                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              June 14, 2006
                             No. 04-13341                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                            D. C. Docket Nos.
                           03-00093-CV-WLS-7
                            01-00014-CR-WLS

WILLIAM MCKEITHEN,



                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

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

                              (June 14, 2006)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      In November 2001, petitioner William McKeithen was convicted by a

Middle District of Georgia jury for distributing more than five grams of a mixture

and substance containing a detectable amount of cocaine base, i.e., “crack,” in

December 2000, in violation of 21 U.S.C. § 841(a)(1). In February 2002, the

district court sentenced him to a prison term of 95 months. He appealed his

conviction (but not his sentence), and we affirmed. United States v. McKeithan,

No. 02-11212 (September 13, 2002) (unpublished).

      On August 22, 2003, petitioner moved the district court to vacate his

conviction on four grounds of ineffective assistance of counsel. One of the

grounds was that counsel failed to challenge the constitutionality of convictions the

court purportedly used to enhance his sentence under 21 U.S.C. § 851. The court

referred the motion to a magistrate judge, who recommended that the motion be

denied. The court followed the recommendation and denied relief. The court also

denied petitioner’s application for a certificate of appealability (“COA”). We

thereafter issued a COA for this issue:

             Whether the district court erred by failing to address
             [petitioner’s] claim that he received ineffective assistance
             of counsel based on counsel’s failure to challenge the
             district court’s alleged use of several invalid prior
             convictions to enhance his sentence in the instant case.
             See Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992)
             (holding that the district court must resolve all claims for
             relief raised in a habeas petition, regardless of whether

                                          2
               habeas relief is granted or denied).

       The district court did err. In disposing of petitioner’s ineffective assistance

claim, the court explicitly rejected three of the four grounds the claim raised but

omitted any mention of the fourth ground, the one cited in the COA. This was

error; as noted in the COA, Clisby v. Jones requires the district court to dispose of

all of a petitioner’s claims. The error, however, is harmless.

       The presentence report (“PSI”), which the district court relied upon in

sentencing petitioner, indicated that petitioner was subject to a mandatory prison

term of five years, with a maximum term of 40 years. See 21 U.S.C. §

841(b)(1)(B)(iii). According to the PSI, § 841(b)(1)(B)(iii) was not implicated in

petitioner’s case because petition had not previously been convicted of a felony

drug offense. The PSI recited that petitioner had been convicted of murder, a

conviction that clearly was not constitutionally infirm,1 and that conviction

generated a criminal history category of II – the category the court used in

fashioning petitioner’s sentence. That category coupled with a total offense level

of 28 yielded a Guidelines sentence range of 87 to 108 months of imprisonment.


       1
          In February 1990, petitioner was charged in the Dade County, Florida circuit court with
murder in the second degree. Represented by an attorney, he pled guilty to murder in the third
degree, and on July 6, 1990, the court sentenced him to prison for a term of 17 years. He was
released from prison on June 1, 1998. The record conclusively refutes petitioner’s (albeit
implicit) claim that this conviction was invalid because he was denied the representation of
counsel.

                                                3
In sum, petitioner’s attorney could not have rendered ineffective assistance by not

objecting to his prior convictions on the ground that they were obtained in

violation of his right to counsel because none of those convictions – save the valid

murder conviction – were used to enhance his sentence.

      AFFIRMED.




                                          4
