Craig Allen Hipp v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 19, 2018
• Docket: 17-13858
• Status: Unpublished

Opinion

Case: 17-13858 Date Filed: 10/19/2018 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-13858 Non-Argument Calendar ________________________

D.C. Docket Nos. 9:16-cv-81392-DTKH, 9:14-cr-80081-DTKH-4

CRAIG ALLEN HIPP,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

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

(October 19, 2018)

Before ROSENBAUM, NEWSOM, and JULIE CARNES, Circuit Judges.

PER CURIAM: Case: 17-13858 Date Filed: 10/19/2018 Page: 2 of 3

Craig Hipp, a federal prisoner proceeding pro se, appeals from the district

court’s denial of his 28 U.S.C. § 2255 motion to vacate and motion for

reconsideration. We issued a certificate of appealability (“COA”) as to whether

the district court misconstrued the claim asserted in ground two of his § 2255

motion alleging ineffective assistance of counsel, or violated Clisby v. Jones, 960

F.2d 925 (11th Cir. 1992) (en banc), by failing to properly address that claim.

In ground two of his § 2255 motion, Hipp asserted that his counsel was

ineffective for failing to move for a continuance pending the effective date of

Amendments 792 and 794 to the Sentencing Guidelines. In denying Hipp’s § 2255

motion, the district court addressed Hipp’s arguments relating to Amendment 794,

but it did not reference Amendment 792. Hipp now argues, and the government

agrees, that the court failed to resolve his ineffective-assistance claim relating to

Amendment 792, and thereby violated the rule of Clisby. 1

District courts must resolve all claims for relief raised in a motion to vacate

pursuant to § 2255, regardless of whether habeas relief is granted or denied. See

Clisby, 960 F.2d at 936 (addressing § 2254 petitions); see Rhode v. United States,

583 F.3d 1289, 1291 (11th Cir. 2009) (extending Clisby to § 2255 motions). A

claim for relief is “any allegation of a constitutional violation.” Clisby, 960 F.2d at

1 We do not address Hipp’s other challenges to the denial of his 28 U.S.C. § 2255 motion because they are outside the scope of the COA. See McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011) (“[T]he scope of our review of an unsuccessful § 2255 motion is limited to the issues enumerated in the COA.”). 2 Case: 17-13858 Date Filed: 10/19/2018 Page: 3 of 3

936. A defendant alleges a constitutional violation, and therefore a claim for relief,

when he alleges that counsel provided ineffective assistance in violation of his

Sixth Amendment rights. See Strickland v. Washington, 466 U.S. 668, 685–86

(1984).

We cannot consider claims that the district court has not resolved in the first

instance. See Clisby, 960 F.2d at 935 (“[R]espondent urged us to consider the

ineffective assistance claims not addressed by the district court. This we clearly

cannot do.”). Instead, when a district court fails to address all claims 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.” Id. at 938.

Here, we agree with Hipp and the government that the district court violated

Clisby by failing to address his ineffective-assistance claim based on counsel’s

failure to move for a continuance pending the effective date of Amendment 792.

The court addressed that same argument as it related to Amendment 794,

concluding that Hipp could not establish prejudice, but the court’s reasoning on

that issue does not apply to Amendment 792, and the court did not otherwise

reference that amendment. Accordingly, as both parties request, we vacate the

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

of Hipp’s claim relating to Amendment 792. See id.

VACATED AND REMANDED.