[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
MARCH 21, 2011
No. 10-12427 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket Nos. 8:09-cv-02540-SCB-EAJ & 8:08-cr-00026-SCB-EAJ
LUIS A. COSSINO, a.k.a. Luis Cossio,
lllllllll llllllllllll Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
lllllllllllllllllllll Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 21, 2011)
Before PRYOR, ANDERSON and BLACK, Circuit Judges.
PER CURIAM:
Luis Cossino, a federal prisoner, appeals pro se the dismissal of his motion
to vacate his sentence. 28 U.S.C. § 2255. This Court issued a certificate of
appealability to resolve whether the district court, contrary to Clisby v. Jones, 960
F.2d 925, 938 (11th Cir. 1992) (en banc), and Rhode v. United States, 583 F.3d
1289, 1291 (11th Cir. 2009), failed to consider three arguments that Cossino
raised in an addendum to his motion to vacate. We vacate and remand.
A jury convicted Cossino of conspiring to manufacture 100 or more
marijuana plants, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vii), 846, and
manufacturing 100 or more marijuana plants, id. §§ 841(a)(1), 841(b)(1)(B)(vii);
18 U.S.C. § 2, and the district court sentenced Cossino to 60 months of
imprisonment. Cossino appealed and argued that the district court erred by
denying his motion to suppress and that his trial counsel was ineffective. We held
that Cossino lacked standing to challenge the search of the residence where the
marijuana was discovered, and we declined to address Cossino’s argument of
ineffectiveness. United States v. Cossino, No. 08-15694 (11th Cir. July 8, 2009).
Cossino moved pro se to vacate his sentence and argued that his trial
counsel acted ineffectively by failing to investigate whether signatures on two
search warrants had been forged and by failing to move to suppress the search
warrants. After the district court ordered the government to show cause why relief
should not be granted, but before the government filed a response, Cossino filed
an addendum to his motion to vacate. Cossino did not move to amend his motion
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to vacate, even though his motion contained the following warning: “Caution: If
you fail to set forth all grounds in this motion, you may be barred from presenting
additional grounds at a later date.” In his addendum, Cossino raised three new
grounds for relief that he numbered grounds three, four, and five: (3) trial counsel
was ineffective for failing to object to Cossino’s indictment as duplicitous and for
failing to request a jury instruction about aiding and abetting; (4) appellate counsel
was ineffective for failing to raise the issues in ground three and failing to
challenge the failure of the district court to consider all the sentencing factors or
explain the reason for its sentence, 18 U.S.C. § 3553; and (5) Cossino could not be
convicted of being “the principle and the aider and abettor” of his drug crimes.
The government responded to the two arguments Cossino had made in his
motion to vacate, but the government did not respond to the three issues that
Cossino had raised in his addendum to the motion. Cossino filed a reply, but he
did not mention the three issues that he had raised in his addendum.
The district court denied Cossino’s motion to vacate. The district court
ruled that trial counsel could not be faulted for failing to object to search warrants
that Cossino lacked standing to challenge. The district court did not address the
three issues that Cossino had raised in his addendum. The district court denied
Cossino’s request for a certificate of appealability, but we granted the certificate.
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Although we issued the certificate of appealability to resolve whether
Cossino could amend his motion to vacate by filing an addendum more than 21
days after he filed his motion, we need not address that procedural issue. The
government does not challenge Cossino’s right to amend his motion. The
government states that the district court “should have allowed [Cossino] to amend
his” motion to vacate under Federal Rule of Civil Procedure 15(a)(2), which
provides that a district court “should freely give . . . when justice so requires” a
party permission to amend a pleading.
The government argues that Cossino abandoned the issue of whether he was
entitled to a remand under Rhode and Clisby, but we disagree. “[P]ro se pleadings
are held to a less strict standard than pleadings filed by lawyers and thus are
construed liberally.” Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).
After careful review, we conclude that Cossino has preserved his claim for relief
by stating in his initial brief that the district court should have reviewed the issues
raised in the addendum to the motion to vacate.
The government urges us to review the merits of Cossino’s issues because
he included those arguments in his initial brief, but we will not review the merits
at this juncture in the proceeding. As we have explained previously, “‘[p]olicy
considerations clearly favor the contemporaneous consideration of allegations of
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constitutional violations grounded in the same factual basis: a one-proceeding
treatment of a petitioner’s case enables a more thorough review of his claims, thus
enhancing the quality of the judicial product.’” Rhode, 583 F.3d at 1291 (quoting
Clisby, 960 F.2d at 936). Furthermore, we will not consider the merits of
Cossino’s arguments because they are outside the scope of the certificate of
appealability. Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998).
The district court failed to address all constitutional issues that Cossino
“sufficiently raised” in the district court. Rhode, 583 F.3d at 1291; Clisby, 960
F.2d at 935–36. To remedy this oversight, we “vacate the district court’s judgment
without prejudice and remand the case for consideration of” the three issues that
Cossino raised in the amendment to his motion to vacate. Rhode, 583 F.3d at
1292.
VACATED and REMANDED.
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