Annette Marie Gerrow v. United States

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 14, 2005
No. 03-12106 THOMAS K. KAHN
Non-Argument Calender CLERK
________________________
D.C. Docket Nos. 02-61421-CV-ASG & 97-06051-CR-ASG
ANNETTE MARIE GERROW,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
__________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(July 14, 2005)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Federal prisoner Annette Marie Gerrow appeals the district court’s denial of
her 28 U.S.C. § 2255 motion to vacate, set aside, or correct her sentence.1 We
affirm the district court.
Gerrow filed the instant § 2255 motion to vacate, alleging: (1) the district
court erred in enhancing her base offense level as a result of her codefendant’s
firearm charge, (2) the prosecutor failed to disclose exculpatory evidence
regarding the actual drug amount for which she should be held responsible,
rendering her conviction unconstitutional, and (3) her counsel was ineffective in
failing to raise these issues. The district court denied Gerrow’s § 2255 motion, but
granted her request for a certificate of appealability (COA) on the following issue:
“whether [her] constitutionally guaranteed right to counsel was violated where
[her] trial attorney did not appeal the enhancement of her base offense level.”
Gerrow now raises two issues: (1) whether her counsel was ineffective in
appealing the imposition of the firearm enhancement, and (2) whether her counsel
was ineffective for telling her that she was ineligible for a safety-valve reduction.2
1
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-
132, 110 Stat. 1214 (1996), governs this appeal.
2
Gerrow made no mention of her counsel’s ineffective assistance in relation to the safety-
valve provision in her § 2255 motion before the district court, and cannot raise this issue for the first
time on appeal. See Narey v. Dean, 32 F.3d 1521, 1526–27 (11th Cir. 1994) (refusing to consider
arguments not raised in the district court with certain exceptions which do not apply here).
Furthermore, the COA limited the issue on appeal to “whether Gerrow’s constitutionally guaranteed
2
Specifically, Gerrow asserts the record did not indicate she knew of her
codefendant’s possession of a firearm, and the firearm enhancement should not
have been imposed because her codefendant’s possession of the firearm was not
reasonably foreseeable to her. She admits she raised this issue on direct appeal,
but she contends that, because we did not specifically address the issue, the law of
the case doctrine does not preclude her from presenting this issue again.
Gerrow asserted her claim regarding the firearm enhancement on direct
appeal, see United States v. Gerrow, 232 F.3d 831, 833 n.1 (11th Cir. 2000), and,
thus, this issue cannot be re-litigated in a subsequent § 2255 motion to vacate, see
United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000). However, Gerrow
also challenges, and the COA permits, an appeal regarding the effectiveness of her
counsel in raising this claim on direct appeal.
On appeal from a denial of a motion to vacate, set aside, or correct sentence,
a claim of ineffective assistance of counsel is a mixed question of law and fact
subject to de novo review. Greene v. United States, 880 F.2d 1299, 1305 (11th
right to counsel was violated where [her] trial attorney did not appeal the enhancement of her base
offense level.” The safety-valve provision is not an enhancement, but a mechanism that permits a
defendant subject to a statutory mandatory minimum to be sentenced within the guideline range. See
U.S.S.G. § 5C1.2; 18 U.S.C. § 3553(f). Accordingly, this issue is beyond the scope of the COA
issued by the district court, which permitted Gerrow to appeal only her claims regarding ineffective
assistance in regards to sentencing enhancements, and, therefore, this issue is not properly before us.
See Murray v. United States, 145 F.3d 1249, 1251 (11th Cir.1998).
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Cir. 1989). To establish ineffective assistance of counsel, Gerrow must show that:
(1) her counsel’s performance fell below an objective standard of reasonable
assistance, and (2) there is a reasonable probability the outcome would have been
different but for her counsel’s unprofessional errors, i.e., counsel’s deficient
performance was prejudicial. Strickland v. Washington, 104 S. Ct. 2052, 2064
(1984).
A review of our opinion in Gerrow’s direct appeal reveals Gerrow’s counsel
challenged the imposition of the firearm enhancement, and we summarily affirmed
as to this issue, under 11th Circuit Rule 36-1. Gerrow, 232 F.3d at 833 n.1.
Nothing in the record or in our opinion indicates Gerrow’s counsel did not
adequately raise the argument regarding the firearm enhancement on direct appeal.
Rather, after considering the argument, we elected to summarily affirm as to this
issue under 11th Circuit Rule 36-1. Gerrow has not shown how her counsel’s
performance in relation to this issue fell below an objective standard of reasonable
assistance. See Strickland, 104 S. Ct. at 2064, 2068. Accordingly, we affirm the
district court’s denial of Gerrow’s § 2255 motion.
AFFIRMED.
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