Wayne R. Lindsey v. United States , 450 F. App'x 864 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-14721 JAN 6, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 7:08-cv-90031-HL-TQL, 7:00-cr-00012-HL-MSH-3
WAYNE R. LINDSEY,
llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(January 6, 2012)
Before CARNES, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Wayne Lindsey, a federal prisoner proceeding pro se, appeals the district
court’s denial of his 28 U.S.C. § 2255 motion to vacate. Lindsey’s § 2255 motion
alleged numerous claims of ineffective assistance of both trial and appellate
counsel. We granted a Certificate of Appealability (“COA”) on the following
issue:
Whether the district court erred when it failed to address Lindsey’s
argument that appellate counsel provided ineffective assistance by
failing to argue that United States v. Booker, 543 U.S. 220, 125 S. Ct.
738, 160 L. Ed. 2d 621 (2005), should apply retroactively and that the
application of departures and enhancements to increase his sentence
above the base offense level violated the Fifth, Sixth, and Eighth
Amendments, in violation of Clisby v. Jones, 960 F.2d 925, 936 (11th
Cir. 1992).
On appeal, Lindsey argues that the district court violated Clisby because it
did not address his claim that his appellate counsel had been ineffective by failing
to argue on direct appeal that Booker should apply retroactively and that the
application of departures and enhancements to increase his sentence above the
base offense level violated the Fifth, Sixth, and Eighth Amendments. Lindsey
goes on to address the substantive merits of the Booker issue and the calculation of
his guideline range at sentencing.
In a § 2255 proceeding, we review legal issues de novo and factual findings
for clear error. Thomas v. United States, 572 F.3d 1300, 1303 (11th Cir. 2009).
2
Appellate review is limited to the issues specified in the COA. Id. We liberally
construe pro se pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998).
District courts must resolve all claims for relief raised in habeas
proceedings, regardless of whether relief is granted or denied. See Clisby v. Jones,
960 F.2d 925, 936 (11th Cir. 1992) (en banc); see also Rhode v. United States, 583
F.3d 1289, 1291 (11th Cir. 2009) (applying Clisby to § 2255 motions to vacate).
A claim for relief is any allegation of a constitutional violation. Clisby, 960 F.2d
at 936. Two claims may be distinct even if both allegations arise from the same
alleged set of operative facts. Id. When a district court fails to address all of the
claims, we “will vacate the district court’s judgment without prejudice and remand
the case for consideration of all remaining claims . . . .” Id. at 938. Ineffective
assistance of counsel constitutes a violation of a defendant’s Sixth Amendment
rights, and thus is a claim of a constitutional violation. Strickland v. Washington,
466 U.S. 668, 684-86, 104 S. Ct. 2052, 2063-64 (1984).
The district court erred by failing to address all of the claims contained in
Lindsey’s § 2255 motion. The Magistrate Judge’s Report and Recommendation
(R&R) adopted by the district court specifically addressed each of Lindsey’s other
claims, but omitted any discussion of the issue that gave rise to our grant of COA.
3
The Government contends Lindsey failed to put the district court on notice of the
omission by objecting to the R&R, and Lindsey therefore waived his right to
appeal. However, “[t]he absence of objections to the [R&R] limits the scope of
appellate review of factual findings to plain error or manifest injustice but does not
limit review of legal conclusions.” United States v. Warren, 687 F.2d 347, 348
(11th Cir. 1982) (per curiam); Hardin v. Wainwright, 678 F.2d 589, 591 (5th Cir.
Unit B 1982).1 Because a Clisby error is the lack of a legal conclusion, an omitted
objection has no impact on our analysis. Finally, although both parties suggest
that we could decide the merits of the omitted claim ourselves, doing so would
exceed the scope of the COA and contradict the rule announced in Clisby. See
Thomas, 572 F.3d at 1303, 1305 n.6; Clisby, 960 F.2d at 938.
Because the district court did not address all of Lindsey’s claims, the
opinion of the district court is vacated without prejudice and the case remanded for
consideration of whether Lindsey’s appellate counsel provided ineffective
assistance by failing to argue that Booker should apply retroactively and that the
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
close of business on September 30, 1981, as well as all decisions by a Unit B panel of the former
Fifth Circuit, Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982).
4
application of departures and enhancements to increase his sentence above the
base offense level violated the Fifth, Sixth, and Eighth Amendments.
VACATED AND REMANDED.
5