[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-11210

Non-Argument Calendar

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D.C. Docket No. 6:16-cv-01258-PGB-TBS

JORGE NIEVES, JR., 

 Petitioner-Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, 

ATTORNEY GENERAL, STATE OF FLORIDA, 

 Respondents-Appellees.

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Appeal from the United States District Court

for the Middle District of Florida

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(May 6, 2019)

Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Jorge Nieves, Jr., a Florida prisoner proceeding pro se, appeals the district 

court’s denial of his 28 U.S.C. § 2254 petition. We granted a certificate of 

appealability (“COA”) on the issue of whether the district court erred in dismissing

Nieves’s Claim 5, in which he argued that his counsel was ineffective for failing to 

request a “stand-your-ground” hearing, on the grounds that it was unexhausted and 

procedurally defaulted. 

We review mixed questions of fact and law de novo and findings of fact for 

clear error. Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000). Whether a 

petitioner exhausted state court remedies is a mixed question of law and fact, 

which we review de novo. Fox v. Kelso, 911 F.2d 563, 568 (11th Cir. 1990). Pro 

se pleadings are held to a less stringent standard than those drafted by attorneys 

and are, thus, liberally construed. Tannenbaum v. United States, 148 F.3d 1262, 

1263 (11th Cir. 1998). 

Before bringing a habeas action in federal court, the petitioner must exhaust 

all state court remedies that are available for challenging his conviction. 28 U.S.C. 

§ 2254(b), (c). A failure to exhaust occurs “when a petitioner has not fairly 

presented every issue in his federal petition to the state’s highest court, either on 

direct appeal or on collateral review.” Pope v. Sec’y for Dep’t of Corr., 680 F.3d 

1271, 1284 (11th Cir. 2012) (quotation marks and brackets omitted). 

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“In Florida, exhaustion usually requires not only the filing of a [Fla. R. 

Crim. P.] 3.850 motion, but an appeal from its denial.” Leonard v. Wainwright, 

601 F.2d 807, 808 (11th Cir. 1979). Rule 3.850 requires the state court to 

determine whether an evidentiary hearing is required or whether the motion may 

be denied without a hearing. See Fla. R. Crim. P. 3.850(f). 

To exhaust a claim, it is not sufficient that the petitioner has been through 

the state courts or that all the facts necessary to support his claim were before the 

state courts. Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1343-44 (11th Cir. 

2004). Rather, the petitioner must have “afford[ed] the state courts a meaningful 

opportunity to consider the allegations of legal error.” Pope, 680 F.3d at 1286 

(quotation marks and brackets omitted). The claim will be exhausted as long as the 

substance of the claim was presented to the state courts, “despite variations in 

the . . . factual allegations urged in its support.” Id. (quotation marks omitted). We 

have determined that courts should use “flexibility in determining whether 

defendants have met the exhaustion requirement.” Id. (quotation marks and 

brackets omitted). Thus, even if there is variation between them, the issue remains 

exhausted if the federal claim’s legal basis and specific factual foundation is the 

same as it was presented in the state court. Id.; see also Henry v. Dep’t of Corr., 

197 F.3d 1361, 1367 (11th Cir. 1999) (“The exact presentation of the claims in the 

state and federal courts may vary some.”). 

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In Henry, the petitioner raised two ineffective-assistance-of-counsel claims 

in a Rule 3.850 motion that was denied by the state court. 197 F.3d at 1363. The 

petitioner appealed the denial of his Rule 3.850 motion, characterizing the issue as 

whether the trial court erred in denying his motion without an evidentiary hearing. 

Id. He then filed a § 2254 petition in federal court, raising the same ineffectiveassistance-of-counsel claims. Id. 

We noted that Florida state procedures made it appropriate for a petitioner to 

request an evidentiary hearing before requesting a new trial, making “the 

difference between a request for an evidentiary hearing in state court and a request 

for a federal writ under § 2254 (in practical effect here, a request for a new trial)” 

insufficient to “render a petitioner’s constitutional claims unexhausted.” Id. at 

1367. Thus, we determined, in relevant part, that the petitioner had exhausted his 

ineffective-assistance-of-counsel claims because “a request for an evidentiary 

hearing on ineffective-assistance-of-counsel claims is plainly enough an argument 

that the petitioner [had] evidence to show his entitlement to a new trial.” Id.

Specifically, we determined that the “difference between a request for an 

evidentiary hearing and a request for more substantial relief, both premised on the 

same constitutional claim, is not material to the exhaustion inquiry.” Id. We also 

noted that if Florida procedure required more of a petitioner in a Rule 3.850 

motion, then a request for an evidentiary hearing alone might not be enough to 

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exhaust his claims. Id. at 1368. But, because Florida’s Rule 3.850 provided that 

the trial judge determined how much procedural attention a Rule 3.850 motion 

warrants, the petitioner was not required to be more specific in his request for relief 

in his post-conviction motion to exhaust his claims. Id.

A district court reviewing an unexplained state-court decision on the merits 

should “look through” that decision to the last related state-court decision that 

provides a relevant rationale and presume that the unexplained decision adopted 

the same reasoning. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The state 

may rebut this presumption by showing that the unexplained decision most likely 

relied on different grounds than the reasoned decision below. Id.

The district court erred in dismissing as unexhausted and procedurally 

defaulted Nieves’s claim that his counsel was ineffective for failing to request a 

hearing on his stand-your-ground motion. Specifically, while Nieves characterized 

this claim on appeal from the state court’s denial of his Rule 3.850 post-conviction 

motion raising the same claim as the state court’s error in failing to order an 

evidentiary hearing on his counsel’s ineffectiveness, our decision in Henry, 197 

F.3d at 1367-68, compels our conclusion that Nieves’s characterization of his 

claim to the state appellate court was sufficient to exhaust Claim 5 which Nieves 

now brings in federal court. In other words, the same constitutional claim was 

fairly presented and exhausted in state court. Moreover, the record demonstrates 

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that the state trial and appellate courts were both afforded a meaningful 

opportunity to consider Nieves’s allegations of error. 

VACATED AND REMANDED.1

 1 Nieves’ motion to strike portions of the Appellees’ brief is DENIED.

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