[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 20, 2008
THOMAS K. KAHN
No. 07-10705
CLERK
Non-Argument Calendar
________________________
D. C. Docket Nos. 05-21127-CV-ASG & 03-20387 CR-ASG
GEORGE BURNS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 20, 2008)
Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.
PER CURIAM:
George Burns, a pro se federal prisoner, appeals the denial of his motion to
vacate, set aside or correct sentence, 28 U.S.C. § 2255.
In April 2005, Burns filed his § 2255 motion, alleging, inter alia, that his
counsel was ineffective because he (1) gave Burns “flawed advice” to plead guilty,
(2) failed to file routine motions, (3) failed to challenge the “fraudulent
indictment,” (4) failed to master the Sentencing Guidelines, and (5) failed to file a
direct appeal. Burns also claimed that he was subjected to a “miscarriage of
justice” and deprived of a liberty interest due to the ineffectiveness of his counsel.
Burns contended that his guilty plea was invalid because he “is an ‘un-learned’ pro
se indigent person that has no legal skill into the law and the court has been aware
of his ‘mental defects.’”
After holding an evidentiary hearing, the magistrate judge issued a report
and recommended that Burns’s 28 U.S.C. § 2255 motion be denied. After
conducting a de novo review, the district court adopted the magistrate’s report and
recommendation and denied Burns’s 28 U.S.C. § 2255 motion. The court also
denied Burns’s request for reconsideration.
The district court granted a certificate of appealability (“COA”) because “the
right to competent counsel is unquestionably a constitutional right, and because the
sole basis for his petition and appeal implicate this constitutional right.”
On appeal, Burns contends that his trial counsel, Frederick S. Robbins, was
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ineffective for failing to investigate his history and background, and requests this
case be remanded back to the district court in order to inquire further into Burns’s
competence to knowingly and willingly enter into a plea of guilty. Burns argues
that even though Robbins was aware of his illiteracy and had objective reasons to
know that he was suffering from mental health issues, Robbins failed to introduce
any information at the plea colloquy concerning his illiteracy or his mental
condition and failed to alert the district court that he was taking medication.
Therefore, according to Burns, his guilty plea was “definitely not knowing or
intelligent” and the district court erred by denying his § 2255 motion.
With regard to a district court’s denial of a 28 U.S.C. § 2255 motion to
vacate, we review legal conclusions de novo and findings of fact for clear error.
Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004). An ineffective
assistance of counsel claim is a mixed question of law and fact that is subject to de
novo review. Gordon v. United States, 496 F.3d 1270, 1276 (11th Cir. 2007).
“Pro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed.” Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998).
The Sixth Amendment gives criminal defendants the right to effective
assistance of counsel. U.S. Const., amend. VI; Strickland v. Washington, 466 U.S.
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668, 684-86, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). To prevail on a claim
of ineffective assistance of counsel, the defendant must demonstrate (1) that his
counsel’s performance was deficient, i.e., the performance fell below an objective
standard of reasonableness, and (2) that he suffered prejudice as a result of that
deficient performance. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65. We
need not “address both components of the inquiry if the defendant makes an
insufficient showing on one.” Id. at 697, 104 S.Ct. at 2069.
To meet the deficient performance prong of the Strickland test, the
defendant must show that counsel made errors so serious that he was not
functioning as the counsel guaranteed by the Sixth Amendment. Id. at 687, 104
S.Ct. at 2064. There is a strong presumption that counsel’s conduct fell within the
range of reasonable professional assistance. Id. at 689, 104 S.Ct. at 2065. To
prove prejudice, “[t]he defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694, 104 S.Ct. at 2068. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.
The Strickland two-part test applies to challenges to guilty pleas based on
ineffective assistance of counsel. United States v. Pease, 240 F.3d 938, 941 (11th
Cir. 2001) (citation omitted); Hill v. Lockhart, 474 U.S. 52, 60, 106, S.Ct. 366,
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371, 88 L.Ed.2d 203 (1985) (holding that petitioner failed to allege the type of
prejudice required by Strickland because petitioner did not allege in his habeas
petition that had his counsel been effective in advising him, he would have pleaded
not guilty and insisted on proceeding to trial). In this situation, the defendant must
show “a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Gordon, 496 F.3d at
1270 (citation omitted).
“To ensure that a plea is voluntary and knowing, Federal Rule of Criminal
Procedure 11(b)(1)(G) states that ‘the court must address the defendant personally
in open court’ before accepting the plea and ‘inform the defendant of, and
determine that the defendant understands . . . the nature of each charge to which the
defendant is pleading.’” Id. at 1277. “This rule ‘imposes upon a district court the
obligation and responsibility to conduct a searching inquiry into the voluntariness
of a defendant’s guilty plea.’” Id. (citation omitted). Thus, “[a] court accepting a
guilty plea must comply with Rule 11 and specifically address three ‘core
principles,’ ensuring that a defendant (1) enters his guilty plea free from coercion,
(2) understands the nature of the charges, and (3) understands the consequences of
his plea.” United States v. Moriarty, 429 F.3d 1012, 1019 (2005). We have stated
that
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[t]o ensure compliance with the third core concern, Rule 11(b)(1)
provides a list of rights and other relevant matters about which the
court is required to inform the defendant prior to accepting a guilty
plea, including: the right to plead not guilty (or persist in such a plea)
and to be represented by counsel; the possibility of forfeiture; the
court’s authority to order restitution and its obligation to apply the
Guidelines; and the Government’s right, in a prosecution for perjury,
to use against the defendant any statement that he gives under oath.
Id.
As an initial matter, liberally construing his brief, Burns makes several
claims for the first time on appeal, including: (1) his trial counsel, Robbins, was
ineffective for failing to investigate Burns’s history and background; (2) at the
evidentiary hearing, his appointed counsel, William Norris, failed to discuss
Burns’s mental health history with the psychiatrist from the federal detention
center; and (3) the district court relied on false, misleading, and unreliable
information at the evidentiary hearing. See Tannenbaum, 148 F.3d at 1263.
However, Burns has waived these arguments because he did not raise them in the
district court. See Johnson v. United States, 340 F.3d 1219, 1228 n.8 (11th Cir.
2003) (declining to address claims raised for the first time on appeal of 28 U.S.C.
§ 2255 motion to vacate), aff’d, 544 U.S. 295, 125 S.Ct. 1571, 161 L.Ed.2d 542
(2005). In addition, even taking Burns’s pro se status into account, he abandoned
his claims from his § 2255 motion alleging that his counsel was ineffective because
he (1) failed to file routine motions, (2) failed to challenge the “fraudulent
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indictment,” (3) failed to master the Sentencing Guidelines; and (4) failed to file a
direct appeal, because he failed to raise these issues in his brief on appeal. See
Marek v. Singletary, 62 F.3d 1295, 1298 n.2 (11th Cir. 1995) (holding “[i]ssues
not clearly raised in the briefs are considered abandoned”).
The district court did not err in denying Burns’s § 2255 petition for
ineffective assistance of counsel. A review of the transcripts from the plea
colloquy and the evidentiary hearing reveals that the court was already aware of
Burns’s illiteracy and his treatment for mental health or drug addiction, and Burns
has not shown that his counsel’s failure to alert the court that he was taking
prescription medication fell below an objective standard of reasonableness. Thus,
he has failed to demonstrate the first prong of Strickland. Because Burns failed to
demonstrate that Robbins’s performance was deficient, we need not address
whether Burns suffered prejudice as a result.
Based upon the foregoing and our review of the record and the parties’
briefs, we affirm the district court’s denial of Burns’s § 2255 claim of ineffective
assistance of counsel.
AFFIRMED.
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