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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11603
Non-Argument Calendar
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D.C. Docket Nos. 9:11-cv-81028-KAM; 9:09-cr-80058-KAM-1
MICHAEL JACK RIOLO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 22, 2014)
Before PRYOR, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
Michael Jack Riolo appeals the district judge’s denial of his pro se 28 U.S.C.
§ 2255 motion to vacate. He argues the district judge failed to resolve all of his
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claims, in violation of Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc).
Because the district judge did not address all of Riolo’s separate ineffective-
assistance-of-counsel claims, we vacate and remand for the judge to resolve those
claims.
I. BACKGROUND
In September 2011, Riolo, a federal prisoner convicted of five counts of mail
fraud, in violation 18 U.S.C. § 1341, filed this pro se 28 U.S.C. § 2255 motion to
vacate, challenging his convictions and 293-month sentence. He raised three
grounds for relief. In Ground One, he raised six specific claims of ineffective
assistance of counsel and asserted defense counsel had been ineffective for:
1) advising him that the government would be recommending an
offense level of 30 when in fact the government recommended an
offense level of 38; 2) advising him that [counsel] would be
challenging the “sophisticated means” [sentencing] enhancement and
requesting the court to sentence him to a sentence of 78 months or
lower when in fact [counsel] requested the court to sentence him to
235 months; 3) failing to advise him as to the premise and importance
of a stipulation, where the government’s recommendation was by far
the most important factor in his decision to plead guilty; 4) failing to
reduce such a critical factor to writing in the plea agreement or to
enter it on the record in some way; 5) failing to advise him that the
office of probation could make its own calculation of the offense
level; and 6) failing to acknowledge that there was any chance that
[Riolo] faced an offense level higher than 30 where [his] plea was
specifically motivated by his desire to assure his ability to return to his
children while they were still minor dependants.
R at 18-19.
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In Ground Two, Riolo asserted he had received ineffective assistance of
counsel, because counsel had convinced him to concede in his factual proffer that
he had made misrepresentations to clients and had traded in futures contracts. He
argued he had made those concessions only because counsel had assured him they
would have no bearing on his criminal case and would not affect his sentence.
Riolo contended he never would have conceded those issues had he known the
government would then recommend a higher offense level.
In Ground Three, Riolo raised six additional claims of ineffective assistance
of counsel. He argued, because he pled guilty in this case based on his
understanding that he would receive an offense level of 30, defense counsel had
been ineffective for:
1) failing to conduct any investigation into the applicable offense level
in this case beyond a cursory reading of the Sentencing Guidelines
Manual; 2) failing to acknowledge that there was any risk of being
sentenced under an offense level higher than 30; 3) failing to
acknowledge to [Riolo] that there was any reason to conduct any
investigation into the offense level calculation; 4) relying solely on an
alleged representation from the government that it would be pursuing
an offense level of 30 in lieu of any investigation into the offense
level calculation; 5) advising [Riolo] to accept a plea agreement under
the guise that the offense level had been predetermined where the
offense level calculation was [Riolo’s] main reason for agreeing to
plead guilty in this case, and where [he] was unknowingly at risk of
being sentenced under a much higher offense level; and 6) failing to
acknowledge that a third party could calculate and present the court
with an offense level higher than 30, thus putting [Riolo] at risk of
being sentenced under an offense level that he was not aware was
possible.
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R at 22-23.
Following briefing, a magistrate judge entered a report and recommendation
(“R&R) recommending Riolo’s § 2255 motion be denied. Instead of addressing
each individual ineffective-assistance-of-counsel claim, the magistrate judge
consolidated Riolo’s grounds for relief into the following three claims:
Claim 1: Ineffective assistance of counsel for advising him that the
government would be recommending an offense level of 30;
Claim 2: Ineffective assistance of counsel for advising him to
concede certain facts in the factual proffer;
Claim 3: Ineffective assistance of counsel for failing to properly
research the applicable [S]entencing [G]uidelines.
R at 392-93.
The magistrate judge found Claims 1 and 2 were both refuted by the record.
First, he concluded both claims had been raised and rejected on direct appeal, and
Riolo had presented nothing of substance warranting a different result. The
magistrate judge noted Riolo had argued on direct appeal: (1) the government had
breached the plea agreement by not recommending an offense level of 30; and (2)
his guilty plea was invalid because he had insufficient time to review the factual
proffer, and the factual proffer contained inaccurate information.
Regarding Claim 3, the magistrate judge concluded, because Riolo had not
identified what counsel should have investigated concerning the sentencing
enhancements, Claim 3 was subject to summary dismissal. He also found Riolo
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had failed to explain how counsel’s failure to investigate the possible
enhancements resulted in prejudice.
The magistrate judge noted Riolo also had complained defense counsel had
failed to inform him the probation officer would make a sentence recommendation
by drafting a PSI before the sentencing hearing. He found this claim was refuted
by the record. Accordingly, the magistrate judge recommended the motion to
vacate should be denied.
The district judge subsequently entered a final judgment, adopted the R&R,
and denied the § 2255 motion to vacate. In addition to the magistrate judge’s
findings, the district judge further found Riolo’s claim of ineffective assistance of
counsel, derived from counsel’s alleged misrepresentations regarding the length of
the sentence Riolo could expect, was refuted by the record. The judge noted,
during the plea colloquy in his criminal case, Riolo had agreed no one had “made
any promises or representations to [him] as to what sentence [the judge would]
impose in the case.” R at 479 (emphasis omitted). Given Riolo’s sworn
statements during the plea colloquy, the district judge determined Riolo could not
claim he had relied upon representations not contained in the plea agreement as the
basis for what had caused him to plead guilty. Therefore, the judge denied a
certificate of appealability (“COA”), denied all outstanding motions as moot, and
closed the case.
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On appeal, we granted a COA on the following issue: “Whether the district
[judge] failed to resolve all of Riolo’s claims of ineffective assistance of counsel,
in violation of Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc)?” Riolo v.
United States, No. 13-11603 (11th Cir. June 21, 2013).
II. DISCUSSION
The denial of a § 2255 motion to vacate presents a mixed question of law
and fact, and we review the district judge’s factual conclusions for clear error and
questions of law de novo. Rhode v. United States, 583 F.3d 1289, 1290 (11th Cir.
2009) (per curiam). Pro se pleadings are held to a less stringent standard than
pleadings drafted by attorneys and, consequently, must be construed liberally.
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam).
District judges must resolve all claims for relief raised in habeas
proceedings, regardless of whether relief is granted or denied. Clisby, 960 F.2d
at 935-36 (involving a 28 U.S.C. § 2254 petition filed by a state prisoner); Rhode,
583 F.3d at 1291 (holding Clisby applies to § 2255 proceedings). When a district
judge fails to address all of the claims presented in a motion to vacate, we “will
vacate the . . . judgment without prejudice and remand the case for consideration of
all remaining claims.” Clisby, 960 F.2d at 938. A “claim for relief” is defined as
“any allegation of a constitutional violation.” Id. at 936. Allegations of distinct
constitutional violations constitute separate claims for relief, “even if both
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allegations arise from the same alleged set of operative facts.” Id. Ineffective
assistance of counsel constitutes a violation of a defendant’s Sixth Amendment
rights and is a claim of a constitutional violation. See Strickland v. Washington,
466 U.S. 668, 684-86, 104 S. Ct. 2052, 2063-64 (1984).
As an initial matter, in objecting to the R&R, Riolo did not argue
specifically the magistrate judge had violated Clisby. Riolo’s failure to raise a
Clisby violation before the district judge, however, does not prevent him from
asserting Clisby error on direct appeal. See Dupree v. Warden, 715 F.3d 1295,
1297 (11th Cir. 2013) (holding, although petitioner did not object to magistrate
judge’s failure to address certain claims in petitioner’s § 2254 habeas petition, we
nevertheless could review de novo whether the district judge had violated Clisby).
Accordingly, our review is de novo. Rhode, 583 F.3d at 1290.
The district judge resolved some, but not all, of Riolo’s claims of ineffective
assistance of counsel, in violation of Clisby. In Ground One of the § 2255 motion,
the magistrate and district judges adequately addressed Riolo’s claims that counsel
was ineffective for advising Riolo she would challenge the sophisticated means
sentencing enhancement and by failing to inform him that the Probation Office
would make its own offense-level calculation. In addition, in the final judgment,
the district judge addressed Riolo’s claims that counsel was ineffective by
misrepresenting the government would recommend an offense level of 30.
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Other claims remain in Ground One, however. The district judge did not
address Riolo’s claims that counsel was ineffective by failing to (1) recommend a
sentence of 78 months or lower; (2) advise him of the premise and importance of a
stipulation; and (3) reduce such a critical factor to writing in the plea agreement. 1
As for Ground Two, the district judge did not resolve Riolo’s claims. Although the
magistrate judge correctly framed Ground Two as a claim of ineffective assistance
of counsel based on counsel’s advice to Riolo to concede certain facts in the
factual proffer, the magistrate judge did not analyze that claim under Strickland.
Instead, the magistrate judge misconstrued Ground Two as asserting Riolo’s guilty
plea was invalid because he did not have adequate time to review the factual
proffer, and the proffer contained false information. Therefore, because the
magistrate judge did not conduct an ineffective-assistance-of-counsel analysis and
because the district judge did not address this issue in the final judgment, Clisby
was violated.
Regarding Ground Three, it appears the district judge sufficiently addressed
all of Riolo’s ineffective-assistance-of-counsel claims, with the exception of his
claim that counsel was ineffective for advising him to accept the plea agreement.
The remaining claims asserted in Ground Three are duplicative of each other and
of the claims asserted in Ground One and adequately were addressed by the judge.
1
It is unclear to which factor Riolo was referring.
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Because the district judge violated Clisby, we vacate the judgment and
remand for the judge to decide the omitted claims.
VACATED AND REMANDED.
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