[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                             APRIL 27, 2006
                              No. 05-13984                 THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 02-01328-CV-T-E

CHARLES H. BAKER,



                                                     Petitioner-Appellant,

                                   versus

ARNOLD HOLT, Warden III
TROY KING, The Attorney General of the
State of Alabama,


                                                     Respondents-Appellees.

                        ________________________

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

                               (April 27, 2006)

Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      Alabama prisoner Charles H. Baker appeals the district court’s dismissal of

his pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Baker

asserts the district court erred in dismissing his claims as procedurally defaulted.

Baker alleged multiple claims, including that his guilty plea was not knowing and

voluntary because (1) the sentencing judge failed to explain his right to plead not

guilty by reason of mental disease or defect, and (2) he was not informed of the

mens rea element of the offense. The district court, adopting the magistrate

judge’s report and recommendation, held Baker’s claims were procedurally

defaulted as they were

      not presented to the state courts in compliance with requisite state
      procedural rules. Review in this court is expressly barred as these
      claims were not presented in Baker’s initial brief, filed pro se with the
      Alabama Court of Criminal Appeals [(ACCA)] on appeal from the
      denial of the Rule 32 petition, and the appellate court deemed these
      claims defaulted for such failure: (a) that Baker did not know he could
      enter a plea of not guilty by reason of insanity . . . , (c) that neither
      the elements of the offense nor the lesser included offenses were
      adequately explained to him . . . .

Baker moved for a certificate of appealability (COA), which the district court

denied. Thereafter, we granted a COA on the issue of

      Whether appellant procedurally defaulted his claim that his guilty plea
      was not knowing and voluntary because he did not understand his
      right to plead guilty by reason of a mental defect and he never was
      informed of the elements of the offense, where he failed to argue the
      claim in his initial brief appealing the ruling on his state habeas
      petition, but argued the claim at length in his reply brief?

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      We construe pro se pleadings liberally. Mederos v. United States, 

, 1254 (11th Cir. 2000). Ordinarily, issues outside the scope of the COA are

not properly before this Court. Murray v. United States, 

, 1251

(11th Cir. 1998). However, we sometimes will look beyond the literal scope of a

COA and construe the issue specification “in light of the pleadings and other parts

of the record.” 

of whether a habeas petitioner’s claims are subject to the doctrine

of procedural default is a mixed question of law and fact that we review de novo.

Judd v. Haley, 

, 1313 (11th Cir. 2001). “We review a district court’s

findings of fact in a habeas case for clear error.” 

n.2.

      Under the doctrine of procedural default, when a state court refuses to

address the merits of a state prisoner’s claims based on state law, the federal habeas

court is precluded from hearing the merits, absent a showing of cause for the

default and actual prejudice, or that failure to consider the claim would result in a

fundamental miscarriage of justice. Coleman v. Thompson, 

, 2564-

65 (1991). Generally, procedural default can arise in two ways: (1) when the state

court correctly applies a procedural default principle of state law and concludes the

petitioner’s federal claims are barred; or (2) when the petitioner never raised the

claim in state court, and it is obvious the unexhausted claim now would be



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procedurally barred in state court. Bailey v. Nagle, 

, 1302-03 (11th

Cir. 1999). In the first instance, a federal court must determine whether the last

state court rendering judgment clearly and expressly stated its judgment rested on a

procedural bar. 

In the second instance, the federal court must

determine whether any future attempt to exhaust state remedies would be futile

under the state’s procedural default doctrine. 

court is not required to honor a state’s procedural default ruling

unless that ruling rests on adequate state grounds independent of the federal

question. See Harris v. Reed, 

, 1043 (1989). The adequacy of a

state procedural bar to the assertion of a federal question is itself a federal question.

Lee v. Kemna, 

, 885 (2002). We have set forth a three-part test to

determine whether a state court’s procedural ruling constitutes an independent and

adequate state rule of decision. 

. First, the last state court

rendering judgment must clearly and expressly state it is relying on state

procedural rules to resolve the federal claim without reaching the merits of that

claim. Second, the state court’s decision must rest entirely on state law grounds

and not be intertwined with an interpretation of federal law. Third, the state

procedural rule must be adequate. 

requirement has been




                                            4
interpreted to mean the rule must be firmly established and regularly followed, that

is, not applied in an arbitrary or unprecedented fashion. 

initial state Rule 32 petition, Baker asserted he never fully understood

his right to plead not guilty by reason of mental defect and the trial court erred

when it accepted his guilty plea despite its failure to adequately question him as to

his understanding of that right. In his appeal brief to the ACCA, Baker also

asserted

       When the judge asked me about my right to plea not guilty by reason
       of mental disease or defect, I asked the Judge to repeat his
       question . . . . I then asked the Judge to explain that question about
       this right to me . . . . Ms. Groff not the Judge said I did not have to
       plea. Ala. R. Crim. P. 14.4. The Trial Judge must ask the questions
       and determine that the defendant understands. I was so incoerced
       [sic] that Ms. Groff not the Judge, started asking the questions. U.S.
       v. Thomas 

–Records must show that the Trial Judge
       personally asked the proper question and received answers from the
       accused indicating his awareness. Fed. R. Crim. P. Rule 11 Saddler v.
       U.S. 

–Pointing to the defendant’s unresponsive answer to
       the Court’s inquires as warning flags indicating that defendant may
       not have been competent to plead guilty.

Baker then argued the mental defect issue in his reply brief, his petition for

rehearing to the ACCA, and his petition for a writ of certiorari to the Alabama

Supreme Court.1




       1
          The State concedes Baker raised this issue in his Rule 32 petition, in his reply brief on
appeal, and in his petitions for rehearing and for a writ of certiorari.

                                                5
      While Baldwin v. Reese, 

(2004) and McNair v. Campbell,

(11th Cir. 2005), petition for cert. filed, (U.S. Jan. 10, 2006) (No.

05-8664), address the question of whether a petitioner has fairly presented an issue

in federal terms in state court, rather than fairly presented an issue at all, those

cases provide some guidance in determining whether Baker sufficiently raised his

involuntary plea claims to the ACCA in his initial brief. In Baldwin, the Supreme

Court stated a litigant may fairly present his claim by “citing in conjunction with

the claim the federal source of law on which he relies or a case deciding such a

claim on federal grounds.” 

. Here, Baker both noted

the factual basis of his mental defect claim and cited to Rule 11 of the Federal

Rules of Criminal Procedure and two cases from this Court, both of which dealt in

part with the trial court’s duties in accepting a guilty plea. Furthermore, unlike in

McNair, the citations to federal law are not buried in a string cite, nor is the

relevant section of the brief labeled in a confusing manner. 

. Therefore, Baker arguably exhausted his mental defect claim in state court,

having fairly presented it to the state trial court, the ACCA, and the Alabama

Supreme Court. Because Baker arguably fairly presented his mental defect claim

to the ACCA, this Court need not determine whether any future attempt to exhaust




                                            6
state remedies would be futile under Alabama’s procedural default doctrine. See

.

      As for the mens rea claim, Baker concedes he raised this issue for the first

time during his appeal of the state court’s denial of his Rule 32 motion, in the reply

brief. Therefore, this claim is procedurally defaulted, and any future attempt to

exhaust the claim would be futile because any subsequent Rule 32 petition filed by

Baker would be subject to Alabama’s restrictions on second or successive Rule 32

petitions. See Ala. R. Crim. P. 32.2(b); 

.

      The ACCA did not conclude Baker’s mental defect claim was procedurally

barred, therefore, the district court erred in denying Baker’s petition on that

ground. Instead, the district court should determine whether Baker exhausted the

claim in state court and, if exhausted, looked at his claim on the merits.

Accordingly, we remand the case to the district court for further proceedings in

accordance with this opinion.

      VACATED AND REMANDED.




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