Edwaldo Louis Oliveiri v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 4, 2018
• Docket: 16-14300
• Status: Unpublished

Opinion

Case: 16-14300 Date Filed: 04/04/2018 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-14300 Non-Argument Calendar ________________________

D.C. Docket Nos. 8:15-cv-02634-EAK-MAP, 8:13-cr-00483-EAK-MAP-1

EDWALDO LOUIS OLIVEIRI,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(April 4, 2018)

Before JULIE CARNES, NEWSOM, and HULL, Circuit Judges.

PER CURIAM:

Edwaldo Louis Oliveiri, proceeding pro se, appeals from the district court’s

denial of his 28 U.S.C. § 2255 motion to vacate his sentences and subsequent Case: 16-14300 Date Filed: 04/04/2018 Page: 2 of 5

motion for reconsideration. We granted a certificate of appealability (“COA”) as

to “[w]hether the district court erred when it failed to consider Oliveiri’s

constitutional claim, raised in his reply to the government’s response, alleging that

counsel was ineffective for failing to object that the sentencing court incorrectly

applied a U.S.S.G. § 2B1.1(b)(11)(C)(i) enhancement because he was separately

convicted of aggravated identity theft.”

In § 2255 proceedings, we review legal issues de novo and factual findings

for clear error. Jeffries v. United States, 748 F.3d 1310, 1313 (11th Cir. 2014).

The denial of a motion for reconsideration is reviewed for an abuse of discretion.

Id. Our review is limited to the issues specified in the COA. Murray v. United

States, 145 F.3d 1249, 1250–51 (11th Cir. 1998).

A prisoner in federal custody may file a motion to vacate, set aside, or

correct a sentence pursuant to 28 U.S.C. § 2255, “claiming the right to be released

upon the ground that the sentence was imposed in violation of the Constitution or

laws of the United States.” 28 U.S.C. § 2255(a). District courts must resolve all

claims for relief raised in a § 2255 motion or petition for writ of habeas corpus,

regardless of whether relief is granted or denied. Clisby v. Jones, 960 F.2d 925,

936 (11th Cir. 1992); see also Rhode v. United States, 583 F.3d 1289, 1291 (11th

Cir. 2009) (expressly extending the requirement to resolve all claims for relief to

§ 2255 motions). A claim for relief is any allegation of a constitutional violation.

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Clisby, 960 F.2d at 936. A habeas petitioner must present a claim in clear and

simple language such that the district court will not misunderstand it. Dupree v.

Warden, 715 F.3d 1295, 1299 (11th Cir. 2013).

Contrary to Oliveiri’s assertions, the district court did not violate Clisby by

failing to address his claim that his counsel was ineffective for failing to object to

the sentencing court’s U.S.S.G. § 2B1.1(b)(11)(C)(i) enhancement. Oliveiri did

not present this claim in his § 2255 motion, but rather raised it for the first time in

his reply to the government’s response. By doing so, he waived the claim. Conn.

State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1351 n. 11 (11th

Cir. 2009) (“Because they raised this argument for the first time in their reply brief,

we treat this argument as waived.”); United States v. Evans, 473 F.3d 1115, 1120

(11th Cir. 2006) (“[A]rguments raised for the first time in a reply brief are not

properly before a reviewing court.”). Although Clisby requires a district court to

resolve every claim properly presented in a § 2255 motion, it does not require the

court to address a claim that a movant waives by failing to raise it until his reply

brief.

Moreover, even assuming the district court should have construed Oliveiri’s

reply as a request for leave to amend his § 2255 motion to add a claim regarding

the § 2B1.1(b)(11)(C)(i) enhancement, granting leave to amend would have been

futile because the new claim was untimely and did not “relate back” to the two

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claims that he initially (and timely) presented in his § 2255 motion. A § 2255

motion must be filed within one year of the latest of several events, including (as

relevant here) the date on which the judgment of conviction became final. 28

U.S.C. § 2255(f)(1). A claim asserted after the one-year period cannot be revived

simply because it arises out of the same trial, conviction, or sentence as a timely-

filed claim. Mayle v. Felix, 545 U.S. 644, 662 (2005). A new claim only relates

back to prior claims if they are “tied to a common core of operative facts.” Id. at

664. The untimely claim, that is, “must have more in common with the timely

filed claim than the mere fact that they arose out of the same trial and sentencing

proceedings.” Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir. 2000).

Here, Oliveiri had until November 10, 2015, to file his § 2255 motion.

Although he filed his initial motion before the deadline, he did not file his

reply―which included the new claim regarding the § 2B1.1(b)(11)(C)(i)

enhancement―until March 23, 2016. The new claim did not relate back to

Oliveiri’s two timely-filed initial claims because, although all three claims arose

from the same sentencing proceedings, they were not tied to the same core of

operative facts. See Mayle, 545 U.S. at 662–64.

* * *

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For the foregoing reasons, we hold that the district court did not violate

Clisby by failing to address Oliveiri’s ineffective-assistance-of-counsel claim

regarding the U.S.S.G. § 2B1.1(b)(11)(C)(i) enhancement. Therefore, we affirm.

AFFIRMED.