[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15004 ELEVENTH CIRCUIT
SEPTEMBER 29, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket Nos. 07-02315-CV-T-23-MAP,
06-00090-CR-T-2
KURT LOUIS RHODE,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 29, 2009)
Before BIRCH, HULL and FAY, Circuit Judges.
PER CURIAM:
Kurt Louis Rhode, a federal prisoner proceeding pro se, appeals the district
court’s denial of his 28 U.S.C. § 2255 motion to vacate. For the reasons set forth
below, we vacate and remand for consideration of Rhode’s claim that counsel was
ineffective for failing to file a motion to withdraw his guilty plea.
I.
Rhode, who pled guilty to and is serving a 60-month sentence for child
enticement, in violation of 18 U.S.C. § 2422(b), filed the present pro se § 2255
motion to vacate based on a claim of ineffective assistance of counsel. In a
memorandum attached to his motion, Rhode explained that, immediately prior to
his sentencing hearing, he told counsel that he wished to withdraw his guilty plea.
According to Rhode, counsel instructed him to reaffirm his guilty plea, proceed
with sentencing, then submit a § 2255 motion claiming ineffective assistance of
counsel. Based on this claim, Rhode asked the district court to set aside his guilty
plea. Rhode also asserted that counsel was ineffective because he: (1) refused to
pursue Rhode’s desired defense strategy, (2) failed to adequately investigate, (3)
failed to contact certain witnesses, and (4) refused to file a motion to dismiss. At
the end of the attachment, Rhode stated “I do understand that I ple[a]d
guilty . . . but was presented no viable option in my mind.”
The district court denied Rhode’s § 2255 motion, finding that the motion did
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not require a response from the government, because the motion and case record
conclusively showed that Rhode was not entitled to relief. It explained that
Rhode’s claims lacked merit because “in the plea agreement Rhode waived the
right to raise the grounds he asserts in the motion to vacate.” The court specifically
noted that Rhode’s claims that counsel was ineffective for failing to adequately
investigate and prepare a defense and failing to challenge his sentence were waived
by pleading guilty. The court did not address Rhode’s allegations that counsel told
him to reaffirm his guilty plea despite his wish to withdraw the plea.
We granted Rhode a Certificate of Appealability (“COA”) on the following
issues only:
Whether, in light of Clisby v. Jones, 960 F.2d 925, 936
(11th Cir. 1992) (en banc), the district court was required
to address all of the claims raised in appellant’s motion to
vacate his sentence pursuant to 28 U.S.C. § 2255; and
If so, whether the district court’s order should be vacated
and remanded because it failed to address all of the
claim[]s raised in appellant’s § 2255 motion, Clisby, 960
F.2d at 936.
II.
When reviewing the district court’s denial of a § 2255 motion, we review
findings of fact for clear error and questions of law de novo. Lynn v. United
States, 365 F.3d 1225, 1232 (11th Cir. 2004). The scope of review is limited to the
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issues specified in the COA. Murray v. United States, 145 F.3d 1249, 1250 (11th
Cir. 1998).
Applicability of Clisby to § 2255 Motions
In Clisby, we expressed our “deep concern over the piecemeal litigation of
federal habeas petitions” and exercised our supervisory authority over the district
courts, instructing them to 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 (involving a 28 U.S.C. § 2254 petition filed by a state
prisoner). We have also recognized that the legal principles applicable to § 2254
proceedings generally apply to § 2255 motions to vacate. Gay v. United States,
816 F.2d 614, 616 n.1 (11th Cir. 1987); see also Danforth v. Minnesota, 552 U.S.
__, __, 128 S.Ct. 1029, 1041 n.16, 169 L.Ed.2d 859 (2008) (noting that “[m]uch of
the reasoning applicable to applications for writs of habeas corpus filed pursuant to
§ 2254 seems equally applicable in the context of § 2255 motions”). Accordingly,
pursuant to our holding in Gay, the district court was required to comply with
Clisby and resolve all claims for relief raised in Rhode’s § 2255 motion.
District Court’s Compliance With Clisby
“A claim for relief for purposes of [Clisby] is any allegation of a
constitutional violation.” Clisby, 960 F.2d at 936. When a district court does not
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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 have 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 (internal quotations
omitted).
As an initial matter, we decline to consider Rhode’s arguments, set forth in
his appellate brief, that counsel was ineffective for failing to (1) pursue Rhode’s
preferred defense strategy, (2) file a motion to dismiss, (3) object to certain facts
contained in the presentence investigation report, (4) address Rhode’s concerns
about the circumstances of his arrest, (5) adequately interview and call exculpatory
witnesses, and (6) challenge certain supervised release conditions, because these
issues are outside the scope of the COA. Murray, 145 F.3d at 1250. We also note,
as an initial matter, that Rhode has preserved his claim for relief on appeal by
stating in his brief that counsel was ineffective for failing to file a motion to
withdraw his guilty plea and asking us to instruct the district court, pursuant to
Clisby, to consider all of the claims raised in his § 2255 motion. See Tannenbaum
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v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (holding that “[p]ro se
pleadings are held to a less stringent standard than pleadings drafted by attorneys
and will, therefore, be liberally construed”). Tannenbaum v. United States, 148
F.3d 1262, 1263 (11th Cir. 1998).
The next issue we address is whether Rhode sufficiently raised, in his § 2255
motion, a claim that counsel was ineffective for failing to file a motion to withdraw
Rhode’s guilty plea. As noted above, Rhode’s pro se § 2255 motion must be
construed liberally. See id. In his § 2255 motion, Rhode (1) states that his
ineffective assistance of counsel claims are described in his attached memorandum;
(2) explains, in his attached memorandum, that he wished to withdraw his guilty
plea, but counsel told him to proceed with sentencing and file a § 2255 motion
instead of withdrawing his plea; and (3) asks the court to set aside his guilty plea.
These statements, liberally construed, adequately state a claim of ineffective
assistance of counsel based on counsel’s failure to file a motion to withdraw the
guilty plea. The district court, in denying Rhode’s § 2255 motion, failed to address
this claim. The district court’s order focused solely on Rhode’s claims that counsel
was ineffective for failing to adequately investigate and prepare a defense and
failing to challenge his sentence. Furthermore, Rhode’s claim that counsel should
have filed a motion to withdraw his guilty plea is distinct from his claim that
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counsel failed to adequately investigate and prepare. Rhode asserts that counsel
should have filed the motion to withdraw the plea immediately before sentencing,
which would have been after the plea had been accepted and, therefore, after all
investigation and preparation was complete. Accordingly, because the district
court failed to address Rhode’s claim that counsel was ineffective for failing to file
a motion to withdraw his guilty plea, we vacate the district court’s judgment
without prejudice and remand to the district court for consideration of this claim.
See Clisby, 960 F.2d at 938.1
VACATED and REMANDED.
1
To eliminate any further confusion, we answer both questions presented in the COA in
the affirmative.
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