USCA11 Case: 22-11479 Document: 28-1 Date Filed: 06/12/2023 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11479
Non-Argument Calendar
____________________
MENSHACK NYEPAH,
Petitioner-Appellant,
versus
WARDEN,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-03206-SDG
____________________
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2 Opinion of the Court 22-11479
Before ROSENBAUM, JILL PRYOR, and BRASHER, Circuit Judges.
PER CURIAM:
In this pro se appeal, Menshack Nyepah challenges the denial
of his petition under
28 U.S.C. § 2254 for writ of habeas corpus.
Nyepah pleaded guilty to two counts of armed robbery, twenty
counts of aggravated assault, and twenty counts of false imprison-
ment for his participation in the robbery of a Georgia bank. A state
court sentenced Nyepah to twenty-five years of confinement and
an additional twenty-five years of probation. Nyepah moved to
withdraw his guilty plea, but the state court denied the motion.
After the Georgia Supreme Court denied his state habeas
corpus petition, Nyepah petitioned the district court for federal ha-
beas corpus under
28 U.S.C. § 2254. Nyepah’s petition stated four
grounds for his unlawful confinement on the court-provided sec-
tion 2254 form. He also included fourteen additional grounds in an
attachment to that form. A magistrate judge issued a report and
recommendation and recommended that the district court deny
Nyepah’s habeas petition. The report and recommendation ad-
dressed the fourteen grounds raised in the attachment to Nyepah’s
section 2254 form but did not specifically discuss the four other
grounds listed on the form itself. The district court adopted the
magistrate judge’s report and recommendation and denied
Nyepah’s petition. Nyepah timely appealed, and we granted a cer-
tificate of appealability on the issue of whether the district court
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22-11479 Opinion of the Court 3
erred by failing to consider four of the eighteen grounds in
Nyepah’s section 2254 petition.
A district court must “resolve all claims for relief raised in a
petition for writ of habeas corpus . . ., regardless whether habeas
relief is granted or denied.” Clisby v. Jones,
960 F.2d 925, 936 (11th
Cir. 1992) (en banc). If a district court does not address all such
claims, we vacate the judgement without prejudice and “remand
for consideration of issues the district court chose not to resolve.”
Id. at 935–36, 938. But we do not address whether the underlying
claim has any merit. See Dupree v. Warden,
715 F.3d 1295, 1299 (11th
Cir. 2013).
Here, the district court adopted the magistrate judge’s re-
port and recommendation, which addressed fourteen of the eight-
een grounds in Nyepah’s federal habeas petition. But the magis-
trate judge’s report failed to analyze the following grounds raised
in the petition:
• plea counsel was ineffective for not ensuring that
Nyepah’s Boykin rights were read to him;
• the trial court improperly sentenced Nyepah for two
counts of aggravated assault because Nyepah did not
plead guilty to them;
• the trial court erred by denying Nyepah’s second mo-
tion to withdraw his guilty plea; and
• the trial court should not have denied Nyepah’s mo-
tion for substitution of counsel.
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4 Opinion of the Court 22-11479
Because the district court adopted the magistrate judge’s re-
port and recommendation without discussing those four grounds,
it did not “resolve all claims” in Nyepah’s petition. See Clisby,
960
F.2d at 936. The government agrees that the district court’s denial
of Nyepah’s petition contravenes Clisby. Though Nyepah appears
to argue the merits—not the Clisby error—on appeal, we may re-
view the issue sua sponte because “the proper resolution is beyond
any doubt.” See United States v. Campbell,
26 F.4th 860, 873 (11th Cir.
2022).
Accordingly, we VACATE the district court’s order denying
Nyepah’s petition for habeas corpus without prejudice and
REMAND for consideration of the four unresolved grounds.
