status of the federal and state court

dockets, among other things. See Thompson, 714 F.2d at 1509.

      In Vazquez, a state petitioner filed a § 2254 petition, claiming a violation of

his Sixth Amendment Confrontation Clause rights, and, in response, the state

expressly conceded that he had exhausted that claim and addressed the merits of it.

827 F.3d at 965-66. The district court concluded sua sponte, however, that the

petitioner had not exhausted his Confrontation Clause claim in state court and

denied as barred his habeas petition. Id. We vacated and remanded, holding that

the district court erred in sua sponte rejecting the state’s express waiver and

dismissing the petitioner’s claim as procedurally barred. Id. at 967-68.

Specifically, we determined that, in considering the exhaustion issue sua sponte,

the district court did not point to any “important federal interest” or Thompson

factors that required a rejection of the state’s waiver. Id. at 967. Instead, the

district court purported to “correct” the state’s mistake of fact by dismissing the


                                           3
                 Case: 19-10051     Date Filed: 10/03/2019    Page: 4 of 5


petitioner’s claim as procedurally barred. Id. However, we stated that, “to the

extent a mistake may have occurred, the state’s exhaustion waiver is more

accurately characterized as a mistake of law,” rather than a mistake of fact that the

district court could correct sua sponte. Id. (emphasis in original).

         The district court here erred by rejecting sua sponte the state’s waiver of

exhaustion without pointing to any important federal interest or Thompson factors

to justify that decision. As in Vazquez, where the state conceded that the petitioner

had exhausted his federal claim and the district court sua sponte rejected that

waiver, the district court here sua sponte rejected the state’s waiver, despite the

state’s explicit concession that Telamy had raised the Brady claim in his third Rule

3.850 motion, without pointing to any “important federal interest” or Thompson

factor to justify that decision. See id. at 967-68. The record does not support the

state’s argument on appeal that it only conceded that he had raised a “similar

claim.” The state did not make any mention of a similar claim before the district

court.

         Moreover, the district court here, like the district court in Vazquez, rejected

the state’s waiver because it simply found the waiver to be “incorrect” and

purported to correct that mistake. The state’s waiver, however, cannot be

characterized as a mistake of fact that the district court could correct. Based on a

review of the state's response to Telamy’s § 2254 petition, the state presumably


                                             4
               Case: 19-10051     Date Filed: 10/03/2019    Page: 5 of 5


examined the state record, and, in doing so, affirmatively concluded that it did not

need to pursue the exhaustion defense. See Vazquez, 827 F.3d at 967. Its


understanding of the exhaustion requirement led it to the conclusion that pursuing

the exhaustion defense as to Telamy’s Brady claim was futile.

      Although the state now argues on appeal, for the first time, that the Brady

claim was so bare and conclusory that it could not determine exhaustion and truly

waive it, it did not raise that specific defect in response to the § 2254 petition, but

rather, affirmatively stated that Telamy had, in fact, raised that claim in his third

Rule 3.850 motion. Thus, the state was aware of the exhaustion requirement and

communicated to the court its intention not to pursue it, and its exhaustion waiver

is properly characterized as a mistake of law, not of fact. The court erred by

rejecting that waiver without considering the Thompson factors or any important

federal interest. See Vazquez, 827 F.3d at 967-68. Accordingly, the district court

erred by rejecting that waiver, and we vacate and remand.


             VACATED AND REMANDED.




                                            5
