                                                             [DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS
                                                           FILED
                       FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                        MAY 20, 2008
                                                     THOMAS K. KAHN
                               No. 07-10705
                                                          CLERK
                           Non-Argument Calendar
                         ________________________

         D. C. Docket Nos. 05-21127-CV-ASG & 03-20387 CR-ASG

GEORGE BURNS,


                                                     Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                     Respondent-Appellee.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                 (May 20, 2008)

Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:

     George Burns, a pro se federal prisoner, appeals the denial of his motion to
vacate, set aside or correct sentence, 28 U.S.C. § 2255.

      In April 2005, Burns filed his § 2255 motion, alleging, inter alia, that his

counsel was ineffective because he (1) gave Burns “flawed advice” to plead guilty,

(2) failed to file routine motions, (3) failed to challenge the “fraudulent

indictment,” (4) failed to master the Sentencing Guidelines, and (5) failed to file a

direct appeal. Burns also claimed that he was subjected to a “miscarriage of

justice” and deprived of a liberty interest due to the ineffectiveness of his counsel.

Burns contended that his guilty plea was invalid because he “is an ‘un-learned’ pro

se indigent person that has no legal skill into the law and the court has been aware

of his ‘mental defects.’”

      After holding an evidentiary hearing, the magistrate judge issued a report

and recommended that Burns’s 28 U.S.C. § 2255 motion be denied. After

conducting a de novo review, the district court adopted the magistrate’s report and

recommendation and denied Burns’s 28 U.S.C. § 2255 motion. The court also

denied Burns’s request for reconsideration.

      The district court granted a certificate of appealability (“COA”) because “the

right to competent counsel is unquestionably a constitutional right, and because the

sole basis for his petition and appeal implicate this constitutional right.”

      On appeal, Burns contends that his trial counsel, Frederick S. Robbins, was



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ineffective for failing to investigate his history and background, and requests this

case be remanded back to the district court in order to inquire further into Burns’s

competence to knowingly and willingly enter into a plea of guilty. Burns argues

that even though Robbins was aware of his illiteracy and had objective reasons to

know that he was suffering from mental health issues, Robbins failed to introduce

any information at the plea colloquy concerning his illiteracy or his mental

condition and failed to alert the district court that he was taking medication.

Therefore, according to Burns, his guilty plea was “definitely not knowing or

intelligent” and the district court erred by denying his § 2255 motion.

      With regard to a district court’s denial of a 28 U.S.C. § 2255 motion to

vacate, we review legal conclusions de novo and findings of fact for clear error.

Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004).              An ineffective

assistance of counsel claim is a mixed question of law and fact that is subject to de

novo review. Gordon v. United States, 496 F.3d 1270, 1276 (11th Cir. 2007).

“Pro se pleadings are held to a less stringent standard than pleadings drafted by

attorneys and will, therefore, be liberally construed.”      Tannenbaum v. United

States, 148 F.3d 1262, 1263 (11th Cir. 1998).

      The Sixth Amendment gives criminal defendants the right to effective

assistance of counsel. U.S. Const., amend. VI; Strickland v. Washington, 466 U.S.



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668, 684-86, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). To prevail on a claim

of ineffective assistance of counsel, the defendant must demonstrate (1) that his

counsel’s performance was deficient, i.e., the performance fell below an objective

standard of reasonableness, and (2) that he suffered prejudice as a result of that

deficient performance. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65. We

need not “address both components of the inquiry if the defendant makes an

insufficient showing on one.” Id. at 697, 104 S.Ct. at 2069.

      To meet the deficient performance prong of the Strickland test, the

defendant must show that counsel made errors so serious that he was not

functioning as the counsel guaranteed by the Sixth Amendment. Id. at 687, 104

S.Ct. at 2064. There is a strong presumption that counsel’s conduct fell within the

range of reasonable professional assistance. Id. at 689, 104 S.Ct. at 2065. To

prove prejudice, “[t]he defendant must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694, 104 S.Ct. at 2068. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id.

      The Strickland two-part test applies to challenges to guilty pleas based on

ineffective assistance of counsel. United States v. Pease, 240 F.3d 938, 941 (11th

Cir. 2001) (citation omitted); Hill v. Lockhart, 474 U.S. 52, 60, 106, S.Ct. 366,



                                         4
371, 88 L.Ed.2d 203 (1985) (holding that petitioner failed to allege the type of

prejudice required by Strickland because petitioner did not allege in his habeas

petition that had his counsel been effective in advising him, he would have pleaded

not guilty and insisted on proceeding to trial). In this situation, the defendant must

show “a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” Gordon, 496 F.3d at

1270 (citation omitted).

       “To ensure that a plea is voluntary and knowing, Federal Rule of Criminal

Procedure 11(b)(1)(G) states that ‘the court must address the defendant personally

in open court’ before accepting the plea and ‘inform the defendant of, and

determine that the defendant understands . . . the nature of each charge to which the

defendant is pleading.’” Id. at 1277. “This rule ‘imposes upon a district court the

obligation and responsibility to conduct a searching inquiry into the voluntariness

of a defendant’s guilty plea.’” Id. (citation omitted). Thus, “[a] court accepting a

guilty plea must comply with Rule 11 and specifically address three ‘core

principles,’ ensuring that a defendant (1) enters his guilty plea free from coercion,

(2) understands the nature of the charges, and (3) understands the consequences of

his plea.” United States v. Moriarty, 429 F.3d 1012, 1019 (2005). We have stated

that



                                          5
      [t]o ensure compliance with the third core concern, Rule 11(b)(1)
      provides a list of rights and other relevant matters about which the
      court is required to inform the defendant prior to accepting a guilty
      plea, including: the right to plead not guilty (or persist in such a plea)
      and to be represented by counsel; the possibility of forfeiture; the
      court’s authority to order restitution and its obligation to apply the
      Guidelines; and the Government’s right, in a prosecution for perjury,
      to use against the defendant any statement that he gives under oath.

Id.

      As an initial matter, liberally construing his brief, Burns makes several

claims for the first time on appeal, including: (1) his trial counsel, Robbins, was

ineffective for failing to investigate Burns’s history and background; (2) at the

evidentiary hearing, his appointed counsel, William Norris, failed to discuss

Burns’s mental health history with the psychiatrist from the federal detention

center; and (3) the district court relied on false, misleading, and unreliable

information at the evidentiary hearing.       See Tannenbaum, 148 F.3d at 1263.

However, Burns has waived these arguments because he did not raise them in the

district court. See Johnson v. United States, 340 F.3d 1219, 1228 n.8 (11th Cir.

2003) (declining to address claims raised for the first time on appeal of 28 U.S.C.

§ 2255 motion to vacate), aff’d, 544 U.S. 295, 125 S.Ct. 1571, 161 L.Ed.2d 542

(2005). In addition, even taking Burns’s pro se status into account, he abandoned

his claims from his § 2255 motion alleging that his counsel was ineffective because

he (1) failed to file routine motions, (2) failed to challenge the “fraudulent

                                          6
indictment,” (3) failed to master the Sentencing Guidelines; and (4) failed to file a

direct appeal, because he failed to raise these issues in his brief on appeal. See

Marek v. Singletary, 62 F.3d 1295, 1298 n.2 (11th Cir. 1995) (holding “[i]ssues

not clearly raised in the briefs are considered abandoned”).

      The district court did not err in denying Burns’s § 2255 petition for

ineffective assistance of counsel.    A review of the transcripts from the plea

colloquy and the evidentiary hearing reveals that the court was already aware of

Burns’s illiteracy and his treatment for mental health or drug addiction, and Burns

has not shown that his counsel’s failure to alert the court that he was taking

prescription medication fell below an objective standard of reasonableness. Thus,

he has failed to demonstrate the first prong of Strickland. Because Burns failed to

demonstrate that Robbins’s performance was deficient, we need not address

whether Burns suffered prejudice as a result.

      Based upon the foregoing and our review of the record and the parties’

briefs, we affirm the district court’s denial of Burns’s § 2255 claim of ineffective

assistance of counsel.

      AFFIRMED.




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