USCA11 Case: 21-13761 Document: 23-1 Date Filed: 12/28/2022 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13761
Non-Argument Calendar
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FRED LEE BRYANT,
Petitioner-Appellant,
versus
WARDEN,
ATTORNEY GENERAL OF THE STATE OF ALABAMA,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:18-cv-00363-TFM-N
____________________
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2 Opinion of the Court 21-13761
Before JORDAN, GRANT, and BLACK, Circuit Judges.
PER CURIAM:
Fred Lee Bryant, a counseled Alabama state prisoner, ap-
peals the district court’s denial of his
28 U.S.C. § 2254 federal habeas
corpus petition. We granted a certificate of appealability (COA) on
the following issue:
Whether the district court violated Clisby v. Jones,
960 F.2d 925 (11th Cir. 1992), by failing to address Bry-
ant’s claim that the trial court erred by requiring two
witnesses, who previously had told the trial court
they intended to invoke their Fifth Amendment priv-
ilege, to invoke the privilege in the jury’s presence.
After review, 1 we vacate and remand.
This Court has expressed “deep concern over the piecemeal
litigation of federal habeas petitions” and instructed district courts
to resolve all claims for relief in habeas corpus petitions. See Clisby,
960 F.2d at 935-36. Under Clisby, we will vacate the district court’s
judgment without prejudice and remand the case for further con-
sideration of any unresolved claims when a district court fails to
address all the claims in a § 2254 petition. Id. at 938. In making
claims under a § 2254 petition, the petitioner “must present a claim
1 We review de novo the legal question of whether the district court violated
the rule in Clisby by failing to address a claim. Dupree v. Warden,
715 F.3d
1295, 1299-1300 (11th Cir. 2013).
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21-13761 Opinion of the Court 3
in clear and simple language such that the district court may not
misunderstand it.” Dupree v. Warden,
715 F.3d 1295, 1299 (11th
Cir. 2013). No Clisby error occurs when the habeas petitioner fails
to clearly present the claim to the district court. Barritt v. Sec’y,
Fla. Dep’t of Corr.,
968 F.3d 1246, 1251-52 (11th Cir. 2020). In
Dupree, we found the district court violated Clisby by failing to
address a claim in 2 sentences in the middle of a 15-page supporting
memorandum of law attached to the pro se § 2254 petition, which
was entitled to liberal construction. Dupree, 715 F.3d at 1299-1300.
In contrast, we found in Barritt that a passing reference to coercion
in an ineffective-assistance claim was not sufficient to state an inde-
pendent coercion claim for Clisby purposes, considering the peti-
tioner never alleged a freestanding coercion claim in state court or
district court. Barritt, 968 F.3d at 1251-52. We noted though “the
district court addressed each of Barritt’s claims that were actually
presented[,] there [was] no indication that it was aware of a coer-
cion claim or chose to ignore it.” Id. at 1252.
The district court violated Clisby by failing to address Bry-
ant’s claim that the trial court erred in requiring the witnesses to
invoke their Fifth Amendment privilege in front of the jury. Clisby,
960 F.2d at 938. There is language in Bryant’s filings raising a claim
of trial-court error. In his original and amended § 2254 petitions,
Bryant made a two-sentence reference to trial court error for al-
lowing the witnesses to invoke the Fifth Amendment in front of
the jury in violation of Alabama law. Bryant also asserted in his
jurisdiction statement that his trial counsel, the state, and the trial
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4 Opinion of the Court 21-13761
court “appeared to be unaware of the long standing Alabama law
that ‘It is improper for the prosecution to call as a witness one it
knows will certainly invoke the privilege against testifying as a wit-
ness, with the sole purpose of having the jury observe that invoca-
tion.’” This was enough for the State to read Bryant’s petition as
raising a separate claim of trial court error and respond to that ar-
gument, and for the magistrate judge to address how many claims
he had raised, which was in contrast to Barritt where “there [was]
no indication that [the district court] was aware of a coercion claim
or chose to ignore it,” 968 F.3d at 1252. Bryant’s statements in his
jurisdictional section and the body of his argument, along with the
State’s response to the issue were more than the 2 sentences in the
middle of a 15-page pro se supporting memorandum of law this
Court concluded in Dupree were sufficient to raise a claim. See
Dupree, 715 F.3d at 1299-1300. Although Bryant is counseled and
is not entitled to liberal construction of his arguments, Bryant’s
statements were enough to alert the district court of the issue in
clear and simple language such that the district court may not mis-
understand it. See id. at 1299.
We vacate the district court’s decision without prejudice and
remand for further proceedings consistent with this opinion. By
remanding, we offer no opinion on whether there is a federal con-
stitutional claim or whether the underlying claim has merit. See
id.
VACATED and REMANDED.
