[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 15, 2006
No. 05-16255 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 05-21394-CV-PCH & 02-20286-CR-PCH
TAURUS LEROY TAYLOR,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 15, 2006)
Before ANDERSON, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Taurus Leroy Taylor, proceeding pro se, appeals the district court’s denial of
his motion to vacate his sentence brought pursuant to 28 U.S.C. § 2255. After
review, we affirm.
I. BACKGROUND
A jury convicted Taylor of one count of conspiracy to commit Hobbs Act
robberies, one count of conspiracy to use and carry a firearm in relation to a crime
of violence, three counts of Hobbs Act robbery and three counts of using, carrying
and discharging a firearm during the commission of a crime of violence. Taylor
was sentenced to a total of 955 months’ imprisonment.1
Taylor filed a direct appeal, arguing that there was insufficient evidence to
support his Hobbs Act convictions. This Court affirmed his convictions.
Taylor then filed this § 2255 motion, arguing that his trial counsel had been
ineffective for a variety of reasons, including, in relevant part, (1) failing to object
to the jury instruction about “affecting interstate commerce” as improperly
amending the indictment; and (2) failing to object that the indictment was
insufficient because the charge did not include (a) the type of firearm allegedly
used or carried, and (b) the element of criminal intent for the Hobbs Act robberies,
1
Specifically, Taylor received concurrent 235-month sentences on counts 1, 2, 3, 5 and 7
(the conspiracy and substantive offenses related to the Hobbs Act robberies), a consecutive 120-
month sentence on count 4 (one of the firearms charges), a 300-month sentence on count 6
(another firearms charge), to run consecutively to counts 1, 2, 3, 4, 5 and 7 and a final sentence
of 300 months on count 8 (the third firearms charge), to run consecutively to all the other counts,
resulting in a total of 955 months’ imprisonment.
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which were material elements.
The district court denied Taylor’s § 2255 motion. Specifically, the district
court stated that, while counsel’s failure to object to a defective indictment could
constitute ineffective assistance, the indictment in Taylor’s case was not defective.
The district court then concluded that “[b]ecause these and the other points Taylor
now raises with respect to [the indictment] are patently without merit, trial counsel
was not ineffective in failing to assert them.”
The district court also addressed Taylor’s claim of ineffective assistance
based on counsel’s failure to object to the “affecting interstate commerce” jury
instruction. The district court found no ineffective assistance of counsel because
“all of the challenged jury instructions . . . were proper and supported by the
charged offenses and the evidence presented at trial.” The district court stated that,
had Taylor’s counsel raised Taylor’s proposed objections to the jury instructions,
the district court would have properly overruled them. The district court also
determined that the jury instructions did not constructively amend the indictment.
Taylor filed this appeal. We granted a certificate of appealability (“COA”)
on only this 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 claims
that his counsel was ineffective for failing to object to the fact that
(1) the indictment was insufficient because the charges did not include
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(a) the type of firearm that was allegedly used or carried, and (b) the
element of criminal intent for the Hobbs Act robberies, and (2) the
fact that the court’s jury instruction on what constituted “affecting
interstate commerce” improperly amended his indictment.
II. DISCUSSION
On appeal, Taylor argues that the district court failed to address some of his
ineffective assistance claims.2 In Clisby, this Court instructed district courts to
resolve all claims for relief raised in a petition for a writ of habeas corpus prior to
granting or denying relief.3 Id. at 936. When a district court fails to address all
claims in the habeas petition, we “will vacate the district court’s judgment without
prejudice and remand the case for consideration of all remaining claims.” Id. at
938.4
Here, we find no Clisby error because the district court addressed all of the
2
We reject the government’s argument that Taylor abandoned the Clisby issues (upon
which this Court granted the COA) by failing to argue them sufficiently in his brief. Taylor’s
pro se brief, which we construe liberally, expressly states that “the district court failed to
properly address” certain claims of ineffective assistance of counsel.
3
Although Clisby involved a petition brought pursuant to 28 U.S.C. § 2254, the primary
concern motivating this Court’s decision to require district courts to address all issues in the first
instance was the piecemeal litigation that necessarily ensues when only some claims are
addressed in the first instance. Clisby, 960 F.2d at 935. Likewise, a district court is required to
address all issues raised in a § 2255 motion in the first instance. See Gay v. United States, 816
F.2d 614, 616 n.1 (11th Cir. 1987) (“[T]he principles developed in habeas cases also apply to §
2255 motions.”).
4
In reviewing a district court’s denial of a § 2255 motion, we review findings of fact for
clear error and questions of law de novo. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir.
2004).
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claims in Taylor’s § 2255 motion. Specifically, the district court expressly
discussed and rejected Taylor’s ineffective assistance claims based on his trial
counsel’s failure to object to the indictment and failure to object to the “affecting
interstate commerce” instruction as improperly amending the indictment. The
district court ruled that the indictment claim lacked merit, that the jury instruction
was proper and did not constructively amend the indictment and that trial counsel
was not ineffective for not raising those objections. We therefore affirm the
district court’s judgment denying Taylor’s § 2255 motion.
AFFIRMED.
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