[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 24, 2006
No. 06-12305 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-01292-CV-T-24TBM
MALCOLM FLEMING,
Petitioner-Appellant,
versus
SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 24, 2006)
Before BIRCH, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Florida state prisoner Malcolm Fleming, proceeding pro se, appeals the
district court’s denial of his petition for federal habeas relief, filed pursuant to 28
U.S.C. § 2254. After review, we vacate and remand this case to the district court.
I. BACKGROUND
Fleming filed a § 2254 petition raising the following four claims: (1)
Fleming’s conviction was obtained through an unlawfully induced, involuntary
guilty plea for a variety of reasons; (2) Fleming was denied effective assistance of
counsel at various stages of his state court proceedings; (3) the state trial court
violated the separation-of-powers doctrine by threatening Fleming with a life
sentence as a habitual violent felony offender before the state had filed a notice
seeking the sentencing enhancement, suggesting that the judge was biased; and (4)
Fleming’s due process rights were violated, inter alia, when the state trial court
neglected to inform Fleming of his right to a direct appeal and failed to give a full
and fair hearing on Fleming’s motion for post-conviction relief.
In denying Fleming’s § 2254 petition, the district court distilled Fleming’s
four claims down to two issues. First, the district court noted that a claim that a
defendant was not fully apprised of the consequences of his guilty plea or had pled
guilty based on a false statement in the plea agreement implicates the Due Process
Clause. On this basis, the district court concluded that Fleming’s separate due
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process claims merely reiterated his claims that his guilty plea was involuntary.
The district court then addressed the merits of these due process claims and found
that there was insufficient evidence that Fleming’s guilty plea was unlawfully
induced or involuntary. Second, the district court addressed whether Fleming was
denied effective assistance of counsel and again found insufficient evidence to
suggest a violation of Fleming’s constitutional rights.
Fleming filed this appeal. We granted a certificate of appealability on the
limited issue of “[w]hether the district court violated Clisby v. Jones, 960 F.2d 925,
936 (11th Cir. 1992) (en banc), by failing to address all of the claims raised in
appellant’s 28 U.S.C. § 2254 petition?”
II. DISCUSSION
On appeal, Fleming argues that the district court did not address all of the
claims raised in his § 2254 petition. In Clisby, we instructed the district courts to
resolve all claims for relief raised in a petition for writ of habeas corpus prior to
granting or denying relief. 960 F.3d at 936. We concluded that, 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 938.1
1
We review an appeal of a district court’s denial of a § 2254 petition de novo. Gamble v.
Sec’y, Dept. of Corr., 450 F.3d 1245, 1247 (11th Cir. 2006).
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Upon review of the record and the parties’ briefs, we conclude that the
district court failed to address two of Fleming’s due process claims. The district
court’s order sought to answer only whether Fleming’s conviction was obtained
through an unlawfully induced, involuntary guilty plea and failed to consider
alleged due process violations that occurred after Fleming entered his plea.
Namely, the district court did not address whether Fleming’s due process rights
were violated (1) when the state court allegedly failed to notify him of his right to
file a direct appeal or (2) when the state court allegedly failed to provide a full and
fair hearing on Fleming’s motion for post-conviction relief.
Because the district court did not address the merits of these two claims, we
vacate the judgment and remand the remaining claims for consideration by the
district court.2
VACATED AND REMANDED.
2
Fleming also argues that the district court failed to address his other due process claims
relating to the acceptance of his plea, including claims that the state court deprived Fleming of
adequate time to contemplate the plea offer, allowed the state to serve notice of intent to charge
Fleming as a habitual violent felony offender during the plea hearing and failed to require
adequate proof of his prior convictions. The facts supporting these allegations are essentially the
same as the facts used to support his argument that his plea was involuntary. These allegations
do not constitute separate violations. See Mabry v. Johnson, 467 U.S. 504, 509, 104 S. Ct. 2543,
2547 (1984) (explaining that due process requires that a guilty plea be made voluntarily,
intelligently and not based on misrepresentation or coercion).
Likewise, Fleming’s claim that the state court violated the separation-of-powers doctrine
is identical to his due process claim that the state court coerced his guilty plea by threatening him
with a life sentence. Both claims are based on the same operative facts and allege violations of
the same constitutional right to due process. The district court addressed these allegations in its
ruling regarding the voluntariness of Fleming’s plea.
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