[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 15, 2007
No. 06-16155 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 03-02582-CV-T-27TGW & 00-00013-CR-27T
EDWARD VINCENT DIPIETRO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 15, 2007)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Edward DiPietro, through counsel, appeals the district court’s denial of his
pro se motion to vacate, set aside, or correct his sentence, filed pursuant to 28
U.S.C. § 2255. In his motion, DiPietro raised claims including, inter alia,
prosecutorial misconduct and failure to disclose exculpatory evidence.
Specifically, DiPietro claimed the Government (1) “tricked” the district court into
believing the transaction for which he was arrested was to be for ten kilograms
rather than four, and (2) failed to release certain telephone conversations
mentioned in the criminal complaint. We granted a certificate of appealability
(COA) with regard to “(1) [w]hether the appellate counsel on direct appeal was
ineffective for failing to assert appellant’s prosecutorial misconduct and failure to
disclose exculpatory evidence claims[,]” and “(2) [i]f so, whether counsel’s
ineffectiveness constitutes sufficient cause and prejudice to excuse the appellant’s
procedural default in failing to raise those two claims at trial or on direct appeal.”
The district court did not address whether DiPietro’s counsel was ineffective
for failing to bring these claims. Thus, we assume, arguendo, that ineffective
assistance of counsel caused DiPietro’s procedural default, and focus on the
prejudice prong of the second question. However, we first address DiPietro’s
argument the district court erred by determining he procedurally defaulted his
claims of prosecutorial misconduct and failure to disclose exculpatory evidence.
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I.
Normally, our review is limited to the issues specified in the COA. Murray
v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998). However, we have also
held that procedural issues, such as whether a claim has been procedurally
defaulted, that must be resolved before we can address the claim specified in the
COA are presumed to be encompassed in the COA. Wright v. Sec’y for Dep’t of
Corr., 278 F.3d 1245, 1258 (11th Cir. 2002). The district court’s finding that a
claim is procedurally barred presents a mixed question of law and fact that we
review de novo. Ogle v. Johnson, 488 F.3d 1364, 1368 (11th Cir. 2007).
A criminal defendant who fails to object at trial, or to raise an available
ground of error on direct appeal, is procedurally barred from raising the claim in a
§ 2255 motion, absent a showing of cause and prejudice or a fundamental
miscarriage of justice. Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994).
“A ground of error is usually ‘available’ on direct appeal when its merits can be
reviewed without further factual development.” Id.
Contrary to DiPietro’s assertions that the errors were not apparent on the
face of the record, the recorded phone conversations were identified in the criminal
complaint. Moreover, Detective Garcia testified at trial that the recordings had
been made. Therefore, the existence of the recordings was apparent from the face
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of the record, and DiPietro had the opportunity to object to his lack of access to
them both at trial and on appeal. Similarly, there was testimony at both the trial
and the sentencing hearing that the transaction was for ten kilograms of cocaine.
Therefore, this issue also was apparent from the face of the record. Furthermore,
DiPietro’s argument that he could not have brought the issues on appeal because
counsel failed to object at trial presents circular logic in that the failure to object,
either at trial or on appeal, was, itself, the procedural default. See Mills, 36 F.3d at
1055. Accordingly, DiPietro procedurally defaulted the claims of prosecutorial
misconduct and failure to disclose exculpatory evidence, and therefore, he was
required to prove cause and prejudice in order to obtain review of these claims.
II.
In a 28 U.S.C. § 2255 proceeding, we review a district court’s legal
conclusions de novo and its findings of fact for clear error. Garcia v. United
States, 278 F.3d 1210, 1212 (11th Cir. 2002). In order to for a claim to be
cognizable under 28 U.S.C. § 2255, it generally must be based on a constitutional
right. Richards v. United States, 837 F.2d 965, 966 (11th Cir. 1988). In some
cases, prosecutorial misconduct may be so great as to constitute a violation of the
Due Process Clause of the Constitution. Parker v. Head, 244 F.3d 831, 838 (11th
Cir. 2001). Accordingly, although the district court’s analysis of non-
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constitutional claims was correct, it erred to the extent it viewed DiPietro’s
prosecutorial misconduct claim as completely foreclosed by § 2255.
Nevertheless, the district court correctly noted that, where a defendant
procedurally defaults a claim, he must show cause for, and actual prejudice from,
any alleged error. See Mills, 36 F.3d at 1055.1 Ineffective assistance of counsel
may constitute cause to excuse procedural default. Eagle v. Linahan, 279 F.3d
926, 937 (11th Cir. 2001). In order to establish prejudice, a defendant must show
that “errors at trial worked to his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions.” Cross v. United States, 893
F.2d 1287, 1292 (11th Cir. 1990) (alteration in original).
A defendant may avoid the need to show cause and prejudice on a
procedurally defaulted claim by raising a substantive issue of ineffective assistance
of counsel for failure to assert the claim. Eagle, 279 F.3d at 938 (holding, in the
§ 2254 context, that where appellate counsel did not bring a Batson 2 challenge on
appeal, the defendant would have to show cause and prejudice to obtain review of
that claim, but could obtain review of his ineffective assistance of counsel claim
without such a showing). However, here, DiPietro presented defaulted, substantive
1
Because DiPietro has not argued that he can prove actual innocence, we find it
unnecessary to consider whether he may obtain review based on actual innocence. See Mills, 36
F.3d at 1055.
2
Batson v. Kentucky, 106 S. Ct. 1712 (1986).
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claims of prosecutorial misconduct and failure to disclose exculpatory evidence
(and asserted ineffective assistance of counsel as cause), rather than a substantive
ineffective-assistance-of-counsel claim. Therefore, assuming that ineffective
assistance of counsel constituted cause, he still was required to prove prejudice in
order to excuse the default. See Eagle, 279 F.3d at 938.
Under Brady, “‘the suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence is material either
to guilt or to punishment.’” Grossman v. McDonough, 466 F.3d 1325, 1341 (11th
Cir. 2006) cert. denied, 127 S. Ct. 2430 (2007) (quoting Brady, 83 S. Ct. at 1196-
97). “Evidence is material ‘if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different.’” Id. at 1341-42 (quoting United States v. Bagley, 105 S. Ct. 3375,
3383 (1985)). In other words, “the materiality standard for Brady claims is met
when the favorable evidence could reasonably be taken to put the whole case in
such a different light as to undermine confidence in the verdict.” Banks v. Dretke,
124 S. Ct. 1256, 1276 (2004) (quotation marks omitted).
Assuming, arguendo, that DiPietro’s counsel was ineffective, constituting
cause for his procedural default, DiPietro had to also show that he was actually
prejudiced by the failure to bring the claims in order to obtain review of them. See
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Cross, 893 F.2d at 1292. First, with regard to the claim the Government “tricked”
the district court into believing that ten kilograms were involved in the transaction,
contrary to DiPietro’s claim the testimony at trial was that only four kilograms
were involved, both Munoz and Detective Garcia testified at trial that the
agreement was for ten kilograms of cocaine. Moreover, at sentencing, the district
court apparently did not rely on any statement made at the sentencing hearing in
finding that ten kilograms were involved, but said “I will determine based on the
evidence presented to the jury that the amount of cocaine that was the subject of
the conspiracy . . . exceeded five kilograms or more . . . of cocaine.” (Emphasis
added). Because there is no evidence the Government attempted to “trick” the
court into finding that ten kilograms were involved, the district court correctly
found that DiPietro had not shown prejudice based on this alleged error.
With regard to the failure to disclose the recordings, the district court did not
make a finding as to whether the Government suppressed the evidence of the
recordings. Assuming, arguendo, the Government suppressed the recordings, there
is no evidence they would have had any effect on the outcome of the trial. First,
DiPietro did not identify anything specific in the recordings that would have cast
doubt on the credibility of Munoz or the confidential informant or on the procedure
used in obtaining their cooperation. Moreover, with regard to Munoz’s credibility,
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the jury was already presented with reason to doubt Munoz’s credibility when
(1) Agent Keiken testified that Munoz changed the story he told to officers,
(2) Munoz admitted he had been living illegally in the United States, and
(3) DiPietro’s counsel cross-examined Munoz about the favorable terms he would
receive if he were to testify. Finally, with regard to the amount of cocaine, even if
the recordings show Munoz and the confidential informant agreed on four
kilograms of cocaine, Munoz testified the deal was originally for four kilograms,
but that the parties later agreed on ten kilograms. In light of all these
considerations, DiPietro failed to show there was a reasonable probability the
recordings would have affected the outcome of the trial, and therefore, the district
court did not err in determining DiPietro failed to establish prejudice on this basis.
DiPietro has not established prejudice on either ground. Thus, we affirm the
district court.
AFFIRMED.
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