George Luis Rivera v. Department of Corrections

[DO NOT PUBLISH]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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