CLAY v. U.S.A., 07-11806 (11th Cir. 1-2-2008)
CLARENCE CLAY, Petitioner-Appellant, v. UNITED STATES OF AMERICA,
Respondent-Appellee.
No. 07-11806 Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
January 2, 2008.

Appeal from the United States District Court for the Middle
District of Alabama, D. C. Docket No. 05-00854-CV-MHT-CSC.

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

Clarence Clay, a federal prisoner proceeding pro
se, appeals the district
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court's denial of his 28 U.S.C. § 2255 motion to vacate,
set aside, or correct his sentence. We granted a certificate of
appealability ("COA") on the following issues: "(1) Whether
appellant raised a claim during the 28 U.S.C. § 2255 motion
proceedings that his sentence violated United States v.
Booker, 543 U.S. 220, 125 S.Ct. 738 (2005); and (2) If so,
whether the district court violated Clisby v. Jones,
960 F.2d 925, 936 (11th Cir. 1992) (en banc) by
failing to address appellant's substantive Booker
claim." Clay, pro se, argues that the record shows he
repeatedly made substantive Booker arguments in the
§ 2255 motion proceedings before the district court. Clay
also argues that, because the district court did not address his
Booker claim, it violated Clisby.

In a 28 U.S.C. § 2255 proceeding, we review a district
court's legal conclusions de novo and factual findings
for clear error. Lynn v. United States, 365 F.3d 1225,
1232 (11th Cir. 2004). "Pro se pleadings are held to a
less stringent standard than pleadings drafted by attorneys and
will, therefore, be liberally construed." Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998). We
have held that "it is well established that the standards
governing the sufficiency of habeas corpus petitions are less
stringent when the petition is drafted pro se and
without the aid of counsel." Holsomback v. White,
133 F.3d 1382, 1386 (11th Cir. 1998) (citation omitted).
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In Booker, 543 U.S. at 244, 125 S.Ct. at 756-57, the
Supreme Court held that the mandatory sentencing guidelines
violated the Sixth Amendment right to a trial by jury to the
extent they permited a judge to increase a defendant's sentence
based on facts that are neither found by a jury nor admitted by
the defendant. The Supreme Court's holding in Booker
is not retroactively applicable to cases on collateral review.
Varela v. United States, 400 F.3d 864, 868 (11th
Cir.), cert. denied, 126 S. Ct. 312 (2005). However,
Booker does apply to all cases on direct review.
Booker, 543 U.S. at 268, 125 S.Ct. at 769.

The Supreme Court decided Booker on January 12, 2005.
Id., 543 U.S. 220, 125 S.Ct. 738, while Clay's case
was on direct appeal until February 28, 2005, the date the
Supreme Court denied his petition for writ of certiorari.
Clay v. United States, 543 U.S. 1192, 125 S.Ct. 1427
(2005). Therefore, Clay's case had not become final before the
Supreme Court decided Booker. Teague v.
Lane, 489 U.S. 288, 295, 109 S.Ct. 1060, 1067 (1989)
(defining "final" as meaning a case "where the judgment of
conviction was rendered, the availability of appeal exhausted,
and the time for petition for certiorari had elapsed."
(internal quotations omitted)). Booker, then, would
apply to Clay's case. See Booker,
543 U.S. at 268, 125 S.Ct. at 769.
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Although this is a close call, given Clay's pro se
status we conclude that he sufficiently raised a substantive
Booker argument during the 28 U.S.C. § 2255 motion
proceedings to require a ruling by the district court on it. The
tipping factor to us is the fact that the government's response
to Clay's § 2255 motion specifically acknowledged that "Clay
also raises whether his sentence is proper under United
States v. Booker, 540 U.S. [220], 125 S.Ct. 738 (2005),"
and argued against that the Booker claim failed on the
merits.

Because Clay raised a Booker claim, the district
court should have addressed it. Cf. Clisby v.
Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en
banc) (section 2254 case) ("[W]e now exercise our
supervisory power over the district courts . . . and instruct
the district courts to resolve all claims for relief raised in a
petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254 (1988), regardless whether habeas relief is granted or
denied."). A § 2255 motion may not be denied without some
ruling on each of the claims it raises any more than one could
be denied without a ruling on any of the claims it raises.

The order denying the motion is VACATED and the case is
REMANDED to the district court with instructions that it address
the Booker claim.[fn1]

[fn1] We will not address any other claim that Clay raises on
appeal. See Murray v. United States,
145 F.3d 1249, 1250-51 (11th Cir. 1998).