Clarence Clay v. United States ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 2, 2008
No. 07-11806 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00854-CV-MHT-CSC
CLARENCE CLAY,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(January 2, 2008)
Before BIRCH, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Clarence Clay, a federal prisoner proceeding pro se, appeals the district
court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his
sentence. We granted a certificate of appealability (“COA”) on the following
issues: “(1) Whether appellant raised a claim during the 28 U.S.C. § 2255 motion
proceedings that his sentence violated United States v. Booker, 543 U.S. 220, 125
S. Ct. 738 (2005); and (2) If so, whether the district court violated Clisby v. Jones,
960 F.2d 925, 936 (11th Cir. 1992) (en banc) by failing to address appellant’s
substantive Booker claim.” Clay, pro se, argues that the record shows he
repeatedly made substantive Booker arguments in the § 2255 motion proceedings
before the district court. Clay also argues that, because the district court did not
address his Booker claim, it violated Clisby.
In a 28 U.S.C. § 2255 proceeding, we review a district court’s legal
conclusions de novo and factual findings for clear error. Lynn v. United States,
365 F.3d 1225, 1232 (11th Cir. 2004). “Pro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys and will, therefore, be
liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998). We have held that “it is well established that the standards governing
the sufficiency of habeas corpus petitions are less stringent when the petition is
drafted pro se and without the aid of counsel.” Holsomback v. White, 133 F.3d
1382, 1386 (11th Cir. 1998) (citation omitted).
2
In Booker, 543 U.S. at 244, 125 S.Ct. at 756-57, the Supreme Court held that
the mandatory sentencing guidelines violated the Sixth Amendment right to a trial
by jury to the extent they permited a judge to increase a defendant’s sentence based
on facts that are neither found by a jury nor admitted by the defendant. The
Supreme Court’s holding in Booker is not retroactively applicable to cases on
collateral review. Varela v. United States, 400 F.3d 864, 868 (11th Cir.), cert.
denied, 126 S. Ct. 312 (2005). However, Booker does apply to all cases on direct
review. Booker, 543 U.S. at 268, 125 S.Ct. at 769.
The Supreme Court decided Booker on January 12, 2005. Id., 543 U.S. 220,
125 S. Ct. 738, while Clay’s case was on direct appeal until February 28, 2005, the
date the Supreme Court denied his petition for writ of certiorari. Clay v. United
States, 543 U.S. 1192, 125 S. Ct. 1427 (2005). Therefore, Clay’s case had not
become final before the Supreme Court decided Booker. Teague v. Lane, 489 U.S.
288, 295, 109 S. Ct. 1060, 1067 (1989) (defining “final” as meaning a case “where
the judgment of conviction was rendered, the availability of appeal exhausted, and
the time for petition for certiorari had elapsed.” (internal quotations omitted)).
Booker, then, would apply to Clay’s case. See Booker, 543 U.S. at 268, 125 S.Ct.
at 769.
3
Although this is a close call, given Clay’s pro se status we conclude that he
sufficiently raised a substantive Booker argument during the 28 U.S.C. § 2255
motion proceedings to require a ruling by the district court on it. The tipping
factor to us is the fact that the government’s response to Clay’s § 2255 motion
specifically acknowledged that “Clay also raises whether his sentence is proper
under United States v. Booker, 540 U.S. [220], 125 S. Ct. 738 (2005),” and argued
against that the Booker claim failed on the merits.
Because Clay raised a Booker claim, the district court should have addressed
it. Cf. Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en banc) (section 2254
case) (“[W]e now exercise our supervisory power over the district courts . . . and
instruct the district courts to resolve all claims for relief raised in a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1988), regardless whether
habeas relief is granted or denied.”). A § 2255 motion may not be denied without
some ruling on each of the claims it raises any more than one could be denied
without a ruling on any of the claims it raises.
The order denying the motion is VACATED and the case is REMANDED to
the district court with instructions that it address the Booker claim.1
1
We will not address any other claim that Clay raises on appeal. See Murray v. United
States, 145 F.3d 1249, 1250-51 (11th Cir. 1998).
4