USCA11 Case: 21-10493 Document: 43-1 Date Filed: 12/29/2022 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10493
Non-Argument Calendar
____________________
STEPHEN MAYER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:18-cv-01960-SCB-AEP
____________________
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2 Opinion of the Court 21-10493
Before WILSON, LUCK, and BLACK, Circuit Judges.
PER CURIAM:
Stephen Mayer—a federal prisoner serving a 135-month to-
tal sentence imposed following his conviction of several counts of
wire fraud and conspiracy to commit wire fraud—appeals, pro se,
the denial of his
28 U.S.C. § 2255 motion. A Certificate of Appeal-
ability (COA) was granted as to three issues: (1) whether the district
court violated Clisby v. Jones,
960 F.2d 925 (11th Cir. 1992) (en
banc) by failing to address Mayer’s claim his trial counsel acted in-
effectively by failing to challenge his indictment on the basis it was
brought under a vindictive prosecution; (2) whether the district
court violated Clisby by failing to address Mayer’s claim his trial
counsel acted ineffectively by failing to properly impeach a certain
witness, Rose Medina; and (3) whether the district court erred in
determining Mayer’s trial counsel did not provide ineffective assis-
tance because its analysis was based upon an erroneous application
of Franks v. Delaware,
438 U.S. 154 (1978). After review, 1 we va-
cate 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 and § 2255 petitions.
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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21-10493 Opinion of the Court 3
See Clisby,
960 F.2d at 935-36 (addressing
28 U.S.C. § 2254 peti-
tions); see also Rhode v. United States,
583 F.3d 1289, 1291 (11th
Cir. 2009) (applying Clisby in a § 2255 proceeding). In Clisby, we
held that, if the district court fails to consider a claim raised by a
movant on collateral review, we would vacate the district court’s
decision without prejudice and remand the case to allow the dis-
trict court to consider the claim. Clisby,
960 F.2d at 938. Movants
“must present a claim 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 a
movant fails to clearly present the claim to a district court. Barritt
v. Sec’y, Fla. Dep’t of Corr.,
968 F.3d 1246, 1251 (11th Cir. 2020).
The district court violated Clisby by failing to address
Mayer’s ineffective-assistance claims regarding his counsel’s failure
to move to dismiss the indictment as a vindictive prosecution and
regarding his counsel’s failure to properly impeach Medina. Mayer
fairly presented those claims to the district court. See Dupree, 715
F.3d at 1299. In its order, the district court did not address these
claims. Thus, as the Government concedes, the district court did
not resolve the claims, in violation of Clisby. See Clisby,
960 F.2d
at 935-36. As the Government further concedes, we may not, after
finding a Clisby issue, analyze the merits of these claims. See
id. at
938. Instead, the proper resolution of such an appeal is to vacate
the district court’s decision without prejudice and remand for fur-
ther consideration by the district court.
Id. We also conclude that
to address the merits of Mayer’s Franks claim would contravene
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4 Opinion of the Court 21-10493
the considerations behind Clisby and engage in the sort of piece-
meal litigation which Clisby sought to prevent. See
id. at 936-38.
Finally, we deny Mayer’s request for remand to a different
district court judge, as he has not shown the extraordinary circum-
stances that would justify such a remedy nor anything that under-
mines our assumption that the district court can put its views aside
in determining the remainder of this case. See United States v.
Gupta,
572 F.3d 878, 891 (11th Cir. 2009) (“Reassignment is an ex-
traordinary order, and we do not order it lightly.” (quotation marks
and alteration omitted)).
Accordingly, we vacate the denial of Mayer’s § 2255 motion
without prejudice and remand for further proceedings. 2
VACATED WITHOUT PREJUDICE AND REMANDED
FOR FURTHER PROCEEDINGS.
2 We DENY Mayer’s “Motion to Take Judicial Notice” and “Second Motion
to Supplement this Appeal” as moot.
