                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                            No. 10-14721              JAN 6, 2012
                                        Non-Argument Calendar          JOHN LEY
                                      ________________________          CLERK

         D.C. Docket No. 7:08-cv-90031-HL-TQL, 7:00-cr-00012-HL-MSH-3



WAYNE R. LINDSEY,

llllllllllllllllllllllllllllllllllllllll                         Petitioner-Appellant,

                                                versus

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Defendant-Appellee.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Georgia
                                 ________________________

                                           (January 6, 2012)

Before CARNES, WILSON and BLACK, Circuit Judges.

PER CURIAM:
         Wayne Lindsey, a federal prisoner proceeding pro se, appeals the district

court’s denial of his 28 U.S.C. § 2255 motion to vacate. Lindsey’s § 2255 motion

alleged numerous claims of ineffective assistance of both trial and appellate

counsel. We granted a Certificate of Appealability (“COA”) on the following

issue:

         Whether the district court erred when it failed to address Lindsey’s
         argument that appellate counsel provided ineffective assistance by
         failing to argue that United States v. Booker, 543 U.S. 220, 125 S.Ct.
         738, 160 L.Ed.2d 621 (2005), should apply retroactively and that the
         application of departures and enhancements to increase his sentence
         above the base offense level violated the Fifth, Sixth, and Eighth
         Amendments, in violation of Clisby v. Jones, 960 F.2d 925, 936 (11th
         Cir. 1992).

         On appeal, Lindsey argues that the district court violated Clisby because it

did not address his claim that his appellate counsel had been ineffective by failing

to argue on direct appeal that Booker should apply retroactively and that the

application of departures and enhancements to increase his sentence above the

base offense level violated the Fifth, Sixth, and Eighth Amendments. Lindsey

goes on to address the substantive merits of the Booker issue and the calculation of

his guideline range at sentencing.

         In a § 2255 proceeding, we review legal issues de novo and factual findings

for clear error. Thomas v. United States, 572 F.3d 1300, 1303 (11th Cir. 2009).



                                            2
Appellate review is limited to the issues specified in the COA. Id. We liberally

construe pro se pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263

(11th Cir. 1998).

      District courts must resolve all claims for relief raised in habeas

proceedings, regardless of whether relief is granted or denied. See Clisby v. Jones,

960 F.2d 925, 936 (11th Cir. 1992) (en banc); see also Rhode v. United States, 583

F.3d 1289, 1291 (11th Cir. 2009) (applying Clisby to § 2255 motions to vacate).

A claim for relief is any allegation of a constitutional violation. Clisby, 960 F.2d

at 936. Two claims may be distinct even if both allegations arise from the same

alleged set of operative facts. Id. When a district court fails to address all of the

claims, we “will vacate the district court’s judgment without prejudice and remand

the case for consideration of all remaining claims . . . .” Id. at 938. 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 (1984).

      The district court erred by failing to address all of the claims contained in

Lindsey’s § 2255 motion. The Magistrate Judge’s Report and Recommendation

(R&R) adopted by the district court specifically addressed each of Lindsey’s other

claims, but omitted any discussion of the issue that gave rise to our grant of COA.

                                           3
The Government contends Lindsey failed to put the district court on notice of the

omission by objecting to the R&R, and Lindsey therefore waived his right to

appeal. However, “[t]he absence of objections to the [R&R] limits the scope of

appellate review of factual findings to plain error or manifest injustice but does not

limit review of legal conclusions.” United States v. Warren, 687 F.2d 347, 348

(11th Cir. 1982) (per curiam); Hardin v. Wainwright, 678 F.2d 589, 591 (5th Cir.

Unit B 1982).1 Because a Clisby error is the lack of a legal conclusion, an omitted

objection has no impact on our analysis. Finally, although both parties suggest

that we could decide the merits of the omitted claim ourselves, doing so would

exceed the scope of the COA and contradict the rule announced in Clisby. See

Thomas, 572 F.3d at 1303, 1305 n.6; Clisby, 960 F.2d at 938.

       Because the district court did not address all of Lindsey’s claims, the

opinion of the district court is vacated without prejudice and the case remanded for

consideration of whether Lindsey’s appellate counsel provided ineffective

assistance by failing to argue that Booker should apply retroactively and that the




       1
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
close of business on September 30, 1981, as well as all decisions by a Unit B panel of the former
Fifth Circuit, Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982).

                                               4
application of departures and enhancements to increase his sentence above the

base offense level violated the Fifth, Sixth, and Eighth Amendments.

      VACATED AND REMANDED.




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