[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15884 ELEVENTH CIRCUIT
OCTOBER 6, 2010
Non-Argument Calendar
________________________ JOHN LEY
CLERK
D. C. Docket Nos. 07-00386-CV-3-RV/MD,
02-00110-CR-3-RV
BRIAN A. PUGH,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(October 6, 2010)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Brian Pugh, proceeding pro se, appeals the district court’s denial of his 28
U.S.C. § 2255 motion to vacate. We granted a certificate of appealability on the
following issue: “Whether the district court violated Clisby v. Jones, 960 F.2d 925,
938 (11th Cir. 1992) (en banc), by failing to address Pugh’s claim that, following
Begay v. United States, 553 U.S. 137 (2008), and United States v. Archer, 531
F.3d 1347 (11th Cir. 2008), his prior conviction for possession of an unregistered
firearm should no longer be considered a “crime of violence” for purposes of
Sentencing Guidelines §§ 2K2.1 and 4B1.2.” The Government concedes on
appeal that the district court failed to address this claim. After careful review,1 we
vacate the judgment and remand this case to the district court to enter findings
consistent with this opinion.
When a district court fails to address all of the claims in a habeas petition,
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. We have
recognized the legal principles applicable to § 2254 proceedings generally apply
to § 2255 motions to vacate, and thus Clisby applies to § 2255 motions. Rhode v.
United States, 583 F.3d 1289, 1291 (11th Cir. 2009).
1
In a Section 2255 proceeding, we review legal issues de novo, and factual findings under
a clear error standard. U.S. v. Walker, 198 F.3d 811, 813 (11th Cir. 1999).
2
We conclude the district court violated Clisby by failing to address Pugh’s
claim that under Begay and Archer, his sentence should not have been enhanced
based on his prior conviction for possession of an unregistered firearm.
Accordingly, we vacate the judgment without prejudice and remand for
consideration of the remaining claim by the district court.
VACATED AND REMANDED.
3