[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 19, 2007
No. 06-13475 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00556-CV-T-26-EAJ
DAVID LARA NUNEZ,
Petitioner-Appellant,
versus
SECRETARY FOR THE DEPARTMENT
OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 19, 2007)
Before WILSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
David Lara-Nunez, a Florida prisoner proceeding pro se, appeals the denial
of his 28 U.S.C. § 2254 habeas corpus petition. The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-32, 110 Stat. 1214 (1996),
governs this appeal because Nunez filed his motion after the effective date of the
AEDPA. We granted a certificate of appealability (“COA”) on the following issue
only: “Whether the district court failed to review Nunez’s contention that he
received ineffective assistance of counsel when his attorney failed to negotiate a
plea agreement, in violation of Clisby v. Jones, 960 F.2d 925, 935-36 (11th Cir.
1992) (en banc).” For the reasons set forth more fully below, we vacate the district
court’s denial of Nunez’s § 2254 petition and remand for further proceedings.
Nunez, who is serving a 15-year sentence for aggravated battery, filed pro se
a 28 U.S.C. § 2254 habeas corpus petition in the district court, raising the
following 17 grounds for relief: (1) the trial court erred in permitting the state to
amend the charging information during trial; (2) the trial court erred in failing to
grant a jury instruction on the lesser included offense of felony battery; (3) the trial
court denied Nunez a fair trial by allowing the prosecutor to make improper
statement’s during its closing argument; (4) the trial court denied Nunez a fair trial
by allowing the prosecutor to attack defense counsel; (5) the trial court denied
Nunez a fair trial by allowing the prosecutor to make an appeal to community
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justice; (6) his trial counsel was ineffective for failing to (a) depose the victims
prior to trial, (b) file a motion to continue to properly prepare for trial and depose
state witnesses, (c) demand discovery, (d) refrain from objecting to the state’s
request that Nunez’s and his codefendants’ trials be severed, (e) withdraw based
upon a conflict of interest, (f) obtain the victims’ records to establish their
propensity for violence, (g) question the victims about their tattoos, (h) call alibi
witnesses upon his request, and (i) attempt to negotiate a plea agreement with the
state; (7) the trial court erred in failing to correct obvious errors at trial; and (8) the
state committed reversible error by making mistakes in calculating Nunez’s
guideline scoresheet.
The district court denied Nunez’s § 2254 petition. In so doing, the district
court addressed all but two of Nunez’s grounds for relief, namely, his assertions
that (1) his trial counsel was ineffective for failing to negotiate a plea agreement
prior to trial, and (2) the state committed reversible error by making mistakes in
calculating Nunez’s guideline scoresheet. Nunez then filed a notice of appeal,
which the district court construed as a motion for a certificate of appealability
(“COA”). The district court denied Nunez’s motions for a COA and to proceed on
appeal in forma pauperis. Thereafter, we granted a COA on the above-mentioned
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issue.1
On appeal, Nunez argues that the district court failed to address his claim
that his trial counsel was ineffective for failing to negotiate a plea agreement prior
to his trial. He contends that, according to Clisby, we should vacate the district
court’s judgment without prejudice and remand with instructions for the district
court to address the merits of his ineffective assistance of counsel claim. He also
asserts that we should instruct the district court to address all of his claims that he
raised in his § 2254 petition and determine which of those issues merit a COA.
We review a district court’s denial of habeas corpus relief de novo. Gamble
v. Sec’y, Dep’t of Corr., 450 F.3d 1245, 1247 (11th Cir. 2006). The scope of
review is limited to the issues specified in the COA. Murray v. United States, 145
F.3d 1249, 1250-51 (11th Cir. 1998).
In Clisby, expressing our “deep concern over the piecemeal litigation of
federal habeas petitions,” we exercised our supervisory authority to require that
district courts resolve all claims for relief raised in a petition for habeas corpus,
regardless of whether habeas relief is granted or denied. Clisby, 960 F.2d at 935-
36. “A claim for relief for purposes of [Clisby] is any allegation of a constitutional
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We did not grant a COA on the second ground that the district court did not address,
specifically, Nunez’s contention that the state committed reversible error in calculating his
guideline scoresheet, because Nunez did not allege a federal constitutional violation with regard
to that ground for relief.
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violation.” Id. at 936. When a district court does not address all the constitutional
claims in a 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. We explained that “[p]olicy considerations clearly favor the
contemporaneous consideration of allegations of constitutional violations grounded
in the same factual basis: a one-proceeding treatment of a petitioner’s case enables
a more thorough review of his claims, thus enhancing the quality of the judicial
product.” Id. at 936 (quotation omitted).
A careful review of the record reveals that the district court did not address
Nunez’s claim that his counsel was ineffective for failing to negotiate a plea
agreement. The state concedes that the district court did not address that claim.
However, the state requests that we should decide Nunez’s ineffective assistance of
counsel claim on the merits in the first instance because the error was harmless.
Despite the state’s argument, nothing in Clisby indicates that the harmless-error
analysis should apply where the district court has erred under Clisby and we have
not so far required such. See Clisby, 960 F.2d at 935 (concluding that, even
though the respondent urged this Court to consider the claims not addressed by the
district court, this Court could “do no more than remand the case to the district
court to consider all remaining claims”). As such, the state’s argument is meritless
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because, under Clisby, we will vacate the district court’s judgment without
prejudice and remand with instructions for the court to consider Nunez’s claim that
his counsel was ineffective for failing to negotiate a plea agreement. See Clisby,
960 F.2d at 938.
To the extent that Nunez argues that, on remand, the district court should
consider all of his other claims he raised in his § 2254 petition, we will not instruct
the district court to conduct such a review for two reasons: (1) the district court
previously has addressed all of Nunez’s remaining claims and we refused to grant a
COA with regard to any of those claims; and (2) Nunez’s argument is outside of
the scope of the COA. See Murray, 145 F.3d at 1250-51. Accordingly, the district
court’s order denying Nunez’s § 2254 petition is
VACATED and REMANDED WITH INSTRUCTIONS.
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