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Eleventh Circuit: District Court ‘Mischaracterizing’ Habeas Claim Left Claim Unresolved in Violation of Clisby, Requiring Remand

After Clifford Senter was convicted of armed bank robbery and firearms charges, he was sentenced under the Armed Career Criminal Act (“ACCA”) to a total of 35 years in prison.

Almost 20 years later, Senter filed his first motion under 28 U.S.C. § 2255, challenging his ACCA sentence after the U.S. Supreme Court declared part of the ACCA statute unconstitutional in Johnson v. United States, 576 U.S. 591 (2015).

His primary claim for relief alleged that his prior Alabama attempted robbery conviction isn’t an ACCA predicate because attempted robbery isn’t a crime under Alabama law and therefore has no elements to qualify under the ACCA. Alabama enacted a new criminal code in 1980, eliminating attempted robbery as a separate offense from robbery. Petty v. State, 414 So. 2d 182 (Ala. Crim. App. 1982).

The district court rejected Senter’s motion on the basis that it was an improper attack on his prior state conviction, which isn’t generally allowed in a § 2255 motion. The remainder of Senter’s claims were either dismissed or denied by the court, and he appealed.

In Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992), an en banc court created the hard rule that a district court must “resolve all claims for relief in a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1988), regardless whether habeas relief is granted or denied.” The Eleventh Circuit has extended this rule to claims raised in a § 2255 motion. Rhode v. United States, 583 F.3d 1289 (11th Cir. 2009). Clisby instructs that a claim for relief “is any allegation of a constitutional violation.”

Quoting Clisby, the Court explained that “[p]olicy considerations favor … a one-proceeding treatment of a petitioner’s case [enabling] a more thorough review of his claims….” The Court further explained that piecemeal litigation of federal habeas corpus petitions of granting or denying only some claims, and not addressing others, wreaks havoc in the courts.

In the event a district court neglects to resolve all of the applicable claims, the Clisby Court announced we “will vacate the district court’s judgment without prejudice and remand the case for consideration of all remaining claims.”

That was the relief Senter sought in his appeal currently at issue. The Court concluded that the district court “mischaracterized” Senter’s argument. “Senter did not argue that under state law, his attempted robbery conviction is itself constitutionally infirm because Alabama law does not recognize this offense. Instead, he argued that, under federal law, his attempted robbery conviction cannot meet the requirements of a violent felony conviction under either of the remaining ACCA definitional clauses, because attempted robbery does not exist under Alabama law and, therefore, does not have any elements,” according to the Court.

While it’s true that the district court did find that an attempt to commit robbery “necessarily includes, at a minimum, an attempt to use force,” and thus was a valid predicate under the ACCA’s “force clause,” the Court explained that the district court’s resolution was actually for Senter’s “alternative” argument that an attempt offense doesn’t include an element of force. The district court never addressed the first part of Senter’s claim about the attempted robbery not even constituting an offense itself.

“The district court never in the first instance resolved Senter’s claim that his attempted robbery conviction could not be a violent felony because, as an offense unrecognized by Alabama law, it has no elements at all. Since the district court did not address this claim, it violated Clisby,” the Court ruled.

Accordingly, the Court vacated the denial of Senter’s § 2255 motion without prejudice and remanded for consideration of his actual claim. See: Senter v. United States, 980 F.3d 777 (11th Cir. 2020).

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