                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            OCT 23, 2007
                             No. 06-16268                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                  D. C. Docket No. 02-02683-CV-TWT-1

MICHAEL ALAN TURNER,



                                                          Petitioner-Appellant,

                                  versus

TONY HOWERTON,




                                                        Respondent-Appellee.


                       ________________________

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

                            (October 23, 2007)

Before BIRCH, WILSON and PRYOR, Circuit Judges.
PER CURIAM:

      Michael Alan Turner, a Georgia state prisoner proceeding pro se, appeals the

district court’s denial of his motion under Federal Rule of Civil Procedure 60(b)

for relief from the district court’s final order denying Turner’s petition for a writ of

habeas corpus under 28 U.S.C. § 2254. We AFFIRM.

                                 I. BACKGROUND

      In September 2002, Turner filed a pro se petition for a writ of habeas corpus

pursuant to 28 U.S.C § 2254. He claimed numerous grounds for relief, namely:

(1) ineffective assistance of counsel, including a claim that his counsel failed to file

a motion to suppress (ground one); (2) he was unaware of the nature and

consequences of his guilty plea (ground two); (3) prosecutorial misconduct

(ground three); (4) the state preliminary court and trial court violated his Fifth and

Sixth Amendment rights by not providing him with counsel during his plea

proceedings and making various other errors prior to the entry of his guilty plea

(ground four); (5) the state trial judge improperly allowed Turner to enter a guilty

plea to a “silent record,” when the record would have established that Turner’s

waiver of constitutional rights was invalid; (6) the county magistrate judge violated

the United States and Georgia constitutions by allowing him to plead guilty

without counsel and failing to inform him of his right to appeal (ground six); (7)



                                            2
the Public Defender’s Office obstructed justice by destroying his case file (ground

seven); and (8) that, under the “new rule of law” stated in Apprendi v. New Jersey,

530 U.S. 466, 120 S.Ct. 2348 (2000), the sentencing court improperly enhanced his

sentence (ground eight). R1-1, Supplemental Pages at 1-9.

      The government moved to dismiss the petition for lack of exhaustion,

arguing that Turner had not exhausted ground eight. In response to the

government’s motion, the district court offered Turner three choices: (1) proceed

on the mixed petition and face potential dismissal pursuant to Rose v. Lundy, 455

U.S. 509, 519-20, 102 S.Ct. 1198, 1204 (1982); (2) withdraw ground eight, his

unexhausted Apprendi claim, and proceed on the remaining grounds; or (3)

voluntarily dismiss the entire petition and file a state habeas action, so that Turner

could fully and fairly litigate all of his claims, including ground eight, and exhaust

his state court remedies. Turner elected to dismiss ground eight and proceed on the

remaining grounds.

      On 28 July 2004, a magistrate judge issued a report and recommendation,

recommending that Turner’s petition be denied. First, the magistrate judge found

that subpart (d) of Turner’s ineffective assistance of counsel claims under ground

one of his petition (that Turner’s counsel was ineffective for failing to file a motion

to suppress), and grounds five, six, and seven were unexhausted but procedurally



                                           3
defaulted because Turner failed to raise them properly and timely in the state

courts and did not show cause and prejudice to excuse his failure to do so. The

magistrate judge then addressed the merits of Turner’s remaining claims under

grounds one, two, three, and four.

       The magistrate judge found that the state habeas court reasonably applied the

correct rule of law in ruling on Turner’s claims of ineffective assistance of counsel.

He also found that Turner received effective assistance of counsel. Therefore, the

magistrate judge found that Turner was not entitled to federal habeas relief under

ground one. With respect to ground two, the magistrate judge found that Turner

voluntarily and intelligently entered his guilty plea, based upon the reconstructed

transcript of Turner’s plea hearing.1 The reconstructed transcript indicated that

Turner understood the rights he was waiving through his guilty plea, that the state

recommended a life sentence, that he had not been threatened into entering his

plea, and that there would be no trial as a result of his plea. As to ground three, the

magistrate judge found that the state habeas court correctly held that, through

Turner’s knowing and voluntary guilty plea, Turner waived his right to bring

claims of prosecutorial misconduct. Finally, the magistrate judge found that all of


       1
         The transcript of Turner’s guilty plea hearing was lost. The state trial judge
subsequently created a reconstructed transcript pursuant to O.C.G.A. § 5-6-41(g), and ruled that
the reconstructed transcript has the same binding effect as a transcript filed by the court reporter
pursuant to O.C.G.A § 5-6-41(e).

                                                  4
Turner’s claims in ground four, in which he alleged various errors in the state

preliminary proceedings and trial court prior to entry of his guilty plea, were either

waived through Turner’s guilty plea or resolved in the state habeas court’s

discussion of the voluntary nature of his plea.

      After de novo review, the district court approved and adopted the magistrate

judge’s report and recommendation, and dismissed Turner’s petition on 18 October

2004. On 19 October 2005, Turner filed a motion for relief from judgment,

pursuant to Rule 60(b)(1),(3),(4), and (6). Turner argued that the district court

erred by determining that he had presented a mixed petition and by allowing him to

proceed through one of only three options. In addition to the three options he was

given, Turner asserted that the district court should have allowed him to hold the

federal habeas proceedings in abeyance pending exhaustion of his state claims.

Further, Turner argued that the state habeas court never made a plain statement that

it was relying upon a procedural bar to dismiss his claims during the state habeas

proceedings. Therefore, according to Turner, the district court mistakenly found

that the allegedly unexhausted grounds were procedurally barred, and further erred

in finding that Turner had not raised these claims in state court. Turner also

maintained that the district court judgment was void because it “relied on state law

to determine a federal question of whether … O.C.G.A. § 17-10-1(a) created a



                                           5
liberty interest … in a determinate sentence” for a specific amount of time. R4-59

at 10-11. Finally, Turner argued that the district court mistakenly found no error in

his trial counsel’s failure to advise him of his right to an appeal.

           The district court denied Turner’s Rule 60(b) motion as untimely. We

granted Turner’s subsequent motion for a certificate of appealability (COA) on the

question of whether the district court erred by dismissing that motion as untimely.

We found that the district court abused its discretion in finding that Turner’s Rule

60(b) motion was untimely, and we remanded for a review on the merits.

However, we found that Turner abandoned his claims pursuant to Rule 60(b)(3)

and (6) by failing to address them in his motion.2 We also determined that, to the

extent that his motion challenged the district court’s resolution of the merits of his

petition, specifically, the claims that he was not advised of his right to a direct

appeal and that he was denied effective assistance of counsel, the motion

constituted a second or successive habeas petition over which the district court

lacked jurisdiction

       On remand, the district court denied Turner’s Rule 60(b) motion. Turner

applied for a certificate of appealability (“COA”), and the district court granted his

motion on the issue of “whether an alleged legal error constitutes a ‘mistake’ under


       2
        Issues not raised in an initial brief are deemed abandoned. Isaacs v. Head, 300 F.3d
1232, 1253 n.6 (11th Cir. 2002) (citations omitted).

                                               6
Rule 60(b).” R5-96. We expanded the COA to include the question, “[i]f so,

whether the district court erred in denying [Turner’s] Rule 60(b) motion.” Turner

v. Howerton, No. 06-16268 (11th Cir. Sept. 23, 2007).

                                  II. DISCUSSION

      Pro se pleadings are held to a less stringent standard than pleadings drafted

by attorneys and are liberally construed. Tannenbaum v. United States, 148 F.3d

1262, 1263 (11th Cir. 1998) (per curiam). “[A] district court's order under Rule

60(b) is reviewable only for abuse of discretion.” American Bankers Ins. Co. of

Fla. v. Northwestern Nat'l Ins. Co., 198 F.3d 1332, 1338 (11th Cir. 1999). Rule

60(b) provides that “the [district] court may relieve a party or a party’s legal

representative from a final judgment, order, or proceeding for the following

reasons: (1) mistake, inadvertence, surprise, or excusable neglect ... [or] (4) the

judgment is void.” Fed. R. Civ. P. 60(b). A Rule 60(b) motion seeking relief on

grounds of mistake or inadvertence must be filed within one year after entry of the

judgment or order that the movant seeks to challenge. Id. An appeal from a ruling

on a Rule 60(b) motion is limited to the grant or denial of that motion and does not

subject the underlying judgment to review. Bankers Ins. Co., 198 F.3d at 1338.

Our review of subject matter jurisdiction de novo. See Milan Express, Inc. v.

Averitt Express, Inc., 208 F.3d 975, 978 (11th Cir. 2000).



                                           7
A. A Legal Error Can Be a “Mistake” Within the Scope of Rule 60(b)

      A legal error in a judicial ruling can constitute a “mistake” as that term is

used in Rule 60(b). However, we must distinguish between motions alleging

“mistakes” cognizable under Rule 60(b) and motions that seek review of a court’s

prior resolution of the merits of a habeas petition. The Supreme Court has

determined that “when a Rule 60(b) motion attacks, not the substance of the federal

court’s resolution of a claim on the merits, but some defect in the integrity of the

federal habeas proceedings,” the motion should not be considered a second or

successive habeas petition. Gonzalez v. Crosby, 545 U.S. 524, 532, 125 S.Ct.

2641, 2648 (2005). By contrast, the Court stated that a Rule 60(b) motion that

“seeks to add a new ground for relief,” or “attacks the federal court’s previous

resolution of a claim on the merits,” constitutes a second or successive habeas

petition, which requires pre-certification by a court of appeals. Id. The Court

explained:

        The term “on the merits” has multiple usages. We refer here to
        a determination that there exist or do not exist grounds
        entitling a petitioner to habeas corpus relief under 28 U.S.C.
        §§ 2254(a) and (d). When a movant asserts one of those
        grounds (or asserts that a previous ruling regarding one of
        those grounds was in error) he is making a habeas corpus
        claim. He is not doing so when he merely asserts that a
        previous ruling which precluded a merits determination was in
        error-for example, a denial for such reasons as failure to
        exhaust, procedural default, or statute-of-limitations bar.


                                           8
Id. at 532 n.4, 125 S.Ct. at 2648 n.4 (citations omitted).

      Under Gonzalez, a legal error may be a “mistake” within Rule 60(b) when

the purported error occurred in a “previous ruling which precluded a merits

determination,” such as a denial based on procedurally barred or unexhausted

claims. Id. In this case, Turner’s Rule 60(b) motion challenged, among other

things, the district court’s determination that several grounds in Turner’s petition

were procedurally barred, and we have jurisdiction to review that claim as a

potential mistake under Rule 60(b).

B. The District Court Did Not Err in Denying Turner’s Rule 60(b) Motion

      The district court correctly denied Turner’s Rule 60(b) motion. First, the

district court properly denied Turner’s ineffective-assistance-of-counsel claims.

Since we had already determined that Turner’s ineffective assistance of counsel

claim was successive, the district court did not have jurisdiction to hear the claim

under the “law of the case” doctrine. See Turner v. Howerton, 196 F. App’x 848,

851 (11th Cir. 2006) (per curiam). “[T]he ‘law of the case’ doctrine ‘invokes the

rule that findings of fact and conclusions of law by an appellate court are generally

binding in all subsequent proceedings in the same case in the trial court or on a

later appeal.’” Westbrook v. Zant, 743 F.2d 764, 768 (11th Cir. 1984) (citation

omitted). “The doctrine ‘generally operates to preclude a reexamination of issues

decided upon appeal, either by the district court on remand or by the appellate


                                           9
court itself upon a subsequent appeal.’” Id. (citation omitted). Under this doctrine

and our prior opinion in this case, the district court was bound to deny Turner’s

ineffective assistance claims because we previously had determined that these

claims were an attack on the district court’s resolution of the merits of his § 2254

petition, and were not properly raised in a Rule 60(b) motion.

       Second, Turner argued that the magistrate judge erred by finding that his §

2254 petition was mixed and by giving him only three options for how to proceed

on the petition, which were: (1) to proceed on his mixed petition and face possible

dismissal pursuant to Rose v. Lundy, 455 U.S. at 519-520, 102 S.Ct. at1204; (2) to

withdraw his unexhausted Apprendi claim 3 and proceed only upon the remaining

grounds; or (3) to voluntarily dismiss the entire petition and file a state habeas

action to exhaust all state court remedies.4 Turner also argues that he should have

been given the option to stay the proceedings on his petition and hold several of his

grounds in abeyance pending his attempts to exhaust those grounds in state court.

       To exhaust state remedies, a petitioner must fairly present every issue raised


       3
         The district court correctly held that Turner’s Apprendi claim was unexhausted.
Further, Turner was not entitled to relief under Apprendi. We have held that Apprendi
announced a new rule of constitutional law and may not be applied retroactively to cases already
final on direct review, such as this case. In re Anderson, 396 F.3d 1336, 1339-40 (11th Cir.
2005).
       4
          Turner also argued that his petition was not mixed because the state had an opportunity
to litigate these issues in Turner’s state habeas petition. As we have explained, Turner could not
amend his state habeas petition to include these grounds after the final evidentiary hearing in the
state habeas proceedings. This argument lacks merit.

                                                10
in his federal petition to the state’s highest court. Castille v. Peoples, 489 U.S.

346, 351, 109 S.Ct. 1056, 1060 (1989). Procedural default occurs when the

petitioner never raised the claim in state court and it is obvious that the

unexhausted claim would now be procedurally barred in state court. Bailey v.

Nagle, 172 F.3d 1299, 1303 (11th Cir. 1999) (per curiam). Georgia law establishes

that, under most circumstances, any claims not raised in a petitioner’s initial state

habeas petition may not be raised in a successive petition. O.C.G.A. § 9-14-51.

The Supreme Court held that a procedural default does not bar consideration of a

federal claim unless the last state court rendering a judgment in the case “clearly

and expressly” stated that its judgment rested on a state procedural bar. Harris v.

Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043 (1989). This rule is inapplicable,

however, in cases such as this where the claim has never been presented to the state

courts. Chambers v. Thompson, 150 F.3d 1324, 1326-1327 (11th Cir. 1998).

      Turner’s petition contains several unexhausted but procedurally defaulted

claims. In subpart (d) of ground one, Turner presented a claim that his trial

counsel was ineffective for failing to file a motion to suppress, which he

voluntarily dismissed from his original state habeas petition and raised again in his

federal petition. Turner presented grounds five, six, and seven to the state habeas

court only after the final evidentiary hearing in his state habeas case. Since

Georgia law does not permit amendments to a state habeas petition after the final


                                           11
evidentiary hearing, these claims were not timely presented to the state habeas

court. When ruling on Turner’s petition, the district court correctly held that

subpart (d) of ground one, and grounds five, six, and seven of Turner’s petition

were unexhausted but procedurally defaulted. On remand, when considering

Turner’s Rule 60(b) motion, the district court did not abuse its discretion in

determining that it had correctly ruled that several of Turner’s claims were

procedurally barred.

       Relatedly, Turner argues that the district court should have allowed him to

stay the proceedings on his federal petition and hold grounds one, subpart (d), five,

six, and seven in abeyance pending his attempts to exhaust those grounds in state

court. Initially, we note that the magistrate judge entered the order offering Turner

his three alternatives on 13 August 2003, and Turner’s Rule 60(b) motion was filed

in October 2005. Thus, we lack jurisdiction over this issue since Turner’s motion

was filed well over one year since the entry of the magistrate judge’s order. See

F.R.C.P. Rule 60(b).5

       5
         Even if we did have such jurisdiction, this argument lacks merit. The stay and abeyance
option was not clearly established when the district court denied Turner’s petition in October
2004. In 2005, the Supreme Court decided that this option “should be available only in limited
circumstances,” and is appropriate only where “the district court determines there was good
cause for the petitioner’s failure to exhaust his claims first in state court.” Rhines v. Weber, 544
U.S. 269, 277, 125 S.Ct. 1528, 1535 (2005). In this case, the district court did not find good
cause for Turner’s failure to exhaust ground one, subpart (d), five, six, and seven in state court.
Moreover, while the district court had the ability to grant Turner a continuation or abeyance
while he exhausted his state remedies, it was not obligated to do so. Therefore, the district court
did not err by not offering him the stay and abeyance option. In conclusion, the district court
committed no error redressable under Rule 60(b) relating to its disposition of the unexhausted

                                                12
       Finally, Turner argues that the district court made a mistake under Rule

60(b) when it allegedly erred by using state law to determine that he had no liberty

interest in a sentence for a determinate number of years. We do not have

jurisdiction over this claim. Turner did not present this argument in his § 2254

petition or his subsequent amendments of it. Further, Turner may not use a Rule

60(b) motion to raise a new claim attacking the merits of the district court’s

decision that the state did not violate his constitutional rights by recommending a

life sentence, and he may not raise this new claim on appeal. Gonzales v. Crosby,

545 U.S. at 532, 125 S.Ct. at 2648.

                                   III. CONCLUSION

       Turner has appealed the denial of his Rule 60(b) motion for relief from the

district court’s final order denying his § 2254 petition. As we have explained, the

district court’s denial of Turner’s § 2254 petition is AFFIRMED.




but procedurally defaulted claims contained in Turner’s mixed § 2254 petition.

                                              13
