Theodore H. Dahn, IV v. James L. Lanier

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 11, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-12261
Non-Argument Calendar
________________________
D. C. Docket No. 05-00079-CV-WLS-1
THEODORE H. DAHN, IV,
Petitioner-Appellant,
versus
JAMES L. LANIER,
Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(June 11, 2010)
Before EDMONDSON, BLACK and PRYOR, Circuit Judges.

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PER CURIAM:
Georgia state prisoner Theodore H. Dahn, IV, proceeding pro se, appeals the
district court’s denial of habeas relief sought pursuant to 28 U.S.C. 2254. As more
fully explained below, we vacate without prejudice and remand for further
proceedings.
Dahn was convicted of child molestation, aggravated child molestation, and
aggravated battery. In his section 2254 petition, Dahn challenged his conviction
on multiple grounds, including claims of ineffective assistance of counsel. In a
supplement to his section 2254 petition, Dahn raised additional ineffective
assistance of counsel claims; and in a “brief in support of amended position for
writ of habeas corpus” (“Amended Petition”), Dahn raised yet additional
ineffective assistance of counsel claims. After the district court granted Dahn’s
motion for appointment of counsel, a counseled brief in support of Dahn’s section
2254 petition was filed that raised, among other things, ineffective assistance of
counsel claims.
A magistrate judge issued a report and recommendation (“R&R”)
recommending that habeas relief be denied. The magistrate judge concluded that
no claim of merit had been shown but failed to address the ineffective assistance
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claims set out in the Amended Petition. Counsel filed an objection to the R&R, but
counsel failed to object to the R&R’s failure to address the Amended Petition
claims. The district court adopted the R&R, also failed to address the Amended
Petition claims, and denied habeas relief.
We granted a certificate of appealability (“COA”) on a single issue: whether
the district court erred under Clisby v. Jones, 960 F.2d 925, 935-36 (11 Cir.th
1992), in failing to address the ineffective assistance of trial counsel claims alleged
by Dahn in his Amended Petition.
In Clisby, we exercised our supervisory authority to direct district courts to
resolve all constitutional claims presented in a section 2254 petition without regard
to whether habeas relief ultimately is granted or denied. Id. When a district court
fails to address all constitutional claims presented in a habeas petition, we “will
vacate the district court’s judgment without prejudice and remand the case for
consideration of all remaining claims.” Id. at 938.
The State makes no argument that the district court addressed the ineffective
assistance of counsel claims raised in the Amended Petition and concedes that
remand is required. The States notes that Dahn -- both pro se and through counsel
-- neglected to object to the district court’s omission; the district court never was
put on notice that these claims remained unaddressed. But no argument is made
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that the absence of objection excuses the Clisby violation.
Because the district court’s order violated Clisby when it omitted
consideration of all of Dahn’s pending constitutional claims, we vacate without
prejudice and remand for further proceedings to consider the unaddressed
ineffective assistance of counsel claims raised in the Amended Petition.*
VACATED AND REMANDED.
To the extent Dahn seeks to argue the substantive merits of his ineffective assistance*
claims on appeal, his arguments are beyond the scope of the COA; we decline to consider them.
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