David Carl Marshall v. Tony Howerton ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 24, 2005
No. 04-10879
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 02-00087-CV-1-DHB
DAVID CARL MARSHALL,
Petitioner-Appellant,
versus
TONY HOWERTON, Warden,
Respondent-Appellee.
__________________________
Appeal from the United States District Court for the
Southern District of Georgia
_________________________
(May 24, 2005)
Before ANDERSON, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
David Carl Marshall, a Georgia prisoner, appeals pro se the district court’s
denial of his 28 U.S.C. § 2254 petition to vacate, set aside, or correct his sentence.
We issued an order granting a certificate of appealability (“COA”) as to one issue:
whether the district court violated Clisby v. Jones, 960 F.2d 925 (11th Cir.
1992)(en banc), by failing to address Marshall’s claim that the two attorneys who
were to have represented him at trial, John Flemming and Maureen Floyd, were
ineffective for withdrawing immediately before trial and causing the trial counsel,
Angela McElroy, to be appointed just four days before trial.
Marshall argues on appeal that Fleming and Floyd rendered ineffective
assistance by abandoning him and leaving him to be represented by a new attorney
four days prior to trial, and that the new attorney did not have adequate time to
prepare the case such that he was denied the right to counsel. Marshall argues that
the district court violated Clisby by failing to address his claim that Fleming and
Floyd were ineffective.1
A district court's denial of habeas corpus relief is reviewed de novo. See
Byrd v. Hasty, 142 F.3d 1395, 1396 (11th Cir.1998). The district court must
1
Marshall also requests that we rule on numerous issues not covered by the COA,
and, in the alternative, that his § 2254 petition be held in abeyance so that he might return to state
court and raise the remaining claims. These claims were included in the § 2254 petition, and we
declined to include them in the COA. We decline to consider them here as well. See Murray v.
United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998).
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address and resolve all constitutional claims raised by a habeas petitioner and
failure to do so requires remand for the district court to consider the petitioner’s
claim(s) in the first instance. Weeks v. Singletary, 963 F.2d 316, 320-21 (11th
Cir. 1992) (considering the district court’s denial of habeas relief; remanding for
consideration of a constitutional claim that the district court had ignored and for
consideration of other constitutional claims that the district court had stated
ambiguous reasons for not considering; holding the district court should address
the merits of all claims or articulate its reason for not doing so); Clisby v. Jones,
960 F.2d 925, 934-36 (11th Cir. 1992)(en banc) (holding that district court’s
reservation of constitutional claims without addressing or deciding them required
remand for disposition of those claims). In Clisby, the district court considered
19 claims, of which it disposed of 13, granted 1, and reserved judgment on 5,
leading us to remand the case for the district court to consider the unresolved
issues. Id. at 935. Where a district court has failed to resolve all claims, it may
wreak “havoc” on court systems, so we will remand the matter to the district court
to consider any unresolved claims. Id. at 938.
Here, the court below permitted Marshall to amend his petition to include
the ineffective assistance claim. However, it did not address the claim. The
holding in Clisby is clear that the district court is required to explore the facts and
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merits of each of Marshall’s arguments. Because the district court ruled that the
present ineffective assistance of counsel claim would be considered, and did not
later reconsider this decision, it was bound to address the claim. Therefore, we
vacate and remand for the limited purpose of allowing the district court to examine
the claim on procedural and substantive grounds.
Upon review of the record, and upon consideration of the parties’ briefs, we
conclude that the district court erred by failing to address the claim. Accordingly,
we vacate and remand for further proceedings consistent with this opinion.
VACATED AND REMANDED.2
2
Marshall’s motion for oral argument is denied.
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