Luc Termitus v. Secretary, Florida Department of Corrections, et al.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10004
Non-Argument Calendar
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D.C. Docket No. 6:13-cv-00495-GAP-KRS
LUC TERMITUS,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 23, 2016)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
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Luc Termitus, a Florida state prisoner proceeding pro se, appeals the district
court’s denial of his 28 U.S.C. § 2254 federal habeas corpus petition. This Court
granted a certificate of appealability (COA) as to whether the district court violated
Clisby v. Jones, 960 F.2d 925, 938 (11th Cir. 1992) (en banc), by failing to address
whether appellate counsel was ineffective for failing to argue that Termitus’s two
attempted robbery convictions violated the Double Jeopardy Clause. Termitus
argues that, although the district court addressed part of his double-jeopardy claim,
it erred by failing to address the “second aspect” of his claim, namely, that his
counsel was ineffective for failing to assert that his two attempted armed robbery
convictions for one attempted theft constituted a double jeopardy violation. He
asserts that his district court pleadings, especially his reply to the state’s response
to his § 2254 petition, pointed out and expanded on his two discrete double-
jeopardy theories.
When a district court fails to address every claim raised in a habeas petition,
we “will vacate the district court’s judgment without prejudice and remand the
case for consideration of all remaining claims.” Clisby, 960 F.2d at 938. For our
purposes, a claim “is any allegation of a constitutional violation.” Id. at 936.
Ineffective assistance of counsel constitutes a violation of a defendant’s Sixth
Amendment rights, and, thus, is a claim of a constitutional violation. Strickland v.
Washington, 466 U.S. 668, 685-86 (1984). We have also stated that “in a post-
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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); see also Broadwater v. United States, 292
F.3d 1302, 1303-04 (11th Cir. 2002) (vacating and remanding because the district
court gave no basis for its decision, stating that where “there may potentially be
some merit to the allegations if supported by the record, and the record consists of
voluminous files and transcripts, an adequate appellate review of the basis for the
district court’s decision requires something more than a mere summary denial of
the § 2255 motion”).
Although Termitus’s § 2254 petition did not clearly distinguish between his
arguments regarding the two attempted robbery charges and the first-degree
murder charge, a liberal reading of his petition indicates he sought to challenge
appellate counsel’s failure to raise both double jeopardy issues. See Dupree v.
Warden, 715 F.3d 1295, 1299 (11th Cir. 2013) (explaining pro se petitions are to
be construed liberally). Additionally, Termitus’s reply specifically stated the State
only responded to part of his double jeopardy claim, and clarified that he actually
asserted two separate double jeopardy violations.
The district court did not address Termitus’s ineffective-assistance claim
based on the two robberies. His claim, on its face, is not one that can be deemed to
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be plainly meritless under the existing record, and, thus, the district court was
required to provide more than a mere summary denial of his § 2254 motion. See
Broadwater, 292 F.3d at 1304. The district court’s analysis and its restatement of
Termitus’s claims in its dispositive order shows that it believed his only double
jeopardy claim was that his appellate counsel failed to challenge the murder and
robbery convictions as a double jeopardy violation. The district court’s statement
at the end of its order that “[a]ny of [T]ermitus’s allegations not specifically
addressed herein have been found to be without merit” does not develop a record
sufficient to show it complied with Clisby. See Long, 626 F.3d at 1170. This
catch-all statement only summarily denied the claim and gave no bases for its
decision. See Broadwater, 292 F.3d at 1303-04.
Thus, Termitus raised a claim in his habeas petition that the district court
failed to address. See Clisby, 960 F.2d at 938. We vacate and remand for the
district court to consider in the first instance whether Termitus’s counsel was
ineffective for failing to challenge his robbery convictions as a violation of the
Double Jeopardy Clause. See id.
VACATED AND REMANDED.
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