Derrick Allen v. Dept. of Corrections ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 4, 2008
No. 07-14940
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 05-23160-CV-AJ
DERRICK ALLEN,
Petitioner-Appellant,
versus
DEPARTMENT OF CORRECTIONS STATE OF FLORIDA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 4, 2008)
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Florida state prisoner Derrick Allen, proceeding pro se, appeals the district
court’s denial of his 28 U.S.C. § 2254 petition for federal habeas corpus relief.
After review, we affirm.
I. BACKGROUND
In March 2000, a jury convicted Allen of four counts of kidnaping a child
under age thirteen with a firearm and one count each of kidnaping with a firearm,
armed robbery, and armed carjacking. He was sentenced to four concurrent life
sentences, plus a concurrent sentence of 42 years. Allen’s convictions and
sentences were affirmed on direct appeal. The Florida state courts also denied
Allen’s state habeas petitions and motions for post-conviction relief.
On December 5, 2005, Allen filed a § 2254 petition in federal district court,
which he amended on March 27, 2006. The amended petition set forth twenty-six
enumerated claims. Claim 21, the only one at issue here, is entitled, “Cumulative
Errors of Trial Counsel.”
More specifically, Claim 21 alleges that Allen’s trial counsel “was
ineffective for failing to [1] investigate [a] speedy trial violation[, 2] inquire into
[Allen’s] []competency to stand trial and order psychiatric evaluation of [Allen]
. . ., [and 3] promptly withdraw[] himself from continuing representing [Allen]
under conflict of interest.” Claim 21 then describes these three alleged errors of
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trial counsel in more detail. With respect to the alleged failure of Allen’s trial
counsel to investigate a speedy trial violation, the amended petition avers that the
state trial court ignored Allen’s speedy trial demands, that continuances were
granted without his knowledge, and that Allen “was not brought to trial within the
required time frame set forth in Florida statute.”
The magistrate judge issued a report and recommendation (“R&R”) that
analyzed each of Allen’s asserted claims and recommended denial of the amended
§ 2254 petition. As to Claim 21, the R&R concluded that “none of Allen’s
individual claims in fact amounts to ineffective assistance, [so] their cumulative
effect likewise caused him to suffer no prejudice.” The district court adopted the
R&R over Allen’s objection and denied his petition. Allen filed this appeal, and
we granted a certificate of appealability (“COA”) on the following issue only:
Whether the district court erred by failing to construe Allen’s argument
regarding counsel’s cumulative errors as one raising a speedy trial claim,
and if so, whether the district court failed to analyze that claim in light
of Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en banc).
II. DISCUSSION
In reviewing a district court’s denial of a § 2254 petition, we review
questions of law de novo. Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir.
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2000). Our review is limited to the issues specified in the COA. Murray v. United
States, 145 F.3d 1249, 1250-51 (11th Cir. 1998).
In Clisby, out of “deep concern over the piecemeal litigation of federal
habeas petitions,” we exercised our supervisory authority over the district courts
and instructed them to resolve all claims for relief raised in a petition for habeas
corpus relief, regardless of whether relief is granted or denied. Clisby, 960 F.2d at
935-36. 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. We defined a “claim
for relief” as “any allegation of a constitutional violation.” Id. at 936.
Here, we find no Clisby error. First, Claim 21 is an ineffective assistance of
trial counsel claim. Even if we construe Claim 21 as arguably raising a speedy
trial claim, it at best raises a only a state law speedy trial claim and not a federal
speedy trial claim. Allen’s Claim 21 makes no mention of a federal constitutional
speedy trial violation and, indeed, expressly states that Allen “was not brought to
trial within the required time frame set forth in Florida statute.” (Emphasis
added).1 Thus, even if Claim 21 is read broadly to include a speedy trial claim in
1
Allen argues that Claim 21 asserts a federal constitutional violation because it alleges
that the state trial court violated Florida’s speedy trial rule, Fla. R. Crim. P. 3.191, and that rule is
based on the United States Constitution. This argument is meritless. See Fla. Stat. § 918.0154
addition to the stated ineffective assistance of trial counsel claim, the additional
claim is at best only a state law speedy trial claim. Because Allen did not raise
“any allegation of a constitutional violation” with respect to his speedy trial rights,
the district court’s failure to expressly consider a constitutional speedy trial claim
below did not run afoul of Clisby. See Clisby, 960 F.2d at 936. We therefore
affirm the district court’s denial of Allen’s § 2254 petition.
AFFIRMED.
(mandating Florida speedy trial rule in order to realize the speedy trial right guaranteed by
Florida constitution and statute).
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