           Case: 17-13894   Date Filed: 08/05/2019   Page: 1 of 4


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-13894
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:13-cv-02649-VMC-TGW



BRUCE CUNNINGHAM,

                                                          Petitioner-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                       Respondents-Appellees.

                      ________________________

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

                            (August 5, 2019)



Before MARCUS, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:
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       Bruce Cunningham, a Florida prisoner proceeding pro se, appeals from the

district court’s denial of his 28 U.S.C. § 2254 petition for habeas corpus relief. We

granted a certificate of appealability (COA) to determine whether the district court

violated Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc), by failing to

address one of Cunningham’s claims alleging his counsel was ineffective,

specifically, that his trial counsel was ineffective by failing to redact portions of a

deposition he read at trial that introduced collateral act evidence. Cunningham

contends the district court violated Clisby, and the State agrees. After review,1 we

vacate and remand.

       In Clisby, we held that when a district court fails to address every claim

raised in a habeas petition, regardless of whether relief is granted or denied, we

“will vacate the district court’s judgment without prejudice and remand the case

for consideration of all remaining claims.” 960 F.2d at 936, 938. Under Clisby, a

claim “is any allegation of a constitutional violation.” Id. at 936. Allegations of

distinct constitutional violations constitute separate claims for relief, even if the

allegations arise from the same operative facts. Id. Ineffective assistance of

counsel constitutes a violation of a defendant’s Sixth Amendment rights, and thus,



       1
          When examining the denial of a petition filed under 28 U.S.C. § 2254, we review
questions of law and mixed questions of law and fact de novo, and findings of fact for clear error.
Stewart v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1208 (11th Cir. 2007). The scope of review is
limited to the issues specified in the COA. See Murray v. United States, 145 F.3d 1249, 1250-51
(11th Cir. 1998) (addressing a motion filed under 28 U.S.C. § 2255).
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is a claim of a constitutional violation. Strickland v. Washington, 466 U.S. 668,

686-87 (1984). Under Clisby, our only role is to determine whether the district

court failed to address a claim, and, where we determine that it did, to vacate the

judgment without prejudice and remand the case for consideration of the claim.

Dupree v. Warden, 715 F.3d 1295, 1299 (11th Cir. 2013).

      As the state concedes, the district court failed to address Cunningham’s

ineffective assistance of counsel claim pertaining to his counsel’s failure to redact

portions of a deposition transcript of an alibi witness, Mary Walters, that was read

at trial. Cunningham alleged in his petition that his trial counsel was ineffective by

failing to adequately and fairly present an alibi defense that he advised the jury he

was going to present. One of the reasons that Cunningham proffered—and that

would individually satisfy a claim for ineffective assistance of counsel—was that

his counsel failed to redact portions of a deposition transcript that was read at trial,

which resulted in the introduction of collateral act evidence that resulted in his

conviction.

      However, neither the state in its response to Cunningham’s petition for

habeas corpus, nor the district court, in its order, addressed this matter. Indeed, the

district court did not even mention that Cunningham raised the issue, despite

Cunningham’s claim being raised in clear and simple language, such that the

district court may not misunderstand it or fail to resolve it. See id. (“A habeas


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petitioner must present a claim in clear and simple language such that the district

court may not misunderstand it.”). Accordingly, we vacate the denial of his

petition, and remand the case for further proceedings.2

       VACATED and REMANDED.




       2
          The state also contends that the district court would lack jurisdiction to resolve
Cunningham’s claim because he did not exhaust state court remedies in regard to that claim.
However, we do not need to resolve the state’s contention. Because our role is to determine
whether the district court failed to address a claim, and, where we determine that it did, to vacate
the judgment without prejudice and remand the case for consideration of the claim, Dupree, 715
F.3d at 1299, we do not need to determine whether the underlying claim is meritorious, and thus,
we leave it to the district court to determine in the first instance whether it has jurisdiction over
this claim.
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