[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                       FILED
                         ________________________           U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                  January 2, 2008
                                No. 07-11806                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                  D. C. Docket No. 05-00854-CV-MHT-CSC

CLARENCE CLAY,



                                                              Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                             Respondent-Appellee.


                          ________________________

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

                               (January 2, 2008)

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

     Clarence Clay, a federal prisoner proceeding pro se, appeals the district
court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his

sentence. We granted a certificate of appealability (“COA”) on the following

issues: “(1) Whether appellant raised a claim during the 28 U.S.C. § 2255 motion

proceedings that his sentence violated United States v. Booker, 

, 

(2005); and (2) If so, whether the district court violated Clisby v. Jones,

, 936 (11th Cir. 1992) (en banc) by failing to address appellant’s

substantive Booker claim.” Clay, pro se, argues that the record shows he

repeatedly made substantive Booker arguments in the § 2255 motion proceedings

before the district court. Clay also argues that, because the district court did not

address his Booker claim, it violated Clisby.

      In a 28 U.S.C. § 2255 proceeding, we review a district court’s legal

conclusions de novo and factual findings for clear error. Lynn v. United States,

, 1232 (11th Cir. 2004). “Pro se pleadings are held to a less

stringent standard than pleadings drafted by attorneys and will, therefore, be

liberally construed.” Tannenbaum v. United States, 

, 1263 (11th

Cir. 1998). We have held that “it is well established that the standards governing

the sufficiency of habeas corpus petitions are less stringent when the petition is

drafted pro se and without the aid of counsel.” Holsomback v. White, 

, 1386 (11th Cir. 1998) (citation omitted).



                                           2
      In 

, 125 S.Ct. at 756-57, the Supreme Court held that

the mandatory sentencing guidelines violated the Sixth Amendment right to a trial

by jury to the extent they permited a judge to increase a defendant’s sentence based

on facts that are neither found by a jury nor admitted by the defendant. The

Supreme Court’s holding in Booker is not retroactively applicable to cases on

collateral review. Varela v. United States, 

, 868 (11th Cir.), cert.

denied, 

(2005). However, Booker does apply to all cases on direct

review. 

, 125 S.Ct. at 769.

      The Supreme Court decided Booker on January 12, 2005. Id., 

,

, while Clay’s case was on direct appeal until February 28, 2005, the

date the Supreme Court denied his petition for writ of certiorari. Clay v. United

States, 

, 

(2005). Therefore, Clay’s case had not

become final before the Supreme Court decided Booker. Teague v. Lane, 

, 295, 

, 1067 (1989) (defining “final” as meaning a case “where

the judgment of conviction was rendered, the availability of appeal exhausted, and

the time for petition for certiorari had elapsed.” (internal quotations omitted)).

Booker, then, would apply to Clay’s case. See 

, 125 S.Ct.

at 769.




                                           3
       Although this is a close call, given Clay’s pro se status we conclude that he

sufficiently raised a substantive Booker argument during the 28 U.S.C. § 2255

motion proceedings to require a ruling by the district court on it. The tipping

factor to us is the fact that the government’s response to Clay’s § 2255 motion

specifically acknowledged that “Clay also raises whether his sentence is proper

under United States v. Booker, 540 U.S. [220], 

(2005),” and argued

against that the Booker claim failed on the merits.

       Because Clay raised a Booker claim, the district court should have addressed

it. Cf. Clisby v. Jones, 

, 936 (11th Cir. 1992) (en banc) (section 2254

case) (“[W]e now exercise our supervisory power over the district courts . . . and

instruct the district courts to resolve all claims for relief raised in a petition for

writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1988), regardless whether

habeas relief is granted or denied.”). A § 2255 motion may not be denied without

some ruling on each of the claims it raises any more than one could be denied

without a ruling on any of the claims it raises.

       The order denying the motion is VACATED and the case is REMANDED to

the district court with instructions that it address the Booker claim.1




       1
         We will not address any other claim that Clay raises on appeal. See Murray v. United
States, 

, 1250-51 (11th Cir. 1998).

                                               4