[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 29, 2008
No. 07-12770 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 06-00168-CV-4
03-00279-CR-4
JAMIE EDWARD BYRD,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(May 29, 2008)
Before BIRCH, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Federal prisoner Jamie Byrd, proceeding pro se, appeals the district court’s
denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.
We issued a certificate of appealability on four issues: (1) whether the district
court erred in failing to consider whether Byrd’s counsel was ineffective for not
challenging his underlying state conviction for theft by taking, which the district
court used in calculating his criminal history category for sentencing; (2) whether
Byrd sufficiently requested a stay of his § 2255 motion to allow him to complete
his challenges to his prior state convictions in state court; (3) if Byrd sufficiently
raised the request for a stay, whether the district court impliedly denied it; and (4)
if the district court did deny the request for a stay, whether it erred in doing so.
Byrd first contends, and the government concedes, that the district court
failed to address the first of these issues. It should have addressed all of the issues,
including that one. Therefore, to avoid causing piecemeal litigation, we vacate the
denial of Byrd’s motion and remand with instructions for the district court to
address the issue of whether Byrd’s counsel was ineffective for not challenging
Byrd’s underlying state conviction for theft by taking.
VACATED AND REMANDED.
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