Case: 14-12271   Date Filed: 05/08/2015   Page: 1 of 8


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-12271
                         Non-Argument Calendar
                       ________________________

     D.C. Docket Nos. 4:11-cv-00411-RH-CAS; 4:09-cr-00026-RH-CAS-1



VINCENT VIDAL MITCHELL,
                                                           Petitioner-Appellant,


                                   versus


UNITED STATES OF AMERICA,
                                                         Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________


                               (May 8, 2015)


Before HULL, JORDAN, and JILL PRYOR, Circuit Judges.

PER CURIAM:
              Case: 14-12271     Date Filed: 05/08/2015   Page: 2 of 8


      Vincent Mitchell, a federal prisoner, pro se appeals the denial of his 28

U.S.C. § 2255 motion to vacate challenging his convictions and sentence.

                                 I. BACKGROUND

A.    Conviction and Sentence

      On July 24, 2009, Mitchell pled guilty to: (1) distributing more than five

grams of a mixture and substance containing cocaine base, 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B)(iii), and 841(b)(1)(C); (2) being a convicted felon in possession of a

firearm, 18 U.S.C. §§ 922(g) and 924(e); and (3) possessing a firearm in

connection with drug trafficking, 

On April 15, 2010, the

district court sentenced Mitchell to a total of 240 months’ imprisonment.

      On direct appeal, Mitchell’s counsel filed a brief pursuant to Anders v.

California, 

, 

(1967). This Court’s review revealed no

arguable issues of merit, and thus this Court granted counsel’s motion to withdraw

and affirmed Mitchell’s convictions and sentence. United States v. Mitchell, 406

F. App’x 453 (11th Cir. 2010).

B.    Present § 2255 Motion to Vacate

      On August 17, 2011, Mitchell pro se filed the present § 2255 motion to

vacate. Mitchell enumerated several grounds on which he claimed he was being

held in violation of the Constitution or federal laws, most of which related to

Mitchell’s health at the time he agreed to the plea. Mitchell suffered from kidney


                                          2
                Case: 14-12271       Date Filed: 05/08/2015       Page: 3 of 8


failure and alleges that his sickness, in combination with extensive medication,

undermined his ability to work with, and understand, his counsel.

       Among the allegations, Mitchell claimed that his counsel was ineffective for

failing to challenge the drug quantity amount. Specifically, Mitchell alleged that

he would not have pleaded guilty to a larger drug quantity than he actually

possessed but for: (1) his medicated state, and (2) counsel’s advice that “there was

a new law coming out that would free [him] from the access charges.” Mitchell

attached a two-page conclusion to his § 2255 form. In this conclusion, he

reiterated that his “[c]ounsel advised that based on the new laws Petitioner would

not serve much time[,] so [counsel] insisted that I accept the plea.”

       Separately, on August 29, 2012, Mitchell filed a supplement to his § 2255

motion to vacate. Within this supplement, Mitchell wrote: “[m]ovant preserves his

issue pending the Supreme Court’s consideration of Abbott v. United States . . . .” 1

       Mitchell’s § 2255 motion was assigned to a magistrate judge. On April 8,

2014, the magistrate judge issued a report and recommendation (“R&R”) that

recommended denying the § 2255 motion on the merits. The R&R did not address

Mitchell’s claim that his decision to plead guilty was based on counsel’s advice

that he would not serve “much time” based on “new laws.” Nor did the R&R


       1
        

, 

(2010). In Abbott, the Supreme Court ultimately held that a
sentence for possessing a firearm in furtherance of a drug-trafficking crime must be served
consecutively to the sentences for separate counts of conviction. 

131 S. Ct. at 23.
                                                3
                 Case: 14-12271    Date Filed: 05/08/2015   Page: 4 of 8


address whether the Supreme Court’s decision in Abbott impacted Mitchell’s

§ 2255 motion. Further, the magistrate judge recommended denying Mitchell a

certificate of appealability (“COA”).

         Mitchell raised objections to the R&R, but did not specifically argue that the

magistrate judge failed to address his ineffective-assistance claim based on the

advice that, under new laws, Mitchell would not serve much time.

         On May 9, 2014, the district court adopted the R&R (with the exception of

one portion not relevant to this appeal) and denied Mitchell’s § 2255 motion. The

district court also denied Mitchell’s application for a COA and motion for leave to

proceed on appeal in forma pauperis (“IFP”).

         Mitchell timely appealed the denial of his § 2255 motion. He then filed

motions to proceed IFP and for a COA with this Court.

C.       Certificate of Appealability

         On November 3, 2014, a judge of this Court granted a COA on the following

issue:

               Whether the district court’s failure to address Mitchell’s
               claim, that his trial attorney provided ineffective
               assistance of counsel by advising him to plead guilty
               because he would have his sentence retroactively reduced
               pursuant to the Fair Sentencing Act of 2010, Pub. L. No.
               111-220, 124 Stat. 2372, or a pending U.S. Supreme
               Court case related to the application of 18 U.S.C.
               § 924(c)(1)(A)(i), violated this Court’s holding in Clisby
               v. Jones, 

, 938 (11th Cir. 1992) (en banc).


                                            4
                Case: 14-12271      Date Filed: 05/08/2015      Page: 5 of 8


                                    II. DISCUSSION

A.     The Clisby Rule

       The Clisby rule in our Circuit requires district courts to resolve all claims for

relief raised in habeas proceedings, regardless of whether that relief is granted or

denied. 

(involving a 28 U.S.C. § 2254 petition filed by

a state prisoner); see Rhode v. United States, 

, 1291 (11th Cir. 2009)

(holding that Clisby applies to § 2255 proceedings). 2 When a district court does

not address all of the claims presented in a motion to vacate, we “will vacate the

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

of all remaining claims.” 

.

       A “claim for relief” is defined as “any allegation of a constitutional

violation.” 

Ineffective assistance of counsel constitutes a violation of a

defendant’s Sixth Amendment rights, and is thus a claim of a constitutional

violation. See Strickland v. Washington, 

, 684-86, 

,

2063-64 (1984).

       An unresolved claim constitutes a Clisby error regardless of the reason the

claim was not resolved. Puiatti v. McNeil, 

, 1307 (11th Cir. 2010).

But a claim must be raised in a way that the district court cannot misunderstand it

       2
        We review only the issues specified in the COA. Murray v. United States, 

, 1250-51 (11th Cir. 1998). Pro se pleadings are held to a less stringent standard than
pleadings drafted by attorneys, and thus we construe Mitchell’s pleadings liberally. Tannenbaum
v. United States, 

, 1263 (11th Cir. 1998).
                                              5
               Case: 14-12271     Date Filed: 05/08/2015    Page: 6 of 8


in order for the district court to resolve it. Smith v. Sec’y, Dep’t of Corrs., 

, 1352 (11th Cir. 2009). In Smith, this Court held that a petitioner failed

to fairly present a legal argument to the district court when that argument was

mentioned in only one sentence of a 116-page habeas petition, without citing any

authority, and was not mentioned in a 123-page supporting memorandum of law.

v. Warden, 

, 1299 (11th Cir. 2013), however, this

Court held that “two sentences found in the middle of a fifteen-page memorandum

attached to [a § 2254] petition” sufficiently raised an ineffective-assistance-of-

counsel claim. Because the district court did not resolve the claim, this Court

vacated and remanded as a violation of the Clisby rule. 

the record here, we conclude that Mitchell adequately

presented the ineffective-assistance-of-counsel claim contained in the COA. On

his § 2255 form, he twice claimed that counsel advised him that he would not serve

“much time” based on “new laws.” Mitchell’s § 2255 motion was not lengthy,

consisting of four short paragraphs within the form’s pages and a two-page typed

conclusion. Within these pages, he made the “new laws” claim twice and,

whatever its merit, Mitchell raised the claim in a way that the district court could

understand it. So, too, with his clear mention of the potential pending effect of

Abbott v. United States. Mitchell’s petition is far closer to the one at issue in




                                           6
                Case: 14-12271    Date Filed: 05/08/2015    Page: 7 of 8


Dupree than the one at issue in Smith. See 

; 

.

      Because the district court failed to address his claim that counsel was

ineffective for advising him to plead guilty based on new laws that would reduce

the amount of time Mitchell may serve, it violated Clisby. 

-

36.

B.    Failure to Object

      Before concluding, we address one additional point on which Dupree is

instructive. In Dupree, as in this case, before the district court denied the motion to

vacate, “[t]he magistrate judge did not address the claim, and [petitioner] did not

object to the magistrate judge's failure to address the 

. At

that time, a habeas petitioner’s failure to object to a magistrate judge’s failure to

address legal issues did not foreclose a party’s ability to seek de novo review on

appeal. 

      In Dupree, however, this Court proposed that our Circuit “adopt a rule for

civil cases that attaches consequences to the failure to object to either factual

findings or legal conclusions in a magistrate judge’s report and recommendation.”

Accordingly, this Court adopted a new rule, which took effect on

December 1, 2014, stating:

             A party failing to object to a magistrate judge’s findings
             or recommendations contained in a report and
                                           7
              Case: 14-12271     Date Filed: 05/08/2015    Page: 8 of 8


             recommendation in accordance with the provisions of
             28 U.S.C. § 636(b)(1) waives the right to challenge on
             appeal the district court’s order based on unobjected-to
             factual and legal conclusions if the party was informed of
             the time period for objecting and the consequences on
             appeal for failing to object. In the absence of a proper
             objection, however, the court may review on appeal for
             plain error if necessary in the interests of justice.

11th Cir. R. 3-1. Additionally, our procedural rules require that the notice given to

the parties of the consequences of failing to object to a magistrate judge’s factual

and legal conclusions should accompany the R&R. 11th Cir. R. 3-1, IOP 3.

      Under our current rule, Mitchell would have waived his current objection to

the district court’s final order, and we would not need to address the Clisby error.

11th Cir. R. 3-1. But this R&R was issued in April 2014, well before the adoption

of the new rule, and Mitchell was not given notice that he needed to object to legal

issues in the R&R in order to preserve those issues on appeal. Thus, Mitchell’s

failure to object on the specific grounds covered by the COA here does not

foreclose his ability to seek de novo review. See 

-1300.

                                III. CONCLUSION

      Upon careful review of the parties’ briefs and the record on appeal, we

vacate the denial of Mitchell’s § 2255 motion and remand this case to the district

court to address Mitchell’s ineffective-assistance-of-counsel claim.

      VACATED AND REMANDED.



                                          8