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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11237
____________________
CHRISTOPHER JOHN DERTING,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:17-cv-01315-BJD-MCR
____________________
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2 Opinion of the Court 20-11237
Before ROSENBAUM and JILL PRYOR, Circuit Judges, and ALTMAN,*
District Judge.
PER CURIAM:
Christopher Derting, a Florida prisoner assisted by counsel
here, appeals the district court’s denial of his
28 U.S.C. § 2254 peti-
tion. We granted a certificate of appealability on whether the dis-
trict court violated Clisby v. Jones,
960 F.2d 925, 936 (11th Cir.
1992) (en banc), by failing to address Derting’s claim that trial coun-
sel was ineffective for mistakenly advising him not to call James
Long as a defense witness. Derting argues that the district court
violated Clisby by resolving only one part of his ineffective-assis-
tance-of-counsel claim for failure to call a defense witness and not
addressing the issue of whether defense counsel’s advice not to call
Long was deficient and constitutionally ineffective. Upon consid-
eration, we find that no Clisby violation occurred and, accordingly,
affirm the district court.
I.
A. State Court Proceedings
In 2008, Derting was charged by information, along with his
co-defendant Darryl Weems, with one count of sale and delivery
of cocaine, in violation of
Fla. Stat. § 893.13(1)(a). Before the trial,
*The Honorable Roy Altman, United States District Judge for the Southern
District of Florida, sitting by designation.
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20-11237 Opinion of the Court 3
Derting filed a witness disclosure to the prosecution, identifying
James Long.1
Despite this, at trial, when the judge asked Derting whether
he wanted his attorneys to call any witnesses, Derting responded,
“I don’t think so, Your Honor.” Although the trial court asked spe-
cifically about Long, Derting’s trial counsel stated that she never
intended to call Long as a witness. The trial court confirmed that
Derting knew Long was present at trial and asked whether Derting
wanted to call him as a witness, and Derting said that he did not.
The jury found Derting guilty of the sale and delivery of co-
caine, and the court sentenced Derting to 30 years. Derting ap-
pealed his conviction and sentence, but the Florida appellate court
affirmed per curiam.
In 2013, Derting filed a second amended state post-convic-
tion motion under Florida Rule of Criminal Procedure 3.850, rais-
ing, among other issues, several ineffective-assistance claims. Sig-
nificantly, though, none involved trial counsel’s failure to call Long
as a defense witness. In 2015, Derting filed a supplemental motion
for post-conviction relief, seeking to add a claim that his trial coun-
sel was ineffective for failing to call Long as a defense witness and
for urging Derting to forgo calling Long as a witness in favor of
getting the last word in closing argument (the so-called “sandwich
rule,” which Derting argues he could not have taken advantage of
1 Long’s full name is James Randall Long. Derting’s witness disclosure identi-
fied Long as Randy Long.
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4 Opinion of the Court 20-11237
under the law in effect at the time his attorney gave this advice)
(Ground 12). The state post-conviction court denied Derting’s
Rule 3.850 motions and with respect to Ground 12, found that
Derting knowingly waived the opportunity to call Long as a wit-
ness. Derting appealed the denial of his Rule 3.580 motions. But
again, a Florida appellate court affirmed per curiam.
B. District Court Proceedings
Derting timely filed a § 2254 petition for a writ of habeas
corpus, which he later timely amended. His amended petition
raised seven grounds for relief, including, as relevant here, Ground
3, which asserted that his trial counsel was ineffective for failing to
call a defense witness with exculpatory testimony, in violation of
the Fifth, Sixth, and Fourteenth Amendments. Specifically,
Derting argued that when his trial counsel failed to properly inves-
tigate, depose, and prepare to call Long as a witness, his right to
effective assistance of counsel was violated.
The district court denied Derting’s petition, concluding that,
with respect to Ground 3, Derting had failed to demonstrate prej-
udice. In particular, the court noted, Derting had not provided an
affidavit or other testimonial evidence from Long showing that the
outcome of Derting’s trial would have changed had Long been
called, and Derting’s self-serving speculation would not suffice.
The district court also found that the state post-conviction court’s
ruling was entitled to deference, as it was based on a reasonable
determination of the facts and a reasonable application of the law.
Alternatively, the district court ruled that counsel’s performance
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20-11237 Opinion of the Court 5
was not subpar. It reasoned that counsel enjoys wide latitude in
making strategic decisions and, considering Derting’s trial coun-
sel’s statement during trial that she did not intend to call Long and
that Long’s listing as a witness was a mistake, trial counsel’s failure
to call Long was not so patently unreasonable that no competent
attorney would have made the decision.
In a footnote, the district court observed that Derting also
confirmed that he did not want to call Long. Not only that, the
district court noted, but the trial court gave Derting an opportunity
to indicate whether he wanted to call any witnesses and to express
any complaints about the trial, and Derting did not.
Derting timely appealed the district court’s order on March
26, 2020.
II.
We review de novo a district court’s denial of a petition for
writ of habeas corpus. Pope v. Rich,
358 F.3d 852, 853 n.1 (11th
Cir. 2004). Likewise, we review de novo the legal question of
whether the district court violated the rule in Clisby by failing to
address a claim. Dupree v. Warden,
715 F.3d 1295, 1299–1300 (11th
Cir. 2013).
III.
In Clisby, we expressed our “deep concern over the piece-
meal litigation of federal habeas petitions filed by state prisoners”
and “the growing number of cases in which [we were] forced to
remand for consideration of issues the district court chose not to
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6 Opinion of the Court 20-11237
resolve.” Clisby,
960 F.2d at 935–36. Accordingly, we exercised
our supervisory power over the district courts and directed district
courts to resolve all claims for relief raised in a habeas petition, re-
gardless of whether habeas relief is granted or denied.
Id. When a
district court fails to address all claims in a § 2254 petition, we va-
cate the district court’s judgment without prejudice and remand
the case for consideration of the unresolved claims. Id. at 938. We
do not address whether the underlying claim has any merit if we
determine that a Clisby violation occurred. Dupree, 715 F.3d at
1299.
A claim for relief for purposes of this instruction includes
“any allegation of a constitutional violation.” Clisby,
960 F.2d at
936. And allegations of distinct constitutional violations constitute
separate claims for relief, “even if both allegations arise from the
same alleged set of operative facts.”
Id.
We have explained that a petitioner “must present a claim
in clear and simple language such that the district court may not
misunderstand it.” Dupree, 715 F.3d at 1299. But that doesn’t re-
quire a whole lot. In Dupree, for example, the petitioner, in two
sentences in the middle of a 15-page supporting memorandum of
law attached to his § 2254 petition, raised an ineffective-assistance
claim concerning his second trial attorney, who moved to set aside
his guilty plea. Id. at 1297, 1299. The petition had also raised an
ineffective-assistance claim about the petitioner’s first attorney,
who had advised the petitioner to plead guilty in the first place. See
id. at 1297. The district court addressed the claim concerning the
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20-11237 Opinion of the Court 7
first attorney but not the one about the second. Id. at 1299. Alt-
hough we opined that the district court’s omission occurred
“through little fault of its own,” we nonetheless concluded the dis-
trict court violated Clisby. Id. at 1299–1300.
But no Clisby error occurs when the habeas petitioner fails
to clearly present the claim to the district court. Barritt v. Sec’y,
Fla. Dep’t of Corr.,
968 F.3d 1246, 1251–52 (11th Cir. 2020). In Bar-
ritt, for instance, we concluded that the petitioner’s passing refer-
ence to “coercion” in his ineffective-assistance claim was not
enough to state an independent coercion claim for Clisby purposes,
given the petitioner never alleged in state court or the district court
a freestanding coercion claim.
Id. Similarly, we held that the as-
sertion of a claim in one sentence in a 116-page § 2254 petition, but
not at all in 123 pages of memoranda of law, did not adequately
present the issue. Smith v. Sec’y, Dep’t of Corr.,
572 F.3d 1327,
1352 (11th Cir. 2009).
Here, the district court did not violate Clisby. Within
Ground 3 of his § 2254 petition, Derting, in a few sentences, stated
that “it was upon counsel’s ill advice that [Derting] declined to call
Long.” And in his reply, Derting asserted that his trial counsel
“misadvised” him, in addition to his general claim that his trial
counsel was ineffective for failing to call Long. Unlike in Dupree,
where the district court failed to resolve an ineffective-assistance
claim alleging deficiency by a different attorney than the one in the
claim addressed, Derting’s ineffective-assistance argument regard-
ing his trial counsel’s alleged misadvice related to the same
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8 Opinion of the Court 20-11237
attorney and the same overarching issue of counsel’s failure to pre-
sent Long’s testimony at trial. Dupree, 715 F.3d at 1297-1300. But
as in Barritt, Derting’s passing reference to his argument regarding
his trial counsel’s misadvice failed to clearly present a freestanding
ineffective-assistance claim to the district court, particularly consid-
ering he never alleged this argument as a freestanding claim in state
court or the district court. Barritt, 968 F.3d at 1251. And similar to
the petitioner in Smith, Derting made no reference to his argument
in his 243-page memorandum of law, and said very little about it in
his 310-page reply. Smith,
572 F.3d at 1352. Thus, Derting’s pass-
ing references to his argument regarding his trial counsel’s misad-
vice were insufficient here to put the district court on notice that
he was raising a distinct claim.
But even if Derting had clearly presented an ineffective-as-
sistance claim to the district court, we would still affirm because
the district court’s resolution of Derting’s claim that trial counsel
was ineffective for failing to call Long as a witness equally and nec-
essarily resolved Derting’s claim that counsel misadvised him not
to call Long. For claims of ineffective assistance of counsel, a peti-
tioner must demonstrate both that (1) counsel’s performance was
deficient, meaning that it fell below an objective standard of rea-
sonableness, and (2) the petitioner was prejudiced by the deficient
performance, i.e., there was a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been dif-
ferent. Strickland v. Washington,
466 U.S. 668, 687 (1984).
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20-11237 Opinion of the Court 9
Here, as we have noted, the district court, invoking Strick-
land’s prejudice prong, denied Derting’s claim that counsel was in-
effective for failing to call Long. More specifically, the court held
that Derting had offered no evidence (other than his own specula-
tion) showing that the outcome of Derting’s trial would have
changed had Long been called. Plus, the court opined, the evi-
dence against Derting was strong.
Derting’s claim that counsel misadvised him not to call Long
necessarily required the same showing of prejudice that Derting’s
claim that counsel was ineffective for failing to call Long did. So
because the district court found no prejudice arising out of coun-
sel’s alleged ineffectiveness in failing to call Long, that finding nec-
essarily resolved Derting’s claim that counsel was ineffective for
misadvising him not to call Long.
Thus, through its prejudice analysis on Derting’s claim that
counsel was ineffective for failing to call Long as a witness, the dis-
trict court effectively resolved Derting’s claim that counsel was in-
effective for misadvising him not to call Long.
IV.
Because Derting failed to clearly present his claim to the dis-
trict court and the district court otherwise resolved the claim by
finding that Derting did not establish prejudice from the absence of
Long’s testimony at trial, we affirm the district court’s denial of
Derting’s § 2254 petition.
AFFIRMED.
