Marcus Rogozinski v. United States , 516 F. App'x 900 ( 2013 )

Case: 11-13884 Date Filed: 04/17/2013 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-13884
Non-Argument Calendar
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D.C. Docket Nos. 6:10-cv-01144-GAP-DAB; 6:08-cr-00028-GAP-DAB-1
MARCUS ROGOZINSKI,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 17, 2013)
Before WILSON, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 11-13884 Date Filed: 04/17/2013 Page: 2 of 3
Marcus Rogozinski appeals pro se the denial of his motion to vacate his
conviction. 28 U.S.C. § 2255. Rogozinski argues that counsel had a conflict of
interest and that his conviction was predicated on perjured testimony. We affirm.
The district court did not err in concluding that Rogozinski failed to prove
that “an actual conflict of interest adversely affected his lawyer’s performance.”
Caderno v. United States, 256 F.3d 1213, 1218 (11th Cir. 2001) (quoting Cuyler v.
Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 1718 (1980)). Rogozinski criticized
counsel before trial, but the district court determined at a pre-trial hearing that
Rogozinski’s dissatisfaction stemmed from counsel’s refusal to file pretrial
motions that Rogozinski had prepared. Later, Rogozinski filed a civil complaint
against his counsel, but the district court dismissed that complaint as frivolous. We
affirmed the dismissal of that complaint. Rogozinski v. Spaulding, 330 Fed. App’x
170 (11th Cir. 2009). Rogozinski argues that his pretrial motions should have been
filed by counsel, but Rogozinski fails to identify what motions should have been
filed or to explain how they would have affected his case. Rogozinski also alleges
that counsel should have objected to certain questions and arguments made by the
prosecutor and to the admission of a duplicate of a check, but counsel did not act
inconsistent with Rogozinski’s interests by failing to raise arguments that we
rejected as meritless on direct appeal, United States v. Rogozinski, 339 F. App’x
963, 968-69 (11th Cir. 2009). See Freeman v. Att’y Gen., 536 F.3d 1225, 1233
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Case: 11-13884 Date Filed: 04/17/2013 Page: 3 of 3
(11th Cir. 2008) (“A lawyer cannot be deficient for failing to raise a meritless
claim.”).
The district court correctly concluded that Rogozinski’s argument about
perjured testimony was procedurally barred. Rogozinski defaulted his claim that
he was “indicted and/or convicted on perjured testimony” by failing to raise the
argument on direct appeal. See Bouslely v. United States, 523 U.S. 614, 623, 118
S. Ct. 1604, 1611 (1998); Mills v. United States, 36 F.3d 1052, 1055 (11th Cir.
1994). And Rogozinski failed to provide cause to excuse his default, see Reece v.
United States, 119 F.3d 1462, 1465 (11th Cir. 1997), or to establish that he was
actually innocent, see Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 867
(1995).
We AFFIRM the denial of Rogozinski’s motion to vacate his conviction.
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