                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             AUGUST 30, 2006
                               No. 05-16676                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

         D. C. Docket Nos. 04-80891-CV-DLG & 01-08168 CR-DLG

THOMAS D. ABRAMS,



                                                      Petitioner-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                       Respondent-Appellee.


                         ________________________

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

                               (August 30, 2006)

Before ANDERSON, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Thomas D. Abrams appeals the district court’s denial of his 28 U.S.C.
§ 2255 motion to vacate, set aside, or correct his sentence. On appeal, Abrams

argues that (1) the district court failed to afford him the required 10 days to object

to the magistrate’s report and recommendation (“R & R”), (2) this Court should

expand his certificate of appealability (“COA”) to include issues I, II, and IV-XI

from his motion for a COA, and (3) his counsel was ineffective for failing to

object, pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147

L.Ed.2d 435 (2000), to the district court’s use of facts not alleged in his indictment

to increase his sentence. In response, the government maintains that we do not

have jurisdiction to consider issues outside of the COA, and, further, that Abrams’s

ineffective assistance of counsel issue is outside of the COA. We will address the

arguments in turn.

I.    Scope of the COA

      We are “obligated to raise questions concerning our subject matter

jurisdiction sua sponte in all cases.” Boone v. Sec’y, Dep’t of Corr., 377 F.3d

1315, 1316 (11th Cir. 2004). We review our subject-matter jurisdiction de novo.

Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262, 1266 (11th Cir. 2004).

      As an initial matter, Abrams appealed the denial of his § 2255 motion after

April 24, 1996 and, thus, his appeal is governed by the COA requirements of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.



                                           2
104-32, 110 Stat. 1214 (1996). Under the AEDPA, appellate review is limited to

the issues specified in the COA. 28 U.S.C. § 2253; Murray v. United States, 145

F.3d 1249, 1250-51 (11th Cir. 1998). In Jones v. United States, 224 F.3d 1251,

1255-56 (11th Cir. 2000), we noted that, when a district court grants a COA on

some, but not all, issues raised in a § 2255 motion, a movant may seek a broader

COA by “explicit[ly] request[ing]” that we consider an uncertified issue. Prior to

Jones, we had stated that a movant’s request to expand the COA “must be filed

promptly, well before the opening brief is done,” and that arguments in the brief

addressing issues outside the COA “simply will not be reviewed.” Tompkins v.

Moore, 193 F.3d 1327, 1332 (11th Cir. 1999). In Jones, however, we explained

that Tompkins involved pre-AEDPA law, and, thus, its statements regarding

AEDPA procedure were dicta. Jones, 224 F.3d at 1256. Even so, we declined to

resolve the issue because the movant in Jones “had satisfied the more stringent

standard by presenting this court with an explicit request to broaden his COA.” Id.

Thus, the issue of when a movant is required to file his “explicit request” to expand

the COA order is an open question in this Circuit. Nevertheless, Tompkins still

provides the best instruction available, as Jones did not decide the issue.

A.    Procedural Due Process Error

      On appeal, Abrams argues that the district court erred in adopting the



                                           3
magistrate’s R & R “within 24 hours of the time it was issued” because the court

did not consider Abrams’s objections to the R & R. (Blue Brief at 15).1

       In a habeas proceeding, we review questions of law de novo. Jones v.

Campbell, 436 F.3d 1285, 1292 (11th Cir. 2006).

       The Due Process Clause of the Fifth Amendment provides that “[n]o person

shall . . . be deprived of life, liberty, or property, without due process of law.” U.S.

Const. amend. V. “[T]his clause . . . provides two different kinds of constitutional

protection: procedural due process and substantive due process.” Rivera v. Allin,

144 F.3d 719, 726 (11th Cir. 1998) (quotation omitted) (alteration in original).

       Section 636 of Title 28 of the United States Code sets forth the jurisdiction

and powers of magistrate judges. According to that section, a magistrate judge

may conduct hearings and submit to a district court judge its findings of fact and

recommendations for the disposition of applications for posttrial relief made by

criminal defendants. 28 U.S.C. § 636(b)(1)(B). The magistrate must also submit

its findings and recommendations to the parties involved and, “[w]ithin ten days

after being served with a copy, any party may serve and file written objections to

such proposed findings and recommendations.” 28 U.S.C. § 636. “A judge of the



       1
        Abrams further argues that, because the district court failed to consider his objections to the
R & R, we should now consider whether a COA may be granted with respect to those objections.
That argument is addressed in section I(B).

                                                  4
court shall make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection is made.” Id.

      Before reaching the merits of Abrams's due process argument, we must

determine whether we may even consider the merits because, on its face, the COA

does not include the issue. In McCoy v. United States, 266 F.3d 1245, 1248 n.2

(11th Cir. 2001), we noted that, where the district court does not address

procedural issues that we must resolve before reaching the merits of a COA issue,

we will read the COA to encompass the procedural issues. In Abrams’s case, we

must first resolve the issue of whether the procedural due process violation

requires either (1) remand to the district court, or (2) analysis as harmless error.

Thus, under McCoy, this issue is a procedural issue of the type that the COA

encompasses, and, as such, we may properly consider it here.

      It is clear that the district court did not provide Abrams a ten-day

opportunity within which to file his objections to the R & R, as the district court

adopted the magistrate’s R & R on January 9, 2006, five days prior to the

expiration of the ten-day objection period. Thus, the district court violated 28

U.S.C. § 636 and thereby deprived Abrams of due process of law. Nonetheless, we

find that the error was harmless because Abrams did not raise any new arguments

in his objections to the magistrate’s R & R that the district court had not considered



                                           5
in reviewing Abrams’s motion for a COA. See Marshall v. City of Cape Coral,

Fla., 797 F.2d 1555, 1562-63 (11th Cir. 1986) (holding that the district court’s

failure to comply with the 10-day notice requirement set forth in Fed.R.Civ.P.

56(c) was harmless error). Moreover, Abrams could have cured the violation by

filing a motion for reconsideration of the district court’s order or by moving this

Court, prior to filing his appellate brief, to consider his objections and expand his

COA.

B.     Issues I, II, and IV-XI of Abrams’s Motion for a COA

       Abrams argues that issues I, II, and IV through XI, as presented in his

motion for a COA, were “debatable among jurists of reason and constitute[d] a

substantial showing of the denial of a [c]onstitutional right.” Abrams contends

that, because the magistrate did not grant a COA on those issues, and because the

district court did not consider his objections to the magistrate’s findings, this Court

should grant a COA on those issues. Abrams lists all the issues, but provides no

further argument explaining why the issues merit the grant of a COA.

       Abrams has not filed an explicit request to expand the COA, nor does he

explain why the merits underlying the claims at issue warrant an expanded COA.

Thus, to the extent that Abrams raises issues beyond the one issue for which the

district court granted a COA, such issues are not properly before this Court, and we



                                           6
will not review them. See Jones, 224 F.3d at 1255-56; Tompkins, 193 F.3d at

1332; Murray, 145 F.3d at 1250-51.

C.    Issue III of Abrams’s Motion for a COA

      Abrams argues that the district court misconstrued the arguments in his

§ 2255 motion. Abrams maintains that he argued in his § 2255 motion that his

counsel was ineffective for failing to object to his sentencing enhancements based

on Ring and Apprendi. Abrams contends that he had never argued, contrary to the

district court’s conclusion, that his counsel was ineffective for failing to anticipate

the change in the law advanced by Blakely and Booker.

      Because the text of the COA is unclear on its face, and because it

unequivocally references Abrams’s Issue III from his motion for a COA, we find

that the COA includes Abrams’s argument that his counsel was ineffective for

failing to object on Apprendi grounds. See Murray, 145 F.3d at 1251 (“Although

we will not decide any issue not specified in the COA, we will construe the issue

specification in light of the pleadings and other parts of the record”).

II.   Ineffective Assistance of Counsel

      Abrams argues on appeal that, at sentencing, the district court enhanced his

base offense level based on facts to which Abrams did not plead guilty and were

not found beyond a reasonable doubt. Abrams contends that the district court's



                                            7
fact-finding violated his Sixth Amendment rights and that his counsel was

ineffective for failing to object to the court's error under Apprendi. Abrams asserts

that his counsel's ineffective assistance severely prejudiced him by allowing “the

imposition of a 50-fold increase in [his] sentence based solely on judge made

factual findings.” Abrams further argues that the rule set forth in Apprendi had

been clearly established prior to his sentencing hearing, and, thus, his counsel was

fully apprised of the state of the law and should have properly objected.

      “On appeal, we review a district court's findings of fact in a 28 U.S.C.

§ 2255 proceeding for clear error, and its legal conclusions de novo.” Garcia v.

United States, 278 F.3d 1210, 1212 (11th Cir. 2002).

      In Apprendi, the Supreme Court held that, “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. We have clarified,

however, that “[t]he rule in Apprendi only applies where a defendant is sentenced

above the statutory maximum sentence for an offense.” United States v. Davis,

329 F.3d 1250, 1254 (11th Cir. 2003). “Apprendi does not prohibit a sentencing

court from imposing consecutive sentences on multiple counts of conviction as

long as each is within the applicable statutory maximum.” Id.



                                          8
      Here, the district court did not violate the rule set forth in Apprendi because

Abrams’s total sentence was less than the aggregate statutory maximum for all of

his convictions. See United States v. Smith, 240 F.3d 927, 930 (11th Cir. 2001)

(holding that there is no Apprendi error where “the ultimate sentence does not

exceed the aggregate statutory maximum for the multiple convictions”). Thus,

Abrams’s counsel was not ineffective for failing to object on Apprendi grounds

because there was no Apprendi error.

      Upon review of the record, and consideration of the parties’ briefs, we

discern no reversible error. Accordingly, we affirm the district court’s denial of

Abrams’s § 2255 motion.

      AFFIRMED.




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