Daniel L. Morgan v. United States , 140 F. App'x 915 ( 2005 )


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  •                                                                [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________  ELEVENTH CIRCUIT
    JULY 28, 2005
    No. 04-13634                   THOMAS K. KAHN
    Non-Argument Calendar                   CLERK
    ________________________
    D.C. Docket Nos. 03-21761-CV-KMM
    01-00456-CR-KMM
    DANIEL L. MORGAN,
    Petitioner-Appellant,
    versus
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    __________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (July 28, 2005)
    Before TJOFLAT, BLACK and PRYOR, Circuit Judges.
    PER CURIAM:
    On March 7, 2003, we affirmed petitioner’s multiple convictions at the
    hands of a jury for narcotics trafficking and related firearm offenses. United States
    v. Reynolds, 
    61 Fed. Appx. 668
     (11th Cir. Jan. 31, 2003). On June 30, 2003,
    petitioner, pursuant to 
    28 U.S.C. § 2255
    , moved the district court to set aside his
    convictions and resulting sentences on several grounds, including that his trial
    attorney rendered ineffective assistance of counsel by operating under a conflict of
    interest because he advised petitioner to plead guilty, which petitioner did not
    wish to do. The court referred the motion to a magistrate judge who issued a
    Report and Recommendation (“R & R”) recommending that the motion be denied.
    Addressing the above ineffective assistance claim, the R & R stated the following:
    To the extent that [petitioner] argues that counsel rendered
    ineffective assistance by advising him to enter a guilty plea and
    testify against his codefendant, he has likewise failed to demonstrate
    that he is entitled to relief. In light of the overwhelming evidence
    against [petitioner], counsel’s advice was not deficient, as it is
    possible that [petitioner] could have received the benefit of his
    assistance to the government. Moreover, [petitioner] chose not to
    follow counsel’s advice and he proceeded to trial. Thus, he has not
    demonstrated prejudice resulting from counsel’s advice.
    After the district court denied petitioner leave to amend his motion, it
    adopted the R & R and denied petitioner’s motion. Petitioner filed a timely notice
    of appeal. The district court denied petitioner’s request for a certificate of
    appealability. We, however, issued a certificate for the following issue:
    Whether the district court violated Clisby v. Jones, 
    960 F. 2d 925
    ,
    938 (11th Cir. 1992) (en banc), by failing to address [petitioner’s]
    2
    claim that his trial counsel was ineffective for having a conflict of
    interest?
    In his initial brief to us, petitioner did not address this issue. Instead, he
    briefed an issue unrelated to the issue we certified. He has therefore abandoned
    the certified issue and his appeal is due to be dismissed. See United States v.
    Ardley, 
    242 F. 3d 989
    , 990 (11th Cir.), reh’g en banc denied, 
    273 F. 3d 991
     (11th
    Cir. 2001), cert. denied, 
    535 U.S. 979
     (2002).
    DISMISSED.
    3
    

Document Info

Docket Number: 04-13634; D.C. Docket 03-21761-CV-KMM, 01-00456-CR-KMM

Citation Numbers: 140 F. App'x 915

Judges: Black, Per Curiam, Pryor, Tjoflat

Filed Date: 7/28/2005

Precedential Status: Non-Precedential

Modified Date: 8/2/2023