Ronnie Montsdeoca v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12952
Non-Argument Calendar
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RONNIE MONTSDEOCA,
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. 9:20-cv-81958-DMM
____________________
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2 Opinion of the Court 21-12952
Before N EWSOM , G RANT, and TJOFLAT, Circuit Judges.
PER CURIAM:
Ronnie Montsdeoca, proceeding
pro se, appeals the United
States District Court for the Southern District of Florida’s denial of
his motion to vacate under 28 U.S.C. § 2255. In that motion,
Montsdeoca argued that his counsel was ineffective on eight sepa-
rate grounds. The eighth ground, which he added by a later
amendment, alleged that his counsel abandoned his direct appeal.
In the instant appeal, Montsdeoca requests that this Court
grant his § 2255 motion to vacate and dismiss his criminal indict-
ment with prejudice. He largely argues the merits of his grounds
for direct appeal, but he also notes that the District Court, in its
order denying his motion to vacate, did not address his eighth
ground for relief. We granted a certificate of appealability (“COA”)
as to whether the District Court violated
Clisby v. Jones by failing
to address Montsdeoca’s eighth claim. 960 F.2d 925, 935-36, 938
(11th Cir. 1992) (holding that, when a district court fails to resolve
all claims for relief that a habeas petitioner raises, this Court will
vacate the judgment and remand the case for consideration of all
remaining claims).
On February 5, 2021, Montsdeoca filed a motion for leave to
amend his complaint to add an eighth ground for relief. The Dis-
trict Court granted Montsdeoca’s motion on March 18. The Dis-
trict Court’s final order denying Montsdeoca’s § 2255 motion,
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21-12952 Opinion of the Court 3
however, refers only to Montsdeoca’s
seven grounds for relief. Or-
der Den. Mot. to Vacate, Doc. 40 at 1, 5.
When reviewing a district court’s denial of a § 2255 motion,
we typically review findings of fact for clear error and questions of
law
de novo.
Rhode v. United States, 583 F.3d 1289, 1290 (11th Cir.
2009). The scope of review is limited to the issues specified in the
COA.
Id. at 1290-91.
We have held that district courts must resolve all claims for
relief that a habeas petitioner raises, and when a district court fails
to do so, we “will vacate the district court’s judgment without prej-
udice and remand the case for consideration of all remaining
claims.”
Clisby, 960 F.2d at 935–36, 938 (addressing a 28 U.S.C.
§ 2254 petition);
see also Rhode, 583 F.3d at 1291 (applying
Clisby
in the § 2255 context). Allegations of distinct constitutional viola-
tions constitute separate claims for relief, “even if both allegations
arise from the same alleged set of operative facts.”
Clisby, 960 F.2d
at 936
. A district court violates
Clisby when a petitioner asserts
facts showing specific failures of counsel, and the district court ad-
dresses some, but not all, of the alleged failures.
Rhode, 583 F.3d
at 1291-92.
We liberally construe
pro se filings, “including
pro se appli-
cations for relief pursuant to § 2255.”
Winthrop-Redin v. United
States, 767 F.3d 1210, 1215 (11th Cir. 2014). Whether or not an ap-
pellant is
pro se, he forfeits an issue on appeal by failing to address
it in his opening brief.
Sapuppo v. Allstate Floridian Ins. Co.,
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4 Opinion of the Court 21-12952
739 F.3d 678, 682-83 (11th Cir. 2014). However, we may review an
issue
sua sponte in extraordinary circumstances, including when:
(1) the issue involves a pure question of law and re-
fusal to consider it would result in a miscarriage of
justice; (2) the party lacked an opportunity to raise the
issue at the district court level; (3) the interest of sub-
stantial justice is at stake; (4) the proper resolution is
beyond any doubt; or (5) the issue presents significant
questions of general impact or of great public con-
cern.
United States v. Campbell, 26 F.4th 860, 872–73 (11th Cir.) (en
banc) (addressing abandonment in a criminal matter),
cert. denied,
(U.S. Oct. 3, 2022) (No. 21-1468). In
Campbell, we determined that
the proper resolution of the issue was beyond any doubt because it
had “all the findings of fact necessary to consider” the issue that the
appellant failed to address in his opening brief, and the “purely legal
conclusion jump[ed] off the page.”
Id. at 875, 877.
Although Montsdeoca does not address specifically in his ap-
pellate brief whether the District Court violated
Clisby, we review
the issue
sua sponte because the proper resolution is beyond any
doubt. The Court’s order referred to Montsdeoca’s “seven
grounds,” Order Den. Mot. to Vacate, Doc. 40 at 1, and his “seven
claims.”
Id. at 5. The order also enumerated each of the claims
brought by Montsdeoca, and again only listed seven claims.
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21-12952 Opinion of the Court 5
Upon review of the record and the parties’ briefs,1 we con-
clude that the District Court did not address Montsdeoca’s eighth
ground for relief, and therefore, did not resolve all of his claims.
We vacate the District Court’s judgment without prejudice and re-
mand the case for consideration of Montsdeoca’s eighth ground for
relief.
VACATED and REMANDED.
1 In its brief, the Government agrees that the District Court violated
Clisby
when it failed to address Montsdeoca’s eighth claim and requests that this
Court vacate the District Court’s judgment and remand the case for the pur-
pose of allowing the District Court to address that claim. Appellee’s Br. at 4-
5.
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