                                                               [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                       ________________________

                              No. 96-8905                      FILED
                         Non-Argument Calendar       U.S. COURT OF APPEALS
                       ________________________        ELEVENTH CIRCUIT
                                                            08/17/98
                  D.C. Docket No. 5:95-cv-319-4   (WDO) THOMAS K. KAHN
                                                             CLERK

JAMES HARRIS CHAMBERS,
                                                          Petitioner-Appellant,

                                  versus

DAVID THOMPSON, Warden
                                                         Respondent-Appellee.
                       _______________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                       _______________________
                            (August 17, 1998)

Before BIRCH, CARNES and MARCUS, Circuit Judges.
CARNES, Circuit Judge:

      James Harris Chambers, a Georgia prisoner, appeals the denial of his 28 U.S.C.

§ 2254 petition for a writ of habeas corpus. Chambers raised a variety of claims in

his petition, some of which had never been raised in state court. The district court

denied on the merits the claims that had been raised in state court, and it denied as

procedurally barred those which had not been. (Any further description of the claims

held to be procedurally barred would serve no purpose, given the general nature of the

procedural bar issue and our resolution of it.) We agree with the merits disposition

of the claims that had been raised in state court and do not discuss them further.

      However, the district court’s procedural bar holding as to the claims not raised

in state court warrants further discussion, because that holding conflicts with our prior

decision in Cherry v. Director, State Board of Corrections, 613 F.2d 1262 (5th Cir.

1980), adopted in relevant part, 635 F.2d 414, 417 (5th Cir. Jan. 27, 1981)(en banc),

which dealt with the intersection of the Georgia successive petition default rule and

federal procedural bar law. In this case, the district court held that the claims not

raised in state court were barred from federal habeas review because of Chambers’

failure to raise them in the first state habeas petition he had filed. By contrast, in

Cherry we held that claims a Georgia prisoner failed to raise in his state habeas

petition should be considered unexhausted and are not procedurally barred from


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federal court review unless and until a Georgia court has been presented with those

claims and has refused to consider them. See 613 F.2d at 1265.

       If that part of Cherry is still good law, the district court should have held the

claims Chambers failed to raise in his state habeas petition were unexhausted instead

of holding them procedurally barred. The result would have been a mixed petition due

to be dismissed without prejudice for failure to exhaust some of the claims, see, e.g.,

Rose v. Lundy, 455 U.S. 509, 519-20, 102 S. Ct. 1198, 1204 (1982), instead of a

petition due to be denied with prejudice because there are no state remedies left to

exhaust and all of the claims are either meritless or procedurally defaulted, see, e.g.,

Allen v. Alabama, 728 F.2d 1384, 1387 (11th Cir. 1984) (discussing the futility

exception to the exhaustion requirement). However, in light of the Supreme Court’s

decisions in Engle v. Isaac, 456 U.S. 124, 125 n.28, 102 S. Ct. 1570-71 n.28 (1982),

Castille v. Peoples, 489 U.S. 346, 109 S. Ct. 1056 (1989), Teague v. Lane, 489 U.S.

288, 109 S. Ct. 1060 (1989), and Coleman v. Thompson, 501 U.S. 722, 111 S. Ct.

2546 (1991), we conclude that Cherry is no longer good law.

      As quoted in Cherry, 613 F.2d at 1265, the Georgia procedural default

provision applicable to claims not raised in a prisoner’s initial state habeas petition,

provided as follows:

                    All grounds for relief claimed by a petitioner for a
             writ of habeas corpus shall be raised by a petitioner in his

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             original or amended petition. Any grounds not so raised
             are waived unless the Constitution of the United States or
             of the State of Georgia otherwise requires, or any judge to
             whom the petition is assigned, on considering a subsequent
             petition, finds grounds for relief asserted therein which
             could not reasonably have been raised in the original or
             amended petition. Ga.Code Ann. § 50-127(10)(1979).

(emphasis added). The provision has since been recodified as Ga. Code Ann. § 9 - 14 -

51, without any material change. The emphasized language is exactly the same now

as then. The Cherry court read that language to mean state remedies have not been

exhausted and the federal procedural bar does not apply, until a state court judge has

considered the claim in question and decided that it could not “reasonably have been

raised” in the initial state habeas petition. See 613 F.2d at 1264 (“If [a state court]

judge has not decided that, then a possible state remedy has not been completely

exhausted.”).

      We are bound to follow a prior panel or en banc holding, except where that

holding has been overruled or undermined to the point of abrogation by a subsequent

en banc or Supreme Court decision. See, e.g., Cargill v. Turpin, 120 F.2d 1366, 1386

(11th Cir. 1997); United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993). “To

the extent of any inconsistency between our [prior opinions’] pronouncements and the

Supreme Court’s supervening ones, of course, we are required to heed those of the

Supreme Court.” Davis v. Singletary, 119 F.3d 1471, 1482 (11th Cir. 1997). The


                                          4
holding in Cherry that a Georgia prisoner’s claim not raised in an initial state habeas

petition cannot be deemed by a federal court to be procedurally defaulted until a state

court says it is, is inconsistent with subsequent pronouncements of the Supreme Court.

      Two years after our holding in Cherry and one year after the en banc opinion

adopted it, the Supreme Court held some claims to be procedurally barred from federal

habeas review based upon its prediction that state courts would hold a state collateral

remedy was unavailable to the petitioners in the circumstances. See Engle v. Isaac,

456 U.S. 124, 125 n.28, 102 S. Ct. 1570-71 n.28 (1982). Seven years later, the

Supreme Court said in Castille v. Peoples, 489 U.S. at 351, 109 S. Ct. at 1060, that a

federal habeas court could hold claims were procedurally defaulted, and therefore

exhausted, “if it is clear that [the] claims are now procedurally barred under [state]

law.” The same day, the Court also held the rule requiring state court procedural bar

holdings to be clearly and expressly stated “is simply inapplicable in a case such as

this one, where the claim was never presented to the state courts.” Teague v. Lane,

489 U.S. at 298-99, 109 S. Ct. at 1061. More recently, in Coleman v. Thompson, 501

U.S. 722, 735 n.1, 111 S. Ct. 2546, 2557 n.1 (1991), the Court reiterated that the clear

expression rule “does not apply if the petitioner failed to exhaust state remedies and

the court to which the petitioner would be required to present his claims in order to

meet the exhaustion requirement would now find the claims procedurally barred.”


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The pronouncements in Engle, Castille, Teague, and Coleman are inconsistent with

Cherry’s earlier holding that there can be no procedural default until a state court has

said so.

      After all of those Supreme Court decisions came our decision in Burger v.

Zant, 984 F.2d 1129, 1135 (11th Cir. 1993), involving the same Georgia successive

petition statute at issue in Cherry and in this case. Our Burger decision demonstrates

that the Georgia statute should be applied and enforced in a federal habeas proceeding

even though there is no state court decision applying it to the claim in question. We

held a claim to be procedurally barred in Burger based upon our prediction that the

Georgia statute “would lead a state habeas court to find this claim procedurally

defaulted because Burger did not raise it in his first or second state habeas corpus

petitions.” Id. Although our Burger opinion did not explicitly deal with Cherry’s

contrary holding, it implicitly recognizes that subsequent Supreme Court decisions

have eviscerated that holding.

      Accordingly, we make explicit what is implicit in Burger, which is that

Cherry’s exhaustion and procedural bar holding is no longer good law. The Georgia

statute restricting state habeas review of claims not presented in earlier state habeas

petitions can and should be enforced in federal habeas proceedings against claims

never presented in state court, unless there is some indication that a state court judge


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would find the claims in question “could not reasonably have been raised in the

original or amended [state habeas] petition.” See Ga.Code Ann. § 9-14-51.

      In this case there is no such indication, therefore, we conclude that a state

habeas court would hold Chambers’ claims to be procedurally defaulted and not

decide them on the merits, because they were not presented in his initial state habeas

petition. It follows that those claims are procedurally barred from review in this

federal habeas proceeding and exhausted. The district court’s denial of Chambers’

petition is AFFIRMED.




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