[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 31, 2008
No. 07-15065 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 02-20967-CV-ASG
96-00443-CR-ASG
GLORIA DIAZ,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 31, 2008)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Gloria Diaz was convicted of conspiracy to violate the Hobbs Act, as well as
three substantive Hobbs Act violations, for serving as a “tipster” who identified
targets as part of a kidnaping and extortion operation in southern Florida. She was
sentenced to 293 months imprisonment followed by 3 years of supervised release
and was ordered to pay $5400 restitution. The facts of the case and the evidence
presented against Diaz are set out in greater detail in our earlier opinion United
States v. Diaz, 248 F.3d 1065 (11th Cir. 2001), where we affirmed Diaz’s
conviction and her sentence. Id. at 1109.
Diaz later filed a motion to vacate, set aside, or correct the judgment
pursuant to 28 U.S.C. § 2255 on the basis of ineffective assistance of counsel.
After an evidentiary hearing, the district court denied the motion. The district
court did, however, grant Diaz’s motion for issuance of a certificate of
appealability because it felt that the constitutional issues raised in Diaz’s § 2255
motion warranted our review. The COA provided two issues for review: (1)
whether Diaz’s counsel was ineffective by failing to move for a new trial based on
newly discovered evidence; and (2) whether Diaz’s counsel was ineffective by
failing to challenge the court’s application of several sentencing enhancements.
We will address the second issue first.
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I.
Diaz has changed the nature of her sentencing challenge. She has
abandoned her contention that her attorney failed to challenge the sentencing
enhancements. Instead she now contends that the sentencing guidelines were
misapplied in light of the Supreme Court’s opinions in Kimbrough v. United
States, 128 S. Ct. 558 (2007) and United States v. Booker, 543 U.S. 220, 244, 125
S. Ct. 738 (2005) and thus she received an illegal sentence. This attempt to
introduce a new argument outside the scope of the COA ignores our clear warning
that such attempts will not be tolerated. See Hodges v. Att’y Gen., 506 F.3d 1337,
1340 (11th Cir. 2007) (condemning the appellant’s effort to “simply ignore the
COA order and brief any issue he pleases”); Murray v. United States, 145 F.3d
1249, 151 (11th Cir. 1998) (“[A]ppellate review is limited to the issues specified in
the COA.”).
Diaz had the right to file a motion with us to request expanding the scope of
the COA. See 11th Cir. R. 22-1(d). She did not, and as a result, she may not
expand the scope of the issues now. As we have recognized, “[t]here would be no
point in having a COA order specify issues if it does not limit those that may be
briefed, and a limitation that may be ignored . . . is no limitation at all.” Hodges,
506 F.3d at 1341. Although we may permit arguments outside the scope of a COA
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in extraordinary cases, see id., this is not that kind of case. See Valera v. United
States, 400 F.3d 864, 868 (11th Cir. 2005) (holding that Booker does not “apply
retroactively to § 2255 cases on collateral review”). Thus we will not consider
Diaz’s argument because it was not included in the COA. Because Diaz has
abandoned her argument regarding her attorney’s alleged failure to challenge the
district court’s application of various sentencing enhancements, that issue is
waived. See United States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001) (“[I]ssues
and contentions not timely raised in the briefs are deemed abandoned.” (citation
omitted)).
II.
We are left, then, to consider only the first issue provided in the COA. Diaz
contends that she suffered constitutionally ineffective assistance of counsel
because her attorney failed to file a motion for new trial after receiving evidence
that the government’s key witness against her allegedly had provided false
testimony.
A claim of ineffective assistance of counsel is a mixed question of law and
fact, which we review de novo. See Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.
1994). “The benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process
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that the trial cannot be relied on as having produced a just result.” Strickland v.
Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984). Strickland
provided a two-pronged test to determine whether counsel was constitutionally
defective:
First, the defendant must show that counsel's performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Id. at 687, 104 S. Ct. at 2064.
To satisfy the prejudice requirement, “[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. A reasonable probability is a
probability sufficient to undermine the confidence in the outcome.” Id. at 694, 104
S. Ct. at 2068.
Diaz’s claim centers on an affidavit by Rodolfo Palacios, which Diaz
became aware of during a meeting with Lopez and Lopez’s attorney after her
conviction. Palacios had been an inmate with Ilvigio Hernandez, a codefendant of
Diaz who testified against her at trial. The Palacios affidavit described
conversations between Palacios and Hernandez regarding Hernandez’s decision to
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testify as a government witness against Diaz and her husband Jose Lopez.
According to the Palacios affidavit, Hernandez told Palacios that “the only way to
get a substantial sentencing reduction with the government was to cooperate fully
and do whatever it was that they (meaning the government) may have asked you.”
When Palacios asked whether Hernandez knew that Diaz and Lopez were involved
in the conspiracy, Hernandez allegedly said that “it did not matter whether he knew
them or not[,] all that did matter was his sentence reduction.” Diaz argues that the
Palacios affidavit establishes that Hernandez gave false testimony when he
implicated Diaz in the conspiracy and, because her attorney failed to file a motion
for new trial based on this evidence, she received ineffective assistance of counsel.
The government responds that Diaz was not prejudiced by her attorney’s defense
because a motion for new trial based on the Palacios affidavit would have been
denied. We agree.
A new trial based on newly discovered evidence is warranted only if “(1) the
evidence was in fact discovered after trial; (2) the defendant exercised due care to
discover the evidence; (3) the evidence is not merely cumulative or impeaching;
(4) the evidence is material; (5) the evidence was of such a nature that a new trial
would probably result in a new result.” United States v. Starrett, 55 F.3d 1525,
1554 (11th Cir. 1995). Failure to meet any one of these elements will defeat a
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motion for new trial. See, e.g., United States v. Williams, 816 F.2d 1527,
1530–31 (11th Cir. 1987). The government does not dispute that the Palacios
affidavit satisfies the first, second, and fourth factors. Diaz contends that the
remaining factors are satisfied as well because, according to her, the Palacios
affidavit is proof that Hernandez fabricated his testimony and thus demonstrates
Diaz’s innocence. We disagree. First, the Palacios affidavit is not definitive proof
of anything. It is merely a sworn statement by a former inmate with Hernandez
that describes conversations that allegedly occurred. Second, as the magistrate
judge and the district court noted, the language in the Palacios affidavit could be
interpreted in several ways. It could mean what Diaz says its does; it just as easily
could mean something else. It could, for example, mean that Hernandez was
willing to provide the government with whatever information he had about his co-
conspirators in exchange for a sentence reduction. But even accepting Diaz’s
construction, we come to the same conclusion: The Palacios affidavit is
impeachment evidence that is insufficient to justify a new trial. See United States
v. Garcia, 13 F.3d 1464, 1472 (11th Cir. 1994) (newly discovered impeachment
evidence insufficient to justify a new trial); United States v. Bollinger, 796 F.2d
1394, 1401–02 (11th Cir. 1986) (same).
Diaz claims that the Palacios affidavit would show that Hernandez was a
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liar. this does not affirmatively prove that Diaz was innocent. Instead, the
Palacios affidavit would serve only to impeach Hernandez’s testimony by
suggesting that he was lying in order to receive a sentence reduction. Moreover,
the idea that Hernandez is a liar was hammered home repeatedly throughout two
days of Hernandez’s cross-examination by five defense attorneys at the trial. The
cross-examination established that not only had Hernandez lied to the FBI about
his involvement in the conspiracy but he also had lied during his direct
examination testimony. The cross-examination also demonstrated that Hernandez
was testifying in the hope of receiving a sentencing reduction. The Palacios
affidavit would be more of the same, and would have been insufficient to justify a
new trial. See United States v. Champion, 813 F.2d 1154, 1171 (11th Cir. 1987)
(concluding that newly discovered impeachment evidence was cumulative where
the defense had already established that the witness had lied under oath). Thus the
Palacios affidavit was not only impeachment evidence, but cumulative
impeachment evidence at that. A motion for new trial based on that evidence
would have been denied. Accordingly, Diaz did not show that if counsel had filed
such a motion there is a reasonable probability of a different result. The district
court properly rejected her ineffective assistance claim.
AFFIRMED.
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