Terry Ray Reed v. United States , 304 F. App'x 807 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-14856 ELEVENTH CIRCUIT
DECEMBER 22, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket Nos. 07-00242-CV-CG-1,
04-00227-CR-CG
TERRY RAY REED,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(December 22, 2008)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Federal prisoner Terry Ray Reed, with counsel, appeals the district court’s
denial of his pro se 28 U.S.C. § 2255 motion to vacate, set aside, or correct his
sentence. We granted a certificate of appealability on the following issues:
(1) whether, in light of Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en
banc), the district court was required to address all of the claims in Reed’s § 2255
motion to vacate, and (2) if so, whether it failed to address Reed’s claim that the
Government breached the plea agreement by failing to recommend a sentence at
the low end of the guideline range. Reed argues—and the Government concedes—
Clisby applies to his § 2255 motion, and the district court violated Clisby.
We review the district court’s legal conclusions in a § 2255 proceeding de
novo and its factual findings for clear error. Devine v. United States, 520 F.3d
1286, 1287 (11th Cir. 2008).
In Clisby, out of “deep concern over the piecemeal litigation of federal
habeas petitions filed by state prisoners,” we exercised our supervisory authority
over the district courts and instructed them to resolve all constitutional claims for
relief raised in § 2254 habeas corpus petitions, regardless of whether habeas relief
was granted or denied. 960 F.2d at 935–36. We noted “the obligation of federal
courts to consider the important interests of comity and finality implicated in
federal habeas review of state convictions and sentences.” Id. at 935. Thus, we
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“will vacate the district court’s judgment without prejudice and remand the case for
consideration of all remaining claims whenever the district court has not resolved
all such claims.” Id. at 938.
This Court has not addressed in a published opinion whether the rule
announced in Clisby barring piecemeal litigation applies to § 2255 motions to
vacate. This Court has held, however, the legal principles developed in § 2254
proceedings generally apply to § 2255 motions to vacate. Gay v. United States,
816 F.2d 614, 616 n.1 (11th Cir. 1987). Furthermore, the Government concedes
Clisby applies. Thus, we hold Clisby applies to Reed’s § 2255 motion, and the
district court was required to address all of the constitutional claims Reed raised in
his motion to vacate.
Having concluded Clisby applies to Reed’s § 2255 motion, we next must
determine if the district court violated Clisby by failing to address Reed’s claim
that the Government breached the plea agreement by failing to recommend a
sentence at the low end of the guideline range. There are three elements of a
Clisby violation: (1) the appellant raised a claim (2) that affected constitutional
rights, and (3) the district court failed to address this claim. See Clisby, 960 F.2d at
936.
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Reed’s memorandum in support of his § 2255 motion expressly raised the
issue of whether the Government breached the plea agreement by failing to
recommend a sentence at the low end of the guideline range. Furthermore, this
claim implicated Reed's constitutional rights because this Court has held the breach
of a plea agreement is a violation of the Due Process Clause of the Fifth
Amendment. See United States v. Harvey, 869 F.2d 1439, 1443–44 (11th Cir.
1989) (en banc). Finally, the district court did not address this claim in its order
denying Reed’s motion to vacate. Accordingly, as the Government concedes, the
district court failed to comply with the requirements of Clisby.
Thus, we vacate, without prejudice, the district court’s order denying Reed
habeas relief, and remand his remaining claim for consideration by the district
court. After ruling on the merits of Reed’s claim, the district court shall also
determine whether to grant a certificate of appealability. See Callahan v.
Campbell, 396 F.3d 1287, 1289 (11th Cir. 2005). We retain jurisdiction over the
appeal, pending the district court’s decision. Id.VACATED AND REMANDED.
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