Case: 19-10923   Date Filed: 11/08/2019   Page: 1 of 4


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 19-10923
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 4:17-cv-00226-HLM



RICHARD E. DANIEL,

                                                         Petitioner-Appellant,

                                versus

WARDEN,

                                                                   Respondent,

COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS,

                                                        Respondent-Appellee.

                     ________________________

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

                           (November 8, 2019)
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Before WILLIAM PRYOR, JORDAN and NEWSOM, Circuit Judges.

PER CURIAM:

      Richard Daniel, a Georgia prisoner, appeals pro se the denial of his petition

for a writ of habeas corpus. 28 U.S.C. § 2254. We issued a certificate of

appealability to address whether the district court erred by denying Daniel’s

petition for failure to exhaust available state remedies under Pope v. Rich, 

(11th Cir. 2004). We affirm.

      We review de novo the denial of a petition for a writ of habeas corpus as

procedurally defaulted. Henry v. Warden, Ga. Diagnostic Prison, 

,

1230 (11th Cir. 2014). A state prisoner must exhaust all state remedies available

for challenging his conviction before he can file a federal habeas petition. 28

U.S.C. § 2254(b), (c). To exhaust state remedies, “a state prisoner must present his

claims to a state supreme court in a petition for discretionary review” when it “is

part of the ordinary appellate review procedure in the State . . . .” O’Sullivan v.

Boerckel, 

, 839-40, 847 (1999). The ordinary procedure in Georgia

includes discretionary review by its supreme court. Ga. Code Ann. § 9-14-52.

      In Pope, we concluded that a Georgia prisoner procedurally defaulted his

postconviction claim of ineffective assistance of counsel by failing to present the

claim to the Supreme Court of 

. In Georgia, a prisoner

cannot appeal the denial of a state habeas petition and must instead “file a written


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application for a certificate of probable cause to appeal with the clerk of the

Supreme Court within 30 days from the entry of the order denying him relief” and

“file within the same period a notice of appeal with the clerk of the concerned

superior court.” Ga. Code Ann. § 9-14-52(a), (b). After the state superior court

denied Pope’s habeas petition, he filed a federal petition for a writ of habeas corpus

based on the ineffective assistance of state appellate counsel. 

. The district court denied the claim for lack of exhaustion. 

and

held that Pope defaulted his claim by failing to pursue the discretionary review

available to him in the state supreme court. 

state prisoner in Pope, Daniel failed to exhaust his claims in the

Supreme Court of Georgia. The Georgia superior court that denied Daniel’s habeas

petition instructed him that he had 30 days within which to file a notice of appeal

and an application for a certificate of probable cause, but he first filed a motion for

reconsideration, which the superior court denied. Daniel’s motion for

reconsideration did not toll the time for filing his application for a certificate of

probable cause. See Ferguson v. Freeman, 

, 66–67 (Ga. 2007).

Daniel then filed an application 46 days after the denial of his state habeas petition.

But because the application was untimely, it failed to “invoke [the] . . . jurisdiction

[of the supreme court] over [Daniel’s] appeal from the denial of [his] petition for

habeas corpus.” Crosson v. Conway, 

, 619–20 (Ga. 2012). And


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Daniel’s application did not challenge the denial of his state habeas petition. Daniel

requested review of only the order denying his motion for reconsideration, so the

supreme court reclassified his application on that basis.

      The district court did not err by denying Daniel’s petition for a writ of

habeas corpus. Because Daniel failed to fairly present his claims to the Supreme

Court of Georgia, his claims are unexhausted. “When it is obvious that the

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

procedural default, the 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.” Ogle v. Johnson, 

, 1370 (11th Cir. 2007) (alterations

adopted) (quoting Kelley v. Sec’y for Dep’t of Corr., 

, 1351 (11th

Cir. 2004)). Daniel’s claims are procedurally defaulted, and he alleged no actual

innocence or cause and prejudice that would excuse the default, so the district

court correctly denied Daniel’s petition with prejudice. See 

the denial of Daniel’s petition for a writ of habeas corpus.




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