Rory O'Neal Scales v. Leon Forniss , 452 F. App'x 916 ( 2012 )


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    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________            FILED
    U.S. COURT OF APPEALS
    No. 11-12135         ELEVENTH CIRCUIT
    Non-Argument Calendar        JAN 19, 2012
    ________________________        JOHN LEY
    CLERK
    D.C. Docket No. 1:10-cv-02516-VEH-PWG
    RORY O’NEAL SCALES,
    lllllllllllllllllllllllllllllllllllllll                         Petitioner – Appellant,
    versus
    LEON FORNISS,
    ATTORNEY GENERAL, STATE OF ALABAMA,
    llllllllllllllllllllllllllllllllllllllll                        Respondents – Appellees.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Alabama
    ________________________
    (January 19, 2012)
    Before CARNES, WILSON and KRAVITCH, Circuit Judges.
    PER CURIAM:
    Rory O’Neal Scales, an Alabama state prisoner proceeding pro se, appeals
    the district court’s denial of his petition for habeas corpus, brought under 28
    U.S.C. § 2254. Scales’s amended petition, liberally construed, asserted (1) that his
    Confrontation Clause rights were violated and (2) that the admission of certain
    allegedly unreliable evidence at his trial deprived him of due process. The district
    court denied the petition and then granted a certificate of appealability (COA) on
    two issues:
    1.      Whether the holding of the Alabama courts that the victim’s
    statements to a 911 dispatcher were admissible as
    nontestimonial for purposes of the Confrontation Clause was
    contrary to, or involved an unreasonable application of, clearly
    established Federal law, as determined by the Supreme Court
    of the United States?
    2.      Whether any potential error in admitting the victim’s
    statements to Officer Vetra, a police officer at the scene, was
    harmless, i.e., whether the error had a substantial and injurious
    effect or influence in determining the jury’s verdict?
    The COA governs the scope of our review. Thomas v. United States, 
    572 F.3d 1300
    , 1303 (11th Cir. 2009). But Scales’s brief does not address either of
    these issues. Although we read pro se briefs liberally, we nonetheless will deem
    abandoned issues that a pro se litigant does not address. Timson v. Sampson, 
    518 F.3d 870
    , 874 (11th Cir. 2008). The leniency we afford to pro se litigants does not
    extend to functioning as de facto counsel or rewriting a pleading so that an action
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    will survive. GJR Invs., Inc. v. Cnty. of Escambia, Fla., 
    132 F.3d 1359
    , 1369
    (11th Cir. 1998), overruled in part on other grounds as recognized in Randall v.
    Scott, 
    610 F.3d 701
    , 709 (11th Cir. 2010). And pro se pleadings must conform to
    procedural rules. Albra v. Advan, Inc., 
    490 F.3d 826
    , 829 (11th Cir. 2007).
    “The right to appeal from the denial of a habeas corpus petition is governed
    by . . . 28 U.S.C. § 2253(c),” Bell v. Att’y Gen. of Fla., 
    614 F.3d 1230
    , 1231 (11th
    Cir. 2010), which requires a petitioner to obtain a COA by making a “substantial
    showing of the denial of a constitutional right,” § 2253(c). The COA “indicate[s]
    which specific issue or issues” justify appellate review, 
    id., ensuring that
    “[t]he
    decision about which issues are to be considered . . . [is] made on the front end of
    an appeal, before the issues are briefed . . . .” Hodges v. Att’y Gen. of Fla., 
    506 F.3d 1337
    , 1340 (11th Cir. 2007). “[O]ur review is restricted to the issues
    specified in the [COA].” Williams v. Allen, 
    598 F.3d 778
    , 795 (11th Cir. 2010). If
    we have not expanded the COA to include a contention made in a brief, “we will
    not consider it.” Williams v. McNeil, 
    557 F.3d 1287
    , 1290 n.4 (11th Cir. 2009).
    At best, two of the nine issues Scales’s brief addresses — whether the
    district court erred in ruling on his objections to the magistrate judge’s report and
    recommendation and in disposing of his case — tangentially implicate the
    questions posed in the COA. But in neither instance does Scales make any
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    argument with respect to the specific constitutional issues outlined in the COA or
    explain how the district court’s disposition of those issues was erroneous. Rather,
    he simply attacks the procedural propriety of the court’s decision and incorporates
    the non-constitutional evidentiary contentions he made to the district court. He
    has, therefore, abandoned the two issues for which a COA was granted.
    Although he had the right to do so, see 
    Hodges, 506 F.3d at 1339-41
    , Scales
    never asked that we expand the COA to include any of the multiple other claims
    he now makes. As we have explained, “[t]here would be no point in having a
    COA order specify issues” if a petitioner may simply raise new issues in his brief.
    
    Id. at 1341.
    Even if we treat the attack on the district court’s COA ruling in
    Scales’s brief as a belated application for expansion of the COA, Scales has failed
    to make the “substantial showing” under § 2253(c) that would justify expansion.
    See Jones v. United States, 
    304 F.3d 1035
    , 1037 n.3 (11th Cir. 2002). In fact,
    Scales does not identify any new constitutional issues that would warrant granting
    such an application.
    Although we construe his brief liberally, we conclude that Scales has
    abandoned the only two substantive issues upon which he was entitled to appellate
    review. Accordingly, the decision of the district court is
    AFFIRMED.
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