                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 07-14856                ELEVENTH CIRCUIT
                                                          DECEMBER 22, 2008
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                  D. C. Docket Nos. 07-00242-CV-CG-1,
                            04-00227-CR-CG

TERRY RAY REED,



                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                      _________________________

                            (December 22, 2008)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      Federal prisoner Terry Ray Reed, with counsel, appeals the district court’s

denial of his pro se 28 U.S.C. § 2255 motion to vacate, set aside, or correct his

sentence. We granted a certificate of appealability on the following issues:

(1) whether, in light of Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en

banc), the district court was required to address all of the claims in Reed’s § 2255

motion to vacate, and (2) if so, whether it failed to address Reed’s claim that the

Government breached the plea agreement by failing to recommend a sentence at

the low end of the guideline range. Reed argues—and the Government concedes—

Clisby applies to his § 2255 motion, and the district court violated Clisby.

      We review the district court’s legal conclusions in a § 2255 proceeding de

novo and its factual findings for clear error. Devine v. United States, 520 F.3d

1286, 1287 (11th Cir. 2008).

      In Clisby, out of “deep concern over the piecemeal litigation of federal

habeas petitions filed by state prisoners,” we exercised our supervisory authority

over the district courts and instructed them to resolve all constitutional claims for

relief raised in § 2254 habeas corpus petitions, regardless of whether habeas relief

was granted or denied. 960 F.2d at 935–36. We noted “the obligation of federal

courts to consider the important interests of comity and finality implicated in

federal habeas review of state convictions and sentences.” Id. at 935. Thus, we



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

consideration of all remaining claims whenever the district court has not resolved

all such claims.” Id. at 938.

       This Court has not addressed in a published opinion whether the rule

announced in Clisby barring piecemeal litigation applies to § 2255 motions to

vacate. This Court has held, however, the legal principles developed in § 2254

proceedings generally apply to § 2255 motions to vacate. Gay v. United States,

816 F.2d 614, 616 n.1 (11th Cir. 1987). Furthermore, the Government concedes

Clisby applies. Thus, we hold Clisby applies to Reed’s § 2255 motion, and the

district court was required to address all of the constitutional claims Reed raised in

his motion to vacate.

       Having concluded Clisby applies to Reed’s § 2255 motion, we next must

determine if the district court violated Clisby by failing to address Reed’s claim

that the Government breached the plea agreement by failing to recommend a

sentence at the low end of the guideline range. There are three elements of a

Clisby violation: (1) the appellant raised a claim (2) that affected constitutional

rights, and (3) the district court failed to address this claim. See Clisby, 960 F.2d at

936.




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      Reed’s memorandum in support of his § 2255 motion expressly raised the

issue of whether the Government breached the plea agreement by failing to

recommend a sentence at the low end of the guideline range. Furthermore, this

claim implicated Reed's constitutional rights because this Court has held the breach

of a plea agreement is a violation of the Due Process Clause of the Fifth

Amendment. See United States v. Harvey, 869 F.2d 1439, 1443–44 (11th Cir.

1989) (en banc). Finally, the district court did not address this claim in its order

denying Reed’s motion to vacate. Accordingly, as the Government concedes, the

district court failed to comply with the requirements of Clisby.

       Thus, we vacate, without prejudice, the district court’s order denying Reed

habeas relief, and remand his remaining claim for consideration by the district

court. After ruling on the merits of Reed’s claim, the district court shall also

determine whether to grant a certificate of appealability. See Callahan v.

Campbell, 396 F.3d 1287, 1289 (11th Cir. 2005). We retain jurisdiction over the

appeal, pending the district court’s decision. Id.

      VACATED AND REMANDED.




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