Luther Allen Smith v. Gary Hetzel

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
SEPTEMBER 9, 2010
No. 09-14689 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-01485-CV-RDP-PWG
LUTHER ALLEN SMITH,
Petitioner-Appellant,
versus
GARY HETZEL,
ATTORNEY GENERAL OF ALABAMA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(September 9, 2010)
Before BARKETT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Luther Allen Smith, an Alabama state prisoner proceeding pro se, appeals
the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. We
granted Smith’s motion for a certificate of appealability (“COA”) on the following
issue only:
Whether the district court violated Clisby v. Jones, 960 F.2d 925, 936
(11th Cir. 1992), when it: (1) failed to address Smith’s claim that
counsel provided ineffective assistance with respect to the state’s
failure to prove the seven elements of capital murder; and (2) failed to
address his claim that appellate counsel provided ineffective
assistance when he failed to raise in a motion for a new trial the two
non-procedurally-defaulted ineffective assistance claims raised in
Smith’s 28 U.S. C. § 2254 petition.
On appeal, Smith argues that the district court did violate Clisby as stated in
the COA. Defendants respond that Smith’s claim that trial counsel was ineffective
for failing to argue that the state failed to prove the seven elements of capital
murder “was effectively resolved by the district court’s decision, even if not
technically addressed.” Defendants also assert that it is unnecessary to remand
Smith’s claim that appellate counsel was ineffective because “the district court
already indirectly resolved the issue by finding that none of the claims of
ineffective assistance of trial counsel were meritorious.” Finally, Defendants
contend that, regardless, it is unnecessary to remand because Smith’s claim is
meritless.
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We “review de novo the district court’s denial of habeas relief under 28
U.S.C. § 2254.” Gamble v. Sec’y, Dep’t of Corr., 450 F.3d 1245, 1247 (11th Cir.
2006). Out of “deep concern over the piecemeal litigation of federal habeas
petitions,” we, in Clisby, exercised our supervisory authority over the district
courts and instructed them to resolve all claims for relief raised in a petition for
habeas corpus relief, regardless of whether habeas relief is granted or denied. 960
F.2d at 935-36. When a district court fails to resolve all of the claims in a habeas
petition, we “will vacate the district court’s judgment without prejudice and
remand the case for consideration of all remaining claims.” Id. at 938.
Upon review of the record and the parties’ briefs, we discern reversible
error. Smith alleged two constitutional violations of his right to effective
assistance of counsel, as he claimed that his trial counsel was ineffective for
failing to argue that the state failed to prove the seven elements of capital murder
and that his appellate counsel was ineffective for failing to allege ineffective
assistance of trial counsel in a motion for new trial. The district court adopted the
magistrate judge’s report after de novo review of the record, but the magistrate
judge failed to mention, consider, or rule on those two claims. Contrary to
Defendants claims, the district court’s decision did not indirectly resolve these
claims. Moreover, the merits of Smith’s claims are irrelevant when considering
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whether the district court resolved Smith’s claims under Clisby. See id. at 935-36.
Because the record shows that the district court failed to address or resolve
Smith’s claims that: (1) his trial counsel was ineffective for failing to argue that
the state failed to prove the seven elements of capital murder; and (2) his appellate
counsel was ineffective for failing to raise ineffective assistance of trial counsel
claims in a motion for a new trial, the district court’s judgment violated Clisby.
Thus, we vacate the judgment without prejudice and remand for the district court
to resolve these claims.
VACATED AND REMANDED.
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