USCA11 Case: 19-13509 Date Filed: 07/15/2021 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-13509 Non-Argument Calendar ________________________
D.C. Docket Nos. 8:18-cv-00772-VMC-TGW, 8:15-cr-00177-VMC-TGW-1
LEVI STACKHOUSE,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(July 15, 2021)
Before JORDAN, GRANT, and ANDERSON, Circuit Judges. USCA11 Case: 19-13509 Date Filed: 07/15/2021 Page: 2 of 7
PER CURIAM:
Levi Stackhouse, a federal prisoner represented by counsel on appeal,
appeals the district court’s denial of his pro se 28 U.S.C. § 2255 motion to vacate
his sentence for being a felon in possession of a firearm. In his § 2255 motion,
Stackhouse argued that he should not have received a sentencing enhancement
under the Armed Career Criminal Act (“ACCA”) because his prior convictions for
New York manslaughter, Florida robbery, and two Florida controlled substance
offenses were not valid ACCA predicate offenses. He also argued that he had
received ineffective assistance of counsel because his counsel had failed to object
to his ACCA enhancement. Later, in his reply before the district court, Stackhouse
argued that one of his Florida drug convictions was not an ACCA predicate offense
because the state court’s written judgment stated that the conviction was for a
third-degree felony offense. We granted a certificate of appealability (“COA”) as
to the following issues:
(1) Whether Stackhouse’s Florida sale-of-cocaine conviction for conduct that occurred on April 22, 1987, qualifies as a “serious drug offense” under the ACCA.
(2) Whether counsel was ineffective for failing to object to Stackhouse’s armed career criminal designation.
Stackhouse raises two arguments on appeal. First, he argues that, because
state-court documents establish that at least one of his Florida drug offenses did not
qualify as a “serious drug offense” under the ACCA, his sentence exceeds the
2 USCA11 Case: 19-13509 Date Filed: 07/15/2021 Page: 3 of 7
ten-year statutory maximum that would otherwise apply to his felon-in-possession
conviction absent an ACCA enhancement. Second, he argues that his trial counsel
was ineffective for not challenging the ACCA enhancement.
When reviewing a district court’s denial of a § 2255 motion, we review
questions of law de novo and factual findings for clear error. Lynn v. United
States, 365 F.3d 1225, 1232 (11th Cir. 2004). We review de novo whether a prior
conviction is a “serious drug offense” within the meaning of the ACCA. United
States v. Robinson, 583 F.3d 1292, 1294 (11th Cir. 2009). 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, 1216-17 (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).
Under 28 U.S.C. § 2255, a prisoner in federal custody may file a motion to
vacate, set aside, or correct his sentence on the basis that “the sentence was
imposed in violation of the Constitution or laws of the United States.” 28 U.S.C.
§ 2255(a). There is a one-year statute of limitations for filing a § 2255 motion,
which begins to run on the latest of four triggering dates, including, in relevant
part, the date on which the judgment of conviction becomes final. Id. § 2255(f)(1).
3 USCA11 Case: 19-13509 Date Filed: 07/15/2021 Page: 4 of 7
A movant may not appeal the denial of his § 2255 motion “[u]nless a circuit
justice or judge issues a [COA].” Id. § 2253(c)(1)(B). We are limited to reviewing
the issues specified in the COA. Spencer v. Sec’y, Dep’t of Corr., 609 F.3d 1170,
1180 (11th Cir. 2010). However, we “construe the issue specification in light of
the pleadings and other parts of the record.” Murray v. United States, 145 F.3d
1249, 1251 (11th Cir. 1998). We have read a COA to encompass procedural issues
that were unaddressed by the district court but must be resolved before reaching
the merits of the issue specified in the COA. McCoy v. United States, 266 F.3d
1245, 1248 n.2 (11th Cir. 2001).
A § 2255 claim may be procedurally defaulted if the petitioner failed to
raise the claim on direct appeal. Jones v. United States, 153 F.3d 1305, 1307 (11th
Cir. 1998). A defendant can overcome this procedural bar by establishing either
(1) cause and prejudice or (2) actual innocence. Howard v. United States, 374 F.3d
1068, 1072 (11th Cir. 2004). Constitutionally ineffective assistance of counsel can
constitute cause for procedural default if the ineffective-assistance claim has merit.
Brown v. United States, 720 F.3d 1316, 1333 (11th Cir. 2013). To succeed on an
ineffective-assistance-of-counsel claim, a defendant has the burden of showing
(1) that his counsel’s performance was deficient; and (2) that the deficient
performance caused him prejudice. Strickland v. Washington, 466 U.S. 668, 687
(1984). Procedural default is not a jurisdictional issue, but rather an affirmative
4 USCA11 Case: 19-13509 Date Filed: 07/15/2021 Page: 5 of 7
defense that is subject to waiver by the government. Howard, 374 F.3d at 1073;
see also United States v. Jordan, 915 F.2d 622, 629 (11th Cir. 1990) (“[W]e need
not decide whether it would be appropriate to require [the movant] to demonstrate
cause and prejudice because the government did not assert in the district court that
[his] failure to present his claim on direct appeal should bar consideration of the
merits.” ).
In Clisby v. Jones, we directed district courts to resolve all claims for relief
raised in a habeas petition, regardless of whether habeas relief is granted or denied.
960 F.2d 925, 935-36 (11th Cir. 1992) (en banc) (addressing 28 U.S.C. § 2254
petitions); see also Rhode v. United States, 583 F.3d 1289, 1291 (11th Cir. 2009)
(applying Clisby to § 2255 motions). We stated that this rule was necessary
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USCA11 Case: 19-13509 Date Filed: 07/15/2021 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-13509 Non-Argument Calendar ________________________
D.C. Docket Nos. 8:18-cv-00772-VMC-TGW, 8:15-cr-00177-VMC-TGW-1
LEVI STACKHOUSE,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(July 15, 2021)
Before JORDAN, GRANT, and ANDERSON, Circuit Judges. USCA11 Case: 19-13509 Date Filed: 07/15/2021 Page: 2 of 7
PER CURIAM:
Levi Stackhouse, a federal prisoner represented by counsel on appeal,
appeals the district court’s denial of his pro se 28 U.S.C. § 2255 motion to vacate
his sentence for being a felon in possession of a firearm. In his § 2255 motion,
Stackhouse argued that he should not have received a sentencing enhancement
under the Armed Career Criminal Act (“ACCA”) because his prior convictions for
New York manslaughter, Florida robbery, and two Florida controlled substance
offenses were not valid ACCA predicate offenses. He also argued that he had
received ineffective assistance of counsel because his counsel had failed to object
to his ACCA enhancement. Later, in his reply before the district court, Stackhouse
argued that one of his Florida drug convictions was not an ACCA predicate offense
because the state court’s written judgment stated that the conviction was for a
third-degree felony offense. We granted a certificate of appealability (“COA”) as
to the following issues:
(1) Whether Stackhouse’s Florida sale-of-cocaine conviction for conduct that occurred on April 22, 1987, qualifies as a “serious drug offense” under the ACCA.
(2) Whether counsel was ineffective for failing to object to Stackhouse’s armed career criminal designation.
Stackhouse raises two arguments on appeal. First, he argues that, because
state-court documents establish that at least one of his Florida drug offenses did not
qualify as a “serious drug offense” under the ACCA, his sentence exceeds the
2 USCA11 Case: 19-13509 Date Filed: 07/15/2021 Page: 3 of 7
ten-year statutory maximum that would otherwise apply to his felon-in-possession
conviction absent an ACCA enhancement. Second, he argues that his trial counsel
was ineffective for not challenging the ACCA enhancement.
When reviewing a district court’s denial of a § 2255 motion, we review
questions of law de novo and factual findings for clear error. Lynn v. United
States, 365 F.3d 1225, 1232 (11th Cir. 2004). We review de novo whether a prior
conviction is a “serious drug offense” within the meaning of the ACCA. United
States v. Robinson, 583 F.3d 1292, 1294 (11th Cir. 2009). 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, 1216-17 (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).
Under 28 U.S.C. § 2255, a prisoner in federal custody may file a motion to
vacate, set aside, or correct his sentence on the basis that “the sentence was
imposed in violation of the Constitution or laws of the United States.” 28 U.S.C.
§ 2255(a). There is a one-year statute of limitations for filing a § 2255 motion,
which begins to run on the latest of four triggering dates, including, in relevant
part, the date on which the judgment of conviction becomes final. Id. § 2255(f)(1).
3 USCA11 Case: 19-13509 Date Filed: 07/15/2021 Page: 4 of 7
A movant may not appeal the denial of his § 2255 motion “[u]nless a circuit
justice or judge issues a [COA].” Id. § 2253(c)(1)(B). We are limited to reviewing
the issues specified in the COA. Spencer v. Sec’y, Dep’t of Corr., 609 F.3d 1170,
1180 (11th Cir. 2010). However, we “construe the issue specification in light of
the pleadings and other parts of the record.” Murray v. United States, 145 F.3d
1249, 1251 (11th Cir. 1998). We have read a COA to encompass procedural issues
that were unaddressed by the district court but must be resolved before reaching
the merits of the issue specified in the COA. McCoy v. United States, 266 F.3d
1245, 1248 n.2 (11th Cir. 2001).
A § 2255 claim may be procedurally defaulted if the petitioner failed to
raise the claim on direct appeal. Jones v. United States, 153 F.3d 1305, 1307 (11th
Cir. 1998). A defendant can overcome this procedural bar by establishing either
(1) cause and prejudice or (2) actual innocence. Howard v. United States, 374 F.3d
1068, 1072 (11th Cir. 2004). Constitutionally ineffective assistance of counsel can
constitute cause for procedural default if the ineffective-assistance claim has merit.
Brown v. United States, 720 F.3d 1316, 1333 (11th Cir. 2013). To succeed on an
ineffective-assistance-of-counsel claim, a defendant has the burden of showing
(1) that his counsel’s performance was deficient; and (2) that the deficient
performance caused him prejudice. Strickland v. Washington, 466 U.S. 668, 687
(1984). Procedural default is not a jurisdictional issue, but rather an affirmative
4 USCA11 Case: 19-13509 Date Filed: 07/15/2021 Page: 5 of 7
defense that is subject to waiver by the government. Howard, 374 F.3d at 1073;
see also United States v. Jordan, 915 F.2d 622, 629 (11th Cir. 1990) (“[W]e need
not decide whether it would be appropriate to require [the movant] to demonstrate
cause and prejudice because the government did not assert in the district court that
[his] failure to present his claim on direct appeal should bar consideration of the
merits.” ).
In Clisby v. Jones, we directed district courts to resolve all claims for relief
raised in a habeas petition, regardless of whether habeas relief is granted or denied.
960 F.2d 925, 935-36 (11th Cir. 1992) (en banc) (addressing 28 U.S.C. § 2254
petitions); see also Rhode v. United States, 583 F.3d 1289, 1291 (11th Cir. 2009)
(applying Clisby to § 2255 motions). We stated that this rule was necessary
because we were “disturbed by the growing number of cases in which we are
forced to remand for consideration of issues the district court chose not to resolve.”
Clisby, 960 F.2d at 935-36. When a district court commits Clisby error, we “will
vacate the district court’s judgment without prejudice and remand the case for
consideration of all remaining claims.” Id. at 938; Rhode, 583 F.3d at 1291.
However, “[a] habeas petitioner 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). If we determine that the district court committed a
Clibsy error, we will not address whether the underlying claim has any merit. Id.
5 USCA11 Case: 19-13509 Date Filed: 07/15/2021 Page: 6 of 7
“[I]n a post-conviction case, the district court must develop a record
sufficient to facilitate our review of all issues pertinent to an application for a COA
and, by extension, the ultimate merit of any issues for which a COA is granted.”
Long v. United States, 626 F.3d 1167, 1170 (11th Cir. 2010). We are a court of
review and will not act as factfinders or substitute ourselves for the district court.
United States v. Fulford, 662 F.3d 1174, 1181 (11th Cir. 2011). As such, where
factual development is necessary to resolve legal questions, we will remand those
factual issues for the district court to address in the first instance. United States v.
Noriega, 676 F.3d 1252, 1263 (11th Cir. 2012).
Here, we construe the COA to encompass the procedural issue of whether
Stackhouse properly raised the claims that are the subject of the COA, which he
raised for the first time in his reply brief before the district court.1 Although
Stackhouse only raised these issues in his reply, he nonetheless brought to the
district court’s attention (in his first motion for reconsideration) that he was raising
new claims, specifically asserting that the district court had committed Clisby error
by failing to address them.
In light of this, as well as the fact that the new claims were raised within the
one-year statute of limitations, we vacate and remand to the district court to
1 He did raise an ineffective assistance of counsel claim in his § 2255 motion that the district court also failed to address.
6 USCA11 Case: 19-13509 Date Filed: 07/15/2021 Page: 7 of 7
determine whether Stackhouse’s reply brief—together with his motion for
reconsideration reiterating his new arguments—should be treated as a motion for
leave to amend his § 2255 motion. 2 Should the district court reach the merits of
the first issue identified in the COA, which concerns whether one of the
convictions used to enhance Stackhouse’s sentence was for a second-degree felony
or a third-degree felony under Florida law, that analysis will require factual
determinations—which, as a court of review, we cannot make. And in any event,
under Clisby, it would be the district court’s responsibility to address Stackhouse’s
new arguments in the first instance.
Furthermore, because the district court also failed to address whether
Stackhouse’s counsel rendered ineffective assistance in failing to challenge the
ACCA enhancement, we likewise remand to the district court to address this issue.
VACATED AND REMANDED.
2 Although the government asserts that Stackhouse’s new claims are not timely because they stem from different evidence and legal theories than his original claims, the government appears to be relying on the relation-back rule that applies when a movant is seeking to amend a § 2255 motion to include untimely claims. Here, Stackhouse’s reply was filed within one year from the date that his conviction became final, and his claims are therefore timely. Additionally, while the government contends that the new claims are procedurally defaulted, it arguably has waived that affirmative defense. The government never argued below that Stackhouse’s ACCA challenges were procedurally defaulted, even though his initial arguments—like his new ones—were not raised at sentencing or on direct appeal. In any event, we decline to address this issue in the first instance. 7