                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                              FILED
                    FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                             U.S.
                     ________________________ ELEVENTH CIRCUIT
                                                       SEPTEMBER 9, 2010
                            No. 09-14689                   JOHN LEY
                        Non-Argument Calendar                CLERK
                      ________________________

               D. C. Docket No. 08-01485-CV-RDP-PWG

LUTHER ALLEN SMITH,


                                                        Petitioner-Appellant,

                                 versus

GARY HETZEL,
ATTORNEY GENERAL OF ALABAMA,

                                                     Respondents-Appellees.


                      ________________________

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

                          (September 9, 2010)

Before BARKETT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      Luther Allen Smith, an Alabama state prisoner proceeding pro se, appeals

the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. We

granted Smith’s motion for a certificate of appealability (“COA”) on the following

issue only:

      Whether the district court violated Clisby v. Jones, 960 F.2d 925, 936
      (11th Cir. 1992), when it: (1) failed to address Smith’s claim that
      counsel provided ineffective assistance with respect to the state’s
      failure to prove the seven elements of capital murder; and (2) failed to
      address his claim that appellate counsel provided ineffective
      assistance when he failed to raise in a motion for a new trial the two
      non-procedurally-defaulted ineffective assistance claims raised in
      Smith’s 28 U.S. C. § 2254 petition.

      On appeal, Smith argues that the district court did violate Clisby as stated in

the COA. Defendants respond that Smith’s claim that trial counsel was ineffective

for failing to argue that the state failed to prove the seven elements of capital

murder “was effectively resolved by the district court’s decision, even if not

technically addressed.” Defendants also assert that it is unnecessary to remand

Smith’s claim that appellate counsel was ineffective because “the district court

already indirectly resolved the issue by finding that none of the claims of

ineffective assistance of trial counsel were meritorious.” Finally, Defendants

contend that, regardless, it is unnecessary to remand because Smith’s claim is

meritless.



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      We “review de novo the district court’s denial of habeas relief under 28

U.S.C. § 2254.” Gamble v. Sec’y, Dep’t of Corr., 450 F.3d 1245, 1247 (11th Cir.

2006). Out of “deep concern over the piecemeal litigation of federal habeas

petitions,” we, in Clisby, exercised our supervisory authority over the district

courts and instructed them to resolve all claims for relief raised in a petition for

habeas corpus relief, regardless of whether habeas relief is granted or denied. 960

F.2d at 935-36. When a district court fails to resolve all of the claims 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.

      Upon review of the record and the parties’ briefs, we discern reversible

error. Smith alleged two constitutional violations of his right to effective

assistance of counsel, as he claimed that his trial counsel was ineffective for

failing to argue that the state failed to prove the seven elements of capital murder

and that his appellate counsel was ineffective for failing to allege ineffective

assistance of trial counsel in a motion for new trial. The district court adopted the

magistrate judge’s report after de novo review of the record, but the magistrate

judge failed to mention, consider, or rule on those two claims. Contrary to

Defendants claims, the district court’s decision did not indirectly resolve these

claims. Moreover, the merits of Smith’s claims are irrelevant when considering

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whether the district court resolved Smith’s claims under Clisby. See id. at 935-36.

      Because the record shows that the district court failed to address or resolve

Smith’s claims that: (1) his trial counsel was ineffective for failing to argue that

the state failed to prove the seven elements of capital murder; and (2) his appellate

counsel was ineffective for failing to raise ineffective assistance of trial counsel

claims in a motion for a new trial, the district court’s judgment violated Clisby.

Thus, we vacate the judgment without prejudice and remand for the district court

to resolve these claims.

      VACATED AND REMANDED.




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