Jeffery Neil Brantley v. Florida Attorney General, et al.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13214
Non-Argument Calendar
________________________
D.C. Docket No. 2:16-cv-00354-PAM-MRM
JEFFERY NEIL BRANTLEY,
Petitioner-Appellant,
versus
FLORIDA ATTORNEY GENERAL,
SECRETARY, DEPARTMENT OF CORRECTIONS,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 21, 2021)
Before WILSON, ROSENBAUM, and LAGOA, Circuit Judges.
PER CURIAM:
USCA11 Case: 19-13214 Date Filed: 07/21/2021 Page: 1 of 20

-- 1 of 20 --

2
Jeffery Brantley, a Florida state prisoner proceeding pro se, appeals the
district court’s denial of his 28 U.S.C. § 2554 habeas petition concerning his
convictions and corresponding sentence for unlawful sexual activity, promoting a
sexual performance by a minor, and tampering with or fabricating physical evidence.
We granted a certificate of appealability (“COA”) on two issues related to Brantley’s
ineffective assistance of counsel claim and his claim that the district court failed to
address a different ineffective assistance claim. For the following reasons, we affirm
in part and reverse in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
The present habeas petition relates to Brantley’s trial and subsequent
conviction of unlawful sexual activity, promoting a sexual performance by a minor,
and tampering with or fabricating physical evidence. In January 2002, the mother
of Brantley’s 16-year-old victim contacted law enforcement and explained that her
daughter had been missing for two days and a man whom she met online might have
abducted her. The mother voluntarily provided agents with copies of emails between
her daughter and an adult man—that was later identified as Brantley. These emails
indicated that her daughter and the man had previously engaged in sexual activity.
Based on these emails, Agent Devine obtained, through invocation of 18 U.S.C. §
2703, as amended by the Patriot Act, Brantley’s name from records associated with
the email and IP address used to contact the victim, and again invoking the Patriot
USCA11 Case: 19-13214 Date Filed: 07/21/2021 Page: 2 of 20

-- 2 of 20 --

3
Act, he determined that Brantley used an American Express account to pay for
internet access. Agent Devine then contacted American Express and advised that
the instant case met the requirements of the Patriot Act and that immediate
dissemination of Brantley’s financial information was necessary. This inquiry
revealed that Brantley’s account had been used to rent two hotel rooms.
Agent Devine contacted the Naples Police Department (“NPD”) and advised
them of these facts, which led the NPD to find Brantley and the minor victim at the
hotel where Brantley’s credit card was used and to arrest Brantley. Brantley’s trial
counsel filed a motion to suppress all evidence obtained from the warrantless search
of Brantley’s hotel room, including, in relevant part, the seizure and search, or
viewing, of various videotapes. At the suppression hearing, Detective David Lupien
testified that he went to the hotel after being told that Brantley’s credit card had been
used there. Detective Lupien explained that the minor victim and Brantley were
found inside the room, and upon being escorted out, the minor victim explained that
she and Brantley had been having sex. Another officer, William Fedak, stated that
he arrested Brantley upon entering the hotel room, and when Officer Fedak “took
him to the ground,” he discovered three cassettes under the couch, two of which had
their film stripped. Officer Fedak also observed a tripod, camera case, and a digital
camera in the room. He further stated that slivers of film, consistent with the type
of film found under the couch, were found in the bathroom’s toilet. The trial court
USCA11 Case: 19-13214 Date Filed: 07/21/2021 Page: 3 of 20

-- 3 of 20 --

4
denied the motion to suppress with respect to the videotapes, finding that the
videotapes were in plain view.
During jury selection, Brantley’s trial counsel moved for a mistrial after he
had received belated discovery—170 pages of discovery related to how the state
obtained Brantley’s name and credit card information. The state trial court allowed
Brantley’s counsel to review the discovery overnight and instructed the parties that
the trial would begin the next day. At trial, Brantley’s trial counsel again moved for
a mistrial based on the belated discovery. He argued that Agent Devine had violated
the law in obtaining Brantley’s information under the Patriot Act, which would
preclude the evidence found at Brantley’s hotel room as fruit of the poisonous tree.
The trial court instructed the parties that it was “going forward” with the case, stating
that the “Secret Service issues [were] not going to slow us down. [That is] a different
issue [for] a different court.”
During trial, Agent Devine testified in support of the facts above regarding
how he retrieved Brantley’s information from American Express under the Patriot
Act. And the videotapes discovered at the hotel room were played for the jury.
During closing arguments, Brantley’s trial counsel stated that, based on the contents
of the videotapes played for the jury, Brantley was conceding to the two charges
against him relating to him having oral sex with the minor victim. Following
deliberations, the jury returned guilty verdicts for unlawful sexual activity,
USCA11 Case: 19-13214 Date Filed: 07/21/2021 Page: 4 of 20

-- 4 of 20 --

5
promoting a sexual performance by a minor, and tampering with or fabricating
physical evidence. The trial court sentenced him to thirty years’ imprisonment.
After exhausting his appeals, Brantley filed a post-conviction motion in state
court under Florida Rule of Criminal Procedure 3.850. As relevant to this appeal,
he argued, in Ground II, that his counsel was ineffective for failing to investigate or
depose certain state witnesses, including Agent Devine. He asserted that, had his
counsel deposed these witnesses, his counsel would have had the documents
belatedly provided the day of trial that showed the allegedly illegal nature of the
government’s search. And, in Ground VI, Brantley argued that the videotapes
introduced at trial were “containers” with unknown contents at the time of their
seizure. He claimed that law enforcement needed a warrant to subsequently search
these containers, which his trial counsel failed to argue.
The state court held a post-conviction evidentiary hearing, during which
Brantley’s trial counsel testified that he knew that Agent Devine initiated the
underlying criminal investigation, but he chose not to depose him. He conceded to
not filing any motion to suppress with respect to Agent Devine’s use of the Patriot
Act. Brantley testified that he had grown concerned about his counsel’s performance
after he was unable to make timely payments. He further stated that, while he did
not know at the time whether Agent Devine’s actions were legal, he explained to his
trial counsel that he knew Agent Devine had contacted his credit card company so
USCA11 Case: 19-13214 Date Filed: 07/21/2021 Page: 5 of 20

-- 5 of 20 --

6
that his counsel could investigate these issues, and that his main concern was how
to suppress the entry of the videotapes at trial.
The state post-conviction court denied Brantley’s motion. As to Ground II, it
concluded that Brantley’s counsel was not ineffective for failing to depose or
investigate Agent Devine, determining that trial counsel’s initial decision not to
depose Agent Devine was within the reasonable bounds of trial strategy and that,
once trial counsel had learned of Agent Devin’s value as a witness during the mid-
trial discovery disclosure, counsel took reasonable steps to assert Brantley’s interest.
Regarding Ground VI, it agreed with the trial court, which found the videotapes to
be in plain view at the time of his arrest and were therefore admissible. Brantley
appealed, and the state appellate court affirmed the denial of post-conviction relief.
Brantley then filed the present habeas corpus petition under 28 U.S.C. § 2254,
raising the same claims that he raised in his state post-conviction motion. The
district court denied the petition. As relevant here, it found that the videotapes did
not need to be suppressed because they were in plain view. It further found that the
incriminating character of the videotapes was immediately apparent because of
circumstances surrounding the case, including the victim’s statement that sexual
activity had occurred and had been filmed, the presence of a camcorder in the room,
and the pieces of film in the toilet. As for trial counsel’s failure to investigate Agent
Devine, it found that the exchange of information between Agent Devine and
USCA11 Case: 19-13214 Date Filed: 07/21/2021 Page: 6 of 20

-- 6 of 20 --

7
American Express did not violate federal law in light of 12 U.S.C. § 3414(b)(1)(A),
which allowed the government to obtain financial records if it determined that a
delay would create imminent danger of physical injury.
Brantley appealed the district court’s denial of his habeas petition. And we
granted a certificate of appealability (“COA”) on the following two issues:
(1) whether Brantley’s trial counsel was ineffective for failing to investigate or
depose a key state witness who caused the search and seizure of evidence under the
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (“Patriot Act”), and (2) whether the
district court violated Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc), by
not addressing whether counsel was ineffective for failing to argue that the state
could not view the contents of videotapes lawfully seized from a hotel room without
a search warrant.
II. STANDARD OF REVIEW
We review the district court’s denial of habeas corpus relief under 28 U.S.C.
§ 2254 de novo and any factual findings for clear error. Sims v. Singletary, 155 F.3d
1297, 1304 (11th Cir. 1998). Our review under § 2254 is limited to the issues
specified in the COA. Spencer v. Sec’y, Dep’t of Corr., 609 F.3d 1170, 1180 (11th
Cir. 2010).
USCA11 Case: 19-13214 Date Filed: 07/21/2021 Page: 7 of 20

-- 7 of 20 --

8
III. ANALYSIS
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), federal courts are precluded from granting
habeas relief on claims that were previously adjudicated on the merits in state court,
unless the adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. § 2254(d).
As contained in § 2254(d)(1), the phrase “clearly established” refers to the
holdings of the Supreme Court at the time of the relevant state court decision.
Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003). A state court decision can be
contrary to established law in two ways: “(1) it applies a rule contradicting the
governing law as set forth by Supreme Court case law, or (2) the state court, in a
case with facts indistinguishable from those in a decision of the Supreme Court,
arrives at a different result.” Washington v. Crosby, 324 F.3d 1263, 1265 (11th Cir.
2003).
A state court decision represents an unreasonable application of clearly
established federal law if the state court correctly identifies the controlling legal rule
USCA11 Case: 19-13214 Date Filed: 07/21/2021 Page: 8 of 20

-- 8 of 20 --

9
from Supreme Court cases but unreasonably applies it to the facts of a case. Id. The
“unreasonable application” inquiry requires that the state court decision “be more
than incorrect or erroneous”—it must be “objectively unreasonable.” Lockyer, 538
U.S. at 75. A petitioner must show that the state court’s ruling “was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” White v. Woodall, 572
U.S. 415, 419–20 (2014) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
Additionally, a state court’s factual determinations are generally entitled to a
presumption of correctness, and the applicant has the burden of rebutting the
presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). “[A] state-
court factual determination is not unreasonable merely because the federal habeas
court would have reached a different conclusion in the first instance.” DeBruce v.
Comm’r, Ala. Dep’t of Corr., 758 F.3d 1263, 1266 (11th Cir. 2014) (quoting Burt v.
Titlow, 571 U.S. 12, 18 (2013)). Rather, a state court’s factual determinations are
unreasonable if no fairminded jurist could agree. See Holsey v. Warden, Ga.
Diagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012).
Brantley raised two issues in his habeas petition, over which we granted a
COA—(1) an ineffective assistance of counsel claim related to his trial counsel’s
failure to investigate, and (2) a claim under Clisby that the district court failed to
USCA11 Case: 19-13214 Date Filed: 07/21/2021 Page: 9 of 20

-- 9 of 20 --

10
address one of his other ineffective assistance of counsel claims. We address each
issue in turn.
A. The Ineffective Assistance of Counsel Claim
To establish ineffective assistance of counsel, a petitioner must show that
(1) his attorney’s performance was deficient, and (2) the deficient performance
prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
“[T]o establish prejudice, a ‘defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Wiggins v. Smith, 539 U.S. 510, 534 (2003)
(quoting Strickland, 466 U.S. at 694).
Deficient performance “requires showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. It is presumed that a petitioner’s counsel acted competently,
and the petitioner must prove “that his attorney’s representation was unreasonable
under prevailing professional norms and that the challenged action was not sound
strategy.” Chandler v. United States, 218 F.3d 1305, 1314 n.15 (11th Cir. 2000)
(quoting Bolender v. Singletary, 16 F.3d 1547, 1557 (11th Cir. 1994)). “[A]
petitioner must establish that no competent counsel would have taken the action that
his counsel did take.” Id. at 1315. In order to prevent the effects of hindsight, a
USCA11 Case: 19-13214 Date Filed: 07/21/2021 Page: 10 of 20

-- 10 of 20 --

11
court must analyze an attorney’s action from the perspective that the attorney would
have had when he took the action. Id. at 1316. “In assessing the reasonableness of
an attorney’s investigation . . . a court must consider not only the quantum of
evidence already known to counsel, but also whether the known evidence would lead
a reasonable attorney to investigate further.” Wiggins, 539 U.S. at 527.
Moreover, state post-conviction courts cannot merely assume that counsel’s
investigation was adequate. Id. at 527. A state post-conviction court’s deference to
counsel’s “strategic decision not to present every conceivable mitigation defense” is
likewise unreasonable when counsel conducted an unreasonable investigation. Id.
at 527–28. An unreasonable investigation occurs when “counsel [chooses] to
abandon their investigation at an unreasonable juncture, making a fully informed
decision with respect to sentencing strategy impossible.” Id. Counsel’s duty to
investigate is “to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be directly assessed for reasonableness in
all the circumstances, applying a heavy measure of deference to counsel’s
judgments.” Strickland, 466 U.S. at 691. “[S]trategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.” Everett v. Sec’y,
USCA11 Case: 19-13214 Date Filed: 07/21/2021 Page: 11 of 20

-- 11 of 20 --

12
Fla. Dep’t of Corr., 779 F.3d 1212, 1249 (11th Cir. 2015) (quoting Strickland, 466
U.S. at 690–91).
The reasonableness of counsel’s investigation is also substantially influenced
by the defendant’s statements or actions, as an attorney usually bases his actions on
information provided by his client. Pooler v. Sec’y, Fla. Dep’t of Corr., 702 F.3d
1252, 1269 (11th Cir. 2012). The need for an investigation can be reduced or
eliminated if the defendant has provided facts to counsel that support a certain line
of defense. Id. at 1269–70.
When the deferential standard of Strickland is combined with the deferential
standard under AEDPA, the result is a doubly deferential standard of review in
federal court. Harrington, 562 U.S. at 105. “It was meant to be, and is, difficult for
a petitioner to prevail under that stringent standard.” Nance v. Warden, Ga.
Diagnostic Prison, 922 F.3d 1298, 1301 (11th Cir. 2019). However, if we determine
that the state court’s adjudication of a petitioner’s Strickland claim was unreasonable
under § 2254(d), we review the record de novo. Debruce, 758 F.3d at 1266.
Here, Brantley’s ineffective assistance claim is based on his trial counsel’s
failure to investigate how the state came to determine his name and credit card
information, which ultimately led authorities to find him and the victim at a hotel, to
arrest him, and to seize various items in the hotel rooms. We therefore briefly outline
the relevant law surrounding the obtainment of financial records. Federal law
USCA11 Case: 19-13214 Date Filed: 07/21/2021 Page: 12 of 20

-- 12 of 20 --

13
prohibits the government from obtaining access to financial records of any customer
of a financial institution absent authorization from the customer, a subpoena or
summons, a search warrant, or a formal written request where no summons or
subpoena is reasonably available. 12 U.S.C. § 3402. One exception exists, however,
where the government determines that a delay in obtaining access to records would
create imminent danger of physical injury to any person. Id. § 3414(b)(1)(A). When
invoking this exception, however, the government must submit to the financial
institution a certificate stating that it has complied with various statutory
requirements. Id. §§ 3403(b), 3414(b)(2). Section 3403 provides that “[a] financial
institution shall not release the financial records of a customer until” the government
provides this certificate of compliance.
The Patriot Act was enacted to, among other things, “enhance law
enforcement investigatory tools” through the amendment of several statutes relating
to government acquisition of communications or records in the possession of a
person or entity that provides a communication or computing service to the public.
The Patriot Act, Pub. L. No. 107-56, §§ 209-12, 115 Stat. 272, 272 (2001). One of
the statutes amended by the Patriot Act was 18 U.S.C. § 2703, which allows a
governmental entity to require a provider of “electronic communication” or remote
computing services to disclose records and information of one of its subscribers or
customers. 18 U.S.C. § 2703(c)(1). But such disclosures are authorized only when
USCA11 Case: 19-13214 Date Filed: 07/21/2021 Page: 13 of 20

-- 13 of 20 --

14
the government entity: (1) subpoenas the information; (2) obtains a warrant, a court
order, consent from the subscriber or customer; (3) issues a formal request relevant
to a telemarketing-fraud investigation; or (4) requests only the name, address,
telephone connection records, length of service and types of service utilized,
telephone or instrument number or the subscriber number or identity, including
network addresses, and the means and source of payment for such service. 18 U.S.C.
§ 2703(c)(1)–(2).
Section 2703 also authorizes the compelled disclosure of the contents of a
wire or “electronic communication” in an electronic storage or in a remote
computing service pursuant to a warrant, subpoena, or court order. Id. § 2703(a)–
(b). But § 2510, which was also amended by the Patriot Act, expressly excludes
“electronic funds transfer information stored by a financial institution in a
communications system used for the electronic storage and transfer of funds” from
the definition of “electronic communication.” 18 U.S.C. § 2510(12)(D); see also id.
§ 2711(1) (incorporating the terms defined in 18 U.S.C. § 2510).
The Patriot Act further provides that any individual aggrieved by a violation
of the statute has the right to sue the United States for damages. Id. § 2712. Such
an action is the exclusive remedy provided for in the Patriot Act. Id. § 2712(d).
The Fourth Amendment guarantees that individuals will be “secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
USCA11 Case: 19-13214 Date Filed: 07/21/2021 Page: 14 of 20

-- 14 of 20 --

15
Under the exclusionary rule, evidence obtained as a direct result of an illegal search
or seizure is subject to exclusion, as well as “evidence later discovered and found to
be derivative of an illegality or ‘fruit of the poisonous tree.’” Segura v. United
States, 468 U.S. 796, 804 (1984). To suppress evidence based on Fourth
Amendment violations, “a claimant has the burden of proving (1) that the search was
unlawful and (2) that the claimant had a legitimate expectation of privacy.” United
States v. McKennon, 814 F.2d 1539, 1542 (11th Cir. 1987). This expectation of
privacy must be subjective to the defendant and one that society recognizes as
reasonable. United States v. Trader, 981 F.3d 961, 967 (11th Cir. 2020). The Fourth
Amendment “does not prohibit the obtaining of information revealed to a third party
and conveyed by [the third party] to Government authorities,” even if the individual
revealed that information “on the assumption that it will be used only for a limited
purpose and the confidence placed in the third party will not be betrayed.” United
States v. Miller, 425 U.S. 435, 443 (1976). As we have explained, individuals do
not have a legitimate expectation of privacy in subscriber information, such as email
and IP addresses, that individuals disclose during the ordinary use of the internet.
Trader, 981 F.3d at 967–69. Likewise, individuals do not possess a reasonable
expectation of privacy in financial records held by a bank. See Presley v. United
States, 895 F.3d 1284, 1291 (11th Cir. 2018); Miller, 425 U.S. at 442–43.
USCA11 Case: 19-13214 Date Filed: 07/21/2021 Page: 15 of 20

-- 15 of 20 --

16
To invoke the exclusionary rule under the Fourth Amendment, defendants
cannot rely on a statutory violation alone, unless that statute, either expressly or
implicitly, provides such a remedy. United States v. Thompson, 936 F.2d 1249, 1251
(11th Cir. 1991); Nowicki v. Comm’r, 262 F.3d 1162, 1163–64 (11th Cir. 2001).
Here, the record demonstrates that the state post-conviction court based its
decision on an unreasonable determination of the facts. Regarding trial counsel’s
performance, the state court focused its analysis on counsel’s conduct after receiving
the belated discovery. It did not discuss the significant fact that Brantley had
informed his counsel, much earlier in the case, of his suspicions regarding the Patriot
Act’s invocation to retrieve his credit card information and discussion of a potential
Fourth Amendment violation. Moreover, the state court found that his counsel’s
decision was reasonable without elaboration, and the record reflects that his counsel
did not proffer a reason for not deposing the key witness. The state court therefore
improperly assumed that Brantley’s counsel’s behavior was reasonable. The state
court’s decision regarding a lack of prejudice was likewise based on an unreasonable
determination of the facts, as it focused solely on the steps that counsel took after
receiving the belated discovery, rather than counsel’s initial failure to depose the
witness and conduct a reasonable investigation that would have prevented the
belated discovery issue altogether.
USCA11 Case: 19-13214 Date Filed: 07/21/2021 Page: 16 of 20

-- 16 of 20 --

17
But upon de novo review, see Debruce, 758 F.3d at 1266, Brantley has failed
to demonstrate that he was prejudiced by his counsel’s actions. Neither the Patriot
Act nor any other statute would have been sufficient to support a motion to suppress.
First, Brantley had no expectation of privacy over his email address, IP address, and
financial records because he had provided this information to third parties. See
Trader, 981 F.3d at 967–69. As such, Brantley could not meet his burden to warrant
suppression of that information. Second, Brantley could not have relied on a
violation of the Patriot Act by itself to exclude this information, as the Patriot Act
does not provide for such relief. Instead, the Patriot Act provides only for the remedy
to recover damages resulting from violations. 18 U.S.C. § 2712. As such, even
reviewing the record de novo, the motion to suppress should have been denied with
respect to the recovered information that ultimately led the officers to Brantley and
the victim’s location. Brantley therefore suffered no prejudice from his counsel’s
failure to investigate or depose the witness. Accordingly, we affirm as to this issue.
B. The Claim under Clisby
Brantley next argues that the district court erred by not addressing his
argument that his trial counsel was ineffective for failing to challenge a subsequent,
warrantless viewing of recovered videotapes. He grounds this argument in our
decision in Clisby v. Jones. In Clisby, we expressed our “deep concern over the
piecemeal litigation of federal habeas petitions filed by state prisoners” and “the
USCA11 Case: 19-13214 Date Filed: 07/21/2021 Page: 17 of 20

-- 17 of 20 --

18
growing number of cases in which we are forced to remand for consideration of
issues the district court chose not to resolve.” 960 F.2d at 935–36. Based on this
concern, we directed district courts to resolve all claims for relief raised in a habeas
petition, regardless of whether habeas relief is granted or denied. Id. When a district
court fails to address all claims in a § 2254 petition, we vacate the district court’s
judgment without prejudice and remand the case for consideration of the
unaddressed claims. Id. at 938; see also Rhode, 583 F.3d at 1292. In doing so, we
will not address whether the underlying claim has any merit. Dupree v. Warden,
715 F.3d 1295, 1299 (11th Cir. 2013).
A claim for relief for purposes of this instruction is any allegation of a
constitutional violation, and allegations of distinct constitutional violations
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 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 (concluding that the district court
violated Clisby by failing to address an ineffective assistance of counsel claim that
“consist[ed] of two sentences found in the middle of a fifteen-page supporting
memorandum of law attached to [the § 2254] petition”). A pro se petitioner has
presented his constitutional claim to the district court for Clisby purposes when that
claim is described in a memorandum of law attached to the petition. Id. But no
USCA11 Case: 19-13214 Date Filed: 07/21/2021 Page: 18 of 20

-- 18 of 20 --

19
Clisby error occurs when the habeas petitioner fails to “clearly present[]” the claim
to the district court. See Barritt v. Sec’y, Fla. Dep’t of Corr., 968 F.3d 1246, 1251
(11th Cir. 2020) (concluding that the petitioner’s passing reference to “coercion” did
not state an independent coercion claim for Clisby purposes).
Here, Brantley sufficiently raised a Fourth Amendment
videotapes-as-containers claim and a related ineffective assistance of counsel claim
to the district court such that the district court should have addressed them. Brantley
made the Fourth Amendment claim in his § 2554 petition and supporting
memorandum, and he expressly refenced Ground VI of his state post-conviction
relief motion, in which he argued that the videotapes were containers with unknown
contents at the time of their seizure and law enforcement needed a warrant to
“search” them. He also sufficiently raised a claim that trial counsel was ineffective
for failing to challenge the subsequent “search,” or viewing, of these videotapes.
The district court did not reference or address these claims when it denied his
§ 2554 petition. Rather, the district court focused its discussion exclusively on the
initial seizure of the videotapes—i.e., that the tapes were in plain view at the time of
Brantley’s arrest and that their incriminating nature was obvious. But Brantley’s
challenge is not to their initial seizure; instead, he challenges whether their
subsequent “search,” or viewing, required a warrant and whether his counsel was
ineffective in failing to challenge this “search.” Accordingly, we vacate the
USCA11 Case: 19-13214 Date Filed: 07/21/2021 Page: 19 of 20

-- 19 of 20 --

20
judgment without prejudice and remand for further consideration of Brantley’s
unaddressed videotapes-as-containers claims.
AFFIRMED IN PART; VACATED IN PART; AND REMANDED.
USCA11 Case: 19-13214 Date Filed: 07/21/2021 Page: 20 of 20

-- 20 of 20 --