United States Court of Appeals, Eleventh Circuit.

No. 96-8905. Non-Argument Calendar. James Harris CHAMBERS, Petitioner-Appellant.

v. David THOMPSON, Warden Respondent-Appellee. Aug. 17, 1998. Appeal from the United States Di strict Court for the Middle Distri ct of Georgia. (No. 5:95-cv-319- 4(WDO), Wilbur D. Owens, Jr., Judge. Before BIRCH, CARNES and MARCUS, Circuit Judges. CARNES, Circuit Judge: James Harris Chambers, a Georgia prisoner, appeals the denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Chambers ra ised a variety of claims in his petition, some of which had never been raised in state court. The district court denied on the merits the claims that had been raised in state court, and it denied as procedurally barred those which had not been. (Any further description of the claims held to be pr ocedurally barred would serve no purpose, given the general nature of the procedural bar issue and our resolution of it.) We agree with the merits disposition of the claims that had been raised in state court and do not discuss them further. However, the district court's pr ocedural bar holding as to the claims not raised in state court warrants further discussion, because that hol ding conflicts with our prior decision in Cherry v. Director, State Board of Corrections, 613 F.2d 1262 (5th Cir.1980), adopted in relevant part, 635 F.2d 414, 417 (5th Cir. Jan.27, 1981)(en banc), which dealt with the intersection of the Georgia successive petition default rule and federal procedural bar law. In this case, the district court held2 that the claims not raised in state court were barred from federal habeas review because of Chambers' failure to raise them in the first stat e habeas petition he had filed. By contrast, in Cherry we held that claims a Georgia prisoner failed to raise in his state habeas petition should be considered unexhausted and are not procedurally barred from federal court review unless and until a Georgia court has been presented with those claims and has refused to consider them. See 613 F.2d at 1265. If that part of Cherryis still good law, the district c ourt should have held the claims Chambers failed to raise in hi s state habeas petition were unexhausted instead of holding them procedurally barred. The result would have been a mixed petition due to be dismissed without prejudice for failure to exhaust some of the claims, see, e.g., Rose v. Lundy, 455 U.S. 509, 519-20, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982), instead of a petition due to be denied with prejudice because there are no state remedies left to exhaust and all of the claims are either meritless or procedurally defaulted, see, e.g., Allen v. Alabama, 728 F.2d 1384, 1387 (11th Cir.1984) (discussing the futility exception to the exhaustion requirement). However, in light of the Supreme Court's decisions in Engle v. Isaac, 456 U.S. 107, 125 n. 28, 102 S.Ct. 1558, 1570-71 n. 28, 71 L.Ed.2d 783 (1982), Castille v. Peoples, 489 U.S. 346, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989), Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), we conclude that Cherryis no longer good law. As quoted in Cherry, 613 F.2d at 1265, the Georgia procedural default provision applicable to claims not raised in a prisoner's initial state habeas petition, provided as follows: All grounds for relief claimed by a petitioner for a writ of habeas corpus shall be raised by a petitioner in his original or ame nded petition. A ny grounds not so raised are waived unless the Constitution of the Un ited States or of the St ate of Georgia otherwise requires, or any judge to whom the petition is assigned, on considering a subsequent petition,3 finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition. Ga.Code Ann. § 50-127(10)(1979). (emphasis added). The provision has since b een recodified as Ga.Code Ann. § 9—14—51, without any material change. The emphasized language is exactly the same now as then. The Cherrycourt read that language to mean state remedies have not been exhauste d and the federal procedural bar does not apply, until a state court judge has consid ered the claim in ques tion and decided that it could not "reasonably have been raised" in the initial state habeas petition. See 613 F.2d at 1264 ("If [a state court] judge has not decided that, thena possible state remedy has not been completely exhausted."). We are bound to follow a prior panel or en banc holding, except where that holding has been overruled or undermined to the point of abrogation by a subsequent en banc or Supreme Court decision. See, e.g., Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir.1997); United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.1993). "To the extentof any inconsistency between our [prior opinions'] pronouncements and the Supreme Court's supervening ones, of course, we are required to heed those of the Supreme Court." Davis v. Singletary, 119 F.3d 1471, 1482 (11th Cir.1997). The holding in Cherrythat a Georgia prisoner's claim not raised in an initial state habeas petition cannot be deemed by a federal court to be procedurally defaulted until a state court says it is, is inconsistent with subsequent pronouncements of the Supreme Court. Two years after our holding in Cherryand one year after the en banc opinion adopted it, the Supreme Court held some claims to be procedur ally barred from federal habeas review based upon its prediction that state courts would hold a state collateral remedy was unavailable to the petitioners in the circumstances. See Engle v. Isaac, 456 U.S. 107, 125 n. 28, 102 S.Ct. 1558, 1570-71 n. 28 (1982). Seven years later, the Supreme Court said in Castille v. Peoples, 489 U.S. at 351, 109 S.Ct.4 at 1060, that a federal habeas court could hold claims were procedurally defaulted, and therefore exhausted, "if it is clear that [the] claims are now procedurally barred under [state] law." The same day, the Court also held the rule requiring state court procedural bar holdings to be clearly and expressly stated "is simply inapplicable in a case such as this one, where the claim was never presented to the state courts." Teague v. Lane, 489 U.S. at 298-99, 109 S.Ct. at 1061. More recently, in Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991), the Court reiterated that the clear expre ssion rule "does not apply if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requireme nt would now find the claims procedurally barred." The pronouncements in Engle, Castille, Teague, and Coleman are inconsistent with Cherry's earlier holding that there can be no procedural default until a state court has said so. After all of those Supreme Court decisions came our decision in Burger v. Zant, 984 F.2d 1129, 1135 (11th Cir.1993), involving the same Geor gia successive petition statute at issue in Cherryand in this case. Our Burger decision demonstrates that the Georgia statute should be applied and enforced in a federal habeas proceeding even though there is no state court decision applying it to the claim in question. We he ld a claim to be procedurally barred in Burger based upon our prediction that the Georgia statute "would l ead a state habeas court to find this claim procedurally defaulted because Burger did not ra ise it in his first or second state habeas corpus petitions." Id. Although our Burger opinion did not explicitly deal with Cherry's contrary holding, it implicitly recognizes that subsequent Supreme Court decisions have eviscerated that holding. Accordingly, we make explicit what is implicit in Burger, which is that Cherry's exhaustion and procedural bar holding is no longer good law. The Georgia statute restricting state habeas5 review of claims not presented in earlier state hab eas petitions can and should be enforced in federal habeas proceedings against claims never presented in state court, unless there is some indication that a state court judge would find the claims in questi on "could not reasonably have been raised in the original or amended [state habeas] petition." See Ga.Code Ann. § 9-14-51. In this case there is no such indication, therefore, we conclude that a state habeas court would hold Chambers' claims to be procedurally defaulte d and not decide them on the merits, because they were not presented in his initial state habeas petiti on. It follows that those claims are procedurally barred from review in this federal habeas proceed ing and exhausted. The district court's denial of Chambers' petition is AFFIRMED.