              Case: 13-14209    Date Filed: 07/13/2015   Page: 1 of 4




                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-14209
                            Non-Argument Calendar
                          ________________________

          D.C. Docket Nos. 9:12-cv-80340-KLR; 9:11-cr-80012-KLR-1


THOMAS BURGESS,

                                                              Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                             Respondent-Appellee.
                          ________________________

                  Appeals from the United States District Court
                      for the Southern District of Florida
                         ________________________

                                  (July 13, 2015)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Thomas Burgess, a federal prisoner proceeding pro se, appeals the district

court’s denial, following an evidentiary hearing, of his 28 U.S.C. § 2255 motion to
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vacate his conviction and 125-month sentence for possession with intent to

distribute cocaine. After review, we vacate and remand for further consideration

consistent with this opinion. 1

       In Clisby v. Jones, this Court instructed district courts to resolve all claims

for relief raised in a petition for writ of habeas corpus prior to granting or denying

relief. 960 F.2d 925, 936 (11th Cir. 1992) (en banc) (involving state prisoner’s 28

U.S.C. § 2254 petition); see Rhode v. United States, 583 F.3d 1289, 1291-92 (11th

Cir. 2009) (applying Clisby to a federal prisoner’s § 2255 motion). If the district

court does not address all claims prior to issuing judgment, this Court “will vacate

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

consideration of all remaining claims.” Clisby, 960 F.2d at 938.

       Burgess argues, and the government concedes, that the district court failed to

address a number of ineffective-assistance-of-counsel claims raised in his

counseled amended § 2255 motion filed on May 10, 2013. We agree that the

district court failed to address Burgess’s constitutional claims that trial counsel

       1
          We recognize that the certificate of appealability (“COA”) in this case—granted on
whether the district court violated Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc), by
failing to address several “federal constitutional claims” raised by Burgess—does not expressly
identify the constitutional claims for which Burgess has satisfied the standard of making “a
substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2), (c)(3);
Spencer v. United States, 773 F.3d 1132, 1137-38 (11th Cir. 2014) (en banc). However, the
government has not raised the issue of a potentially defective COA. Although we could sua
sponte raise the defective COA issue, we exercise our discretion not to do so because, under the
totality of the circumstances of this particular case, the COA sufficiently indicates that Burgess
made a substantial showing of the denial of a constitutional right with the claims raised in his
May 2013 amended § 2255 motion.
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rendered ineffective assistance in failing to (1) advise Burgess that he could plead

guilty without a plea agreement (“Ground I.E”), (2) research and advise Burgess

about the Fair Sentencing Act of 2010 (“Ground I.G”), (3) object to the

presentence investigation report’s assessing criminal history points for two prior

offenses for which Burgess was “never lawfully arrested” (“Ground I.L”), and

(4) argue at sentencing that Burgess’s criminal history category overrepresented

the seriousness of his criminal history (“Ground IV”).

      As to the first two claims listed above, the government argues that the

district court considered the claims “indirectly” because the court addressed the

factual bases supporting these claims in resolving other claims. However, even

assuming that the district court made some findings arguably relevant to these

claims, the district court never identified these as claims raised by Burgess,

resolved the ultimate issue of whether counsel was ineffective, or otherwise

disposed of the claims on timeliness or other procedural grounds.

      The government also contends that the Clisby violation was “harmless”

because the unaddressed claims were “patently without merit.” We decline the

government’s invitation to consider the merits of the unaddressed claims. Under

Clisby, our role is to vacate the judgment “without prejudice” and remand to the

district court for consideration of the unaddressed claims in the first instance. See




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Clisby, 960 F.2d at 938 (noting that we will vacate and remand “whenever the

district court has not resolved all such claims” (emphasis added)).

       Accordingly, we vacate the judgment without prejudice and remand this case

for further proceedings consistent with this opinion, including, but not limited to, a

consideration of the timeliness of the unaddressed claims under the Antiterrorism

and Effective Death Penalty Act of 1996. We express no opinion as to the merits,

or the timeliness, of the unaddressed claims. 2

       VACATED AND REMANDED.




       2
         Burgess filed his initial § 2255 motion pro se, but the district court appointed him
counsel when it granted him an evidentiary hearing. Burgess moved to discharge his counsel on
appeal, and this Court granted the motion. That is how he became pro se on appeal.
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