Gilberto Chineag 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[DO NOT PUBLISH]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
MAY 10, 2007
No. 05-14664 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 04-22575-CV-UUB & 01-00607 CR-UUB
GILBERTO CHINEAG,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 10, 2007)
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
Gilberto Chineag, a federal prisoner proceeding pro se, appeals the district
court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct
sentence. Chineag is currently serving a life sentence for conspiracy to possess
with the intent to distribute cocaine, in violation of 21 U.S.C. § 846, and
concurrent 240-month sentences for conspiracy to commit robbery, in violation of
18 U.S.C. § 1951(a), and conspiracy to carry a gun during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), (o).
In his § 2255 motion before the district court, Chineag alleged, inter alia,
that his trial counsel rendered ineffective assistance of counsel. We granted a
certificate of appealability (“COA”) on only one issue:
Whether the district court properly denied appellant’s claim that
counsel was ineffective for failing to object or move for a mistrial
when the non-redacted recording of the June 7, 2001 meeting was not
submitted to the jury?
On appeal, Chineag does not argue that his counsel was ineffective, but instead (1)
contends that this Court failed to properly evaluate his motion for COA, and (2)
raises additional issues outside the scope of the COA.
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, 110 Stat. 1214 (1996) (“AEDPA”), governs this appeal because Chineag
filed his petition after AEDPA’s effective date. Under AEDPA, appellate review is
limited to the issues specified in the COA. 28 U.S.C. § 2253(c); Murray v. United
2
States, 145 F.3d 1249, 1250-51 (11th Cir. 1998).1
Even liberally construing Chineag’s brief, he fails to address the issue of
ineffective assistance of counsel as specified in the COA. Indeed, he renounces the
issue, declaring that he did not request a COA on it. Therefore, Chineag has
abandoned his ineffective assistance claim. See Jones v. Campbell, 436 F.3d 1285,
1303 (11th Cir.), cert. denied, __ U.S. __, 127 S. Ct. 619 (2006) (concluding that
when an appellant fails to argue a certified issue in his appellate brief, that issue is
abandoned).
Further, we reject Chineag’s argument that this Court erred in evaluating
Chineag’s motion for a COA. There is no evidence that this Court failed to
evaluate properly Chineag’s motion for a COA. See Miller-El v. Cockrell, 537
U.S. 322, 336, 123 S. Ct. 1029, 1039 (2003) (explaining that in deciding whether
to grant a COA, the appellate court should “look to the District Court’s application
of AEDPA to petitioner’s constitutional claims and ask whether that resolution was
debatable amongst jurists of reason. This threshold inquiry does not require full
consideration of the factual or legal bases adduced in support of the claims. In fact,
the statute forbids it.”).
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For this reason, we decline to address Chineag’s other claims (a chain-of-custody issue
and a challenge under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000)). These
claims lie outside the scope of the COA. See Harrell v. Butterworth, 251 F.3d 926, 928 n.1 (11th
Cir. 2001) (declining to address issues not included in the COA).
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Accordingly, we affirm the district court’s denial of Chineag’s § 2255
motion.
AFFIRMED.
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