[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 14, 2006
No. 04-13341 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos.
03-00093-CV-WLS-7
01-00014-CR-WLS
WILLIAM MCKEITHEN,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(June 14, 2006)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
In November 2001, petitioner William McKeithen was convicted by a
Middle District of Georgia jury for distributing more than five grams of a mixture
and substance containing a detectable amount of cocaine base, i.e., “crack,” in
December 2000, in violation of 21 U.S.C. § 841(a)(1). In February 2002, the
district court sentenced him to a prison term of 95 months. He appealed his
conviction (but not his sentence), and we affirmed. United States v. McKeithan,
No. 02-11212 (September 13, 2002) (unpublished).
On August 22, 2003, petitioner moved the district court to vacate his
conviction on four grounds of ineffective assistance of counsel. One of the
grounds was that counsel failed to challenge the constitutionality of convictions the
court purportedly used to enhance his sentence under 21 U.S.C. § 851. The court
referred the motion to a magistrate judge, who recommended that the motion be
denied. The court followed the recommendation and denied relief. The court also
denied petitioner’s application for a certificate of appealability (“COA”). We
thereafter issued a COA for this issue:
Whether the district court erred by failing to address
[petitioner’s] claim that he received ineffective assistance
of counsel based on counsel’s failure to challenge the
district court’s alleged use of several invalid prior
convictions to enhance his sentence in the instant case.
See Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992)
(holding that the district court must resolve all claims for
relief raised in a habeas petition, regardless of whether
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habeas relief is granted or denied).
The district court did err. In disposing of petitioner’s ineffective assistance
claim, the court explicitly rejected three of the four grounds the claim raised but
omitted any mention of the fourth ground, the one cited in the COA. This was
error; as noted in the COA, Clisby v. Jones requires the district court to dispose of
all of a petitioner’s claims. The error, however, is harmless.
The presentence report (“PSI”), which the district court relied upon in
sentencing petitioner, indicated that petitioner was subject to a mandatory prison
term of five years, with a maximum term of 40 years. See 21 U.S.C. §
841(b)(1)(B)(iii). According to the PSI, § 841(b)(1)(B)(iii) was not implicated in
petitioner’s case because petition had not previously been convicted of a felony
drug offense. The PSI recited that petitioner had been convicted of murder, a
conviction that clearly was not constitutionally infirm,1 and that conviction
generated a criminal history category of II – the category the court used in
fashioning petitioner’s sentence. That category coupled with a total offense level
of 28 yielded a Guidelines sentence range of 87 to 108 months of imprisonment.
1
In February 1990, petitioner was charged in the Dade County, Florida circuit court with
murder in the second degree. Represented by an attorney, he pled guilty to murder in the third
degree, and on July 6, 1990, the court sentenced him to prison for a term of 17 years. He was
released from prison on June 1, 1998. The record conclusively refutes petitioner’s (albeit
implicit) claim that this conviction was invalid because he was denied the representation of
counsel.
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In sum, petitioner’s attorney could not have rendered ineffective assistance by not
objecting to his prior convictions on the ground that they were obtained in
violation of his right to counsel because none of those convictions – save the valid
murder conviction – were used to enhance his sentence.
AFFIRMED.
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