FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT APRIL 27, 2012 JOHN LEY

CLERK [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 11-12336 Non-Argument Calendar

________________________ D.C. Docket No. 5:10-cv-00252-CAR-CHW

ABDUL RASHID ISAAC,
llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,

versus
AUGUSTA SMP WARDEN, ATTORNEY GENERAL, STATE OF GEORGIA,
lllllllllllllllllllllllllllllllllllllll l Respondents-Appellees.

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

________________________ (April 27, 2012) Before DUBINA, Chief Judge, TJOFLAT and KRAVITCH, Circuit Judges.
PER CURIAM:Appellant Abdul Rashid Isaac, incarcerated and proceeding pro se , appeals the district court’s dismissal without prejudice of his 28 U.S.C. § 2254 petition for writ of habeas corpus. We granted a cer tificate of appealability on two issues: Whether the district court violated Clisby v. Jones , 960 F.2d 925, 936 (11th Cir. 1992), in its order dismissing Isaac’s federal habeas petition without prejudice, by failing to resolve those claims for relief that did not rely upon Garza v. State , 670 S.E.2d 73 (Ga. 2008)? Whether the district court erred in failing to make findings as to whether a stay and abeyance was wa rranted in Isaac’s case, pursuant to Rhines v. Weber , 544 U.S. 269, 277, 125 S. Ct. 1528, 1535, 161 L. Ed. 2d 440 (2005), and Thompson v. Sec’y for Dep’t of Corr. , 425 F.3d 1364, 1366 (11th Cir. 2005)?
I. In a 28 U.S.C. § 2254 proceeding, the district court’s legal conclusions are reviewed de novo , but its findings of fact are reviewed only for clear error. Osborne v. Terry , 466 F.3d 1298, 1304-05 (11th Cir. 2006). We liberally construe
pro se pleadings. Diaz v. United States , 930 F.2d 832, 834 (11th Cir. 1991). We will not, however, review on appeal any i ssue not raised in the parties’ initial briefs, deeming such issues to be abandoned. United States v. Day , 405 F.3d 1293, 1294 n.1 (11th Cir. 2005). Further, review in a § 2254 proceeding is limited to the issues specified in the certificate of appealability. Diaz v. Sec’y, Dep’t of Corr ., 362 F.3d 698, 702 (11th Cir. 2004).

2The district court must resolve all claims for relief raised in a § 2254 petition for habeas corpus, regardless of whethe r habeas relief is granted or denied. Clisby
v. Jones , 960 F.2d at 936. Before bringing a habeas action in federal court, however, the petitioner must exhaust all stat e court remedies that are available for challenging his conviction, either on direct appeal or in a state post-conviction motion. See 28 U.S.C. § 2254(b), (c). If a petitioner fails to exhaust state remedies, the district court should dismiss the petition without prejudice to allow exhaustion. See Rose v. Lundy , 455 U.S. 509, 519-20, 102 S. Ct. 1198, 1203-05, 71 L. Ed. 2d 379 (1982). A mixed petition, containing bot h exhausted and unexhausted claims, also should be dismissed without prejudice to allow the petitioner to either exhaust state remedies, bring a new petition presenting only the exhausted claims, or amend the petition to remove any unexhausted claims. Id. at 519-20, 102 S. Ct. at 1204. To fully exhaust state remedies, the petitioner must “fairly present[]” every issue raised in his federal petition to th e state’s highest court, either on direct appeal or on collateral review. Castille v. Peoples , 489 U.S. 346, 351, 109 S. Ct. 1056, 1060, 103 L. Ed. 2d 380 (1989); see also Pope v. Rich , 358 F.3d 852, 854 (11th Cir. 2004) (ruling that, following a denial of a state habeas petition, a Georgia prisoner must file an applicati on for a certificate of probable cause with the Georgia Supreme Court in order to fully exhaust state remedies).

3When it is obvious, however, that the unexhausted claims would be procedurally barred in state court due to a state-law procedural default, the court should treat those claims as having no basi s for federal habeas relief and address the exhausted claims. Snowden v. Singletary , 135 F.3d 732, 736 (11th Cir. 1998). “This step should not be taken if there is a reasonable possibility that an exception to the procedural bar may still be available to the petitioner.” Id. at 737. Here, Isaac does not clearly raise on a ppeal, and has thus abandoned, any argument regarding potential error under Clisby . Although he cites Clisby for the relevant legal proposition that a district court must resolve all constitutional claims presented in a habeas petition before gran ting or denying relief, he does not appear to offer any argument that the cour t actually erred under this standard. Regardless, even assuming for the sa ke of discussion that Isaac properly raised the argument, we conclude from the r ecord that the district court did not err under Clisby in dismissing his entire petition without prejudice. The court did not affirm or deny the petition on the basis of certain claims for relief, leaving others unresolved. Rather, the court dismissed Isaac’s entire § 2254 petition without prejudice to allow for complete exhaustion of his claims in state court, in accordance with Lundy . Although the court focused on the unexhausted Garza claims in dismissing Isaac’s petition, its reasoning - that the “mixed petition” was

4improperly filed in federal court - necessarily encompassed all claims. Moreover, we conclude that Isaac’s additional arguments regarding the validity of his convictions and senten ces are outside the scope of his COA.
II. Ordinarily, a “mixed petition,” cont aining both exhauste d and unexhausted claims, should be dismissed without prejudice to allow the petitioner to either exhaust state remedies, bring a new petition presenting only the exhausted claims, or amend the petition to remove any unexhausted claims. Lundy , 455 U.S. at 519- 20, 102 S. Ct. at 1203-05. In the event that such a dismissal would result in any subsequent petition being time-barred under the statutory one-year limitations period, the district court may employ a “stay-and-abeyance” procedure, whereby the court would stay the timely filed petition and hold it in abeyance while the petitioner returns to state court to exhaust all of his previously unexhausted claims. Rhines v. Weber , 544 U.S. at 275-78, 125 S. Ct. at 1533-35; see also 28 U.S.C. § 2244(d)(1) (establishing a one-year filing limitation for state prisoners). This procedure should be available only in limited circumstances, but is appropriate where (1) there was good cause for the petitioner’s failure to exhaust his claims first in state court, (2) the unexhausted claims are not plainly meritless, and (3) there is no indication that the petiti oner engaged in intentionally dilatory

5litigation tactics. Rhines , 544 U.S. at 277-78, 125 S. Ct. at 1535. If the district court determines that stay and abeyance is inappropriate and dismissal of the entire petition would unreasonably impair the petitioner’s right to obtain federal relief, the court should allo w the petitioner to delete the unexhausted claims and to proceed sole ly on the exhausted claims. Id. at 278, 125 S. Ct. at 1535. We have held that a district court, when considering a mixed § 2254 petition under Rhines , must first determine whether a stay is unwarranted before offering the petitioner the choice to proceed with only the exhausted claims or face dismissal of his entire petition. Thompson v. Sec’y, Dep’t of Corr. , 425 F.3d 1364, 1365-66 (11th Cir. 2005) (applying Rhines where petitioner filed a mixed petition on the last day of the statutory one-year filing deadline and subsequently moved for a stay and abeyance). 1 Here, we conclude from the record that the district court erred in not considering whether a stay and abeyan ce was appropriate because a subsequent § 2254 petition would be time-barred. 2 28 U.S.C. § 2244(d)(1), (2). Due to this

1 The relevant factual history for this case is set forth in Thompson v. Sec’y, Dep’t of Corr. , 320 F.3d 1228, 1229 (11th Cir. 2003), judgment vacated by Thompson v. Crosby , 544 U.S. 957, 125 S. Ct. 1722, 161 L. Ed. 2d 596 (2005).

2 Respondents concede in their brief that th e district court should have made findings regarding whether a stay and abeyance was warranted in Issac’s case. See Red Brief at 6, 11. 6statutory filing limitation, the dismissal of Isaac’s petition, although purportedly without prejudice, could effectively operate as a bar to refiling and deprive Isaac of his ability to obtain federal review. Furthe r, Isaac specifically requested a stay and abeyance in his response to the state’s mo tion to dismiss. Therefore, the district court should have determined whether a stay and abeyance was warranted or, if not, whether to allow Isaac to proceed solely on his exhausted claims. For the aforementioned reasons, the district court’s judgment is affirmed in part, vacated in part, and remanded for fu rther proceedings consistent with this opinion. AFFIRMED in part, VACATED in part, and REMANDED.

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