[DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________          FILED
                                                   U.S. COURT OF APPEALS
                                No. 09-14101         ELEVENTH CIRCUIT
                                                         JUNE 30, 2010
                            Non-Argument Calendar
                                                          JOHN LEY
                          ________________________
                                                           CLERK

                     D. C. Docket No. 07-00144-CV-WLS-1

GILBERT W. KING,

                                                             Petitioner-Appellant,

                                     versus

ALEXIS CHASE, Warden,

                                                           Respondent-Appellee.

                          ________________________

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

                                 (June 30, 2010)

Before MARCUS, WILSON and MARTIN, Circuit Judges.

PER CURIAM:

      Gilbert W. King, a Georgia prisoner serving an 18-year sentence for child

molestation, appeals pro se the district court’s partial denial of his 28 U.S.C. §
2254 habeas corpus petition. King’s § 2254 petition raised numerous grounds,

most of which alleged ineffective assistance of counsel (“grounds 1-9 and 11”),

and one of which alleged that he was convicted in violation of his due process

rights (“ground 10”). The district court determined that grounds 1-9 and 11 were

without substantive merit, and denied King’s petition in this respect.        When

assessing ground 10, the district court found the claim to be unexhausted, and

found that the government did not waive exhaustion, despite the government’s

express assertion in an earlier pleading that it “d[id] not contest exhaustion.” The

court accordingly declined to consider the merits of ground 10, and dismissed

King’s petition without prejudice in this respect.     Subsequently, we granted a

certificate of appealability (“COA”) as to the following issue:

             Whether the district court erred when it denied ten of
             King's claims and dismissed one claim without prejudice,
             rather than dismissing his entire 28 U.S.C. § 2254
             petition without prejudice, pursuant to Rose v. Lundy,
             

, 519-20, 

, 1203-1205,
             

(1982).

      On appeal, King argues pro se that the district court erred in denying his §

2254 petition in part and dismissing it in part, because his petition was a “mixed”




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petition containing both exhausted and unexhausted claims.1 After careful review,

we vacate the judgment of the district court and remand for further proceedings.

       When we examine a district court’s denial of a § 2254 habeas petition, we

review questions of law and mixed questions of law and fact de novo, and findings

of fact for clear error. Rhode v. Hall, 

, 1279 (11th Cir. 2009). We

do not review issues that are outside the scope of the COA. Jordan v. Sec’y, Dep’t

of Corr., 

, 1356 (11th Cir. 2007). However, we will address issues

that must be necessarily decided before considering the issues explicitly presented

in the COA. See Wright v. Sec’y for the Dep’t of Corr., 

, 1258 (11th

Cir. 2002) (construing the COA to present the threshold issue of procedural default

finding as well as the substantive due process issue expressly presented).

       Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), a federal habeas petitioner must first

exhaust state-court remedies. 28 U.S.C. § 2254(b)(1)(A). A petitioner exhausts a

claim when he affords the state habeas court “a full and fair opportunity to address

and resolve the claim on the merits.” Kelley v. Sec’y for the Dep’t of Corr., 

, 1343 (11th Cir. 2004) (quotation omitted).




       1
        Because King is proceeding pro se, we construe his brief liberally. See Alba v.
Montford, 

, 1252 (11th Cir. 2008).

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         The exhaustion requirement is not jurisdictional, but rather, is a procedural

rule based in comity. Thompson v. Wainwright, 

, 1503-04 (11th

Cir. 1983).     As a result, the state either may waive exhaustion expressly, or

impliedly by failing to raise the issue or arguing that exhaustion would be futile.

The district court, in turn, has discretion to accept or reject the waiver.

(remanding because the district court did not specify the basis for

rejecting the waiver).     However, when the state waives exhaustion, the district

court may only invoke the exhaustion bar sua sponte when doing so would serve

an important federal interest. Esslinger v. Davis, 

, 1524 (11th Cir.

1995).     Although waiver is generally an indication that there is no important

federal interest, such an interest can occur when a case “presents an issue on which

an unresolved question of fact or of state law might have an important bearing,”

and a federal district court should “insist on complete exhaustion to make sure that

it may ultimately review the issue on a fully informed basis.” 

n.34.

         A “mixed” habeas petition is one that includes both exhausted and

unexhausted claims. Pliler v. Ford, 

, 227 (2004). In Rose v. Lundy,

, 510 (1982), the Supreme Court ruled that, when confronted with

mixed petitions, the district court must dismiss the petition in its entirety, “leaving

the prisoner with the choice of returning to state court to exhaust his claims or of



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amending or resubmitting the habeas petition to present only exhausted claims to

the district court.” In imposing this “total exhaustion rule,” the Supreme Court

noted that it would have the benefits of “encourag[ing] state prisoners to seek full

relief first from the state courts” and “reliev[ing] the district courts of the difficult

if not impossible task of deciding when claims are related.” 

But

while dismissal of mixed petitions is the ordinary rule, “when it is obvious that the

unexhausted claims would be procedurally barred in state court due to a state-law

procedural default, [a district court] can forego the needless ‘judicial ping-pong’

and just treat those claims now barred by state law as no basis for federal habeas

relief.” Snowden v. Singletary, 

, 736-37 (11th Cir. 1998).

      In addition to codifying the total exhaustion requirement, AEDPA created a

one-year statute of limitations for federal habeas corpus petitions. 28 U.S.C. §

2244(d)(1); see also     Pub. L. 104-132, § 101, 110 Stat. 1214, 1217 (1996).

Although the limitations period is tolled while state proceedings are pending, it

does not continue to toll while the federal petition is pending. Duncan v. Walker,

, 181-82 (2001). The Supreme Court recognized that the passage of

AEDPA created a problem in that “petitioners who come to federal court with

‘mixed’ petitions run the risk of forever losing their opportunity for any federal

review of their unexhausted claims” because petitioners cannot control when



                                            5
district courts will resolve the exhaustion question, rendering numerous petitions

time-barred when re-filed in federal court. Rhines v. Weber, 

, 275

(2005). To address potential time-bar problems, the Supreme Court held in Rhines

that district courts have discretion to employ, in limited circumstances, “stay and

abeyance” procedures to hold a § 2254 petition in abeyance while the petitioner

exhausts his previously-unexhausted claims. 

In particular, “stay and

abeyance is only appropriate” if: (1) the petitioner had good cause for his failure to

exhaust his claims; (2) the unexhausted claims are not plainly meritless; and (3)

there is no indication that the petitioner engaged in abusive litigation practices or

intentional delay. 

The Supreme Court further observed that if these

conditions were met, “it likely would be an abuse of discretion for a district court

to deny a stay and to dismiss a mixed petition.” 

Conversely, if the

district court determines that a stay is inappropriate, it should allow the petitioner

to delete the unexhausted claims and proceed with the exhausted claims if

dismissal would “impair the petitioner’s right to obtain federal relief.” 

we have ruled that, when a district court is confronted with a

mixed § 2254 petition, the ordinary disposition is to either dismiss it in its entirety,

or grant a stay and abeyance. Ogle v. Johnson, 

, 1370 (11th Cir.

2007). We have construed Rhines to require that district courts: (1) make findings



                                           6
as to whether a stay and abeyance is warranted; and (2) if a stay is unwarranted,

offer petitioners a choice to proceed with only the exhausted claims. Thompson v.

Sec’y for the Dep’t of Corr., 

, 1366 (11th Cir. 2005) (vacating and

remanding to consider whether a stay was warranted because the district court

offered petitioner the choice to delete his unexhausted claims before making this

threshold finding).

      In this case, the district court erred in basing its finding that King’s claim

was unexhausted on its misperception that the state did not waive exhaustion, and

as a result, failed to make threshold findings as to whether exhaustion remained at

issue. In addition, the district court erred by dismissing King’s § 2254 petition

only in part while proceeding to address the merits of the exhausted claims,

contrary to Lundy and its progeny in the Supreme Court and our circuit.

Accordingly, we vacate the judgment of the district court, and remand with

instructions to make the following findings before applying the exhaustion

doctrine: (1) whether it is necessary to sua sponte dismiss ground 10 as

unexhausted notwithstanding the government’s waiver; and (2) if dismissal is

necessary, whether it should hold King’s petition in abeyance pending exhaustion

of ground 10, or dismiss his entire § 2254 petition without prejudice and allow him

to proceed on only his exhausted claims. The court should also consider whether a



                                         7
procedural default exists that would render exhaustion futile, and if so, whether the

court should address ground 10 on its merits.

      VACATED AND REMANDED.




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