                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            JULY 25, 2007
                             No. 07-10367                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                 D. C. Docket No. 04-01292-CV-T-24TBM

MALCOLM FLEMING,



                                                          Petitioner-Appellant,

                                  versus

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


                                                      Respondents-Appellees.


                       ________________________

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

                              (July 25, 2007)

Before BIRCH, CARNES and HULL, Circuit Judges.

PER CURIAM:
      Malcolm Fleming, a Florida prisoner, appeals the district court’s denial of

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

review, we affirm.

                                I. BACKGROUND

      This is Fleming’s second appeal of the denial of his § 2254 petition. We

begin with the proceedings that led to the first appeal.

A.    First Appeal

      In 1999, Fleming was arrested and charged with delivery of cocaine,

possession of cocaine, robbery with a firearm, and opposing an officer without

violence. Fleming accepted the State’s modified plea offer to withdraw its notice

to treat Fleming as a habitual violent offender in exchange for Fleming serving a

30-year sentence as a habitual felony offender, with a 15-year minimum mandatory

sentence for the robbery offenses and a 5-year concurrent sentence for the delivery

of cocaine offense.

      Fleming signed a written plea agreement containing a provision advising

him of his right to appeal as follows:

      I understand I have the RIGHT TO APPEAL the judgment and
      sentence of the Court within thirty (30) days from the date of
      sentence. . . . I understand that if I plead guilty . . . without reserving
      the right to appeal, I am waiving my right to appeal all matters
      relating to the judgment including the issue of my guilt or innocence.



                                           2
       At the combined plea and sentencing hearing in January 2000, Fleming

indicated that he understood the charges and that, by pleading guilty, he was

waiving his right to go to trial, to call witnesses, and to contest the facts underlying

the charges. Fleming stated that he was not under the influence of any drugs or

alcohol and was freely and voluntarily pleading guilty. There was no reference at

the plea hearing to the written plea agreement or its contents. In addition, the state

trial court did not inform Fleming that he had the right to file a direct appeal.1

Fleming did not file a timely direct appeal.

       In December 2000, Fleming filed a motion for post-conviction relief

pursuant to Florida Rule of Criminal Procedure 3.850. In July 2001, the state

3.850 court denied his Rule 3.850 motion in part. After holding an evidentiary

hearing, the state 3.850 court denied his two remaining claims for relief in June

2002. The Second District Court of Appeal affirmed.

       In October 2002 after the conclusion of the 3.850 proceedings in the state

trial court, Fleming filed a petition for a belated direct appeal with the Second

District Court of Appeal, which was denied.2




       1
        Fleming’s § 2254 petition indicates that he filed a motion to withdraw his guilty plea in
February 2000. The record on appeal does not include this motion or the state trial court’s ruling
on the motion.
       2
           The record on appeal does not include a copy of Fleming’s petition for a belated appeal.

                                                  3
       In June 2004, Fleming filed a pro se § 2254 petition raising four claims,

including a claim that he had been denied his due process rights. Specifically,

Fleming alleged, inter alia, that the state “[t]rial court also neglected to advise

[him] of his right to appeal his convictions within 30 days.”

       In its response, the State conceded that Fleming had exhausted state

remedies as to all of the claims in his § 2254 petition. The State, however, failed to

address Fleming’s claim about the state trial court’s failure to inform him of his

right to file an appeal.

       The district court condensed Fleming’s claims for relief into two claims and

denied his § 2254 petition. This Court granted Fleming’s application for a

certificate of appealability (“COA”) on the issue of whether the district court

violated Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en banc), by failing

to address all of the claims raised in Fleming’s § 2254 petition. On appeal, this

Court vacated and remanded because the district court failed to address all of

Fleming’s due process claims, including the claim that the trial court failed to

notify him of his right to file a direct appeal. Fleming v. Sec’y for Dep’t of Corr.,

203 F. App’x 969 (11th Cir. 2006).

B.     Second Appeal

       Upon remand, the district court again denied Fleming’s § 2254 petition.



                                            4
With respect to Fleming’s claim that the state trial court failed to notify him of his

right to file a direct appeal, the district court found that the trial court did not

advise Fleming in open court of his right to file an appeal. However, the district

court determined that Fleming could not demonstrate prejudice from this omission

because his plea agreement stated that he could file an appeal within 30 days. The

district court further noted that Fleming had filed a petition for belated appeal in

state court that was denied.

       We granted Fleming’s motion for a COA on the issue of “[w]hether

[Fleming’s] due process rights were violated when the state court failed to inform

him of his right to appeal his conviction and sentence.”

                                   II. DISCUSSION

       On appeal, Fleming, proceeding pro se, argues that he was prejudiced by the

state trial court’s failure to notify him of his right to an appeal. While Fleming

does not deny that he signed the plea agreement, he asserts for the first time in this

appeal that he never read or understood the plea agreement. Fleming contends that

he signed the plea agreement only because his attorney instructed him to do so.

Fleming further notes that the state trial court never inquired as to whether he had

read the plea agreement, and, if it had, he would have told the court that he had not.

       We review a district court’s denial of a petition for writ of habeas corpus de



                                             5
novo. See McNair v. Campbell, 416 F.3d 1291,1297 (11th Cir. 2005), cert. denied,

547 U.S. 1073, 126 S. Ct. 1828 (2006). “As to claims that the state court

adjudicated on the merits, [28 U.S.C. § 2254(d)(1)] restricts issuance of habeas

corpus to those that ‘resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.’” Atwater v. Crosby, 451 F.3d 799, 804 (11th

Cir. 2006) (quoting 28 U.S.C. § 2254(d)(1)), cert. denied, ___ U.S.___, 127 S. Ct.

951 (2007). Where a claim was not addressed on the merits by the state court,

however, the claim “falls outside of § 2254(d)(1)’s requirement that we defer to

state court decisions that are not contrary to, or an unreasonable application of,

clearly established federal law.” Davis v. Sec’y for Dep’t of Corr., 341 F.3d 1310,

1313 (11th Cir. 2003). Fleming’s present due process claim was not addressed on

the merits by the state court because he did not raise the claim in his state 3.850

proceedings.3 Thus, the deference standard in § 2254(d)(1) does not apply.

       Nonetheless, the Supreme Court recently provided guidance on resolving a

claim in a collateral proceeding that a trial court failed to advise the defendant of



       3
        Before our Clisby remand, the State conceded in the district court that Fleming had
exhausted state remedies as to his claims. In this second appeal, the State does not allege that
Fleming failed to exhaust. Therefore, this Court need not consider whether this claim should be
dismissed for failure to exhaust. See 28 U.S.C. § 2254(b)(3); Hills v. Washington, 441 F.3d
1374, 1376 (11th Cir. 2006).

                                                6
his right to appeal. In Peguero v. United States, 526 U.S. 23, 119 S. Ct. 961

(1999), the Supreme Court held that “a district court’s failure to advise the

defendant of his right to appeal does not entitle him to habeas relief if he knew of

his right and hence suffered no prejudice from the omission.” Id. at 24, 119 S. Ct.

at 963. While the district court in Peguero failed to inform the defendant of his

right to appeal, the defendant conceded that he was aware of this right by

acknowledging that he asked his counsel to file an appeal at sentencing. Id. at 25,

119 S. Ct. at 963. Because the defendant had full knowledge of his right to appeal,

he could not establish the requisite prejudice in order to obtain collateral relief. Id.

at 28, 119 S. Ct. at 964-65.

       Here, the State concedes that the state trial court erred by failing to inform

Fleming of his right to an appeal as required by Florida Rule of Criminal

Procedure 3.670. Fleming, however, has failed to establish that he was prejudiced

by the trial court’s error. Fleming signed a written plea agreement stating that he

understood that he had the right to appeal his conviction and sentence within thirty

days of sentencing.4 Therefore, because the plea agreement advised Fleming of his

right to appeal, Fleming failed to demonstrate prejudice from the state trial court’s



       4
       While in this appeal Fleming now alleges that he did not read or understand the plea
agreement, we decline to address this argument because he did not present it in the district court.
See Nyland v. Moore, 216 F.3d 1264, 1265 (11th Cir. 2000).

                                                 7
failure to inform him of his right to appeal. Accordingly, the district court did not

err in denying Fleming’s due process claim.

      AFFIRMED.




                                           8
