Dupree v. Warden

• Decision Date: 07 May 2013
• Docket Number: No. 11–12888.,11–12888.
• Citation: 715 F.3d 1295
• Parties: John D. DUPREE, Petitioner–Appellant, v. WARDEN, Attorney General, State of Alabama, Respondents–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

715 F.3d 1295

John D. DUPREE, Petitioner–Appellant,

v.WARDEN, Attorney General, State of Alabama, Respondents–Appellees.

No. 11–12888.

United States Court of Appeals, Eleventh Circuit.

May 7, 2013.

William W. Whatley, Jr. (Court–Appointed), Law Office of William W. Whatley, Jr., Montgomery, AL, for Petitioner–Appellant.

Michael G. Dean, John Cowles Neiman, Jr., Luther J. Strange, III, Attorney General's Office, Montgomery, AL, for Respondents–Appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before WILSON and COX, Circuit Judges, and BOWEN,^* District Judge.

COX, Circuit Judge:

The issue on appeal is whether the district court violated the rule laid down in Clisby v. Jones, 960 F.2d 925 (11th Cir.1992) (en banc). In Clisby, this court instructed district courts to resolve all claims for relief presented in a 28 U.S.C. § 2254 petition for a writ of habeas corpus regardless of whether relief is granted or denied. In this case, the district judge adopted the magistrate judge's report and recommendation in full and dismissed John D. Dupree's petition. But the magistrate judge's report and recommendation did not mention one of the many claims Dupree presented in his petition. Dupree did not object to the magistrate judge's failure to address this claim, so the district judge was not put on notice that one of Dupree's claims had not been addressed. Regrettably, however, our precedent compels us to conclude that the district court violated Clisby by failing to address the claim the magistrate judge overlooked. Despite a party's failure to object to a magistrate judge's conclusions on legal issues (or, as in this case, the failure of the magistrate judge to address legal issues), our precedent does not foreclose a party's ability to seek de novo review on appeal. We therefore vacate the district court's judgment in this case and remand. Having decided this case, however, we suggest that this court should, in the exercise of its supervisory powers, adopt a new rule (to operate prospectively) that attaches consequences to the failure to object to a magistrate judge's report and recommendation.

I. FACTS & PROCEDURAL HISTORY

In October 2004, John Dupree, represented by Patricia Granger, pleaded guilty to several state law drug-related offenses in an Alabama state court. Before sentencing, Dupree hired a new attorney, Dani Bone. Bone moved to set aside Dupree's guilty plea. The trial court denied the motion.

At sentencing, Dupree, represented by yet another attorney, Roderick Walls, again moved to set aside the guilty plea. The court denied the motion and sentenced Dupree to thirty years' imprisonment. Dupree appealed to the Alabama Court of Criminal Appeals. The court affirmed his conviction and denied his application for rehearing. Dupree then petitioned the Supreme Court of Alabama for a writ of certiorari, which the court denied.

In December 2006, Dupree filed a petition for post-conviction relief under Rule 32 of the Alabama Rules of Criminal Procedure. In his Rule 32 petition, Dupree alleges, among other things, that his attorneys, Patricia Granger and Dani Bone, provided ineffective assistance of counsel. The trial court dismissed this petition, and the Alabama Court of Criminal Appeals affirmed the dismissal and denied his application for rehearing. Dupree then petitioned the Supreme Court of Alabama for a writ of certiorari, and the court denied the petition.

In May 2009, Dupree, proceeding pro se, filed a 28 U.S.C. § 2254 petition for a writ of habeas corpus in the district court for the Northern District of Alabama. (Dkt. 1.) Dupree's petition alleges three grounds for relief. Only ground two is relevant to this appeal. In ground two, Dupree alleges ineffective assistance of counsel. ( Id. at 5.) When the petition form asks him to describe the alleged ineffective assistance, Dupree writes, “See Attached Sheet.” ( Id.) In the attached sheet, Dupree says that Granger and Bone failed to provide effective assistance of counsel. In particular, Dupree writes that Granger failed to inform him that the minimum sentence he would receive if he pleaded guilty was thirty years. ( Id. at 8.) Dupree writes that Bone “failed to go into detail as to exactly what it was that Dupree failed to understand about the plea agreement. Instead he allowed Dupree, in his inexperience, and under a state of duressto testify on his own behalf.” ( Id. at 9–10.)

The Respondents answered Dupree's petition. (Dkt. 8.) The answer thoroughly addresses Dupree's argument that Granger had rendered ineffective assistance of counsel. ( Id. at 18–21.) But it only addresses Bone in a footnote, saying, “To the extent that [Dupree's allegations about Bone] could be construed as an ineffective assistance of counsel claim, Dupree is not entitled to relief ....” ( Id. at 21 n. 8.) Dupree replied to the answer but failed to mention Bone. (Dkt. 10.)

The district court referred the petition to a magistrate judge, and the magistrate judge recommended that the district court dismiss the petition. (Dkt. 14.) In the report and recommendation, the magistrate judge concludes that Dupree's claim that Granger had provided ineffective assistance of counsel is meritless. ( Id. at 13–18.) The magistrate judge did not address Dupree's allegations about Bone's representation.

At the end of the report and recommendation, the magistrate judge warns the parties of the consequences of failing to object to the report and recommendation. ( Id. at 18–19.) Specifically, the magistrate judge cautions:

Failure to file written objections to the proposed findings and recommendations of the magistrate judge's report shall bar the party from a de novo determination by the District Court of issues covered in the report and shall bar the party from attacking on appeal factual findings in the report accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. [Unit B] 1982). A copy of the objections must be served upon all other parties to the action.

( Id.)

Dupree filed objections to the report and recommendation. (Dkt. 15.) But his objections fail to mention the magistrate judge's failure to address his ineffective-assistance-of-counsel claim based on Bone's performance.

The district court adopted the report and recommendation in its entirety, (Dkt. 16,) and dismissed Dupree's petition, (Dkt. 17). Dupree then sought a certificate of appealability, which this court granted. (Dkt. 23.)

II. ISSUE ON APPEAL & STANDARD OF REVIEW

We granted a certificate of appealability on the issue of “[w]hether the district court violated Clisby by failing to address the allegations in Dupree's memorandum, attached to his § 2254 petition, regarding Bone's representation.” (Dkt. 23.) We review de novo issues of law presented in a certificate of appealability. Medberry v. Crosby, 351 F.3d 1049, 1053 (11th Cir.2003).

III. DISCUSSION

In Clisby, this court, in the exercise of our supervisory authority, directed district courts to resolve all claims for relief raised in a 28 U.S.C. § 2254 petition for a writ of habeas corpus. 960 F.2d at 936. We defined a claim for relief as “any allegation of a constitutional violation.” Id. And, we said that if a district court fails to resolve all of the claims raised in a habeas petition and dismisses the petition, we will vacate the judgment without prejudice and remand the case for consideration of all of the remaining claims. Id. at 938.

Here, the district court—through little fault of its own—failed to address one of Dupree's claims for relief: his claim that Bone had provided ineffective assistance of counsel. This claim consists of two sentences found in the middle of a fifteen-page memorandum attached to Dupree's petition. The magistrate judge did not address the claim, and Dupree did not object to the magistrate judge's failure to address the claim. Nor did Dupree raise the claim in his reply to the Respondents' answer, which noted that the Respondents did not construe the two sentences about Bone to constitute an ineffective-assistance-of-counsel claim. The district court, with no indication from Dupree that the magistrate judge had failed to address Dupree's claim about Bone, adopted the report and recommendation and dismissed Dupree's habeas petition. So, the district court did not resolve the claim.

The Respondents argue that Dupree failed to present the claim in the district court, and the court's failure to resolve the claim therefore did not violate the rule established in Clisby.

A habeas petitioner must present a claim in clear and simple language such that the district court may not misunderstand it. See Smith v. Sec'y, Dep't of Corr., 572 F.3d 1327, 1352 (11th Cir.2009). We liberally construe petitions filed pro se. Green v. Nelson, 595 F.3d 1245, 1254 n. 4 (11th Cir.2010).

In Rhode v. United States, 583 F.3d 1289, 1291–92 (11th Cir.2009), we concluded that a pro se litigant had presented his ineffective-assistance-of-counsel claim before the district court for Clisby purposes when, in his motion to vacate, he “states that his ineffective assistance of counsel claims are described in his attached memorandum,” and in his attached memorandum, he sets out the facts supporting his claim.

In this case, Dupree filed his habeas petition pro se. Like the litigant in Rhode, Dupree refers to his attached memorandum when asked to describe the ineffective-assistance-of-counsel claim. (Dkt. 1 at 5.) In the memorandum, Dupree writes, “Bone also failed to go into detail as to exactly what it was that Dupree failed to understand about the plea agreement. Instead he allowed Dupree, in his inexperience, and under a state of duress to testify on his own behalf.” ( Id. at 9–10.) Construing his petition liberally, Dupree presented his ineffective-assistance-of-counsel claim about Bone's performance to the district court. Because the...