Bruce Bradberry v. Secretary, Florida Department of Corrections , 513 F. App'x 881 ( 2013 )

Case: 12-10863 Date Filed: 03/20/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10863
Non-Argument Calendar
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D.C. Docket No. 0:11-cv-60535-AJ
BRUCE BRADBERRY,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 20, 2013)
Before TJOFLAT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
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Bruce Bradberry, a pro se Florida prisoner, appeals the district court’s denial
of his 28 U.S.C. § 2254 petition. After review, we vacate and remand for further
consideration consistent with this opinion.
In 2005, a jury in Broward County, Florida convicted Bradberry of sexual
battery, lewd or lascivious molestation, child abuse, and attempt to contribute to
the delinquency of a child. Bradberry is serving a life sentence.
In 2011, Bradberry filed this pro se § 2254 petition raising numerous claims
for relief, including three claims that his trial counsel rendered ineffective
assistance of counsel during jury selection. Bradberry’s § 2254 petition designated
these jury-selection claims as Claims 7(a), 7(b), and 7(c). Claim 7(a) alleged that
trial counsel was ineffective for failing to object when the state struck six
prospective female jurors. Claim 7(b) focused on trial counsel’s failure to preserve
an objection to the state’s motion to strike one particular juror, and Claim 7(c)
focused on trial counsel’s failure to object to comments by the trial court during
voir dire.
The magistrate judge’s report (“R&R”) recommended that Bradberry’s
§ 2254 petition be denied. With respect to Bradberry’s jury-selection claims,
however, the R&R addressed only Claims 7(b) and 7(c), and omitted any
discussion of Claim 7(a). Although Bradberry’s objection to the R&R asserted that
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the magistrate judge had failed to address Claim 7(a), the district court summarily
adopted the R&R and denied Bradberry’s § 2254 petition.
This Court granted a certificate of appealability (“COA”) on the issue of:
Whether the district court failed to address claim 7(a) in Bradberry’s
§ 2254 petition that his counsel was ineffective for failing to object to
the state’s removal of prospective female jurors, in violation of
Clisby.
In Clisby, this Court instructed district courts to resolve all claims for relief
raised in a habeas petition prior to granting or denying relief. Clisby v. Jones, 960
F.2d 925, 936 (11th Cir. 1992) (en banc). If the district court does not address all
claims prior to issuing judgment, we “will vacate the district court’s judgment
without prejudice and remand the case for consideration of all remaining claims.”
Id. at 938.1
Bradberry argues, and the state concedes, that the district court did not
address Bradberry’s ineffective assistance of counsel claim in Claim 7(a). We
agree. This failure to consider all of the claims set forth in Bradberry’s § 2254
petition violates Clisby.
We reject the state’s invitation to address the merits of Claim 7(a). Under
Clisby, our role is to vacate the judgment “without prejudice” and remand to the
district court for consideration of the unaddressed claim in the first instance. Id.
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In reviewing the denial of a § 2254 petition, we review questions of law and mixed
questions of law and fact de novo, and findings of fact for clear error. Stewart v. Sec’y, Dep’t of
Corr., 476 F.3d 1193, 1208 (11th Cir. 2007).
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Furthermore, the merits of Bradberry’s Claim 7(a) exceed the scope of our review,
which is limited to the Clisby issue specified in the COA. See Murray v. United
States, 145 F.3d 1249, 1250 (11th Cir. 1998). For these reasons, we vacate the
judgment without prejudice and remand the case to the district court to consider
Bradberry’s Claim 7(a).
VACATED AND REMANDED.
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