Pedro Antonio Alarcon v. United States ( 2023 )

USCA11 Case: 21-12983 Document: 27-1 Date Filed: 07/14/2023 Page: 1 of 5 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-12983 Non-Argument Calendar ____________________ PEDRO ANTONIO ALARCON, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. ____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 9:19-cv-80006-DMM ____________________ USCA11 Case: 21-12983 Document: 27-1 Date Filed: 07/14/2023 Page: 2 of 5 2 Opinion of the Court 21-12983 Before JILL PRYOR, LAGOA, and EDMONDSON, Circuit Judges. PER CURIAM: Pedro Alarcon, a federal prisoner proceeding pro se, 1 appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his sentence. 2 We granted a certificate of appealability on this is- sue: “[w]hether the district court violated Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc), by failing to address Alarcon’s claim that his trial counsel acted ineffectively by allowing the prosecutor to be involved in attorney-client relations.” Reversible error has been shown; we vacate without prejudice and remand for addi- tional proceedings. We review de novo legal questions presented in a certificate of appealability. See Dupree v. Warden, 715 F.3d 1295, 1299-1300 (11th Cir. 2013). In Clisby, we instructed district courts to resolve each con- stitutional claim presented in a 28 U.S.C. § 2254 petition for writ of habeas corpus, regardless of whether relief was granted or denied. 1 We read liberally appellate briefs filed by pro se litigants. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). We also construe liberally pro se pleadings. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). 2 Alarcon is serving a 20-year sentence after pleading guilty to conspiracy to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), 846. USCA11 Case: 21-12983 Document: 27-1 Date Filed: 07/14/2023 Page: 3 of 5 21-12983 Opinion of the Court 3 See Clisby, 960 F.2d at 935-36. The rule announced in Clisby also extends to section 2255 motions. See Rhode v. United States, 583 F.3d 1289, 1291 (11th Cir. 2009). Under our precedent, if the district court fails to consider a claim raised by a movant on collateral re- view, we will vacate the district court’s decision without prejudice and remand the case to allow the district court to consider the un- resolved claim. See Clisby, 960 F.2d 938. “A habeas petitioner must present a claim in clear and simple language such that the district court may not misunderstand it.” Dupree, 715 F.3d at 1299. No Clisby error occurs when a movant fails to present adequately the claim to the district court. See Bar- ritt v. Sec’y, Fla. Dep’t of Corr., 968 F.3d 1246, 1251 (11th Cir. 2020) (concluding that passing references to an issue were insufficient to state clearly an independent claim for Clisby purposes). Construed liberally, Alarcon’s pro se section 2255 motion presented adequately Alarcon’s claim that his trial lawyer was inef- fective for failing to object to the prosecutor’s alleged involvement in the attorney-client relationship. Alarcon titled “Ground Two” of his section 2255 motion this way: “Ineffective assistance of coun- sel by allowing prosecutor’s involvement in attorney-client rela- tions and ignoring prosecutor’s threats to coerce Alarcon’s plea.” In the “supporting facts” section under Ground Two, Alarcon al- leged facts pertinent to two discrete events: (1) the prosecutor’s presence during what was supposed to have been an ex parte USCA11 Case: 21-12983 Document: 27-1 Date Filed: 07/14/2023 Page: 4 of 5 4 Opinion of the Court 21-12983 Nelson3 hearing to discuss Alarcon’s concerns about his lawyer’s representation and defense strategy; and (2) the prosecutor’s al- leged threats to seek an enhanced sentence under 21 U.S.C. § 851 if Alarcon moved to suppress evidence. In an attached memoran- dum of law in support of his section 2255 motion, Alarcon pre- sented -- in two separate paragraphs -- arguments focusing on the prosecutor’s alleged participation in the Nelson hearing and on the prosecutor’s alleged threat to seek an enhanced sentence under sec- tion 851. The “clear and simple language” used in Alarcon’s section 2255 motion and supporting memorandum was enough to alert district courts that Ground Two consisted of two distinct ineffec- tive-assistance-of-counsel claims, including a claim based on Alar- con’s lawyer’s failure to object to the prosecutor’s alleged partici- pation in the Nelson hearing. The district court specifically characterized Ground Two as asserting that “[c]ounsel was ineffective for permitting the prose- cutor to coerce Movant’s guilty plea”: just one claim. Because the district court seems to have failed to decide Alarcon’s ineffective- assistance-of-counsel claim arising from the Nelson hearing, the 3 Nelson v. State, 274 So. 2d 256, 258 (Fla. Dist. Ct. App. 1973) (“[W]here a defendant, before the commencement of trial, makes it appear to the trial judge that he desires to discharge his court appointed counsel, the trial judge, in order to protect the indigent’s right to effective counsel, should make an inquiry of the defendant as to the reason for the request to discharge.”). USCA11 Case: 21-12983 Document: 27-1 Date Filed: 07/14/2023 Page: 5 of 5 21-12983 Opinion of the Court 5 district court’s denial order does not comply with the rule estab- lished in Clisby. We vacate without prejudice the district court’s denial of Alarcon’s section 2255 motion and remand for further proceedings. In doing so, we hint at no stance on the merits of the unresolved claim. See Dupree, 715 F.3d at 1299 (“[A]ddressing the merits of [a petitioner’s] claim exceeds the scope of our review, which is limited to the Clisby issue specified in the certificate of appealability.”). VACATED AND REMANDED.