                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-10194                ELEVENTH CIRCUIT
                                   Non-Argument Calendar              MARCH 16, 2011
                                 ________________________               JOHN LEY
                                                                         CLERK
                           D.C. Docket No. 1:96-cr-00161-CC-JED-2

TAM TRAN NGUYEN,

lllllllllllllllllllll                                          Petitioner-Appellant,

                                            versus

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                          Respondent-Appellee.

                                ________________________

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

                                       (March 16, 2011)

Before EDMONDSON, PRYOR and FAY, Circuit Judges.

PER CURIAM:

         Tam Tran Nguyen, a federal prisoner proceeding pro se, appeals the district
court’s order denying his motion to vacate sentence, 28 U.S.C. § 2255. We

granted a certificate of appealability with respect to the following issues:

      (1) Whether the district court erred in denying Nguyen's 28 U.S.C.
      § 2255 motion based on a finding that the § 2255 motion was
      untimely?

      (2) Whether the district court erred in denying Nguyen's 28 U.S.C.
      § 2255 motion based on a finding that the claims raised in the § 2255
      motion were procedurally defaulted?

      (3) Whether the district court erred, pursuant to Clisby v. Jones,
      960 F.2d 925, 935-36 (11th Cir. 1992) (en banc), by not addressing
      all of Nguyen's claims raised in his 28 U.S.C. § 2255 motion?

      (4) Whether the district court erred when it failed to provide a
      specific basis for appellate review under Broadwater v. United States,
      292 F.3d 1302, 1304-05 (11th Cir. 2002)?

For the reasons stated below, we vacate the district court’s order denying

Nguyen’s § 2255 motion and remand for further proceedings.

                                          I.

      In 1998, Nguyen was convicted following a jury trial of: (1) operating an

interstate racketeering enterprise, in violation of the Racketeering Influenced and

Corrupt Organizations Act, 18 U.S.C. § 1962(c) (Count 1); (2) conspiring to

operate an interstate racketeering enterprise, in violation of 18 U.S.C. § 1962(d)

(Count 2); and (3) Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2

(Count 28). The district court sentenced Nguyen to concurrent life sentences for

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Counts 1 and 2. We affirmed Nguyen’s convictions on direct appeal, but vacated

his sentences. United States v. Nguyen, 255 F.3d 1335 (11th Cir. 2001).

      On remand, the district court resentenced Nguyen to a total term of 720

months’ imprisonment. Nguyen appealed for a second time, and we affirmed his

sentences on December 27, 2002. United States v. Nguyen, 55 Fed.Appx. 900

(11th Cir. 2002). On March 24, 2003, less than 90 days later, Nguyen filed a

petition for a writ of certiorari with the United States Supreme Court. The

Supreme Court denied Nguyen’s petition for certiorari on May 5, 2003. Nguyen

v. United States, 538 U.S. 1022, 123 S.Ct. 1951, 155 L.Ed.2d 866 (2003).

      Nguyen filed his pro se § 2255 motion on April 12, 2004. His motion

raised a total of nine claims, some of which involved substantive issues and some

of which were claims of ineffective assistance of counsel. Among other things,

Nguyen asserted that his appellate counsel rendered ineffective assistance by

failing to raise the substantive issues presented in his § 2255 motion on direct

appeal. The government moved to dismiss Nguyen’s § 2255 motion, contending

that the motion was untimely and that Nguyen’s substantive claims were

procedurally defaulted because he failed to raise them on direct appeal.

      The district court denied Nguyen’s § 2255 motion. First, the court

concluded that all of Nguyen’s claims were barred by the applicable one-year

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statute of limitations. Next, the court determined that Nguyen’s substantive claims

were procedurally barred because Nguyen had failed to raise those claims on

direct appeal, and had not shown cause or prejudice to excuse the procedural

default. The court did not elaborate further on the basis for its decision. Nguyen

filed a motion to alter or amend the judgment, which the district court denied.

                                          II.

      A district court’s interpretation and application of a statute of limitations is

a legal determination that we review de novo. Washington v. United States, 243

F.3d 1299, 1300 (11th Cir. 2001). The Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”) established a one-year statute of limitations for filing a

§ 2255 motion, which begins to run on the latest of four triggering dates, the one

relevant to this appeal being “the date on which the judgment of conviction

becomes final.” 28 U.S.C. § 2255(f)(1). If a prisoner files a petition for a writ of

certiorari with the Supreme Court following his direct appeal, his conviction

becomes final when the Supreme Court either denies certiorari or issues a

decision on the merits. Washington, 243 F.3d at 1300-01. Otherwise, the

conviction becomes final after the 90-day time period for filing a petition for

certiorari expires. Clay v. United States, 537 U.S. 522, 532, 123 S.Ct. 1072,

1079, 155 L.Ed.2d 88 (2003); Kaufmann v. United States, 282 F.3d 1336, 1339

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(11th Cir. 2002).

      In this case, Nguyen filed a timely petition for certiorari on March 24, 2003.

The Supreme Court denied certiorari on May 5, 2003, so Nguyen’s conviction

became final on that date. See Washington, 243 F.3d at 1300-01. Nguyen filed

his § 2255 motion on April 12, 2004, before the one-year statute of limitations had

run. See 28 U.S.C. § 2255(f). Therefore, the district court erred in concluding that

Nguyen’s § 2255 motion was untimely.

                                         III.

       “When reviewing the district court’s denial of a § 2255 motion, we review

findings of fact for clear error and questions of law de novo.” Rhode v. United

States, 583 F.3d 1289, 1290 (11th Cir. 2009). A prisoner who fails to raise an

issue on direct appeal is procedurally barred from raising that claim in a § 2255

motion, absent a showing of cause and prejudice or a fundamental miscarriage of

justice. United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000). A claim

of ineffective assistance of counsel may satisfy the cause exception to a procedural

bar, but only if the claim has merit. Id. An ineffective assistance claim has merit

if “the arguments the defendant alleges his counsel failed to raise were significant

enough to have affected the outcome of his appeal.” Id.

      In ruling on a § 2255 motion, the district court must set forth enough

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analysis to provide a sufficient basis for appellate review. Broadwater, 292 F.3d

at 1303-04. In a simple case where it is plain from the record that the prisoner is

not entitled to any relief, a mere summary denial may be adequate. Id. at 1303.

Where, however, there may be some merit to the prisoner’s claims if supported by

the record, the district court must set forth findings of fact or conclusions of law

explaining why it has rejected those claims. Id. at 1303-04.

      In this case, the district court observed that Nguyen “has failed to establish

cause and prejudice,” but the court did not explain how it reached that conclusion.

Although Nguyen did not raise his substantive claims on direct appeal, he asserted

that he was unable to do so because his appellate counsel provided him with

ineffective assistance. If Nguyen’s ineffective assistance claim is meritorious, it

would provide cause to excuse the procedural default. See Nyhuis, 211 F.3d at

1344. Although Nguyen’s ineffective assistance claim ultimately may be

unsuccessful, it does not appear to be completely lacking in merit on its face. It is

not clear from the district court’s order whether the court considered Nguyen’s

claim that his appellate counsel was ineffective, and, if so, why it concluded that

the claim was meritless. Because the record does not provide a sufficient basis to

review the district court’s determination that Nguyen had failed to show cause and

prejudice, we must vacate the district court’s order and remand for further

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findings. See Broadwater, 292 F.3d at 1303-04.

                                         IV.

      As noted above, in considering the district court’s denial of a § 2255

motion, we review questions of law de novo. Rhode, 583 F.3d at 1290. In Clisby,

we explained that district courts must resolve all claims for relief presented in a

petition for a writ of habeas corpus, regardless of whether habeas relief is granted

or denied. Clisby, 960 F.2d at 935-36. When the district court fails to do so, we

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

for consideration of all remaining claims.” Id. at 938. Although Clisby involved a

state prisoner’s application for a writ of habeas corpus under 28 U.S.C. § 2254, its

holding also is applicable to § 2255 motions filed by federal prisoners. Rhode,

583 F.3d at 1291.

      In this case, the district court concluded that all of Nguyen’s claims were

untimely, and that his substantive claims were procedurally barred. Because the

district court resolved all of the claims raised by Nguyen, no Clisby violation

occurred. See Clisby, 960 F.2d at 935-36. Nevertheless, as described above, the

district court erred in concluding that Nguyen’s claims were untimely, and failed to

explain its conclusion that his substantive claims were procedurally defaulted.




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Accordingly, we vacate the district court’s order and remand so that the district court

may (1) address the merits of Nguyen’s ineffective assistance claims, and (2) further

explain its conclusion that Nguyen cannot show cause or prejudice to excuse the

procedural default of his substantive claims.

      VACATED AND REMANDED.




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