Jose R. Chevez v. Florida Department of Corrections , 440 F. App'x 842 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10012 ELEVENTH CIRCUIT
SEPTEMBER 14, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D.C. Docket No. 9:10-cv-80948-WPD
JOSE R. CHEVEZ,
llllllllllllllllllllllllllllllllllllllllPetitioner-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
llllllllllllllllllllllllllllllllllllllllRespondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 14, 2011)
Before TJOFLAT, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Jose R. Chevez, a Florida state prisoner proceeding pro se, appeals the
district court’s denial of his 28 U.S.C. § 2254 federal habeas petition. We granted
a certificate of appealability as to whether the district court violated Clisby v.
Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en banc), by misinterpreting and
failing to address Chevez’s claim that his appellate counsel was ineffective for
failing to appeal the denial of his motion for a mistrial.
We review a district court’s denial of habeas relief de novo. Gamble v.
Sec’y, Florida Dep’t of Corr., 450 F.3d 1245, 1247 (11th Cir. 2006). The scope of
review is limited to the issue specified in the COA. See Murray v. United States,
145 F.3d 1249, 1250-51 (11th Cir. 1998) (addressing a motion to vacate filed
under 28 U.S.C. § 2255).
In Clisby v, Jones, we held that when a district court fails to address all
claims in a habeas petition, we will vacate without prejudice and remand the case
for consideration of all remaining claims. 960 F.2d at 938. We have defined a
“claim for relief” as “any allegation of a constitutional violation.” Id. at 936. In
Griffin v. California, the Supreme Court declared that the Fifth Amendment
“forbids either comment by the prosecution on the accused’s silence or
instructions by the court that such silence is evidence of guilt.” 380 U.S. 609, 615,
85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965).
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Upon review of the record, and after consideration of the parties’ briefs on
appeal, we vacate and remand. As the state concedes, the district court violated
Clisby by misinterpreting and failing to address Chevez’s claim that counsel was
ineffective for failing to appeal the denial of his motion for a mistrial.
Accordingly, we vacate the district court’s judgment, without prejudice, and
remand to the district court for consideration of this claim.
VACATED AND REMANDED.
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