PUGH v. U.S., 398 Fed.Appx. 566 (11th Cir. 2010)

Brian A. PUGH, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 09-15884 Non-Argument Calendar.United States Court of Appeals, Eleventh Circuit.
October 6, 2010.

Page 567

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Brian A. Pugh, Loretto, PA, pro se.

E. Bryan Wilson, Tallahassee, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Florida. D.C. Docket Nos. 07-00386-CV-3-RV/MD, 02-00110-CR-3-RV.

Before BLACK, BARRETT and HULL, Circuit Judges.

PER CURIAM:

Brian Pugh, proceeding pro se, appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate. We granted a certificate of appealability on the following issue: “Whether the district court violate Clisby v. Jones, 960 F.2d 925, 938 (11th Cir. 1992) (en banc), by failing to address Pugh’s claim that, following Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and United States v. Archer, 531 F.3d 1347 (11th Cir. 2008), his prior conviction for possession of an unregistered firearm should no longer be considered a “crime of violence” for purposes of Sentencing Guidelines §§ 2K2.1 and 4B1.2.” The Government concedes on appeal that the district court failed to address this claim. After careful review, [1] we vacate the judgment and remand this case to the district court to enter findings consistent with this opinion.

When a district court fails to address all of the claims in a habeas petition, we “will vacate the district court’s judgment without prejudice and remand the case for consideration of all remaining claims.” Clisby, 960 F.2d at 938. We have recognized the legal principles applicable to § 2254 proceedings generally apply to § 2255 motions to vacate, and thus Clisby applies to § 2255 motions Rhode v. United States, 583 F.3d 1289, 1291 (11th Cir. 2009).

We conclude the district court violated Clisby by failing to address Pugh’s claim that under Begay an Archer, his sentence should not have been enhanced based on his prior conviction for possession of an unregistered firearm. Accordingly, we vacate the judgment without prejudice and remand for consideration of the remaining claim by the district court.

VACATED AND REMANDED.

[1] In a Section 2255 proceeding, we review legal issue de novo, and factual findings under a clear error standard. U.S. v. Walker, 198 F.3d 811, 813 (11th Cir. 1999).

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