[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
No. 09-13822 ELEVENTH CIRCUIT
MAY 27, 2010
D. C. Docket Nos. 07-90017-CV-HL-5,[End Page 04-00035 CR-HL]
KRANSTON DESHAWN MOULTRIE,
UNITED STATES OF AMERICA,
Appeal from the United States District Court for the Middle District of Georgia
(May 27, 2010)
Before DUBINA, Chief Judge, CARNES and MARCUS, Circuit Judges.
Appellant Kranston DeShawn Moultrie, appearing pro se, appeals the
district court's denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct
his sentence. Moultrie is serving a 188-month sentence for possession with the
intent to distribute cocaine in violation of 21 U.S.C. § 841. We granted a
Certificate of Appealability ("COA") for the following issues: (1) "Whether
counsel provided ineffective assistance when he failed to investigate Moultrie's
criminal history before Moultrie entered a guilty plea"; and (2) "Whether the
district court failed to address all of the ineffective-assistance-of-trial-counsel
claims raised in Moultrie's 28 U.S.C. § 2255 motion, in violation of Clisby v.
Jones, 960 F.2d 925
, 936 (11th Cir. 1992)."
I. Whether counsel provided ineffective assistance when he failed to
investigate Moultrie's criminal history before Moultrie entered a guilty
On appeal, Moultrie asserts that he was prejudiced by his counsel's failure to
investigate his criminal history, and he maintains that both the district court and the
government concede this point. Moultrie then addresses the first prong under
Strickland v. Washington, 466 U.S. 668
, 104 S. Ct. 2052
(1984), arguing that his
counsel was inadequate because he had sufficient evidence to believe that Moultrie
would be classified as a career offender, but his counsel relied only on the Pretrial
Services Report ("PSR") without any other investigation for this information. In
[End Page 2]
short, Moultrie argues that his counsel's failure to investigate was not a tactical
decision, but rather, deficient representation.
The scope of review is limited to the issues specified in the COA. Murray v.
United States, 145 F.3d 1249
, 1250-51 (11th Cir. 1998). With regard to a district
court's denial of a motion to vacate under 28 U.S.C. § 2255, we review legal
conclusions de novo and findings of fact for clear error. Lynn v. United States, 365 F.3d 1225
, 1232 (11th Cir. 2004). An ineffective assistance of counsel claim is a
mixed question of law and fact that is subject to de novo review. Caderno v.
United States, 256 F.3d 1213
, 1216-1217 (11th Cir. 2001). "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, 148 F.3d 1262
1263 (11th Cir. 1998).
The Sixth Amendment gives criminal defendants the right to effective
assistance of counsel. U.S. Const., amend. VI; Strickland, 466 U.S. at 684-85, 104
S. Ct. at 2063. To prevail on a claim of ineffective assistance of counsel, the
defendant must demonstrate (1) that his counsel's performance was deficient, i.e.,
the performance fell below an objective standard of reasonableness, and (2) that he
suffered prejudice as a result of that deficient performance. Strickland, 466 U.S. at
687-88, 104 S. Ct. at 2064-65. We need not "address both components of the
[End Page 3]
inquiry if the defendant makes an insufficient showing on one." Id. at 697, 104 S.
Ct. at 2069. To meet the deficient performance prong of the Strickland test, the
defendant must show that counsel made errors so serious that he was not
functioning as the counsel guaranteed by the Sixth Amendment. Id. at 687, 104 S.
Ct. at 2064. There is a strong presumption that counsel's conduct fell within the
range of reasonable professional assistance. Id. at 689, 104 S. Ct. at 2065.
The Strickland two-part test applies to challenges to guilty pleas based on
ineffective assistance of counsel. See United States v. Pease, 240 F.3d 938
(11th Cir. 2001) (citation omitted); see also Hill v. Lockhart, 474 U.S. 52
, 60, 106,
S. Ct. 366, 371 (1985) (holding that petitioner failed to allege the type of prejudice
required by Strickland because petitioner did not allege in his habeas petition that,
had his counsel been effective in advising him, he would have pleaded not guilty
and insisted on proceeding to trial). In Pease, we held that a defense attorney's
failure to inform his client that he would be sentenced as a career offender, because
counsel relied on his client's representations about his criminal history and did not
conduct an independent investigation of his client's criminal records, did not
necessarily constitute deficient performance under the first prong of Strickland.
See Pease, 240 F.3d at 941-42. "Rather, a determination of whether reliance on a
client's statement of his own criminal history constitutes deficient performance
[End Page 4]
depends on the peculiar facts and circumstances of each case." Id. at 942. In
Pease, defense counsel relied on his client's recollection of his criminal history,
but the client did not relay that he had a prior conviction for resisting arrest with
violence. Id. at 941 n.3. Under those circumstances, we held that the district court
did not err in rejecting Pease's claim that his attorney provided ineffective
assistance. Id. at 942.
Here, as in Pease, Jenkins discussed Moultrie's criminal history with him,
but Moultrie neglected to correct Jenkins's misunderstanding that Moultrie's
criminal history was composed only of minor offenses. In light of the foregoing,
Moultrie cannot establish that Jenkins's performance was deficient.
II. Whether the district court failed to address all of the
ineffective-assistance-of-trial-counsel claims raised in Moultrie's 28
U.S.C. § 2255 motion, in violation of Clisby v. Jones, 960 F.2d 925
(11th Cir. 1992)
Next, Moultrie argues that the district court failed to address, in violation of
Clisby v. Jones, (1) whether his counsel was ineffective for failing to apply the
career offender enhancement in determining Moultrie's prospective sentence if he
accepted the plea agreement, and (2) whether his counsel was ineffective by failing
to ascertain whether Moultrie fully understood the consequences of his sentence
appeal waiver. Moultrie's arguments focus on the reasons why his counsel was
ineffective, rather than the district court's disposition of those claims.
[End Page 5]
Additionally, Moultrie argues that his sentence appeal waiver is unenforceable
under the U.S. Constitution due to his counsel's ineffective assistance.
In Clisby v. Jones, we expressed concern over the number of habeas cases
that we had to remand for consideration of issues that the district court had not
resolved, and we instructed district courts to resolve all claims presented in a
habeas petition, regardless of whether the district court granted relief. See Clisby,
960 F.2d at 935-36; see also Rhode v. United States, 583 F.3d 1289
, 1291 (11th
Cir. 2009) (per curiam) (holding that Clisby applies to motions to vacate under 28
U.S.C. § 2255). A "claim for relief" is defined as "any allegation of a
constitutional violation." Clisby, 960 F.2d at 936. "[A]n allegation of one
constitutional violation and an allegation of another constitutional violation
constitute two distinct claims for relief, even if both allegations arise from the same
alleged set of operative facts." Id. If a district court fails to address all of the
claims in a habeas petition, we "will vacate the district court's judgment without
prejudice and remand the case for consideration of all remaining claims." Id. at
At the outset, we note that Moultrie has abandoned any challenge under
Clisby, that the district court failed to address whether his counsel failed to conduct
a good-faith investigation of Moultrie's criminal history. "Issues not clearly raised
[End Page 6]
in the briefs are considered abandoned." See Marek v. Singletary, 62 F.3d 1295
1298 n.2 (11th Cir. 1995) (declining to address issues raised in petition under 28
U.S.C. § 2254 that were not raised in initial brief on appeal). With respect to the
other two ineffective-assistance-of-trial-counsel claims regarding his career
offender enhancement and the sentence appeal waiver, while both the magistrate
and the district court treated Moultrie's arguments as different articulations of the
same underlying issue, their analysis was consistent with Clisby because they
nonetheless addressed all of the alleged constitutional violations. Accordingly, for
the above-stated reasons, we affirm the district court's order denying Moultrie's 28
U.S.C. § 2255 motion to vacate, set aside or correct his sentence.
[End Page 7]