Ryan Ferro v. United States ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 18, 2006
No. 05-14019 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 05-00733-CV-T-26-TBM
and 03-00302-CR-T-2
RYAN FERRO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 18, 2006)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Ryan Ferro, proceeding pro se, appeals the denial of his motion to vacate his
sentence brought pursuant to 28 U.S.C. § 2255. After review, we vacate and
remand this case to the district court.
I. BACKGROUND
Ferro filed a § 2255 motion in which he raised the following five claims: (1)
trial counsel was ineffective for failing to file an appeal of Ferro’s conviction and
sentence after he instructed counsel to do so; (2) trial counsel was ineffective for
failing to make a constitutional objection to the drug quantity attributed to him for
purposes of sentencing; (3) trial counsel was ineffective for advising him to
withdraw his objection to the drug quantity finding and to stipulate that the offense
involved 1.5 kilograms of crack cocaine; (4) the government violated the terms of
the plea agreement by threatening to withdraw its recommendation of an
acceptance-of-responsibility reduction under U.S.S.G. § 3E1.1 or to not file a
U.S.S.G. § 5K1.1 motion for a downward departure if Ferro contested drug
quantity attributed to him at sentencing; and (5) trial counsel was ineffective in
negotiating an appeal waiver as part of his plea agreement because it now prevents
him from appealing the drug quantity attributed to him at sentencing.
In denying Ferro’s motion, the district court distilled all of Ferro’s claims
down to a single issue: whether trial counsel was ineffective in failing to make a
proper objection to the drug quantity attributed to Ferro at sentencing so that the
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issue could be preserved for appellate review. The district court concluded that
Ferro’s sworn statements at his sentencing that he did not want to turn the drug
quantity issue into an “adversarial situation” belied his claim of ineffective
assistance and denied Ferro’s § 2255 motion.
Ferro filed a notice of appeal. We granted a certificate of appealability on
the following issue only: “[w]hether the district court violated Clisby v. Jones, 960
F.2d 925, 936 (11 th Cir. 1992) (en banc), by failing to address all of the claims
raised in appellant’s 28 U.S.C. § 2255 motion?”
II. DISCUSSION
On appeal, Ferro argues, and we agree, that the district court did not address
all of the claims raised in his § 2255 motion.1 In Clisby, we instructed the district
courts to resolve all claims for relief raised in a petition for writ of habeas corpus
prior to granting or denying relief. 960 F.2d at 936. We concluded that when a
district court fails to address all claims in the habeas petition, “we will vacate the
district court’s judgment without prejudice and remand the case for consideration
of all remaining claims.” Id. at 935.2
1
In reviewing a district court’s denial of a § 2255 motion, we review findings of fact for
clear error and questions of law de novo. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir.),
cert. denied, 543 U.S. 891 (2004).
2
Although Clisby involved a petition brought pursuant to 28 U.S.C. § 2254, the primary
concern motivating this Court’s decision to require district courts to address all issues in the first
instance was the piecemeal litigation that necessarily ensues when only some claims are
3
Upon review of the record, and upon consideration of the parties’ briefs, we
conclude that the district court failed to address two of Ferro’s claims, namely: (1)
whether trial counsel was ineffective for failing to file an appeal as allegedly
instructed by Ferro; and (2) whether the government violated the terms of Ferro’s
plea agreement by threatening to withdraw favorable sentencing recommendations
if Ferro contested the drug quantity attributed to him at sentencing.3 The record
shows that the district court did not address Ferro’s allegations that he asked his
attorney to file an appeal. Similarly, the district court failed to address Ferro’s
allegation that the government engaged in threatening and improper conduct prior
to sentencing, in violation of the plea agreement, and that, as a result, Ferro
stipulated to an increased drug quantity at sentencing. Because the district court
did not address the merits of these two claims, we vacate the judgment and remand
the remaining claims for consideration by the district court.
VACATED AND REMANDED.
addressed in the first instance. Clisby, 960 F.2d at 935. (“We . . . seize this opportunity to
express our deep concern over the piecemeal litigation of federal habeas petitions filed by state
prisoners . . . .”). Likewise, a district court is required to address all issues raised in a § 2255
motion in the first instance. See Gay v. United States, 816 F.2d 614, 616 n.1 (11th Cir. 1987)
(“[T]he principles developed in habeas cases also apply to § 2255 motions.”).
3
We reject Ferro’s argument that the district court failed to address Ferro’s claim that his
trial counsel was ineffective in negotiating an appeal waiver as part of Ferro’s plea agreement.
The district court addressed this claim when it rejected on the merits Ferro’s contention that his
trial counsel was ineffective in failing to preserve for appellate review the constitutional
objection to the drug quantity attributed to him at sentencing.
4