Jose R. Chevez v. Florida Department of Corrections

Eleventh Circuit

Jose R. Chevez v. Florida Department of Corrections

440 F. App'x 842

CourtCourt of Appeals for the Eleventh Circuit

DecidedSeptember 14, 2011

Docket11-10012

StatusUnpublished

This text of 440 F. App'x 842 (Jose R. Chevez v. Florida Department of Corrections) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Jose R. Chevez v. Florida Department of Corrections, 440 F. App'x 842 (11th Cir. 2011).

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Opinion

*843 PER CURIAM:

Jose R. Chevez, a Florida state prisoner proceeding pro se, appeals the district court’s denial of his 28 U.S.C. § 2254 federal habeas petition. We granted a certificate of appealability as to whether the district court violated Clisby v. Jones, 960 F.2d 925, 936 (11th Cir.1992) (en banc), by misinterpreting and failing to address Che-vez’s claim that his appellate counsel was ineffective for failing to appeal the denial of his motion for a mistrial.

We review a district court’s denial of habeas relief de novo. Gamble v. Sec’y, Florida Dep’t of Corr., 450 F.3d 1245, 1247 (11th Cir.2006). The scope of review is limited to the issue specified in the COA. See Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir.1998) (addressing a motion to vacate filed under 28 U.S.C. § 2255).

In Clisby v, Jones, we held that when a district court fails to address all claims in a habeas petition, we will vacate without prejudice and remand thé case for consideration of all remaining claims. 960 F.2d at 938. We have defined a “claim for relief’ as “any allegation of a constitutional violation.” Id. at 936. In Griffin v. California, the Supreme Court declared that the Fifth Amendment “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965).

Upon review of the record, and after consideration of the parties’ briefs on appeal, we vacate and remand. As the state concedes, the district court violated Clisby by misinterpreting and failing to address Chevez’s claim that counsel was ineffective for failing to appeal the denial of his motion for a mistrial. Accordingly, we vacate the district court’s judgment, without prejudice, and remand to the district court for consideration of this claim.

VACATED AND REMANDED.

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*843 PER CURIAM:

Jose R. Chevez, a Florida state prisoner proceeding pro se, appeals the district court’s denial of his 28 U.S.C. § 2254 federal habeas petition. We granted a certificate of appealability as to whether the district court violated Clisby v. Jones, 960 F.2d 925, 936 (11th Cir.1992) (en banc), by misinterpreting and failing to address Che-vez’s claim that his appellate counsel was ineffective for failing to appeal the denial of his motion for a mistrial.

We review a district court’s denial of habeas relief de novo. Gamble v. Sec’y, Florida Dep’t of Corr., 450 F.3d 1245, 1247 (11th Cir.2006). The scope of review is limited to the issue specified in the COA. See Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir.1998) (addressing a motion to vacate filed under 28 U.S.C. § 2255).

In Clisby v, Jones, we held that when a district court fails to address all claims in a habeas petition, we will vacate without prejudice and remand thé case for consideration of all remaining claims. 960 F.2d at 938. We have defined a “claim for relief’ as “any allegation of a constitutional violation.” Id. at 936. In Griffin v. California, the Supreme Court declared that the Fifth Amendment “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965).

Upon review of the record, and after consideration of the parties’ briefs on appeal, we vacate and remand. As the state concedes, the district court violated Clisby by misinterpreting and failing to address Chevez’s claim that counsel was ineffective for failing to appeal the denial of his motion for a mistrial. Accordingly, we vacate the district court’s judgment, without prejudice, and remand to the district court for consideration of this claim.

VACATED AND REMANDED.

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