                                                       [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                           May 22, 2008
                            No. 07-14288
                                                         THOMAS K. KAHN
                        Non-Argument Calendar
                                                             CLERK
                      ________________________

                D. C. Docket No. 07-01495-CV-T-26MAP

CHARLES H. COHENS,

                                                        Petitioner-Appellant,

                                 versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,

                                                     Respondents-Appellees.


                      ________________________

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

                             (May 22, 2008)

Before BLACK, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
      Florida prisoner Charles Cohens, proceeding pro se, appeals the district

court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition. Cohens asserted

two claims in his petition, conceding that one of the claims was procedurally

defaulted, but arguing it would be a fundamental miscarriage of justice for the

district court not to address the merits of the claim because the default resulted

from his ineffective counsel. The day after the petition was filed, the district court

sua sponte dismissed the petition without prejudice because Cohens did not

demonstrate he had exhausted his state remedies before filing for habeas relief in

federal court. Cohens asserts his case should be remanded to the district court so

it can hold an evidentiary hearing to consider both of his original claims.

      Whether a § 2254 petitioner has exhausted his state remedies is a mixed

question of law and fact that we review de novo. Fox v. Kelso, 911 F.2d 563, 568

(11th Cir. 1990). By statute, no federal court may grant a state prisoner’s

application for a writ of habeas corpus unless, among other things, the applicant

“has exhausted the remedies available in the courts of the State.” 28 U.S.C.

§ 2254(b)(1)(A).

      A mixed habeas petition, containing both exhausted and unexhausted

claims, should be dismissed without prejudice to allow the petitioner to either

exhaust state remedies, bring a new petition presenting only the exhausted claims,

                                          2
or amend the petition to remove any unexhausted claims. Rose v. Lundy, 102 S.

Ct. 1198, 1203-1205 (1982). However, a claim that is procedurally barred in state

court because it never was properly raised should not be dismissed for failure to

exhaust state remedies, but rather, should be held procedurally barred in federal

court unless the petitioner can show (1) cause for the default and actual prejudice;

or (2) the failure to consider the claim would result in a fundamental miscarriage

of justice. See Gray v. Netherland, 116 S. Ct. 2074, 2080 (1996); Wainwright v.

Sykes, 97 S. Ct. 2497, 2508-09 (1977). Where the district court did not explicitly

address the issue of cause and prejudice, we might decline to do so upon review,

“preferring that the district court address it in the first instance.” Roberts v.

Sutton, 217 F.3d 1337, 1341 (11th Cir. 2000).

      The district court erred by sua sponte dismissing Cohens’ petition because it

did not have a record of Cohens’s state cases, and it did not hear from the State

regarding exhaustion of state remedies. See Davis v. Dugger, 829 F.2d 1513, 1521

(11th Cir. 1987) (concluding the district court erred when it dismissed a habeas

petition “for failure to exhaust state remedies before the state responded and either

set out an exhaustion defense or waived exhaustion”). Cohens asserted he had

exhausted his state remedies regarding the first of his two claims, which the state

did not challenge prior to the district court’s dismissal. He conceded his second

                                           3
claim was not exhausted in state court and was procedurally barred, but he argued

(1) cause and prejudice, based on his appellate counsel’s ineffective assistance in

failing to bring the claim to the state courts on direct appeal; and (2) that a

fundamental miscarriage of justice would result if the district court did not

consider his claim because his was actually innocent. Accordingly, Cohens

attempted to overcome the procedural default on the second claim so that the

district court could address its merits. Although Cohens’ petition was “mixed,”

because it presented both exhausted and unexhausted claims, the appropriate

remedy was not summarily to dismiss the petition; rather, the district court should

have considered whether Cohens met either of the exceptions to the procedural

default doctrine in order to determine whether his second claim was procedurally

barred in federal court. Accordingly, we vacate and remand so the district court

can determine the factual issues regarding: (1) whether Cohens exhausted his state

law remedies as to each claim; and (2) if not, whether he can overcome the

procedural default of his claims.

      VACATED AND REMANDED.




                                           4
