Jose Eligio Rios v. United States , 479 F. App'x 309 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-13311 ELEVENTH CIRCUIT
Non-Argument Calendar JULY 9, 2012
________________________ JOHN LEY
CLERK
D.C. Docket Nos. 1:09-cv-20752-MGC ; 1:05-cr-20718-MGC-1
JOSE ELIGIO RIOS,
llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 9, 2012)
Before TJOFLAT, EDMONDSON, and ANDERSON, Circuit Judges.
PER CURIAM:
Jose Eligio Rios, a federal prisoner proceeding pro se, appeals the denial of
his 28 U.S.C. § 2255 motion to vacate. He raised several claims in his motion, but
the only one relevant to this appeal is his third claim, in which he argued that the
government violated his Sixth Amendment rights by deporting favorable witnesses
and that his trial counsel was ineffective for failing to protect his Sixth Amendment
rights in this regard. The magistrate construed this claim as asserting an
ineffective-assistance-of-counsel claim and denied relief on the grounds that Rios
could not show that the witnesses would have provided helpful testimony and that
counsel made a reasonable strategic decision not to try to call these witnesses.
The district court adopted the magistrate’s report but granted a certificate of
appealability (“COA”) “as to claim 3, as numbered in the [magistrate’s] Report and
Recommendation.” As numbered in the magistrate’s report, claim three was that
Rios “was denied effective assistance of counsel when his attorney failed to obtain
favorable witnesses, secure the testimony thereof, and failed to impeach the
testimony of government witnesses.”
On appeal, Rios argues only that he was denied his Sixth Amendment right
to compulsory process because the government deported alien witnesses who
allegedly would have testified that Rios had not brought the narcotics aboard the
vessel.
The denial of a § 2255 motion to vacate presents a mixed question of law
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and fact, with the district court’s legal conclusions reviewed de novo and its
findings of fact reviewed for clear error. Rhode v. United States, 583 F.3d 1289,
1290 (11th Cir. 2009). Pro se pleadings are held to a less stringent standard than
pleadings drafted by attorneys, but we will not act as de facto counsel for pro se
parties or rewrite a deficient pleading. GJR Invs., Inc. v. Cnty. of Escambia, 132
F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds as recognized in,
Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010).
The scope of review on appeal is limited to the issues specified in the COA.
Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998). Issues not raised
by a pro se litigant in his initial brief before this Court are deemed abandoned.
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
In his brief to this Court, Rios has failed to put forth any argument
challenging the district court’s conclusion that Rios’s counsel was not ineffective
for failing to call the deported witnesses. This issue is waived, and we do not
consider it. Id.1
Rather, Rios’s brief is devoted entirely to arguing that the government
1
Even if we very broadly construe Rios’s brief to this Court as arguing a claim of
ineffective assistance of counsel, Rios has not provided any evidence whatsoever to support his
claim that the deported witnesses would have testified that Rios was not involved in loading the
hashish oil onto the vessel. See Fortenberry v. Haley, 297 F.3d 1213, 1225 (11th Cir. 2002)
(noting that petitioner must present evidence to show that “there is a reasonable probability that
. . . the result of the proceeding would have been different”).
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violated his constitutional right to compulsory process by deporting favorable
witnesses. This issue is outside the scope of the COA, which was granted on
“claim 3, as numbered in the [magistrate’s] Report and Recommendation.” As
described in the magistrate’s report, claim three was merely an ineffective-
assistance-of-counsel claim. It did not include the argument that Rios’s right to
compulsory process had been violated. Therefore, we decline to entertain Rios’s
argument about compulsory process. See Murray, 145 F.3d at 1251.
Furthermore, even if we broadly construe the COA to include the
compulsory-process claim, we still cannot entertain this issue because Rios did not
raise it on direct appeal, and he has not presented any cause excusing this failure,
nor prejudice resulting from it. See Cross v. United States, 893 F.2d 1287, 1289
(11th Cir. 1990) (“In a section 2255 federal habeas motion, a movant may not raise
claims that were not presented on direct appeal unless he can show cause excusing
his failure to raise the issues previously and actual prejudice resulting from the
errors. If the requisite cause and prejudice is not shown, we will not review the
merits of the appellant’s claims even upon a showing of plain error on the part of
the lower court.”) (citation and quotations omitted); see also Thor v. United States,
574 F.2d 215, 217-18 (5th Cir. 1978).
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AFFIRMED.2
2
Rios’s request for oral argument is DENIED.
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