WAITE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MAXIUS PIERRE WAITE,

Petitioner,

v. Case No. 4:25-cv-437-TKW-MJF

WARDEN, LEON COUNTY

DETENTION FACILITY,

Respondent.

/

REPORT AND RECOMMENDATION

Maxius Waite, proceeding pro se, has filed a petition for writ of

habeas corpus under 28 U.S.C. § 2254. Doc. 1. Respondent (“the State”)

moves to dismiss the petition because three of Waite’s claims are

unexhausted and one claim is moot. Doc. 14. Waite opposes the motion.

Doc. 17. The undersigned concludes that no evidentiary hearing is

required, and that Waite’s petition must be dismissed.

BACKGROUND

In Leon County Circuit Court Case No. 2024-CF-2503, Waite was

charged with Domestic Battery by Strangulation. Doc. 15-1, Exs. 14 &

15.1 On December 19, 2024, Waite executed a counseled, written plea

agreement and pleaded no contest to the charge. Ex. 16. The trial court

accepted Waite’s plea and, consistent with the plea agreement, withheld

an adjudication of guilt and sentenced Waite to three years of probation.

Ex. 17.

On January 6, 2025, a Violation of Probation (“VOP”) affidavit was

filed alleging that Waite failed to report to the probation office upon

release from jail as instructed. Ex. 18. On February 4, 2025, Waite

pleaded no contest to the violation and his three-year term of probation

was reinstated. Ex. 19. On July 11, 2025, another VOP affidavit was filed

alleging that Waite was arrested on May 8, 2025, for Burglary with

Assault. Ex. 20.

On July 17, 2025, Waite was charged in Leon County Circuit Court

Case No. 2025-CF-1254, with Burglary of a Structure with Person

Assaulted. Exs. 5 & 6. Waite was appointed counsel and proceeded to

trial. Exs. 6 & 10. The jury found Waite guilty of the lesser-included

offense of misdemeanor Battery. Exs. 7 & 10. On August 26, 2025, the

1 Hereafter, all citations to the state-court record are to the exhibits in

the State’s appendix, Doc. 15-1.

trial court sentenced Waite in Case No. 2025-CF-1254 to 11 months and

29 days of imprisonment in the county jail with 111 days of jail credit.

Ex. 8.

On August 26, 2025, the trial court conducted a probation

revocation hearing in Case No. 2024-CF-2503 (the Battery by

Strangulation case). Ex. 21. Waite was represented by counsel. Id. The

trial court found Waite guilty of the probation violation, revoked Waite’s

probation and sentenced Waite to a new three-year term of probation.

Exs. 21 & 22.

On September 2, 2025, Waite appealed both judgments and

sentences to the Florida First District Court of Appeal (“First DCA”). See

Exs. 9 & 12.2 A mere five weeks later, on October 10, 2025, Waite filed

his federal habeas petition in this District Court. Doc. 1.

WAITE’S FEDERAL HABEAS PETITION

Waite’s § 2254 petition raises four grounds for relief:

Ground One: “Trial Held without Lawful Jurisdiction”—a

challenge to Waite’s conviction in Case No. 2025-CF-1254.

2 On October 22, 2025, the First DCA consolidated Waite’s appeals under

Case No. 1D2025-2244. See Ex. 13.

Ground Two: “Denial of Appellate Counsel and Access to Direct

Review”—an allegation that Waite has not been appointed counsel in his

direct appeal.

Ground Three: “VOP Proceedings Void: No jurisdiction and No

Written Revocation Order”—a challenge to Waite’s probation revocation

in Case No. 2024-CF-2503.

Ground Four: “State Court’s Sustained Inaction: Unruled

Motions & Ignored Sentencing Error Motion (Ineffective State Corrective

Process)”—an allegation that from June through October 2025, Waite

filed numerous motions in the state courts that were not ruled on.

Concerning exhaustion, Waite alleges that he intends to raise

Ground One in his direct appeal. Doc. 1 at 9. Regarding Grounds Two

and Four, Waite alleges that he raised these issues in a state-court

mandamus petition seeking to compel the state court to appoint appellate

counsel. Id. at 11–12, 15–16. As to Ground Three, Waite alleges that he

raised this issue in two motions that are still pending in the state courts.

Id. at 13–14. At the end of Waite’s § 2254 petition, Waite adds:

State courts have not ruled on any of my motions or

appellate requests. Lack of counsel and failure to transmit the

record prevented briefing on direct appeal. Extraordinary

writ is pending without action.

Doc. 1 at 17.

THE STATE’S MOTION TO DISMISS

The State filed its motion to dismiss on February 11, 2026. Doc. 14.

At that time, the last filing in Waite’s direct appeal was an “Agreed

Notice of Extension of Time to file Appellant’s Initial Brief” filed by

Waite’s appellate counsel on January 16, 2026. See Ex. 11; see also Ex.

24.

The State argues that Grounds One, Three and Four of Waite’s

petition are unexhausted because they are direct-appeal claims and

Waite’s direct appeal is still pending. Doc. 14 at 4. The State maintains

that Ground Two is moot because Waite was appointed counsel in his

direct appeal on October 10, 2025. Id. at 5. If Ground Two is not moot,

the State argues that Ground Two is exhausted and without merit,

rendering Waite’s § 2254 petition a mixed petition warranting dismissal.

Thus, under either view, Waite’s petition should be dismissed without

prejudice.

RELEVANT LEGAL STANDARDS

A. The Federal Habeas Exhaustion Requirement

“To respect our system of dual sovereignty, the availability of

habeas relief is narrowly circumscribed.” Shinn v. Ramirez, 596 U.S. 366,

375 (2022) (citations omitted). One such constraint is the exhaustion

requirement. See 28 U.S.C. § 2254(b); Shinn, 596 U.S. at 375-79.

Section 2254 “requires state prisoners to ‘exhaust the remedies

available in the courts of the State’ before seeking federal habeas relief.”

Shinn, 596 U.S. at 377 (alteration adopted) (quoting 28 U.S.C. §

2254(b)(1)(A)). State prisoners must “invoke[e] one complete round of the

State’s established appellate review process.” O’Sullivan v. Boerckel, 526

U.S. 838, 845 (1999).

The exhaustion requirement “is principally designed to protect the

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

of state judicial proceedings.” Rose v. Lundy, 455 U.S. 509, 518 (1982)

(citation omitted). “Generally, when a petitioner has failed to exhaust

state remedies, the district court should dismiss the petition without

prejudice to allow exhaustion.” Reedman v. Thomas, 305 F. App’x 544,

546 (11th Cir. 2008) (citing Lundy, 455 U.S. at 519–20).

A state prisoner is excused from the exhaustion requirement if (1)

“there is an absence of available State corrective process,” or (2)

“circumstances exist that render such process ineffective to protect the

rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i), (ii). “An exception is

made only if there is no opportunity to obtain redress in state court or if

the corrective process is so clearly deficient as to render futile any effort

to obtain relief.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (emphasis

added).

B. The Mootness Doctrine

A claim must be dismissed as moot if the issue it raises is “no longer

‘live’ such that the Court cannot give meaningful relief.” Garey v. Fed.

Det. Ctr., Miami, 180 F. App’x 118, 120 (11th Cir. 2006) (quoting Soliman

v. U.S. ex rel. INS, 296 F.3d 1237, 1242 (11th Cir. 2002)). Thus, if an

event that occurs subsequent to the filing of a petition “deprive[s] the

court of the ability to give the [petitioner] meaningful relief, then the

[claim] is moot and must be dismissed.” Soliman, 296 F.3d at 1242.

DISCUSSION

A. Grounds One, Three and Four Are Unexhausted

“[T]he proper time to analyze exhaustion is when the district court

issues its order.” Hall v. Sec’y, Fla. Dep’t of Child. & Fams., 2025 WL

395679, at *2 (11th Cir. Feb. 4, 2025) (unpublished) (relying on the

Supreme Court’s interpretation of § 2254(b) in Rhines v. Weber, 544 U.S.

269, 275–78 (2005)). Pursuant to Federal Rule of Evidence 201, this court

takes judicial notice that Waite’s direct appeal remains pending. See

Attach. 1.

Grounds One, Three and Four are direct-appeal claims. Because

Waite’s direct appeal is still pending, Waite has not yet given the courts

of Florida a full and fair chance to resolve these claims. Waite must do so

before seeking habeas relief in federal court.

1. Waite Has Not Shown that Florida’s Corrective Process

Is Ineffective to Protect His Rights

Waite argues that Florida’s appellate process is ineffective to

protect his rights because (1) the state trial court disregarded Waite’s pro

se motions; (2) the First DCA denied Waite’s initial motion to proceed pro

se (which was followed by Waite’s motion to appoint counsel); and (3)

Waite’s appointed appellate counsel has not communicated with Waite.

Doc. 17 at 3–5. None of these allegations demonstrate that the state

corrective process is ineffective to protect Waite’s rights.

For starters, Waite’s allegations of trial-court error do not show

that Florida’s appellate process is ineffective to correct those trial-level

errors. That is what Florida’s direct-appeal process was designed to do.

Waite currently is utilizing that process.

Second, the state courts’ refusal to entertain Waite’s pro se filings

due to Waite’s representation by counsel has not rendered Florida’s

corrective process futile or ineffective to protect Waite’s rights.3 The

record establishes that appellate counsel has filed an initial brief on

Waite’s behalf. See Attach. 1. Waite does not allege—nor does the record

suggest—that the state courts have refused to address a filing submitted

by Waite’s counsel.

Third, to the extent trial or appellate counsel failed to communicate

with Waite, failed to file particular motions Waite requested, or failed to

pursue particular issues, Waite has avenues for asserting ineffective-

assistance-of-counsel claims in the state courts. Florida has established

3 Waite does not have a constitutional right to proceed pro se in his direct

appeal. Martinez v. Court of Appeal of California, Fourth Appellate Dist.,

528 U.S. 152, 163 (2000) (there is no constitutional right to self-

representation on direct appeal). Waite also does not have a

constitutional right to hybrid representation by counsel and himself.

Sheppard v. State, 17 So. 3d 275, 279 (Fla. 2009) (“[A] defendant has no

Sixth Amendment right to simultaneously proceed pro se and with legal

representation.”); McKaskle v. Wiggins, 465 U.S. 168, 183 (1984).

corrective processes for these types of claims. See Fla. R. Crim. P. 3.850;

Fla. R. App. P. 9.141(b), (d).

For the foregoing reasons, Waite has not shown that § 2254(b)(1)(B)

applies. Waite, therefore, must satisfy the federal habeas exhaustion

requirement. See 28 U.S.C. § 2254(b)(1)(A); Carruth v. Comm’r, Ala. Dep’t

of Corr., 93 F.4th 1338, 1354 (11th Cir. 2024) (“As long as a State

appellate process exists, follows firmly established and regularly followed

rules, and is not ineffective to protect the rights of the petitioner, the

petitioner must navigate the State appellate process under the State’s

rules.” (internal quotation marks and citations omitted)). Waite’s failure

to do so warrants dismissal of the unexhausted claims.

2. Waite Has Not Shown that a Stay Is Appropriate

Waite argues that if the District Court determines that any claim

is unexhausted, the court should stay his petition instead of dismissing

it. Doc. 17 at 5–7 (citing Rhines, supra).

“District courts . . . ordinarily have authority to issue stays, where

such a stay would be a proper exercise of discretion.” Rhines, 544 U.S. at

276. In Rhines, the Court addressed a “mixed” petition, that is, a petition

containing both exhausted and unexhausted claims. Id. at 271. The Court

discussed how “the interplay between AEDPA’s 1-year statute of

limitations and Lundy’s dismissal requirement” might cause some

petitioners who come to federal court with “mixed” petitions to “run the

risk of forever losing their opportunity for any federal review of their

unexhausted claims.” Rhines, 544 U.S. at 275. For example, “if a district

court dismisses a mixed petition close to the end of the 1-year

[limitations] period, the petitioner’s chances of exhausting his claims in

state court and refiling his petition in federal court before the limitations

period runs are slim.” Id. at 275.

For those petitioners, district courts are authorized to order a stay

and abeyance of a petition, but only “in limited circumstances.” Id. at 277.

The “limited circumstances” are when (1) the petitioner had “good cause”

for failing to exhaust his claims first in state court; (2) the unexhausted

claims are “potentially meritorious;” and (3) “there is no indication that

the petitioner engaged in intentionally dilatory litigation tactics.” Id. at

277–78.

Waite has not shown that dismissal of his federal petition will

unreasonably impair his ability to obtain federal review of his claims. The

circumstances addressed by the Supreme Court in Rhines—the interplay

between Lundy’s dismissal requirement and AEDPA’s 1-year statute of

limitations—are not present here. Rhines, 544 U.S. at 274–75. Waite’s

federal limitations period has not yet begun to run.

Waite’s response does not allege any other circumstances that

would warrant a stay. See Doc. 17. Although Waite asserts he has “good

cause” for failing to exhaust his claims, he merely repeats the same

allegations he proffered as to why he should not be required to exhaust

at all—the alleged ineffectiveness of Florida’s corrective process. Waite

references: (1) the state courts’ refusal to address Waite’s pro se motions

filed while Waite was represented by counsel (points 1, 2 and 5); (2)

appellate counsel’s “lack of communication” (point 3); (3) an “incomplete

appellate record” (point 4); and (4) Waite’s letters and notices to various

judicial and state officers that have gone unanswered (point 6). See Doc.

17 at 6; Doc. 17-1. As discussed above, however, Florida’s corrective

process is available and is effective to protect Waite’s rights. Waite

currently is utilizing that process with the assistance of counsel.

Because Waite fails to satisfy the “good cause” prong required by

Rhines, the district court may deny a stay without addressing whether

Waite satisfies the remaining two requirements for a stay.

To summarize, Grounds One, Three and Four are unexhausted.

Waite has not shown that Florida’s corrective process is ineffective to

protect his rights. Waite also has not shown that a stay is appropriate.

Thus, Grounds One, Three and Four should be dismissed without

prejudice for Waite’s failure to exhaust available state remedies. See 28

U.S.C. § 2254(b)(1); Lundy, 455 U.S. at 519–20; O’Sullivan, 526 U.S. at

845.

B. Ground Two Is Moot

Waite’s remaining claim—Ground Two—alleges that “the First

DCA has not appointed appellate counsel and the trial court has not

transmitted the record” in Waite’s direct appeal. Doc. 1 at 11. As relief,

Waite seeks an order from this court that “appoints appellate counsel,

and transmits the record” of Waite’s criminal cases to the First DCA. Id.

at 19.

The State argues that this claim is moot because the record

confirms Waite was appointed appellate counsel the same day he filed

his federal habeas petition. Doc. 14 at 5. Waite’s response concedes that

“counsel has technically been appointed,” but argues that Ground Two is

not moot because counsel has not consulted with Waite regarding his

appeal. Doc. 17 at 10.

Ground Two is moot. On October 10, 2025, the state court appointed

counsel to represent Waite in his direct appeal. See Attach. 1; see also

Doc. 15-1, Exs. 13, 24. On March 17, 2026, appellate counsel filed an

initial brief on Waite’s behalf. See Attach. 1.

Because Waite has been appointed counsel in his direct appeal and

the alleged constitutional infirmity has been remedied, this federal court

cannot provide Waite the relief he seeks (the appointment of appellate

counsel) or any other meaningful relief. See, e.g., Garey, 180 F. App’x at

120–21 (dismissing as moot habeas claim related to petitioner’s pre-trial

transfer from Georgia to Florida for psychiatric evaluation to determine

competence to stand trial; during pendency of habeas appeal, petitioner

was transferred back to Georgia for trial and sentencing on federal

charges and received sentence credit for time spent in evaluation).4

4Although there is an exception to the mootness doctrine when the action

being challenged is capable of repetition yet evading review, “this

exception is narrow, and applies only in exceptional situations.” Soliman,

296 F.3d at 1242. To invoke the exception, Waite must show that “(1)

there [is] a reasonable expectation or a demonstrated probability that the

same controversy will recur involving the same complaining party, and

One final point bears noting. Waite’s response argues that “Ground

Two presents an ongoing issue and is not moot” because Waite “remains

unable to meaningfully consult with counsel, review the record, or

participate in his appeal[.]” Doc. 17 at 2. This argument does not save

Ground Two from dismissal.

A claim of a complete denial of counsel is separate and distinct from

a claim that counsel’s assistance was constitutionally infirm. Compare

Douglas v. California, 372 U.S. 353 (1963) (Due Process and Equal

Protection Clauses of Fourteenth Amendment require appointment of

counsel for indigent defendants on first appeal as of right), with

Strickland v. Washington, 466 U.S. 668 (1984) (standard for determining

whether counsel’s assistance was constitutionally ineffective) and Smith

v. Robbins, 528 U.S. 259, 285 (2000) (applying Strickland standard to

claim that appellate counsel’s assistance was ineffective).

(2) the challenged action is in its duration too short to be fully litigated

prior to its cessation or expiration.” Id. at 1242–43.

Waite has not shown that there is a “reasonable expectation” or

“demonstrated probability” that the same controversy concerning the

appointment of appellate counsel will recur. Waite has failed to satisfy

the first prong of the exception, and therefore fails to qualify for the

mootness exception.

As just discussed, Waite’s denial-of-counsel claim raised in Ground

Two was mooted by the First DCA’s appointment of appellate counsel.

Thus, this claim must be dismissed. Any proposed ineffective-assistance-

of-appellate-counsel claim cannot be raised in federal court until Waite

first exhausts his state-court remedies in accordance with Fla. R. App. P.

9.141(b), (d).

A CERTIFICATE OF APPEALABILITY IS NOT WARRANTED

Rule 11(a) of the Rules Governing Section 2254 Cases in the United

States District Courts provides: “[t]he district court must issue or deny a

certificate of appealability when it enters a final order adverse to the

applicant.” If a certificate is issued, “the court must state the specific

issue or issues that satisfy the showing required by 28 U.S.C. §

2253(c)(2).” 28 U.S.C. § 2254 Rule 11(a). A timely notice of appeal must

still be filed, even if the court issues a certificate of appealability. See 28

U.S.C. § 2254 Rule 11(b).

“[Section] 2253(c) permits the issuance of a COA only where a

petitioner has made a ‘substantial showing of the denial of a

constitutional right.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)

(quoting 28 U.S.C. § 2253(c)). “At the COA stage, the only question is

whether the applicant has shown that jurists of reason could disagree

with the district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Buck v. Davis, 580 U.S. 100, 115

(2017). Here, Petitioner has not made the requisite demonstration.

Accordingly, the court should deny a certificate of appealability in its

final order.

“Before entering the final order, the court may direct the parties to

submit arguments on whether a certificate should issue.” 28 U.S.C. §

2254 Rule 11(a). If there is an objection to this recommendation, the

relevant party shall file such an objection with the District Court.

CONCLUSION

For the reasons set forth above, the undersigned respectfully

RECOMMENDS that the District Court:

1. GRANT Respondent’s motion to dismiss, Doc. 14.

2. DISMISS Petitioner’s § 2254 petition without prejudice

because Grounds One, Three and Four are unexhausted and Ground Two

is moot.

3. DENY a certificate of appealability.

4. DIRECT the clerk of court to close this case file.

At Panama City, Florida, this 23rd day of March, 2026.

/s/ Michael J. Frank

Michael J. Frank

United States Magistrate Judge

NOTICE TO THE PARTIES

The District Court referred this case to a magistrate

judge to make recommendations regarding dispositive

matters. See 28 U.S.C. § 636(b)(1)(B), (C). Objections to

these proposed findings and recommendations must be

filed within fourteen days of the date of the report and

recommendation. Any different deadline that may

appear on the electronic docket is for the court’s

internal use only. A party must serve a copy of any

objections on all other parties. A party who fails to

object to this report and recommendation waives the

right to challenge on appeal the District Court’s order

based on unobjected-to factual and legal conclusions.

See 11th Cir. R. 3-1; 28 U.S.C. § 636. The parties also are

advised that if they dispute the accuracy of any

judicially-noticed fact, or if they otherwise wish to be

heard on the propriety of the District Court taking

judicial notice of that fact, they must raise this issue in

an objection to this report and recommendation.