FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCTOBER 24, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-12305

Non-Argument Calendar

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D. C. Docket No. 04-01292-CV-T-24TBM

MALCOLM FLEMING, 

Petitioner-Appellant, 

versus 

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, 

Respondent-Appellee. 

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Appeal from the United States District Court

for the Middle District of Florida

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(October 24, 2006)

Before BIRCH, HULL and PRYOR, Circuit Judges.

PER CURIAM:
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Florida state prisoner Malcolm Fleming, proceeding pro se, appeals the

district court’s denial of his petition for federal habeas relief, filed pursuant to 28

U.S.C. § 2254. After review, we vacate and remand this case to the district court.

I. BACKGROUND

Fleming filed a § 2254 petition raising the following four claims: (1)

Fleming’s conviction was obtained through an unlawfully induced, involuntary

guilty plea for a variety of reasons; (2) Fleming was denied effective assistance of

counsel at various stages of his state court proceedings; (3) the state trial court

violated the separation-of-powers doctrine by threatening Fleming with a life

sentence as a habitual violent felony offender before the state had filed a notice

seeking the sentencing enhancement, suggesting that the judge was biased; and (4)

Fleming’s due process rights were violated, inter alia, when the state trial court

neglected to inform Fleming of his right to a direct appeal and failed to give a full

and fair hearing on Fleming’s motion for post-conviction relief.

In denying Fleming’s § 2254 petition, the district court distilled Fleming’s

four claims down to two issues. First, the district court noted that a claim that a

defendant was not fully apprised of the consequences of his guilty plea or had pled

guilty based on a false statement in the plea agreement implicates the Due Process

Clause. On this basis, the district court concluded that Fleming’s separate due
We review an appeal of a district court’s denial of a § 2254 petition de novo. Gamble v. 1

Sec’y, Dept. of Corr., 450 F.3d 1245, 1247 (11th Cir. 2006).

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process claims merely reiterated his claims that his guilty plea was involuntary. 

The district court then addressed the merits of these due process claims and found

that there was insufficient evidence that Fleming’s guilty plea was unlawfully

induced or involuntary. Second, the district court addressed whether Fleming was

denied effective assistance of counsel and again found insufficient evidence to

suggest a violation of Fleming’s constitutional rights.

Fleming filed this appeal. We granted a certificate of appealability on the

limited issue of “[w]hether the district court violated Clisby v. Jones, 960 F.2d 925,

936 (11th Cir. 1992) (en banc), by failing to address all of the claims raised in

appellant’s 28 U.S.C. § 2254 petition?”

II. DISCUSSION

On appeal, Fleming argues that the district court did not address all of the

claims raised in his § 2254 petition. In Clisby, we instructed the district courts to

resolve all claims for relief raised in a petition for writ of habeas corpus prior to

granting or denying relief. 960 F.3d at 936. We concluded that, when a district

court fails to address all claims in the habeas petition, we “will vacate the district

court’s judgment without prejudice and remand the case for consideration of all

remaining claims.” Id. at 938.1
Fleming also argues that the district court failed to address his other due process claims 2

relating to the acceptance of his plea, including claims that the state court deprived Fleming of

adequate time to contemplate the plea offer, allowed the state to serve notice of intent to charge

Fleming as a habitual violent felony offender during the plea hearing and failed to require

adequate proof of his prior convictions. The facts supporting these allegations are essentially the

same as the facts used to support his argument that his plea was involuntary. These allegations

do not constitute separate violations. See Mabry v. Johnson, 467 U.S. 504, 509, 104 S. Ct. 2543,

2547 (1984) (explaining that due process requires that a guilty plea be made voluntarily,

intelligently and not based on misrepresentation or coercion). 

Likewise, Fleming’s claim that the state court violated the separation-of-powers doctrine

is identical to his due process claim that the state court coerced his guilty plea by threatening him

with a life sentence. Both claims are based on the same operative facts and allege violations of

the same constitutional right to due process. The district court addressed these allegations in its

ruling regarding the voluntariness of Fleming’s plea.

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Upon review of the record and the parties’ briefs, we conclude that the

district court failed to address two of Fleming’s due process claims. The district

court’s order sought to answer only whether Fleming’s conviction was obtained

through an unlawfully induced, involuntary guilty plea and failed to consider

alleged due process violations that occurred after Fleming entered his plea.

Namely, the district court did not address whether Fleming’s due process rights

were violated (1) when the state court allegedly failed to notify him of his right to

file a direct appeal or (2) when the state court allegedly failed to provide a full and

fair hearing on Fleming’s motion for post-conviction relief.

Because the district court did not address the merits of these two claims, we

vacate the judgment and remand the remaining claims for consideration by the

district court.2

VACATED AND REMANDED.