Daniel L. Morgan 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[DO NOT PUBLISH]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 28, 2005
No. 04-13634 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket Nos. 03-21761-CV-KMM
01-00456-CR-KMM
DANIEL L. MORGAN,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 28, 2005)
Before TJOFLAT, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
On March 7, 2003, we affirmed petitioner’s multiple convictions at the
hands of a jury for narcotics trafficking and related firearm offenses. United States
v. Reynolds, 61 Fed. Appx. 668 (11th Cir. Jan. 31, 2003). On June 30, 2003,
petitioner, pursuant to 28 U.S.C. § 2255, moved the district court to set aside his
convictions and resulting sentences on several grounds, including that his trial
attorney rendered ineffective assistance of counsel by operating under a conflict of
interest because he advised petitioner to plead guilty, which petitioner did not
wish to do. The court referred the motion to a magistrate judge who issued a
Report and Recommendation (“R & R”) recommending that the motion be denied.
Addressing the above ineffective assistance claim, the R & R stated the following:
To the extent that [petitioner] argues that counsel rendered
ineffective assistance by advising him to enter a guilty plea and
testify against his codefendant, he has likewise failed to demonstrate
that he is entitled to relief. In light of the overwhelming evidence
against [petitioner], counsel’s advice was not deficient, as it is
possible that [petitioner] could have received the benefit of his
assistance to the government. Moreover, [petitioner] chose not to
follow counsel’s advice and he proceeded to trial. Thus, he has not
demonstrated prejudice resulting from counsel’s advice.
After the district court denied petitioner leave to amend his motion, it
adopted the R & R and denied petitioner’s motion. Petitioner filed a timely notice
of appeal. The district court denied petitioner’s request for a certificate of
appealability. We, however, issued a certificate for the following issue:
Whether the district court violated Clisby v. Jones, 960 F. 2d 925,
938 (11th Cir. 1992) (en banc), by failing to address [petitioner’s]
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claim that his trial counsel was ineffective for having a conflict of
interest?
In his initial brief to us, petitioner did not address this issue. Instead, he
briefed an issue unrelated to the issue we certified. He has therefore abandoned
the certified issue and his appeal is due to be dismissed. See United States v.
Ardley, 242 F. 3d 989, 990 (11th Cir.), reh’g en banc denied, 273 F. 3d 991 (11th
Cir. 2001), cert. denied, 535 U.S. 979 (2002).
DISMISSED.
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