John Thomas Riley, Jr. v. United States , 304 F. App'x 811 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-15546 DECEMBER 22, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket Nos. 03-01031-CV-T-N,
99-00137-CR-N
JOHN THOMAS RILEY, JR.,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Middle District of Alabama
__________________________
(December 22, 2008)
Before EDMONDSON, Chief Judge, TJOFLAT and BLACK, Circuit Judges.
PER CURIAM:
John Thomas Riley, Jr., a federal prisoner proceeding pro se, appeals the
district court’s denial of his 28 U.S.C. § 2255 motion to vacate his sentence.1 This
Court originally denied Riley a certificate of appeal ability (“C.A.”) but, on
reconsideration, we granted a C.A. on whether the district court properly
addressed all of Riley’s claims under Clisby v. Jones, 960 F.2d 925, 935-36 (11th
Cir. 1992) (en banc). Reversible error has been shown; we vacate without
prejudice and remand for additional proceedings.
On appeal, Riley argues that Clisby required the district court to address all
of his claims.2 In considering a district court’s denial of a section 2255 motion, we
review fact determinations for clear error and questions of law de novo. Lynn v.
United States, 365 F.3d 1225, 1232 (11th Cir. 2004).
In Clisby, we wrote that district courts must “resolve all constitutional
claims presented in a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 before granting or denying relief.” 960 F.2d at 934. A “claim for relief” is
defined as “any allegation of a constitutional violation;” and “an allegation of one
Riley previously had been convicted of drug conspiracy, drug smuggling,
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money laundering, and unlawful use of a communications device.
2
Riley also argues the merits of some of the claims the district court
allegedly did not address. But we do not consider these arguments because they
are beyond the scope of the C.A. See Murray v. United States, 145 F.3d 1249,
1251 (11th Cir. 1998) (scope of review on appeal from denial of a post-conviction
motion is restricted to issue specified in the C.A.).
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constitutional violation and an allegation of another constitutional violation
constitute two distinct claims for relief, even if both allegations arise from the
same alleged set of operative facts.” Id. at 936. We have not yet determined
whether Clisby applies to section 2255 motions, but we have noted that “the
principles developed in habeas cases also apply to section 2255 motions.” See
Gay v. United States, 816 F.2d 614, 616 n.1 (11th Cir. 1987); see also Broadwater
v. United States, 292 F.3d 1302, 1303 (11th Cir. 2002) (vacating and remanding
the summary denial of a section 2255 motion, concluding that the district court’s
order did not provide this Court “with a sufficient basis for review”).
After careful review, and assuming that Clisby applies to section 2255
motions, we conclude that the district court failed to consider all of Riley’s claims.
Riley filed a counseled section 2255 motion and later filed two amendments to this
motion. In these three pleadings, Riley enumerated 25 separate grounds for relief.
Of these claims, the district court did not address the following claim at all:
Counsel was ineffective for failing to object to the district
court’s finding that Riley did not qualify for an acceptance of
responsibility reduction (raised as Claim 11 of Riley’s second
amendment to his section 2255 motion).
We also conclude that the district court failed to address adequately the
following claims:
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The district court erred in enhancing Riley’s sentence for
obstruction of justice and possession of a gun because the evidence
did not support these enhancements; and counsel was ineffective for
failing to challenge these enhancements at sentencing or on appeal
(raised as Claim 5 of original section 2255 motion and Claims 10 and
12 of second amendment to the section 2255 motion); and
counsel was ineffective for allowing Riley to plead guilty to
money laundering, where he did not take money outside of the United
States and, thus, was not guilty of the offense (raised as Claim 14 of
the second amendment to the section 2255 motion).
The district court construed these claims as based on Apprendi v. New
Jersey, 120 S.Ct. 2348 (2000), and rejected them as procedurally barred; but
Riley’s challenges in these claims were based on lack of evidence and not
Apprendi.
We briefly discuss the remainder of the C.A., which lists two other allegedly
unaddressed claims. We conclude that these claims -- that counsel was ineffective
for failing to challenge at sentencing or on appeal (1) the sentencing enhancement
for Riley’s role in the offense because evidence did not support it and (2) the drug
amount attributed to him because the court improperly relied on the conduct of
others that was not in furtherance of the conspiracy -- were not properly raised in
his section 2255 motion or in either amendment. Riley raised these issues only in
his reply to the government’s response to his section 2255 motion. See
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Fed.R.Civ.P. 15(a) (a party is permitted to amend a pleading once “as a matter of
course” at any time before a responsive pleading is served or, otherwise, only by
leave of court or by written consent of the adverse party); Rule 12 of the Rules
Governing Section 2255 Proceedings (district court may apply the Federal Rules
of Civil Procedure consistent with the Rules Governing Section 2255
Proceedings).3
Because the district court did not address all of the claims raised in Riley’s
section 2255 motion, we vacate and remand for additional proceedings consistent
with this opinion.
VACATED AND REMANDED.
3
We note that all of Riley’s pleadings filed in the district court were
counseled; and, thus, the pleadings are unentitled to the liberal construction that
pro se filings are. And while Riley penned his reply as a “Memorandum in
Support of 28 U.S.C. § 2255,” it was filed as a reply to the government’s response
-- not an amendment raising additional claims -- and the district court construed it
as such.
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