FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEP 08, 2011

JOHN LEY

 CLERK

[DO NOT PUBLISH]

 IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 10-10787 

Non-Argument Calendar

 ________________________

 D.C. Docket No. 2:09-cv-00055-WCO

MAHMOUD HAFEZ,

Petitioner - Appellant,

versus

WARDEN DAVID FRAZIER,

Respondent - Appellee.

________________________

 Appeal from the United States District Court

 for the Northern District of Georgia

 ________________________

(September 8, 2011)

Before EDMONDSON, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:
Mahmoud Hafez, a Georgia prisoner, appeals the district court’s dismissal

of his pro se 28 U.S.C. § 2254 habeas corpus petition for failure to exhaust his

state administrative remedies. Reversible error has been shown; we vacate and

remand for additional proceedings.

Hafez filed a state habeas petition, and -- following an evidentiary hearing

held on 18 February 2009 -- the state court stated that it planned to deny the

petition. Hafez then filed his federal habeas corpus petition, pursuant to section

2254, on 8 April 2009. The district court dismissed the federal habeas petition as

procedurally barred, concluding that Hafez failed to exhaust his administrative

remedies because he had not applied for a certificate of probable cause (“CPC”)

from the Georgia Supreme Court. We granted a certificate of appealability

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(“COA”) as to the following issue:

Whether Ga. Sup. Ct. R. 40, as amended, has any effect on this

Court’s holding in Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004),

that a Georgia prisoner must file an application for a certificate of

probable cause with the Georgia Supreme Court challenging the

denial of his state habeas petition in order to exhaust his state

remedies and thereby avoid a procedural default and, if so, whether

the district court erred by finding that Hafez’s claims were

unexhausted.

In doing so, the district court found that the state habeas corpus court issued a final order 1

denying Hafez’s petition on 18 February 2009, and the 30-day period for filing an application for

a CPC expired on 20 March 2009. 

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On 22 September 2010 -- shortly before Hafez filed his opening brief in this

appeal -- the state habeas court issued a final order denying his state habeas

petition. Hafez filed a timely application for a CPC with the Georgia Supreme

Court, which was denied. 

“Although we will not decide any issue not specified in the COA, we will

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

record.” Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998). We will

read the COA to encompass procedural issues that must be resolved before we can

reach the underlying claim. See McCoy v. United States, 266 F.3d 1245, 1248 n.2

(11th Cir. 2001). 

The issue specified in the COA assumed that Hafez failed to file properly an

application for a CPC with the Georgia Supreme Court. Thus, before we can

address the underlying issue set forth in the COA, we must first determine whether

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that assumption was correct -- and construe the COA to encompass that issue.2

See id.

We review a district court’s denial of a habeas petition de novo, and its

findings of fact for clear error. Nelson v. Schofeld, 371 F.3d 768, 769-70 (11th

Cir. 2004). A finding is clearly erroneous when, considering all the evidence, we

are “left with the definite and firm conviction that a mistake has been committed.”

Anderson v. City of Bessemer City, 105 S.Ct. 1504, 1511 (1985). 

Respondent concedes -- and the record shows -- that the district court

clearly erred when it concluded that the state habeas court entered a final order

denying Hafez’s state habeas petition and that the time for filing an application for

a CPC expired, before Hafez filed his section 2254 petition. We are convinced

that a mistake has been committed, and we vacate and remand for additional

proceedings.

VACATED AND REMANDED.

On appeal, Hafez also argues that (1) he is not required to appeal the denial of his state 2

habeas petition to exhaust his state remedies because Ga. Sup. Ct. R. 40 supersedes our decision

in Pope; and, in the alternative (2) the state habeas court’s extraordinary delay in issuing its final

order constitutes good cause to excuse him from Pope’s exhaustion requirements. He also

contends that we should certify the following question to the Georgia Supreme Court: “Under

Georgia law, is review by the Georgia Supreme Court following the denial of a state habeas

petition an ‘available’ avenue of review for the purposes of determining whether a litigant has

properly exhausted his state court remedies?” Because Hafez has filed a timely application for

CPC with the Georgia Supreme Court and that application has been denied, these issues are

dismissed as moot. See Soliman v. United States, 296 F.3d 1237, 1242 (11th Cir. 2002).

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