Pedro Antonio Alarcon v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12983
Non-Argument Calendar
____________________
PEDRO ANTONIO ALARCON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:19-cv-80006-DMM
____________________
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2 Opinion of the Court 21-12983
Before J ILL PRYOR , LAGOA , and E DMONDSON, Circuit Judges.
PER CURIAM:
Pedro Alarcon, a federal prisoner proceeding
pro se,1 appeals
the district court’s denial of his 28 U.S.C. § 2255 motion to vacate
his sentence.2 We granted a certificate of appealability on this is-
sue: “[w]hether the district court violated
Clisby v. Jones, 960 F.2d
925 (11th Cir. 1992) (
en banc), by failing to address Alarcon’s claim
that his trial counsel acted ineffectively by allowing the prosecutor
to be involved in attorney-client relations.” Reversible error has
been shown; we vacate without prejudice and remand for addi-
tional proceedings.
We review
de novo legal questions presented in a certificate
of appealability.
See Dupree v. Warden, 715 F.3d 1295, 1299-1300
(11th Cir. 2013).
In
Clisby, we instructed district courts to resolve each con-
stitutional claim presented in a 28 U.S.C. § 2254 petition for writ of
habeas corpus, regardless of whether relief was granted or denied.
1 We read liberally appellate briefs filed by
pro se litigants.
See Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008). We also construe liberally
pro se
pleadings.
See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998).
2 Alarcon is serving a 20-year sentence after pleading guilty to conspiracy to
possess with intent to distribute a controlled substance, in violation of 21
U.S.C. §§ 841(a)(1), 846.
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21-12983 Opinion of the Court 3
See Clisby, 960 F.2d at 935-36. The rule announced in
Clisby also
extends to section 2255 motions.
See Rhode v. United States, 583
F.3d 1289, 1291 (11th Cir. 2009). Under our precedent, if the district
court fails to consider a claim raised by a movant on collateral re-
view, we will vacate the district court’s decision without prejudice
and remand the case to allow the district court to consider the un-
resolved claim.
See Clisby, 960 F.2d 938.
“A habeas petitioner must present a claim in clear and simple
language such that the district court may not misunderstand it.”
Dupree, 715 F.3d at 1299. No
Clisby error occurs when a movant
fails to present adequately the claim to the district court.
See Bar-
ritt v. Sec’y, Fla. Dep’t of Corr., 968 F.3d 1246, 1251 (11th Cir. 2020)
(concluding that passing references to an issue were insufficient to
state clearly an independent claim for
Clisby purposes).
Construed liberally, Alarcon’s
pro se section 2255 motion
presented adequately Alarcon’s claim that his trial lawyer was inef-
fective for failing to object to the prosecutor’s alleged involvement
in the attorney-client relationship. Alarcon titled “Ground Two”
of his section 2255 motion this way: “Ineffective assistance of coun-
sel by allowing prosecutor’s involvement in attorney-client rela-
tions and ignoring prosecutor’s threats to coerce Alarcon’s plea.”
In the “supporting facts” section under Ground Two, Alarcon al-
leged facts pertinent to two discrete events: (1) the prosecutor’s
presence during what was supposed to have been an
ex parte
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4 Opinion of the Court 21-12983
Nelson3 hearing to discuss Alarcon’s concerns about his lawyer’s
representation and defense strategy; and (2) the prosecutor’s al-
leged threats to seek an enhanced sentence under 21 U.S.C. § 851 if
Alarcon moved to suppress evidence. In an attached memoran-
dum of law in support of his section 2255 motion, Alarcon pre-
sented -- in two separate paragraphs -- arguments focusing on the
prosecutor’s alleged participation in the
Nelson hearing and on the
prosecutor’s alleged threat to seek an enhanced sentence under sec-
tion 851.
The “clear and simple language” used in Alarcon’s section
2255 motion and supporting memorandum was enough to alert
district courts that Ground Two consisted of two distinct ineffec-
tive-assistance-of-counsel claims, including a claim based on Alar-
con’s lawyer’s failure to object to the prosecutor’s alleged partici-
pation in the
Nelson hearing.
The district court specifically characterized Ground Two as
asserting that “[c]ounsel was ineffective for permitting the prose-
cutor to coerce Movant’s guilty plea”: just one claim. Because the
district court seems to have failed to decide Alarcon’s ineffective-
assistance-of-counsel claim arising from the
Nelson hearing, the
3
Nelson v. State, 274 So. 2d 256, 258 (Fla. Dist. Ct. App. 1973) (“[W]here a
defendant, before the commencement of trial, makes it appear to the trial
judge that he desires to discharge his court appointed counsel, the trial judge,
in order to protect the indigent’s right to effective counsel, should make an
inquiry of the defendant as to the reason for the request to discharge.”).
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21-12983 Opinion of the Court 5
district court’s denial order does not comply with the rule estab-
lished in
Clisby.
We vacate without prejudice the district court’s denial of
Alarcon’s section 2255 motion and remand for further proceedings.
In doing so, we hint at no stance on the merits of the unresolved
claim.
See Dupree, 715 F.3d at 1299 (“[A]ddressing the merits of [a
petitioner’s] claim exceeds the scope of our review, which is limited
to the
Clisby issue specified in the certificate of appealability.”).
VACATED AND REMANDED.
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