                                                                [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT                          FILED
                                                                  U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                                                        JULY 31, 2009
                                                                     THOMAS K. KAHN
                                      No. 06-15823                         CLERK



                     D. C. Docket No. 06-01137 CV-T-27-TGW

WILLIAM BATTLE, JR.,

                                                        Petitioner-Appellant,

                                          versus

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

                                                        Respondents-Appellees.



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


                                     (July 31, 2009)


Before DUBINA, Chief Judge, TJOFLAT, Circuit Judge, and WALTER,* District
Judge.


       *
        Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.
PER CURIAM:

       William Battle, Jr., a pro se Florida prisoner serving a ten-year sentence

pursuant to a guilty plea to possession of cocaine and possession of a firearm by a

convicted felon, on a certificate of appealability (“COA”), appeals the district

court’s denial of his federal habeas petition. He contends that his sentence

violated Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). We vacate and

remand.

                                     I. BACKGROUND

       Battle was convicted in February 2004 of possession of cocaine and

possession of a firearm by a convicted felon in Florida state court. In June 2006,

Battle filed a federal habeas petition pursuant to 28 U.S.C. § 2254.1 He asserted

that his conviction and sentence were unconstitutional under Blakely.

Specifically, Battle argued that his conviction, after a guilty plea, violated Blakely

because he had not admitted to being in actual or constructive possession of a

firearm, which improperly enhanced his offense in violation of his Sixth

Amendment right to trial by jury. Battle further argued that, based on this non-


       1
        Because Battle filed his petition after the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d), the provisions of that act apply.


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jury finding, to which he did not admit, the state court increased his maximum

penalty in violation of Apprendi. Battle concluded that his conviction violated

Apprendi and Blakely because the finding of whether he possessed a firearm

changed his offense from a misdemeanor to a felony.

      The district court sua sponte dismissed Battle’s petition. The court

determined that Battle had sought relief only on the issue of whether his

conviction and sentence were constitutional under Blakely. The district court

noted that Battle’s conviction had become final on March 10, 2004. The court

recognized that Blakely reaffirmed the holding in Apprendi that “any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530

U.S. at 490, 120 S. Ct. at 2362-63. The court concluded that, because Blakely did

not apply retroactively on collateral review Battle had failed to present a

cognizable claim under § 2254 and denied his claim.

      Battle moved for rehearing and argued that the district court had failed to

consider his Apprendi claim. While Battle’s conviction was final in 2004, the

Supreme Court had decided Apprendi in 2000. Therefore, he argued that Apprendi

did not have the same retroactivity implications as Blakely.




                                          3
      The district court denied Battle’s motion for rehearing. The court initially

construed Battle’s motion as a motion for reconsideration, filed pursuant to

Federal Rule of Civil Procedure 59(e), because Battle filed his motion within ten

days of the dismissal order. The court dismissed Battle’s habeas petition as time-

barred under 28 U.S.C. § 2244(d). The court determined that Battle had failed to

argue that there had been an intervening change in controlling law or that it was

imperative that the judgment be amended to correct a clear error relating to the

timeliness of Battle’s petition. The court further concluded that Battle had failed

to present convincing facts or law concerning why it should reverse its

determination that Battle’s petition was time-barred.

      Battle filed a notice of appeal, which the district court construed as an

application for a COA, and denied it. We granted a COA on two issues:

      Whether the district court erred in denying appellant’s motion for
      rehearing, construed as a tolling Fed. R. Civ. P. 59(e) motion, based
      on a conclusion that it had dismissed appellant’s 28 U.S.C. § 2254 as
      time-barred when the district court actually denied the § 2254 petition
      based on a retroactivity analysis.

      Whether the district court failed to address appellant’s argument in
      his 28 U.S.C. § 2254 petition that his sentence was unconstitutional
      under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.
      Ed. 2d 435 (2000), in violation of Clisby v. Jones, 960 F.2d 925, 936
      (11th Cir. 1992).

We now address both issues.

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                                 II. DISCUSSION

A. Denial of the Motion for Rehearing


      Battle argues that his petition was not time-barred and that he timely filed

his petition at the conclusion of his state habeas proceedings. Battle asserts that

the district court erred by finding that his petition was time-barred because the

court had dismissed it on retroactivity grounds.

      The district court erred by denying Battle’s construed Rule 59(e) motion

based on an erroneous finding that it had dismissed Battle’s § 2254 petition as

time-barred and that Battle had not demonstrated that such an analysis was

incorrect. The court actually denied Battle’s § 2254 petition based on its

conclusion that Blakely did not apply retroactively to his convictions and

sentences and not because Battle’s petition was untimely. Consequently, the

district court’s order denying the construed Rule 59(e) motion inaccurately stated

the reasons for its denial of the underlying order dismissing the § 2254 petition.

      Additionally, the district court did not have all of the information before it

to determine whether the petition was timely. Battle’s § 2254 petition did not

specify the dates that his state post-conviction motion was filed or denied, and he

did not attach the relevant state documents as exhibits. Because this was a sua



                                          5
sponte dismissal, the state had not responded or filed the record of the state

proceedings. Significantly, the district court did not give Battle the opportunity to

respond to the limitations periods or to offer an equitable tolling argument. We

reject the state’s suggestion that we should affirm on the alternate ground of

retroactivity, because the retroactivity analysis is flawed. Accordingly, we vacate

the district court’s order denying Battle’s motion for reconsideration.

B. Unconstitutional Arguments Relating to Sentence

      Battle argues that the district court violated Clisby v. Jones, 960 F.2d 925

(11th Cir. 1992) (en banc), because the court failed to consider his Apprendi

claim. He claims that, construing his petition liberally, he preserved his Apprendi

argument, and the district court should have addressed it under Clisby.

      We review an appeal from a district court’s denial of a petition for writ of

habeas corpus de novo. Nelson v. Schofeld, 371 F.3d 768, 769 (11th Cir. 2004)

(per curiam). In Clisby, we expressed concern over the “growing number of cases

in which we are forced to remand for consideration of issues the district court

chose not to resolve.” Clisby, 960 F.2d at 935-36. We acknowledged the

disruptive effect that such “piecemeal litigation” has on a state’s criminal justice

system and reasoned that its federal habeas corpus procedures should be designed

to minimize such disruption. Id. at 935. Accordingly, in an effort to streamline

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habeas corpus procedure, we instructed district courts to resolve all claims raised

in § 2254 petitions, regardless of whether relief is ultimately denied. We further

ensured compliance with this instruction by holding that, when the district court

does not address each claim raised, the judgment will be vacated and the case will

be remanded for further proceedings. Id. at 938. In determining whether a claim

has been raised adequately, we have determined that “[p]ro se pleadings are held

to a less stringent standard than pleadings drafted by attorneys and will, therefore,

be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th

Cir. 1998) (per curiam).

      In Apprendi, the Supreme Court held that, “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63. After examining the

state of Washington’s sentencing guidelines, the Supreme Court held in Blakely

that the imposition of a sentencing enhancement, based solely on the sentencing

judge’s factual findings, violated the defendant’s Sixth Amendment rights because

the facts supporting the findings neither were admitted by the defendant nor found

by a jury. Blakely, 542 U.S. at 304-05, 124 S. Ct. at 2537-38.




                                          7
      The state argues that the district court addressed Battle’s Apprendi claim

and that any Clisby error was harmless. The district court stated that Blakely

reaffirmed the Apprendi decision, and, therefore, incorporated any Apprendi claim

to a Blakely claim. Because Blakely clarified and extended Apprendi to state

sentencing guidelines, it generally would be possible to consider arguments under

these cases as being the same. The court denied the claim, however, on a basis

applicable only to Blakely, retroactivity, and decided that Battle’s state petition

was final a few months before the Supreme Court decided Blakely in 2004.

Because Apprendi was decided in 2000, the district court either did not address the

Apprendi claim with the retroactivity analysis or, if it did address the claim, it

erred. The COA question was not whether there was any error in this regard, but

rather whether the court failed to address the Apprendi claim. In the interest of

judicial economy, we conclude that the district court failed to consider the

Apprendi claim and to apply the Clisby analysis.

      The state also contends that we should not remand Battle’s case because,

even if the district court erred, Battle’s claims would have failed on the merits.

The state essentially urges us to apply a harmless-error analysis. Despite the

state’s argument, nothing in Clisby indicates that harmless-error analysis should




                                           8
apply when the district court has erred under Clisby. Although the respondent in

Clisby urged us to consider the claims not addressed by the district court, we

concluded that “[w]e c[ould] do no more than remand the case to the district court

to consider all remaining claims.” 960 F.2d at 935. Thus, the state’s argument is

unavailing, because, under Clisby, when a district court fails to address a

defendant’s claim, we will vacate the judgment without prejudice and remand with

instructions for the court to consider that claim. 960 F.2d at 938.

      We conclude that the district court erred by failing to address Battle’s

Apprendi claim. In Battle’s petition and in his motion for reconsideration, he

adequately raised the constitutional claim of whether his sentence violated

Apprendi. Under Clisby, we have required that district courts address all claims

raised in a § 2254 petition, regardless of whether relief will be denied ultimately.

960 F.2d at 935-36. The court failed to make any mention of Battle’s Apprendi

claim and denied his other claim based on a retroactivity analysis. Therefore,

because the court’s order violated Clisby by failing to address one of the claims

asserted in Battle’s § 2254 petition, we vacate the judgment without prejudice and

remand the remaining claim for consideration by the district court.

                               III. CONCLUSION




                                          9
      We hold that the district court erred when it dismissed Battle’s motion for

reconsideration of the denial of his § 2254 petition as time-barred, because it

denied Battle’s petition using a retroactivity analysis. We also hold that the

district court erred under Clisby by failing to address Battle’s Apprendi claim.

Accordingly, we vacate the district court’s orders and remand this case for further

proceedings consistent with this opinion.

      VACATED and REMANDED.




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