FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 25, 2004

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 03-11496

Non-Argument Calendar

________________________

D.C. Docket No. 02-00222-CV-4

ROBERT EDWARD NELSON,

 Petitioner-Appellant,

versus

DERRICK SCHOFELD,

 Respondent-Appellee.

__________________________

Appeal from the United States District Court for the

Southern District of Georgia

_________________________

(MAY 25, 2004)

Before CARNES, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

Robert Edward Nelson, a Georgia state prisoner proceeding pro se, appeals

the district court’s dismissal of his habeas petition, brought pursuant to 28 U.S.C.
 Nelson filed his petition after the effective date of the Antiterrorism and Effective Death 1

Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-32, 110 Stat. 1214 (1996), and, therefore, the

provisions of that act govern this appeal. 

2

§ 2254. The issue presented in this case is whether O’Sullivan v. Boerckel, 526 1

U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999), requires a petitioner challenging

a Georgia conviction and sentence on direct appeal to petition the Georgia

Supreme Court for certiorari in order to exhaust his state remedies.

Nelson, serving a life sentence, was convicted in state court of armed

robbery, possession of a firearm during the commission of a felony, and

possession of a firearm by a convicted felon. Nelson filed a direct appeal to the

Georgia Court of Appeals arguing, inter alia, that (1) trial counsel was ineffective,

and (2) the state violated his due process rights. The Georgia Court of Appeals

affirmed the convictions and sentences. Nelson v. State, 528 S.E.2d 844 (Ga. App.

Ct. 2000). Nelson did not attempt to appeal the decision to the Georgia Supreme

Court. 

Nelson then filed a state writ of habeas corpus, arguing, inter alia, that

appellate counsel was ineffective for not seeking writ of certiorari from the

Georgia Supreme Court. 
Notably, the state court did not address Nelson’s claim 2

that counsel was ineffective for failing to seek a writ of

certiorari from the Georgia Supreme Court.

3

After an evidentiary hearing, the state court denied the habeas petition.

2

Nelson sought a certificate of probable cause from the Georgia Supreme Court,

asserting only his claim that appellate counsel was ineffective for not challenging

trial counsel’s failure to move to sever his case from that of his codefendant. 

Nelson did not seek review of whether counsel was ineffective for failing to seek a

writ of certiorari from the Georgia Supreme Court in his direct appeal. The

Georgia Supreme Court denied a certificate of probable cause. 

Nelson then filed the present federal habeas petition pursuant to 28 U.S.C.

§ 2254. In his petition, Nelson raised the following claims: (1) appellate counsel

was ineffective; (2) trial counsel was ineffective; and (3) his due process rights

were violated. 

The magistrate judge recommended that the § 2254 petition be dismissed,

finding that, although Nelson had raised his ineffective-assistance-of-trial-counsel

claims and his due process claim on direct appeal, because he never attempted to

appeal the Georgia Court of Appeals decision to the Georgia Supreme Court, his

claims were procedurally defaulted. The magistrate judge noted that the state

court had addressed the issue of appellate counsel’s performance in the habeas
4

petition and had found that there was no deficiency in trial counsel’s performance

and that Nelson did not suffer any prejudice, and, therefore, there was no

deficiency in appellate counsel’s performance.

The district court adopted the report and recommendation over Nelson’s

objections. Nelson filed his notice of appeal, which the district court construed as

a motion for a certificate of appealability (“COA”) and denied. This court granted

a COA on the following issue only: “[w]hether, in light of O’Sullivan v. Boerckel,

526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999), a petitioner challenging a

Georgia conviction and sentence on direct appeal is required to petition the

Georgia Supreme Court for certiorari for purposes of exhausting his state

remedies.” 

We review a district court’s denial of a habeas petition de novo. Pope v.

Rich, 358 F.3d 852, 853 n.1 (11th Cir. 2004).

Before bringing a federal habeas petition, a state prisoner must exhaust all

state court remedies that are available for challenging his conviction, either on

direct appeal or in a state post-conviction motion. 28 U.S.C. § 2254(b), (c). In

O’Sullivan, the U.S. Supreme Court reviewed the Illinois direct appeals process

and held that state prisoners must petition for discretionary review in the state

supreme court in order to exhaust state remedies if that discretionary review is part
5

of the “ordinary appellate review procedure.” 526 U.S. at 847. “‘[S]tate prisoners

must give the state courts one full opportunity to resolve any constitutional issues

by invoking one complete round of the State’s established appellate review

process,’ including review by the state’s court of last resort, even if review in that

court is discretionary.” O’Sullivan, 526 U.S. at 845. 

Prior to O’Sullivan, a Georgia prisoner was not required to seek review of a

Georgia appellate court’s affirmance of his conviction. Buck v. Green, 743 F.2d

1567, 1569 (11th Cir. 1984). Recently, however, this court extended O’Sullivan

to require Georgia prisoners to seek a certificate of probable cause from the state

supreme court upon the denial of a state habeas petition in order to exhaust state

remedies. Pope, 358 F.3d at 853-54. In reaching this conclusion, the court

reviewed our earlier decision in Pruitt v. Jones, 348 F.3d 1355 (11th Cir. 2003),

which held that O’Sullivan, which had addressed direct appeals, also applied to

the Alabama state habeas proceedings. Pope, 358 F.3d at 854; Pruitt, 348 F.3d at

1359; see also Smith v. Jones, 256 F.3d 1135 (11th Cir. 2001) (applying

O’Sullivan where an Alabama state prisoner failed to petition for certiorari on

direct appeal).

Although Pope did not specifically address the issue of whether a Georgia

state prisoner must petition for certiorari during his direct appeal in order to
Under O.C.G.A. § 9-14-52, a prisoner cannot appeal the 3

denial of habeas corpus relief “unless the Supreme Court of this

state issues a certificate of probable cause for the appeal.”

O.C.G.A. § 9-14-52(a).

 Nelson’s arguments that the state waived the exhaustion issue are without merit. Waiver 4

must be express and explicit, and there is no evidence in the record that the state expressly waived

the exhaustion issue. See 28 U.S.C. § 2254(b)(3). Furthermore, to the extent that Nelson asserts that

he can show cause and prejudice because his counsel was ineffective in failing to apply for a

certificate of probable cause, that issue is not properly before this court, as it is outside the scope of

the COA, and Nelson has not requested that this court expand the COA. Murray v. United States,

145 F.3d 1249, 1250-51 (11th Cir. 1998). In addition, Nelson may not raise this claim because he

failed to exhaust the issue, as he raised the claim for the first time in his state habeas petition, but

he did not raise it when he moved for a certificate of probable cause from the denial of his state

habeas petition. See Edwards v. Carpenter, 529 U.S. 446, 452-53, 120 S.Ct. 1587, 1591-92, 146

L.Ed.2d 518 (2000) (holding that federal court reviewing a habeas claim cannot consider an

ineffective-assistance-of-counsel claim as cause for a procedural default of another claim if the

ineffective-assistance claim itself was procedurally barred); Hill v. Jones, 81 F.3d 1015, 1029-31

(11th Cir. 1996) (holding that an ineffective-assistance-of-counsel claim, if exhausted and not

procedurally defaulted, may constitute cause). 

6

exhaust state remedies, logic dictates that the exhaustion requirement in Georgia is

the same for direct appeals as for post-conviction relief. “The fact remains that

Georgia law provides that a state prisoner may appeal an adverse decision to the

Georgia Supreme Court by petitioning for a certificate of probable cause within 30

days of the denial of his state habeas petition. Nothing in O.C.G.A. § 9-14-52 can

be considered ‘extraordinary’ as defined in Boerckel.” Pope, 358 F.3d at 854. 3

Accordingly, applying Pope, we hold that Nelson was required to petition

for certiorari from the state supreme court on direct appeal to exhaust his state

remedies. As he failed to do so, Nelson cannot show that he exhausted his state 4

remedies. Accordingly, we AFFIRM the dismissal of his habeas petition.