[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 20, 2006
No. 06-10908 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00419-CV-CAR-5
DEXTER RAMONE PALMER,
Petitioner-Appellant,
versus
HUGH SMITH,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(December 20, 2006)
Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
I.
Dexter Ramone Palmer, a Georgia state prisoner proceeding pro se, appeals
the district court’s denial of habeas relief.1
II.
Palmer was found guilty of six counts of malice murder in state court and
sentenced to life imprisonment without parole. His conviction and sentence were
affirmed on direct appeal. Palmer v. State, 274 Ga. 796, 560 S.E.2d 11 (2002).
After a state habeas petition failed, Palmer then filed a federal habeas petition
under 28 U.S.C. § 2254, which raised 33 claims. Palmer later moved to amend his
petition to add four additional grounds; three claims of ineffective assistance of
counsel in connection with prosecutorial conduct, improper impeachment, his
being permitted to testify at trial, and the use of perjured testimony, and one claim
challenging the make-up of the jury. The court granted the motion to amend.
The state did not address Palmer’s four additional claims in responding to
his § 2254 petition, but rather, argued that the 33 original claims were procedurally
defaulted. The district court issued an order to show cause whether Palmer could
overcome the default. In response, Palmer alleged he could establish cause and
prejudice, and he made reference to the use of perjured testimony and improper
1
Palmer filed his petition after the effective date of the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-32, 110 Stat. 1214 (1996), and, therefore, the provisions of
that act govern this appeal.
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impeachment. Palmer, however, did not otherwise call attention to the state’s
failure to address his four additional claims in its response to his petition. The
magistrate judge then issued a report and recommendation that the petition be
dismissed. This recommendation, however, did not address the four claims raised
in Palmer’s amended petition.
Palmer filed objections to the recommendation of the magistrate judge.
Although he did not notify the court that the four claims raised in the amended
petition had not been addressed, Palmer did offer argument on those issues as part
of his objection. Palmer then moved for judgment on the pleadings, directing the
court’s attention to his amended habeas petition. The next day, the district court
adopted the magistrate judge’s recommendation and dismissed the petition.
Palmer moved for reconsideration, again raising at least one of the claims
identified in the amended petition. The court denied the motion. The district court
also denied Palmer’s request for a certificate of appealability. This court then
issued a certificate of appealabilty 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 appellant’s four claims raised in the amended petition filed July
18, 2005.”
On appeal, Palmer argues the merits of his four claims raised in the amended
petition. The state responds that Palmer waived his argument because he did not
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respond to the issue identified in the certificate of appealability. Nevertheless, the
state also argues that remand is not warranted because Palmer never notified the
district court that it had not addressed all of his claims, and his reference to the four
claims in his motion for judgment on the pleadings was not an appropriate or
timely objection to the magistrate judge’s recommendation. Finally, addressing the
four claims, the state asserts that the claims were procedurally defaulted. Palmer
replies that the district court improperly dismissed his petition without considering
his amended claims.
III.
We review a district court’s denial of a habeas petition under 28 U.S.C.
§ 2254 de novo. Maharaj v. Sec’y Dept. Of Corr., 305 F.3d 1345, 1348 (11th Cir.
2002).
IV.
We liberally construe Palmer’s pro se brief, and conclude that he did not
waive the issue of whether the district court violated Clisby. See Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998) ("Pro se pleadings are held to
a less stringent standard than pleadings drafted by attorneys and will, therefore, be
liberally construed.").
In Clisby, this court instructed district courts to “resolve all constitutional
claims presented in a petition for writ of habeas corpus pursuant to 28 U.S.C.
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2254[] before granting or denying relief.” 960 F.2d at 927-28. This court
expressed its “deep concern over the piecemeal litigation of federal habeas
petitions filed by state prisoners, as exemplified by the district court’s failure to
resolve all claims in this case.” 960 F.2d at 925. As a result, “[w]hen a district
court does not address all such claims, [this court] will vacate the district court’s
judgment without prejudice and remand the case for consideration of all remaining
claims whenever the district court has not resolved all such claims.” Id. at 938.
Here, Palmer added four claims in an amended petition. The state did not
address the claims in its answer, and the magistrate judge did not make a
recommendation on the disposition of those claims. Although Palmer did not
notify the court in his objections that the magistrate judge failed to consider the
claims, he did bring it to the court’s attention in a motion for judgment on the
pleadings, which was filed before the district court issued its order denying relief.
Thus, the district court failed to consider all of the pending claims as required by
Clisby. Therefore, we vacate without prejudice and remand for further
proceedings consistent with this opinion.
VACATED and REMANDED
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