Dudley Barrington Mitchell v. United States , 321 F. App'x 866 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-13747 MAR 23, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket Nos. 07-01066-CV-T-30-MAP
05-00479-CR-T-3
DUDLEY BARRINGTON MITCHELL,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 23, 2009)
Before BIRCH, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Dudley Mitchell appeals the district court’s denial of his 28 U.S.C. § 2255motion to vacate, set aside, or correct his sentence. We granted Mitchell’s motion
for a certificate of appealability (COA) for the following issues:
(1) whether the district court addressed only the issue of whether
counsel was ineffective for advising Mitchell to plead guilty to the
crime of illegal reentry, and failed to address the issue of whether
counsel was ineffective for misadvising Mitchell regarding the length
of the sentence he was facing;
(2) whether in light of Clisby v. Jones, 960 F.2d 925, 936 (11th Cir.
1992) (en banc), the district court was required to address all of the
claims raised Mitchell’s motion to vacate his sentence pursuant to 28
U.S.C. § 2255; and
(3) if so, whether the district court’s order should be vacated and
remanded because it failed to address all of the claim’s raised in
Mitchell’s § 2255 motion.
Mitchell argues that the district court failed to resolve one of two claims
articulated in his § 2255 motion and contends that we must vacate and remand to
the district court for consideration of the remaining claim. He specifically argues
that the district failed to address whether Mitchell’s trial counsel was
constitutionally ineffective for misadvising Mitchell regarding the length of the
sentence he was facing. The government responds that Mitchell abandoned this
argument based on the testimony he gave at the evidentiary hearing concerning the
advice his trial counsel gave him regarding potential sentences.
When reviewing the district court’s denial of § 2255 motion, we review
findings of fact for clear error and questions of law de novo. Lynn v. United
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States, 365 F.3d 1225, 1232 (11th Cir. 2004). The scope of review is limited to
the issues specified in the COA. Murray v. United States, 145 F.3d 1249, 1250
(11th Cir. 1998).
In Clisby, we exercised our supervisory powers over the district courts and
instructed them “to resolve all claims for relief raised in a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (1988), regardless whether the habeas
relief is granted or denied.” 960 F.2d at 936. We defined a “claim for relief” as
“any allegation of a constitutional violation.” Id. “An allegation of one
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. When a district court fails to address all of the
claims in a habeas petition, we “will vacate the district court’s judgment without
prejudice and remand the case for consideration of all remaining claims.” Id. at
938.
The district court failed to address, in violation of Clisby, Mitchell’s claim
that his trial counsel was ineffective for misadvising him regarding the length of
his potential sentence, and we disagree with the government that Mitchell
abandoned this claim. He raised this claim in his memorandum in support of his §
2255 motion and answered questions about it at his evidentiary hearing, thereby
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not indicating a clear intent to abandon this claim. See Pollack v. Birmingham
Trust Nat’l Bank, 650 F.2d 807, 811 (5th Cir. 1981).1
Accordingly, we vacate the judgment and remand the remaining claim for
consideration by the district court.
VACATED AND REMANDED.
1
The decisions of the former Fifth Circuit rendered before October 1, 1981 are binding
on this circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc).
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