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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-11635
Non-Argument Calendar
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D.C. Docket Nos. 8:19-cv-03193-WFJ-SPF,
8:17-cr-000592-WFJ-SPF-1
DOMINIC GREGORY AMALFITANO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 10, 2021)
Before JORDAN, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
Dominic Amalfitano appeals the district court’s order granting in part his
28 U.S.C. § 2255 motion and permitting him to file a belated direct appeal in his
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underlying criminal case. The district court did not address the other claims
Amalfitano raised in his § 2255 motion. We granted Amalfitano a certificate of
appealability on the issue of “[w]hether the district court’s order should be vacated
and remanded because it failed to address all of the claims raised in appellant’s
28
U.S.C. § 2255 motion, in light of Clisby v. Jones,
960 F.2d 925 (11th Cir. 1992)
(en banc).” For the reasons that follow, we vacate the district court’s order in part
and remand the case for the limited purpose of the district court entering an order
dismissing without prejudice Amalfitano’s remaining § 2255 claims.
I. Background
In 2019, Amalfitano pleaded guilty to possession with intent to distribute
methamphetamine and possession of stolen firearms. The district court entered
judgment on June 7, 2019, and imposed concurrent terms of 87 months’
imprisonment, followed by three years of supervised release. On December 23,
2019, Amalfitano filed a § 2255 motion to vacate sentence, asserting, in relevant
part, that (1) his counsel was ineffective for failing to file a direct appeal; (2) his
counsel had overlooked a potential defense to his firearm charge; (3) his counsel
was not properly prepared at his sentencing hearing; and (4) the district court had
violated his right to due process by basing his sentence on inaccurate or unreliable
information. The district court granted the motion in part, but “only to the extent
that [Amalfitano] may file a belated appeal in the related criminal case.”
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Accordingly, the district court vacated the original judgment and issued an
amended judgment imposing the same sentence so that Amalfitano could pursue
his direct appeal in accordance with our directive in United States v. Phillips,
225
F.3d 1198, 1201 (11th Cir. 2000). 1 The district court did not mention the
disposition of Amalfitano’s three remaining § 2255 claims except to say that its
determination was “not to be construed as a determination on the merits of
Petitioner’s claims for relief in his motion.” This appeal followed.
II. Discussion
Amalfitano argues that this district court violated Clisby by failing to address
and rule on each and every claim that Amalfitano raised in his § 2255 motion. 2
The government maintains that there was no Clisby violation, and under McIver v.
1
In Phillips, we held that:
When the district courts of this circuit conclude that an out-of-time appeal in a
criminal case is warranted as the remedy in a § 2255 proceeding, they should
effect that remedy in the following way: (1) the criminal judgment from which the
out-of-time appeal is to be permitted should be vacated; (2) the same sentence
should then be reimposed; (3) upon reimposition of that sentence, the defendant
should be advised of all the rights associated with an appeal from any criminal
sentence; and (4) the defendant should also be advised that the time for filing a
notice of appeal from that re-imposed sentence is ten days, which is dictated by
[Federal Rule of Appellate Procedure] 4(b)(1)(A)(i).
225 F.3d at 1201. Following the grant in part of his § 2255 motion, Amalfitano filed a direct
appeal, in which we affirmed his convictions and sentences and dismissed his challenge to the
substantive reasonableness of his sentence as barred by his valid sentence-appeal waiver. United
States v. Amalfitano, 837 F. App’x 748 (11th Cir. 2020).
2
When reviewing a district court’s denial of a § 2255 motion, “we review legal issues de
novo and factual findings under a clear error standard.” Lynn v. United States,
365 F.3d 1225,
1232 (11th Cir. 2004) (quotation omitted).
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United States,
307 F.3d 1327, 1331 n.2 (11th Cir. 2002), the district court refrained
correctly from addressing Amalfitano’s other § 2255 claims that were not related
to the belated direct-appeal claim upon which it granted relief.
In Clisby, we directed district courts to resolve all claims for relief raised in
a habeas petition, regardless of whether habeas relief is granted or denied. Clisby,
960 F.2d at 935–36 (addressing
28 U.S.C. § 2254 petitions); Rhode v. United
States,
583 F.3d 1289, 1291 (11th Cir. 2009) (applying Clisby to § 2255 motions).
When a district court commits a Clisby error, we “will vacate the district court’s
judgment without prejudice and remand the case for consideration of all remaining
claims.” Clisby,
960 F.2d at 938.
In McIver, we held that a successful § 2255 motion to permit an out-of-time
appeal does not render a subsequent § 2255 motion second or successive.
307 F.3d
at 1332. In so holding, we noted that, notwithstanding our directive in Clisby, in
such cases where the district court determines that the § 2255 movant is entitled to
a direct appeal, the “best approach” is for the district court to either “dismiss
without prejudice or hold in abeyance the resolution of remaining collateral claims
pending the direct appeal.” Id. at 1332 n.2.
Thus, although the district court was correct to not reach the merits of
Amalfitano’s three remaining § 2255 claims, the district court did err in failing to
address whether it was dismissing those claims without prejudice or holding them
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in abeyance pending the resolution of the direct appeal. See id. Accordingly, we
vacate the district court’s order in part and remand for the limited purpose of
having the district court dismiss Amalfitano’s other claims without prejudice. 3
VACATED IN PART AND REMANDED.
3
Because we have already resolved his direct appeal, holding the remaining § 2255
claims in abeyance is not an option. Thus, dismissal of the collateral claims without prejudice is
the only available remedy. We do not disturb the district court’s initial granting of relief on
Amalfitano’s direct appeal claim.
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