[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13016 ELEVENTH CIRCUIT
JUNE 10, 2009
Non-Argument Calendar
________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 07-22183-CV-JAL
DARRICK ADAWAY,
Petitioner-Appellant,
versus
DEPARTMENT OF CORRECTIONS,
Walter A. McNeil, Secretary,
ATTORNEY GENERAL OF THE STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(June 10, 2009)
Before DUBINA, Chief Judge, BLACK and FAY, Circuit Judges.
PER CURIAM:
Appellant Darrick Adaway, a Florida state prisoner proceeding pro se,
appeals the district court’s denial of his 28 U.S.C. § 2254 federal habeas petition.
We granted a certificate of appealability as to whether the district court violated
Clisby v. Jones, 960 F.2d 925, 938 (11th Cir. 1992) (en banc), when it failed to
address his claim of ineffective assistance of counsel for failure to appeal a motion
to suppress his confession.
“[W]e review questions of law and mixed questions of law and fact de novo,
and findings of fact for clear error.” Stewart v. Sec’y, Dep’t of Corr., 476 F.3d
1193, 1208 (11th Cir. 2007). In Clisby, we held that when a district court fails to
address all claims in a habeas petition, we will vacate without prejudice and
remand the case for consideration of all remaining claims. 960 F.2d at 938.
Under Clisby, a claim “is any allegation of a constitutional violation.” Id. at 936.
Ineffective assistance of counsel constitutes a violation of a defendant’s Sixth
Amendment rights, and thus is a claim of a constitutional violation. Strickland v.
Washington, 466 U.S. 668, 684–86, 104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674
(1984).
After a careful review of the record on appeal and the briefs of the parties,
we conclude the district court violated Clisby by failing to address Adaway’s
claim of ineffective assistance of counsel for failure to appeal the denial of the
motion to suppress his confession. Accordingly, we vacate the district court’s
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judgment without prejudice and remand for consideration of the remaining claim
by the district court.
VACATED AND REMANDED.
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