Bruce Cunningham v. Secretary, Florida Department of Corrections

Case: 17-13894 Date Filed: 08/05/2019 Page: 1 of 4

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-13894 Non-Argument Calendar ________________________

D.C. Docket No. 8:13-cv-02649-VMC-TGW

BRUCE CUNNINGHAM,

Petitioner-Appellant, versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents-Appellees. ________________________

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

(August 5, 2019) Before MARCUS, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:

Bruce Cunningham, a Florida prisoner proceeding pro se, appeals from the district court’s denial of his 28 U.S.C. § 2254 petition for habeas corpus relief. We granted a certificate of appealability (COA) to determine whether the district court violated Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc), by failing to address one of Cunningham’s claims alleging his counsel was ineffective, specifically, that his trial counsel was ineffective by failing to redact portions of a deposition he read at trial that introduced collateral act evidence. Cunningham contends the district court violated Clisby, and the State agrees. After review,1 we vacate and remand.

In Clisby, we held that when a district court fails to address every claim raised in a habeas petition, regardless of whether relief is granted or denied, we “will vacate the district court’s judgment without prejudice and remand the case for consideration of all remaining claims.” 960 F.2d at 936, 938. Under Clisby, a claim “is any allegation of a constitutional violation.” Id. at 936. Allegations of distinct constitutional violations constitute separate claims for relief, even if the allegations arise from the same operative facts. Id. Ineffective assistance of counsel constitutes a violation of a defendant’s Sixth Amendment rights, and thus, is a claim of a constitutional violation. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). Under Clisby, our only role is to determine whether the district court failed to address a claim, and, where we determine that it did, to vacate the judgment without prejudice and remand the case for consideration of the claim. Dupree v. Warden, 715 F.3d 1295, 1299 (11th Cir. 2013).

As the state concedes, the district court failed to address Cunningham’s ineffective assistance of counsel claim pertaining to his counsel’s failure to redact portions of a deposition transcript of an alibi witness, Mary Walters, that was read at trial. Cunningham alleged in his petition that his trial counsel was ineffective by failing to adequately and fairly present an alibi defense that he advised the jury he was going to present. One of the reasons that Cunningham proffered—and that would individually satisfy a claim for ineffective assistance of counsel—was that his counsel failed to redact portions of a deposition transcript that was read at trial, which resulted in the introduction of collateral act evidence that resulted in his conviction.

However, neither the state in its response to Cunningham’s petition for habeas corpus, nor the district court, in its order, addressed this matter. Indeed, the district court did not even mention that Cunningham raised the issue, despite Cunningham’s claim being raised in clear and simple language, such that the district court may not misunderstand it or fail to resolve it. See id. (“A habeas petitioner must present a claim in clear and simple language such that the district court may not misunderstand it.”). Accordingly, we vacate the denial of his petition, and remand the case for further proceedings.2

VACATED and REMANDED.