[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Dec. 09, 2009
No. 09-11428 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-80174-CV-DMM
GEORGE LUIS RIVERA,
Petitioner-Appellant,
versus
DEPARTMENT OF CORRECTIONS,
Walter A. McNeil,
ATTORNEY GENERAL FOR THE STATE OF
FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 9, 2009)
Before BLACK, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
George Luis Rivera appeals the district court’s denial of his habeas corpus
petition filed pursuant to 28 U.S.C. § 2254. We granted a certificate of
appealability to determine whether the district court violated Clisby v. Jones, 960
F.2d 925 (11th Cir. 1992) (en banc), when it failed to address his substantive
claims regarding prosecutorial misconduct and the state court’s denial of his
motion to suppress.
Clisby requires district courts “to resolve all claims for relief raised in a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, regardless whether
habeas relief is granted or denied.” Id. at 936. Thus, when a district court fails to
address all of the claims presented 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.
In his § 2254 petition and supporting memorandum of law, Rivera asserted
under ground four that there was misconduct at trial because the prosecution
improperly referred to communications that Rivera had with the elders of his
church. Under ground six, Rivera claimed his confession should have been
suppressed because his Miranda rights were violated. Rivera did not argue his
counsel was ineffective for either ground. In response, the State addressed grounds
four and six as ineffective-assistance-of-counsel claims. The state asserted that
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Rivera had raised these claims in a state post-conviction motion as ineffective
assistance of appellate counsel for failing to argue prosecutorial misconduct on
direct appeal and ineffective assistance of appellate counsel for failing to raise the
suppression issue on direct appeal. In Rivera’s reply to the State, he introduced
both grounds four and six as ineffective-assistance-of-counsel claims, asserting his
appellate counsel’s performance was both deficient and prejudicial for each issue.
In the report and recommendation, which the district court adopted, the
magistrate judge identified Rivera’s grounds for relief as whether: “4) [t]here was
procedural misconduct in the improper admission of privilege communication . . .
[and] 6) [t]he confession should have been suppressed.” However, when the
magistrate judge addressed both of these grounds for relief, he addressed them as
ineffective-assistance-of-counsel claims.
The district court did not comply with the dictates of Clisby because it failed
to address Rivera’s substantive claims regarding prosecutorial misconduct and the
denial of his motion to suppress. The district court’s violation of Clisby is
understandable, however, because the State appeared to make an assumption that
Rivera intended to raise the two claims in the same manner that he raised them in
state court. Further, Rivera’s reply to the State’s brief framed the claims as
ineffective-assistance-of-counsel arguments.
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Thus, we vacate the judgment without prejudice and remand the two
remaining claims for consideration by the district court. We make no
determination whether these claims were properly exhausted in state court. We
merely instruct the court to resolve these two claims.
VACATED AND REMANDED.
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