                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                           U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                No. 04-16271                     March 22, 2006
                          ________________________            THOMAS K. KAHN
                                                                   CLERK
                     D. C. Docket No. 04-00210 CV-CAR-5

JOHN HART,

                                                   Petitioner-Appellant,

                                     versus


VICTOR WALKER,
                                                   Respondent-Appellee.

                          ________________________

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

                                (March 22, 2006)

Before ANDERSON, DUBINA and HILL, Circuit Judges.

PER CURIAM:

      The magistrate judge dismissed the instant habeas petition in a report and

recommendation which provided only “that petitioner’s claims have never been
reviewed on direct appeal or by a state habeas court since petitioner’s direct appeal

merely challenged the trial court’s denial of his motion to withdraw his guilty

plea.” The district court adopted the recommendation, and entered judgment

dismissing. Hart appeals. This court granted a certificate of appealability on the

following issue only: whether the district court erred in dismissing without

prejudice appellant’s 28 U.S.C. § 2254 petition for failure to exhaust state

remedies.

      The court below apparently accepted the respondent’s argument that a direct

appeal from a denial of a motion to withdraw a guilty plea cannot exhaust the

claims thus litigated. As respondent now concedes on appeal, the court below

erred in this regard. It is apparent that at least some of petitioner’s claims were

fully exhausted in the litigation before the state trial court with respect to

petitioner’s attempt to withdraw his guilty plea, and it is also apparent that at least

some of petitioner’s claims were fairly presented to the state appellate court, thus

fully exhausting same. We decline to undertake ourselves to parse the litigation

before the state trial court in connection with the withdrawal proceedings or the

appeal therefrom to determine which of petitioner’s instant claims have been fully

exhausted, and which perhaps have not. We prefer for the district court to

undertake that analysis in the first instance.

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      Accordingly, the judgment of the district court is vacated and the case is

remanded for further proceedings not inconsistent with this opinion. If on remand,

the district court concludes that this is a mixed petition (i.e., containing both

exhausted and unexhausted claims), then petitioner shall have the option to decide

whether to dismiss with prejudice any unexhausted claims and continue forthwith

to litigate the exhausted claims in federal court. If petitioner elects to attempt to

exhaust such unexhausted claims in state court, then, the district court shall

consider the factors set out in Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528

(2005), to determine whether to stay the instant petition and hold it in abeyance

pending exhaustion, or whether to dismiss the mixed petition without prejudice.

      VACATED AND REMANDED.




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