                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT            FILED
                       ________________________ U.S. COURT  OF APPEALS
                                                       ELEVENTH CIRCUIT
                                                          JUNE 11, 2010
                             No. 09-12261
                                                           JOHN LEY
                         Non-Argument Calendar
                                                            CLERK
                       ________________________

                   D. C. Docket No. 05-00079-CV-WLS-1


THEODORE H. DAHN, IV,


                                                         Petitioner-Appellant,

                                 versus

JAMES L. LANIER,
Warden,

                                                       Respondent-Appellee.


                       ________________________

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

                             (June 11, 2010)

Before EDMONDSON, BLACK and PRYOR, Circuit Judges.
PER CURIAM:



      Georgia state prisoner Theodore H. Dahn, IV, proceeding pro se, appeals the

district court’s denial of habeas relief sought pursuant to 28 U.S.C. 2254. As more

fully explained below, we vacate without prejudice and remand for further

proceedings.

      Dahn was convicted of child molestation, aggravated child molestation, and

aggravated battery. In his section 2254 petition, Dahn challenged his conviction

on multiple grounds, including claims of ineffective assistance of counsel. In a

supplement to his section 2254 petition, Dahn raised additional ineffective

assistance of counsel claims; and in a “brief in support of amended position for

writ of habeas corpus” (“Amended Petition”), Dahn raised yet additional

ineffective assistance of counsel claims. After the district court granted Dahn’s

motion for appointment of counsel, a counseled brief in support of Dahn’s section

2254 petition was filed that raised, among other things, ineffective assistance of

counsel claims.

      A magistrate judge issued a report and recommendation (“R&R”)

recommending that habeas relief be denied. The magistrate judge concluded that

no claim of merit had been shown but failed to address the ineffective assistance



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claims set out in the Amended Petition. Counsel filed an objection to the R&R, but

counsel failed to object to the R&R’s failure to address the Amended Petition

claims. The district court adopted the R&R, also failed to address the Amended

Petition claims, and denied habeas relief.

      We granted a certificate of appealability (“COA”) on a single issue: whether

the district court erred under Clisby v. Jones, 960 F.2d 925, 935-36 (11 th Cir.

1992), in failing to address the ineffective assistance of trial counsel claims alleged

by Dahn in his Amended Petition.

      In Clisby, we exercised our supervisory authority to direct district courts to

resolve all constitutional claims presented in a section 2254 petition without regard

to whether habeas relief ultimately is granted or denied. Id. When a district court

fails to address all constitutional claims presented in a habeas petition, we “will

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

consideration of all remaining claims.” Id. at 938.

      The State makes no argument that the district court addressed the ineffective

assistance of counsel claims raised in the Amended Petition and concedes that

remand is required. The States notes that Dahn -- both pro se and through counsel

-- neglected to object to the district court’s omission; the district court never was

put on notice that these claims remained unaddressed. But no argument is made



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that the absence of objection excuses the Clisby violation.

       Because the district court’s order violated Clisby when it omitted

consideration of all of Dahn’s pending constitutional claims, we vacate without

prejudice and remand for further proceedings to consider the unaddressed

ineffective assistance of counsel claims raised in the Amended Petition.*

       VACATED AND REMANDED.




       *
        To the extent Dahn seeks to argue the substantive merits of his ineffective assistance
claims on appeal, his arguments are beyond the scope of the COA; we decline to consider them.

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