Ulises Cao v. USA, No. 11-11810 (11th Cir. 2012)

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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 11-11810 Non-Argument Calendar ________________________ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT JANUARY 26, 2012 JOHN LEY CLERK D.C. Docket Nos. 1:10-cv-21488-KMM, 1:08-cr-20228-KMM-1 ULISES CAO, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. __________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (January 26, 2012) Before TJOFLAT, BARKETT and ANDERSON, Circuit Judges. PER CURIAM: The Government properly concedes that, in denying petitioner s motion to vacate filed pursuant to 28 U.S.C. § 2255, the district erroneously disregarded Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en banc), when it failed to address petitioner s claim that he was denied his Fifth Amendment right to due process of law because the Government knowingly presented a witness s perjured testimony. The district court s judgement is accordingly vacated and the case is remanded with the instruction that the district court address the merits of that claim. VACATED and REMANDED. 2

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