                                                       [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                            No. 10-12509                 DECEMBER 9, 2011
                        Non-Argument Calendar               JOHN LEY
                      ________________________               CLERK


                 D.C. Docket Nos. 1:09-cv-21160-ASG,
                        1:06-cr-20081-ASG-1

RICARDO MAURICIO BERNAL PALACIOS,

                                                       Petitioner - Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                      Respondent - Appellee.

                     ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                          (December 9, 2011)

Before EDMONDSON, WILSON and BLACK, Circuit Judges.


PER CURIAM:
      Ricardo Mauricio Bernal Palacios, a federal prisoner, appeals the district

court’s denial of his pro se 28 U.S.C. § 2255 motion to vacate. Reversible error

has been shown; we vacate and remand for additional proceedings.

      Palacios and his codefendant brother, Juan Palacios (“Juan”), pleaded guilty

to conspiracy to launder money and money laundering, in violation of 18 U.S.C. §

1956(a)(1)(A)(l), (a)(2)(A), (h). Palacios filed a section 2255 motion and raised

these claims: (1) he did not knowingly, intelligently, or voluntarily plead guilty;

(2) his lawyer failed to file a motion to withdraw the guilty plea and plea

agreement; (3) his lawyer failed to file a motion to compel the government to

move for a downward departure, pursuant to U.S.S.G. § 5K1.1; (4) his lawyer

failed to file a motion for a downward departure based on cooperation, pursuant to

U.S.S.G. § 5K2.0; (5) his lawyer failed to file a motion to enforce the plea

agreement and to object to the government’s breach of the plea agreement; (6) he

was actually innocent in the light of the Supreme Court’s decision in United States

v. Santos, 128 S.Ct. 2020 (2008); and (7) his lawyer was ineffective for failing to

file a direct appeal after being requested to do so. After filing a reply brief,

Palacios filed a separate pleading in support of his Claim 6, adopting the portion




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of Juan’s section 2255 reply brief that discussed the Santos decision.*

       The magistrate judge issued a report and recommendation (“R&R”),

recommending that the district court deny Palacios’s motion to vacate. In doing

so, the magistrate addressed the merits of Palacios’s seven claims and stated that,

to the extent Palacios adopted Juan’s claims, those claims were denied for the

reasons set forth in the R&R issued in Juan’s case. Palacios filed timely

objections to the R&R, asserting that he was entitled to relief on each of his seven

claims.

       The district court adopted the magistrate’s R&R and denied Palacios’s

motion to vacate, stating that the court had reviewed the objections and had

conducted “an independent and de novo review of the record.” In its order,

however, the court stated that Palacios and Juan had “filed similar motions to

vacate . . . raising the same claims.” The court then identified both “movants’”

claims as follows: “(1) they are actually innocent of all the charges; (2) their

sentences should be vacated based on [Santos]; (3) they were denied effective aid



       *
         Juan filed a section 2255 motion to vacate raising these five claims: (1) he was actually
innocent based on Santos; (2) his sentence was erroneously enhanced in the light of Santos;
(3) his lawyer was ineffective for failing to raise Claims 1 and 2; (4) his guilty plea was not
entered knowingly, intelligently, or voluntarily; and (5) his lawyer was ineffective for failing to
file an appeal and for failing to inform him that the Supreme Court’s grant of certiorari in Santos
presented a potential ground for appeal.

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with respect t[o] the first two claims; (4) their guilty pleas were not knowingly and

voluntarily entered; and (5) they were denied effective aid of counsel because their

attorney failed to file appeals to their sentences despite . . . their wishes to do so.”

The court discussed each of these five claims and denied Palacios’s motion to

vacate.

      We granted a certificate of appealability on the following issue: “Whether

the district court erred by failing to conduct a de novo review of Palacios’s

objections to the magistrate’s report and recommendation, as required by

Fed.R.Civ.P. 72(b)?”

      Pursuant to Rule 72(b), “[t]he district judge must determine de novo any

part of the magistrate judge’s disposition that has been properly objected to.”

Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1) (providing that “[a] judge of

the court shall make a de novo determination of those portions of the

[magistrate’s] report or specified proposed findings or recommendations to which

objection is made.”). We review de novo the legal issue of whether the district

court conducted a proper review of the record before adopting a magistrate’s

report and recommendation. Cf. Lynn v. United States, 365 F.3d 1225, 1232 (11th

Cir. 2004) (providing that we review legal issues in section 2255 proceedings de

novo).

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      Based on this record, we cannot conclude that the district court conducted

the required de novo review of Palacios’s objections to the R&R. The court

incorrectly characterized Palacios’s claims as being “the same” as Juan’s and, in

enumerating the claims, listed only the claims raised in Juan’s section 2255 motion

to vacate. Likewise, the court’s analysis was limited to those claims raised in

Juan’s motion. Some of Palacios’s claims overlapped with Juan’s. But Palacios’s

motion to vacate included claims that were unique to Palacios’s case, including --

at the very least -- those contentions set forth in Claims 2, 3, 4, and 5. Because the

district court failed to address these arguments, we vacate and remand to the

district court to conduct a de novo review of all of Palacios’s objections.

      VACATED AND REMANDED.




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