Stephen Mayer v. USA, No. 21-10493 (11th Cir. 2022)
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USCA11 Case: 21-10493 Document: 43-1 Date Filed: 12/29/2022 Page: 1 of 4 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-10493 Non-Argument Calendar ____________________ STEPHEN MAYER, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:18-cv-01960-SCB-AEP ____________________ USCA11 Case: 21-10493 2 Document: 43-1 Date Filed: 12/29/2022 Opinion of the Court Page: 2 of 4 21-10493 Before WILSON, LUCK, and BLACK, Circuit Judges. PER CURIAM: Stephen Mayer—a federal prisoner serving a 135-month total sentence imposed following his conviction of several counts of wire fraud and conspiracy to commit wire fraud—appeals, pro se, the denial of his 28 U.S.C. § 2255 motion. A Certificate of Appealability (COA) was granted as to three issues: (1) whether the district court violated Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc) by failing to address Mayer’s claim his trial counsel acted ineffectively by failing to challenge his indictment on the basis it was brought under a vindictive prosecution; (2) whether the district court violated Clisby by failing to address Mayer’s claim his trial counsel acted ineffectively by failing to properly impeach a certain witness, Rose Medina; and (3) whether the district court erred in determining Mayer’s trial counsel did not provide ineffective assistance because its analysis was based upon an erroneous application of Franks v. Delaware, 438 U.S. 154 (1978). After review, 1 we vacate and remand. This Court has expressed “deep concern over the piecemeal litigation of federal habeas petitions” and instructed district courts to resolve all claims for relief in habeas corpus and § 2255 petitions. 1 We review de novo the legal question of whether the district court violated the rule in Clisby by failing to address a claim. Dupree v. Warden, 715 F.3d 1295, 1299-1300 (11th Cir. 2013). USCA11 Case: 21-10493 21-10493 Document: 43-1 Date Filed: 12/29/2022 Opinion of the Court Page: 3 of 4 3 See Clisby, 960 F.2d at 935-36 (addressing 28 U.S.C. § 2254 petitions); see also Rhode v. United States, 583 F.3d 1289, 1291 (11th Cir. 2009) (applying Clisby in a § 2255 proceeding). In Clisby, we held that, if the district court fails to consider a claim raised by a movant on collateral review, we would vacate the district court’s decision without prejudice and remand the case to allow the district court to consider the claim. Clisby, 960 F.2d at 938. Movants “must present a claim in clear and simple language such that the district court may not misunderstand it.” Dupree v. Warden, 715 F.3d 1295, 1299 (11th Cir. 2013). No Clisby error occurs when a movant fails to clearly present the claim to a district court. Barritt v. Sec’y, Fla. Dep’t of Corr., 968 F.3d 1246, 1251 (11th Cir. 2020). The district court violated Clisby by failing to address Mayer’s ineffective-assistance claims regarding his counsel’s failure to move to dismiss the indictment as a vindictive prosecution and regarding his counsel’s failure to properly impeach Medina. Mayer fairly presented those claims to the district court. See Dupree, 715 F.3d at 1299. In its order, the district court did not address these claims. Thus, as the Government concedes, the district court did not resolve the claims, in violation of Clisby. See Clisby, 960 F.2d at 935-36. As the Government further concedes, we may not, after finding a Clisby issue, analyze the merits of these claims. See id. at 938. Instead, the proper resolution of such an appeal is to vacate the district court’s decision without prejudice and remand for further consideration by the district court. Id. We also conclude that to address the merits of Mayer’s Franks claim would contravene USCA11 Case: 21-10493 4 Document: 43-1 Date Filed: 12/29/2022 Opinion of the Court Page: 4 of 4 21-10493 the considerations behind Clisby and engage in the sort of piecemeal litigation which Clisby sought to prevent. See id. at 936-38. Finally, we deny Mayer’s request for remand to a different district court judge, as he has not shown the extraordinary circumstances that would justify such a remedy nor anything that undermines our assumption that the district court can put its views aside in determining the remainder of this case. See United States v. Gupta, 572 F.3d 878, 891 (11th Cir. 2009) (“Reassignment is an extraordinary order, and we do not order it lightly.” (quotation marks and alteration omitted)). Accordingly, we vacate the denial of Mayer’s § 2255 motion without prejudice and remand for further proceedings. 2 VACATED WITHOUT PREJUDICE AND REMANDED FOR FURTHER PROCEEDINGS. 2 We DENY Mayer’s “Motion to Take Judicial Notice” and “Second Motion to Supplement this Appeal” as moot.
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