Lomax Salter v. James v. Crosby, Jr. , 176 F. App'x 972 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14076 APRIL 20, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00426-CV-3-MCR-MD
LOMAX SALTER,
Petitioner-Appellant,
versus
JAMES V. CROSBY, JR.,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(April 20, 2006)
Before ANDERSON, BIRCH and KRAVITCH, Circuit Judges.
PER CURIAM:
Lomax Salter, a Florida prisoner serving a life sentence for murder,
kidnaping, and robbery, filed a pro se habeas petition pursuant to 28 U.S.C.
§ 2254, alleging, inter alia, that his trial counsel was ineffective for permitting the
prior testimony of a jail-house informant to be read into evidence when the witness
was available to testify, and that the evidence was insufficient to sustain his
conviction beyond a reasonable doubt under Jackson v. Virginia, 443 U.S. 307,
318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979).1
The state responded that the record showed that counsel had objected to the
testimony and was overruled, Salter should have raised the issue of availability on
direct appeal, and he could not now couch his claim in terms of ineffective
assistance of counsel to avoid the procedural bar. The state further asserted that
counsel had moved for judgment of acquittal and was denied, that sufficiency of
the evidence was not a constitutional claim appropriate for collateral review, and
that the evidence was sufficient for the jury to have found Salter guilty beyond a
reasonable doubt.
Attached to the state’s response were the following records of the state
proceedings: After Salter was convicted and sentenced to life imprisonment,
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Salter filed his petition after the effective date of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-32, 110 Stat. 1214 (1996), and, therefore, the
provisions of that act govern this appeal. In Jackson, the Supreme Court held that “a state prisoner
who alleges that the evidence in support of his state conviction cannot be fairly characterized as
sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt has stated a
federal constitutional claim.” 443 U.S. at 318-19.
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counsel moved to withdraw. The court granted the motion to withdraw and gave
Salter the opportunity to file a brief for direct appeal; Salter declined to do so.
Salter filed a motion for post-conviction relief under Florida Rule of
Criminal Procedure 3.850, asserting, inter alia, that counsel was constitutionally
defective by failing to require the state to produce the available witness and that the
outcome of his trial would have been different but for the error. Salter further
argued that the state did not establish his guilt beyond a reasonable doubt.
The state court denied the 3.850 motion, noting that counsel had objected to
the testimony and that, as Salter had failed to raise the availability issue on direct
appeal, he could not use an ineffective assistance claim to circumvent the bar. The
state court did not address the sufficiency of the evidence argument. The state
appeals court affirmed the denial of relief. Salter then filed the instant § 2254.
The magistrate judge recommended denying the petition without an
evidentiary hearing because the federal court should defer to the state court’s
determination that counsel had properly objected to the testimony and the state
court’s finding was supported by the record. The magistrate judge further noted
that the claim concerning the testimony was procedurally defaulted because Salter
had not raised it on direct appeal. With respect to the sufficiency of the evidence,
the magistrate judge found that the record reflected that counsel moved for - and
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was denied - judgment of acquittal. The district court adopted the magistrate
judge’s recommendation, over Salter’s objections, denied habeas relief, and
denied Salter’s request for a certificate of appealability (“COA”). This court
granted a COA on the following issues:
(1) Whether trial counsel was ineffective for permitting the prior trial
testimony of an available witness to be read into evidence, thus
depriving appellant of his Sixth Amendment right to cross-examine
the witness? (2) Whether the district court violated Clisby v. Jones,
960 F.2d 925, 936 (11th Cir 1992), by failing to address appellant’s
claim that the evidence was insufficient to support his convictions?
We review a district court’s denial of a habeas petition de novo. Nelson v.
Schofeld, 371 F.3d 768, 769 (11th Cir. 2004). Because this second issue is
dispositive, we address it first.
In Clisby, this court instructed district courts to “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 927-28. Given the concern over
the piecemeal litigation of federal habeas petitions, this court explained that
“[p]olicy considerations clearly favor the contemporaneous consideration of
allegations of constitutional violations grounded in the same factual basis: ‘a one-
proceeding treatment of a petitioner’s case enables a more thorough review of his
claims, thus enhancing the quality of the judicial product’.” Clisby, 960 F.2d at 936
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(internal citation omitted). “A claim for relief for purposes of [Clisby] is any
allegation of a constitutional violation.” Id. at 936.
Contrary to the government’s argument, the district court’s decision that
counsel was not ineffective does not necessarily encompass a review of the
constitutional sufficiency issue, as each determination involves different facts. In
any event, even if the claims overlap, the district court is required to address each
claim separately and should not deny habeas relief based on an implicit finding.
See Meeks v. Singletary, 963 F.2d 316, 320-21 (11th Cir. 1992) (considering the
district court’s denial of habeas relief; remanding for consideration of a
constitutional claim that the district court had ignored and for consideration of
other constitutional claims that the district court had stated ambiguous reasons for
not considering; holding the district court should address the merits of all claims or
articulate its reason for not doing so).
We have not recognized a harmless-error exception to the rule in Clisby, and
we decline to do so here. Accordingly, because the district court failed to address
all of Salter’s issues, we vacate and remand for further proceedings.
Finally, we do not address the remaining issue for which a COA was
granted; to do otherwise would engage in the piecemeal litigation Clisby sought to
prevent. See Callahan v. Campbell, 396 F.3d 1287, 1289 (11th Cir. 2005); Naylor
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v. Sec’y Dep’t of Corrs., 131 Fed. Appx. 681 (11th Cir. 2005) (unpublished).
VACATED and REMANDED.
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