FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 13, 2002

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 02-10257

Non-Argument Calendar

________________________

D.C. Docket No. 01-03053-CV-PCH

KRISHNA MAHARAJ,

Petitioner-Appellant,

versus

SECRETARY FOR THE DEPARTMENT

OF CORRECTIONS

Respondent-Appellee.

__________________________

Appeal from the United States District Court for the

Southern District of Florida

_________________________

(September 13, 2002)

Before BIRCH, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
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Krishna Maharaj, a Florida state prisoner, appeals the district court’s

dismissal of his counseled federal habeas corpus petition, brought under 28 U.S.C.

§ 2254. Because Maharaj filed his petition after the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No 104-

32, 110 Stat. 1214 (1996), the provisions of that act apply. Because Maharaj’s

resentencing had not occurred at the time he filed his habeas petition, his state

court judgment had not become final, and thus his habeas petition, which

challenged all of his convictions and sentences, was not ripe for review. 

Accordingly, the district court’s dismissal without prejudice, which will allow

Maharaj to refile his habeas petition now that the state court has completed its

resentencing, was not in error. Accordingly, we AFFIRM.

I. BACKGROUND

Maharaj, serving three life sentences for one count of first degree murder

and two counts of armed kidnapping, a 15-year sentence for unlawful possession of

a firearm while engaged in a criminal offense, and who was awaiting resentencing

on another conviction for first degree murder, filed a habeas corpus petition on 12

July 2001 in the district court challenging his convictions and sentences on a

variety of constitutional grounds. Folder 1, Petition for Writ of Habeas Corpus. 
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Maharaj challenged his “convictions and sentences,” and more specifically, “his

convictions and sentence of death,” not just the convictions and non-capital

sentences that had become final at the time of filing. Id. at ¶¶ 25, 88. The state

filed a motion to dismiss, contending that, as the state court had not resentenced

Maharaj, his federal habeas petition was not yet ripe for review. R1-10.

Maharaj replied to the motion to dismiss, arguing that (1) all of his

convictions had become final, although he was awaiting resentencing on the capital

conviction, (2) he had exhausted his state remedies to challenge his convictions, so

his petition must be considered or run the risk of being considered time-barred

under the AEDPA, and (3) he already had been imprisoned for 14 years, due to

delays that were the fault of the state, which prejudiced him greatly. R1-11. The

state replied, contending that Maharaj’s case was not yet final for the purposes of

triggering the AEDPA’s statute of limitations because he had not been resentenced,

and thus he would not lose his right to seek habeas relief regarding any of his

convictions.

The magistrate judge issued a report, recommending that the state’s motion

to dismiss be granted without prejudice to Maharaj to allow him to refile his

federal habeas petition after the state court had resentenced him. R1-16. The

magistrate judge summarized the lengthy procedural history of the case, which is
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undisputed by the parties. The magistrate judge recommended dismissing

Maharaj’s habeas petition, relying on the Ninth Circuit decision in Colvin v.

United States, 204 F.3d 1221 (9th Cir. 2000) to conclude that the district court

should not review the petition until Maharaj’s state court judgment had become

final after resentencing. R1-16 at 8-10. The magistrate judge stated that the statute

of limitations under the AEDPA would not begin to run until Maharaj had been

resentenced, and that as long as Maharaj timely filed his habeas petition after the

resentencing, the state would be estopped from presenting the time-bar argument. 

Id. at 9. The magistrate judge reasoned that, although the habeas petition clearly

addressed the non-capital convictions, Maharaj had “painted his claims with such a

broad brush [that] the Petition also encompasses the offense for which he is still

subject to the death penalty,” and that it would be impossible to separate the habeas

claims that only applied to the non-capital convictions from the claims that applied

to the as-yet unsentenced capital conviction. Id. at 7-8.

The district court granted the state’s motion to dismiss and overruled

Maharaj’s objections to the magistrate’s report. R1-19. The court stated that “the

critical question is whether, under the unusual circumstances presented here,

[Maharaj’s] convictions may be now considered separately from and before

determination of, the sentence ultimately given for the Young murder.” Id. at 2. 
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The court cited two guiding principles: (1) federal courts should avoid premature

interference with ongoing state proceedings, Younger v. Harris, 401 U.S. 37, 91 S.

Ct. 746 (1971), and (2) the AEDPA was designed to eliminate successive,

piecemeal petitions for habeas corpus relief. Id. With these two principles in

mind, the court determined that Maharaj’s habeas petition was not ripe for

adjudication. Id. The court noted that Maharaj’s petition sought relief from all of

his convictions and sentences, and that “the letter and the spirit of the AEDPA”

suggested that it would be appropriate to review Maharaj’s petition only after the

state court had resentenced Maharaj. Id. at 3. The court also found that the state

would be estopped from reversing its position and attempting to raise a statute of

limitations defense to a subsequent petition that was timely filed. Id. The court

dismissed Maharaj’s habeas petition without prejudice. 

Maharaj filed a motion for certificate of appealability (COA), which the

district court granted: “the question of whether a petition for a writ of habeas

corpus in a case in the same procedural posture as this one should be heard, or

dismissed without prejudice, is one of first impression in the Eleventh Circuit, and

is therefore one on which reasonable jurists may differ.” R1-21. Maharaj

proceeded with the instant appeal.
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II. DISCUSSION

Maharaj argues that, although he was awaiting resentencing on one of the

state court convictions at the time he filed his habeas petition, because it has taken

more than 15 years for the state court to vacate his death sentence and remand for

resentencing, and because the other four non-capital state court convictions and

sentences were final at that time and ripe for review, he should not have to wait any

longer to attempt to obtain federal habeas relief. He contends that his non-capital

convictions do not implicate the state court’s grant of post-conviction resentencing

relief as to the capital conviction. Maharaj also avers that the district court’s

dismissal of his habeas claims as to the four final state convictions, by causing

further delays in the habeas review process, thwarted Congress’ desire to expedite

this process. He further maintains that, if he is not allowed to proceed in habeas as

to the final, non-capital convictions and sentences, he will be time-barred from

bringing these claims in a federal habeas proceeding after he is resentenced on the

capital conviction. 

We review de novo a district court’s denial of a habeas petition under 28

U.S.C. § 2254. Harrell v. Butterworth, 251 F.3d 926, 930 (11th Cir. 2001), cert.

denied, __ U.S. __, 122 S. Ct. 1367 (2002). Before bringing a habeas petition in

federal court, a petitioner must exhaust all state court remedies that are available
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for challenging his conviction, and the petitioner is not “deemed to have exhausted

the remedies available in the courts of the state . . . if he has the right under the law

of the state to raise, by any available procedure, the question presented.” 28 U.S.C.

§ 2254 (b) and (c). The one-year period of limitation for filing a federal habeas

petition runs, in pertinent part, from the date on which the petitioner’s judgment

becomes final by the conclusion of direct review or the expiration of the time for

seeking such review. 28 U.S.C. § 2244(d)(1)(A). In the context of a federal

habeas petition, the statute of limitations runs from the date of state court

resentencing and not the date of the original judgment. Hepburn v. Moore, 215

F.3d 1208, 1209 (11th Cir. 2000).

As the district court noted and the parties contend on appeal, we apparently

have not addressed directly whether a district court may consider a state prisoner’s

federal habeas petition, when all of the petitioner’s convictions have become final,

and four of his sentences have become final, but he is awaiting resentencing on a

capital count. However, the Supreme Court’s decisions in Younger v. Harris, 401

U.S. 37, 91 S. Ct. 746 (1971), and Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 

(1982), our decision in Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992), and the

Ninth Circuit’s decision in Colvin v. United States, 204 F.3d 1221 (9th Cir. 2000),

provide sufficient guidance to resolve this issue. 
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In Younger, the Supreme Court held that, except in extraordinary

circumstances, a federal court must abstain from deciding issues implicated in an

ongoing criminal proceeding in state court. Younger, 401 U.S. at 53-54, 91 S. Ct.

at 755. The Court expressed the national public policy against federal court

interference with ongoing state court proceedings, based in part on the notion of

“‘comity,’ that is, a proper respect for state functions . . . and a continuance of the

belief that the National Government will fare best if the States and their institutions

are left free to perform their separate functions in their separate ways.” Id., 401

U.S. at 44, 91 S. Ct. at 750. In Rose, which concerned the exhaustion requirement

under § 2254, the Supreme Court stated that the exhaustion requirement is not

jurisdictional but derives from principles of comity, which “protect the state

court’s role in the enforcement of federal law and prevent disruption of state

judicial proceedings.” Rose, 455 U.S. at 518, 102 S. Ct. at 1203. The Court

reasoned that “requiring dismissal of petitions containing both exhausted and

unexhausted claims will relieve the district courts of the difficult if not impossible

task of deciding when claims are related, and will reduce the temptation to consider

unexhausted claims.” Id., 455 U.S. at 519, 102 S. Ct. at 1204. If a petitioner fails

to exhaust state remedies, the district court should dismiss the petition without

prejudice. See id., 455 U.S. at 519-20, 102 S. Ct. at 1203-04. In Clisby, we
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expressed our concern over the piecemeal litigation of federal habeas petitions

filed by state prisoners, and stated that “[p]olicy considerations clearly favor the

contemporaneous consideration of allegations of constitutional violations grounded

in the same factual basis: a one-proceeding treatment of a petitioner’s case enables

a more thorough review of his claims, thus enhancing the quality of the judicial

product.” Clisby, 960 F.2d at 936 (quotation and citation omitted).

In Colvin, the petitioner had been convicted of one count of conspiracy to

distribute cocaine and three counts of aiding and abetting in the distribution of

cocaine. Colvin, 204 F.3d at 1222. Colvin appealed his convictions, and the Ninth

Circuit affirmed in part and reversed in part. Id. On remand, the district court

amended the judgment, and Colvin immediately filed a motion to vacate under 28

U.S.C. § 2255. Id. When Colvin filed his habeas petition, the time to appeal the

district court’s amended judgment had not yet elapsed. Id. The Ninth Circuit held

that, in a case in which an appellate court partially or wholly reverses a defendant’s

conviction or sentence and remands to the district court, the petitioner’s judgment

does not become final — and the statute of limitations under § 2255 does not begin

to run — until the time for appealing the entire amended judgment has passed. 

Colvin, 204 F.3d at 1225. The Ninth Circuit reasoned that this bright-line

approach was easy to follow, would avoid speculation and litigation about the
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finality of the judgment, would allow defendants to exhaust their appeals on direct

review before bringing collateral attacks, and comported with that court’s rule that

a district court lacks authority to entertain a habeas petition while direct review is

pending. Id. at 1225-26. We agree.

III. CONCLUSION

Because Maharaj’s resentencing had not occurred at the time he filed his

habeas petition, his state court judgment had not become final, and thus his habeas

petition, which challenged all of his convictions and sentences, was not ripe for

review at that time. Accordingly, the district court’s dismissal without prejudice,

which will allow Maharaj to refile his habeas petition now that the state court has

completed its resentencing, was not in error.

AFFIRMED.