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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17390
Non-Argument Calendar
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D.C. Docket Nos. 5:14-cv-00034-MW-CJK,
5:12-cr-00025-MW-CJK-1
BRENNON KYLE HOLLEY,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
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(December 20, 2017)
Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Brennon Holley, a federal prisoner, appeals from the district court’s denial
of his motion to vacate or correct sentence, 28 U.S.C. § 2255, which he filed after
pleading guilty to one count of attempting to persuade, induce, or entice a minor to
engage in sexual activity. In his motion to vacate, Holley alleged, among other
things, ineffective assistance of plea counsel. After an evidentiary hearing, the
district court denied Holley’s motion, concluding that counsel’s performance was
not deficient and that any errors did not prejudice Holley. The district court then
granted a certificate of appealability on whether plea counsel rendered ineffective
assistance such that Holley should be permitted to withdraw his guilty plea.
Because we conclude that the court did not address one of Holley’s claims of
ineffective assistance, we vacate and remand for further proceedings.
I. Background
A. Underlying Criminal Proceedings
In October 2012, Holley pled guilty under a written plea agreement to one
count of attempting to persuade, induce, or entice a minor to engage in sexual
activity, in violation of 18 U.S.C. § 2422(b). The agreed Statement of Facts
explained that on June 13, 2012, a Bay County Sheriff’s Office investigator, posing
as a 13-year-old girl named “Rhea,” responded to a sexually explicit advertisement
Holley posted on Craigslist. The investigator and Holley communicated by email,
text message, and phone calls over the next few days, and Holley, believing Rhea
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was only 13 years old, agreed to travel from Pensacola to Rhea’s house in Panama
City on Friday, June 15, 2012, to engage in sexual activity with her.
Holley’s presentence investigation report calculated an advisory guideline
range of 78 to 97 months of imprisonment based on a total offense level of 27 and
a criminal history category of II. Because of the ten-year statutory minimum,
however, Holley’s guideline range became 120 months. See 18 U.S.C. § 2422(b).
At sentencing in January 2013, Holley personally addressed the district court
and claimed that he had just recently learned of the mandatory minimum. He
explained,
I did not know of minimum mandatory looking at the points that I
scored out to before, before October 18th when I pled guilty to this
offense. I just—I really wanted to put this behind me, and I pled and
thought that I would do that time that was allotted. I wasn’t aware of
the minimum mandatory. Now that I am aware of it, once again, I
would like to get this behind me.
The court replied that it would consider allowing him to withdraw his guilty plea if
he did not know of or was confused about the mandatory minimum. In response,
Holley elaborated on his reasoning in pleading guilty:
At the same time, Your Honor, I was told offenses of this nature are
looked down upon understandably, quite understandably, and trials
usually end up with 25 years to life. That’s basically the option I was
given, or the option I weighed, was do I want to take this to trial and
possibly do 25 years to life, or do I pled [sic] guilty and do 87 months
in prison? Actually, I pled.
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When the district court explained that it likely could not sentence Holley
below the mandatory minimum, Holley asked for additional time to consider his
options. The government did not oppose Holley’s request. Based on Holley’s
statements, however, the government reiterated that “[t]here [was] no 25 to life in
this case” and that the “only mandatory minimum” that applied was 10 years. The
court continued the sentencing hearing for three weeks.
When sentencing resumed in February 2013, Holley indicated that he was
ready to go forward. The district court sentenced him to the minimum term of 120
months of imprisonment. Holley did not file a direct appeal.
B. Post-Conviction Proceedings
In 2014, Holley filed a pro se 28 U.S.C. § 2255 motion, which he later
amended, raising, among other claims, allegations of ineffective assistance of plea
counsel. In pertinent part, Holley claimed that counsel provided constitutionally
ineffective assistance by (a) failing to conduct a meaningful investigation;
(b) failing to explain various matters, including the elements of the charge against
him, the strength of the government’s case, and any available defenses, such as an
entrapment defense; and (c) advising him that exercising his right to a jury trial
would inevitably result in at least 25 years in prison.
In a supplemental pro se filing, Holley submitted an affidavit swearing that
plea counsel told him that he would “inevitably receive” a prison term of 25 years
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to life if he went to trial. Out of fear of a more severe sentence, Holley stated, he
pled guilty. He also submitted affidavits from his grandmother and sister, who
swore that counsel made the same sentencing prediction to them.
Finding that Holley’s claims warranted greater scrutiny and development, a
magistrate judge appointed habeas counsel, who then filed a supplemental brief in
support of Holley’s amended § 2255 motion. The magistrate judge set the matter
for an evidentiary hearing.
Before the hearing, the parties submitted a joint pre-hearing stipulation and
summary listing the issues to be resolved. Holley stated that the issues were
whether counsel was ineffective in the following ways: (1) failing to properly
advise him of the elements of the offense and the strength of the government’s
case; (2) failing to explore and advise him of an entrapment defense or other
defenses; (3) failing to reasonably investigate the case; (4) advising him that he
would receive a sentence in excess of 20 years if he went to trial and lost; and
(5) failing to advise him about his appellate rights. The government, by contrast,
believed that the issues were narrower and related to the failure to file a direct
appeal, the sufficiency of the evidence to support the plea, and the viability of an
entrapment defense.
An evidentiary hearing was held on May 11, 2016. Plea counsel was the
only witness to testify. Counsel testified that he discussed with Holley the
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evidence, the elements of the offense, and any potential defenses, but that he
advised Holley to plead guilty because he believed that Holley was likely to lose at
trial. Counsel also testified that he talked with Holley about the range of possible
sentences. According to counsel, he advised Holley that a sentence of more than
10 years was unlikely if he pled guilty, but that there was a possibility of a more
severe sentence if he went to trial and lost. However, counsel was not asked
whether he told Holley that going to trial and losing would inevitably result in a
prison sentence of at least 25 years.
Following the evidentiary hearing, and after receiving additional briefing
from the parties, the magistrate judge issued a report and recommendation
(“R&R”) that Holley’s amended § 2255 motion be granted. Addressing Holley’s
claims of ineffective assistance as a whole, the magistrate judge concluded that, for
a variety of reasons, “Holley was deprived of the critical opportunity to make a
meaningful and informed decision whether to go to trial.”
After receiving the government’s objections and Holley’s response to them,
the district court issued an exhaustive 92-page order rejecting the R&R and
denying Holley’s amended § 2255 motion. The court conducted its own review of
the record, Holley’s amended § 2255 motion, and the counseled supplemental brief
in support of that motion, among other filings, and found that plea counsel’s
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performance was not deficient and that any errors by counsel did not prejudice
Holley.
In particular, the district court determined that it was reasonable for counsel
to advise Holley to plead guilty because the evidence was sufficient to prove his
guilt beyond a reasonable doubt and a jury likely would have rejected an
entrapment defense. The court further found that counsel reasonably decided not
to investigate Holley’s alleged preference for older women because it was unlikely
to sway a jury. Finally, the court concluded that the reasonableness of counsel’s
advice to plead guilty was supported by the benefits in doing so. The court noted
that Holley “literally faced life imprisonment for his offense,” that the government
promised not to seek more than the mandatory minimum if Holley pled, and that he
would have faced a guideline range of 120 to 135 months of imprisonment after
trial. As to that last point, the court stated, “pleading guilty had a real benefit to
him by reducing the risk that the Court would sentence him at the high end of the
Guidelines range and add over a year to what he actually received.” However, the
court did not expressly address Holley’s claim that he was advised by counsel that
going to trial increased his likely sentence by at least 15 years, not just 15 months.
Upon denying Holley’s amended § 2255 motion, the district court granted a
certificate of appealability on two issues: (1) whether plea counsel rendered
ineffective assistance such that Holley should be permitted to withdraw his guilty
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plea; (2) whether plea counsel failed to properly advise Holley of his appellate
rights such that he should be permitted the opportunity to file a direct appeal. On
appeal, Holley expressly waives review of the second issue, so our discussion is
limited to the first.
II. Standard of Review
Whether counsel rendered constitutionally ineffective assistance is a mixed
question of law and fact that we review de novo. Hagins v. United States,
267 F.3d
1202, 1204 (11th Cir. 2001).
III. Discussion
Holley’s main contention on appeal is that plea counsel unreasonably
advised him that he would likely receive a prison sentence of 25 years to life if he
went to trial and lost. Had he been properly advised that he was unlikely to receive
a sentence substantially above the 10-year mandatory minimum, Holley maintains,
he would have insisted on taking his chances at trial. See, e.g., Lee v. United
States,
137 S. Ct. 1958, 1966–67 (2017) (stating that, when the respective
consequences of a conviction after trial and by plea are, “from the defendant’s
perspective, similarly dire, even the smallest chance of success at trial may look
attractive”).
The government responds that there is no evidence that Holley was so
advised by counsel. But, in fact, Holley’s comments at the initial sentencing
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hearing in January 2013 strongly suggest that he did receive that advice and that it
affected his decision to plead guilty. At that hearing, he stated,
I was told offenses of this nature are looked down upon
understandably, quite understandably, and trials usually end up with
25 years to life. That’s basically the option I was given, or the
option I weighed, was do I want to take this to trial and possibly do 25
years to life, or do I ple[a]d guilty and do 87 months in prison?
(emphasis added).
The district court did not expressly address Holley’s claim of ineffective
assistance based on counsel’s allegedly unreasonable sentencing advice, however,
so it never resolved whether counsel’s advice as to the respective consequences of
a conviction after trial or by plea was deficient or whether Holley was prejudiced
by counsel’s advice, whatever it was.
District courts must resolve all claims for relief raised in a § 2255 motion,
regardless of whether habeas relief is granted or denied.1 See Clisby v. Jones,
960
F.2d 936, 935–36 (11th Cir. 1992) (en banc); Rhode v. United States,
583 F.3d
1289, 1291 (11th Cir. 2009) (extending Clisby to § 2255 motions). A claim for
relief is “any allegation of a constitutional violation.”
Clisby, 960 F.2d at 936. A
1
We recognize that appellate review is generally limited to the issues in the certificate of
appealability, which, in this case, did not mention error under the rule of Clisby. See Murray v.
United States,
145 F.3d 1249, 1250 (11th Cir. 1998). Nevertheless, we cannot meaningfully
review whether plea counsel rendered ineffective assistance such that Holley should be permitted
to withdraw his guilty plea—the substantive issue specified in the certificate of appealability—
—when a claim necessary to determine that question remains unresolved. Cf. Callahan v.
Campbell,
396 F.3d 1287, 1288–89 (11th Cir. 2005) (finding error under Clisby after the district
court granted a certificate of appealability on substantive claims that it failed to address).
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defendant alleges a constitutional violation, and therefore a claim for relief, when
he alleges that counsel provided ineffective assistance in violation of his Sixth
Amendment rights. See Strickland v. Washington,
466 U.S. 668, 685–86 (1984).
We cannot consider claims that the district court has not resolved in the first
instance. See
Clisby, 960 F.2d at 935 (“[R]espondent urged us to consider the
ineffective assistance claims not addressed by the district court. This we clearly
cannot do.”). Instead, when a district court does not address all claims in a motion
to vacate, we “will vacate the district court’s judgment without prejudice and
remand the case for consideration of all remaining claims.”
Id. at 938.
Generally, an unresolved claim constitutes a Clisby error regardless of the
reason the claim was not resolved. Puiatti v. McNeil,
626 F.3d 1283, 1307 (11th
Cir. 2010). But a claim must be raised in a way that the district court cannot
misunderstand it in order for the district court to resolve it. Smith v. Sec’y, Dep’t of
Corr.,
572 F.3d 1327, 1352 (11th Cir. 2009). In Smith, we held that a petitioner
failed to fairly present a legal argument to the district court when that argument
was mentioned in only one sentence of a 116-page habeas petition, without citing
any authority, and it was not mentioned in a 123-page supporting memorandum of
law.
Id. In Dupree v. Warden,
715 F.3d 1295, 1299 (11th Cir. 2013), however, we
held that “two sentences found in the middle of a fifteen-page memorandum
attached to [a § 2254] petition” sufficiently raised an ineffective-assistance-of-
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counsel claim. Because the district court did not resolve the claim, we vacated and
remanded as a violation of the Clisby rule.
Id.
After reviewing the record here, we conclude that Holley adequately
presented the ineffective-assistance-of-counsel claim based on counsel’s allegedly
unreasonable prediction of the likely consequences after a trial. In a 22-page typed
attachment to his amended § 2255 form, Holley claimed, under “GROUND
SEVEN: Ineffective Assistance of Counsel,” which covered four pages, that he
was told by counsel that if he did not plead guilty, he would get a prison sentence
of 25 years to life. He then asserted that counsel’s advice on this point was itself
constitutionally deficient and induced him to plead guilty out of fear of a more
severe sentence. Thereafter, Holley submitted affidavits attesting that counsel
gave that advice to him, his sister, and his grandmother. Then, in the pre-hearing
stipulation and summary, he included among five ineffective-assistance claims to
be resolved “[w]hether counsel was ineffective, in violation of the Sixth
Amendment, . . . for . . . advising the Petitioner that he would receive a sentence of
20 years if he went to trial and lost.” Holley’s three sentences in the attachment to
his amended § 2255 motion, combined with his actions later in the proceedings,
were sufficient to raise the specific claim in a way that that district court could
understand it. See
Dupree, 715 F.3d at 1299.
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Moreover, Holley did not abandon that claim during the course of
proceedings below. To be sure, it was not a focus of his filings after habeas
counsel was appointed. And for that reason, we can certainly understand why the
claim slipped through the cracks. However, the record shows that his counseled
filings merely supplemented, rather than superseded, his pro se amended § 2255
motion. After being appointed, habeas counsel was given the option of filing an
amended § 2255 motion or a supplemental brief, and counsel chose the latter.
Then, before the evidentiary hearing, habeas counsel included among the issues to
be resolved at the evidentiary hearing the claim based on plea counsel’s allegedly
unreasonable sentencing advice. Finally, after the hearing, habeas counsel’s brief,
which focused on issues of evidentiary sufficiency and the viability of an
entrapment defense, made clear that it was “intended to supplement the arguments
Mr. Holley raised in his Amended Motion,” and that Holley did not intend to
abandon the issues discussed therein, apart from limited exceptions not relevant
here.2 Nor did the district court make any finding that Holley had abandoned the
ineffective-assistance claim based on plea counsel’s allegedly unreasonably
sentencing advice.
2
In the pre-hearing stipulation and summary, Holley expressly waived his claims that
the presentence investigation was flawed and that 18 U.S.C. § 2422(b) violates the Commerce
Clause of the United States Constitution.
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Despite the district court’s commendably thorough and probing treatment of
Holley’s claims, we nevertheless conclude that it did not address his specific claim
that plea counsel provided ineffective assistance by advising him that he would
likely be sentenced to at least 25 years in prison if he went to trial. The court’s
factual findings do not permit resolution of that specific claim, and, without a
resolution as to that claim, we cannot meaningfully review whether plea counsel
rendered ineffective assistance such that Holley should be permitted to withdraw
his guilty plea. See Long v. United States,
626 F.3d 1167, 1170 (11th Cir. 2010)
(“[W]e have long required the district courts . . . to facilitate meaningful appellate
review by developing adequate factual records and making sufficiently clear
findings as to the key issues.”).
Accordingly, we conclude that the district court violated Clisby when it did
not address Holley’s claim that plea counsel provided ineffective assistance by
unreasonably advising him that he would likely be sentenced to at least 25 years in
prison if he went to trial. We therefore vacate the district court’s judgment without
prejudice and remand for consideration of this claim. See Rhode,
583 F.3d 1292;
Clisby, 960 F.2d at 938. We decline to consider the other arguments Holley
presents on appeal and instead leave these matters to be addressed, as appropriate,
following the district court’s disposition of Holley’s remaining claim. See
Clisby,
960 F.2d at 936 (“Policy considerations clearly favor the contemporaneous
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consideration of allegations of constitutional violations grounded in the same
factual basis . . . .”).
VACATED AND REMANDED.
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