Darryl Burke v. United States

Opinion

USCA11 Case: 21-14152 Document: 47-1 Date Filed: 09/19/2023 Page: 1 of 3

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 21-14152 Non-Argument Calendar ____________________

DARRYL BURKE, Petitioner-Appellant, versus UNITED STATES OF AMERICA,

Respondent-Appellee.

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Appeal from the United States District Court for the Southern District of Florida D.C. Docket Nos. 1:17-cv-22629-JIC, 1:13-cr-20616-JIC-1 USCA11 Case: 21-14152 Document: 47-1 Date Filed: 09/19/2023 Page: 2 of 3

2 Opinion of the Court 21-14152

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Before WILSON, JORDAN, and BRANCH, Circuit Judges. PER CURIAM: Darryl Burke, a federal prisoner pro se,1 appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his sentence. He argues that the district court violated Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc), by not fully addressing his claim that his sentencing counsel’s failure to investigate and subpoena rele- vant records was unconstitutionally ineffective. After careful re- view, we affirm.2 We review de novo whether a district court violated Clisby by failing to address a claim. Dupree v. Warden, 715 F.3d 1295, 1299– 1300 (11th Cir. 2013). In Clisby, we directed district courts to re- solve all claims for relief raised in a habeas petition, regardless of whether habeas relief is granted or denied. 960 F.2d at 935–36. Un- der Clisby, this court’s only role is to determine whether the district court failed to address a claim, not whether the underlying claim is

1 We liberally construe pro se filings, including pro se applications for relief

under § 2255. Winthrop-Redin v. United States, 767 F.3d 1210, 1215 (11th Cir. 2014). 2 Burke’s brief addresses several issues that we did not grant a certificate of

appealability (COA) for. Thus, we need not address those issues as they are beyond the scope of the COA. Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998) (per curiam) (“[I]n an appeal brought by an unsuccessful ha- beas petitioner, appellate review is limited to the issues specified in the COA.”). USCA11 Case: 21-14152 Document: 47-1 Date Filed: 09/19/2023 Page: 3 of 3

21-14152 Opinion of the Court 3

meritorious. Dupree, 715 F.3d at 1299. A habeas petitioner must present a claim in clear and simple language such that the district court may not misunderstand it. Id. In his § 2255 motion, Burke argued that if not for his coun- sel’s ineffectiveness, he could have shown that a co-conspirator had acquired a mortgage before she met Burke. In its order § 2255 mo- tion, the district court explicitly addressed this claim and concluded that Burke had failed to show prejudice. See Clisby, 960 F.2d at 935– 36. Thus, there was no Clisby error.3 AFFIRMED.

3 Burke argues that the district court erred in not finding prejudice because his

counsel failed to obtain documents about his co-conspirator paying off her mortgage. But he does not argue that the district court erred in not consider- ing that specific claim. Even if he did make that argument, Burke did not ad- equately present that claim in his § 2255 motion such that the district court could not misunderstand it. See Barritt v. Sec’y, Fla. Dep’t of Corr., 968 F.3d 1246, 1251 (11th Cir. 2020).