           Case: 16-11264   Date Filed: 04/12/2018   Page: 1 of 6


                                                       [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-11264
                        Non-Argument Calendar
                      ________________________

        D.C. Docket Nos. 1:14-cv-22340-RNS; 1:11-cr-20698-RNS-3



FRANK J. BALLESTEROS,

                                                          Petitioner-Appellant,


                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.

                      ________________________

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

                             (April 12, 2018)

Before MARCUS, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.

PER CURIAM:
              Case: 16-11264     Date Filed: 04/12/2018    Page: 2 of 6


      Frank J. Ballesteros appeals the denial of his amended motion to vacate his

sentence. 28 U.S.C. § 2255. After the expiration of the one-year statute of

limitation, id. § 2255(f), Ballesteros moved to supplement his amended motion

with new claims, but the district court ruled that the new claims were untimely. We

issued a certificate of appealability to address two issues: (1) whether Ballesteros’s

supplemental claim that his trial counsel was ineffective for failing to object to

calculations in his presentence investigation report was timely under the relation-

back doctrine; and (2) whether the district court should have treated Ballesteros’s

supplemental claim “that the government violated Brady v. Maryland, 373 U.S. 83

(1963), by failing to disclose exculpatory and impeaching evidence. . . [as] timely

under 28 U.S.C. § 2255(f)(4).” We affirm.

      In 2012, a jury convicted Ballesteros, a physician, of conspiring to possess

with intent to distribute oxycodone and oxymorphone, 21 U.S.C. §§ 841(a)(1),

841(b)(1)(C), 846, two counts of possessing with intent to distribute oxycodone

and oxymorphone, id. §§ 841(a)(1), 841(b)(1)(C); 18 U.S.C. § 2, and conspiring to

defraud Medicare, id. § 1349. Ballesteros appealed his conviction for conspiracy

for health care fraud, and we affirmed. United States v. Ballesteros, 523 F. App’x

611 (11th Cir. 2013). That judgment became final 90 days later when Ballesteros

failed to petition the Supreme Court for a writ of certiorari. See Sup. Ct. R. 13.




                                           2
               Case: 16-11264      Date Filed: 04/12/2018    Page: 3 of 6


      On May 25, 2014, Ballesteros filed a pro se motion to vacate, which he later

amended to comply with Rule 2(c) of the Rules Governing Section 2255

Proceedings. 28 U.S.C. § 2255. As provided in the order to amend, Ballesteros’s

“amended motion [became] the sole operative pleading in [the] case and only the

claims listed in it [would] be considered by the Court, subject to all timeliness and

procedural requirements.”

      Ballesteros’s amended motion raised 12 issues challenging the effectiveness

of his trial and appellate counsel. Ballesteros alleged that his trial counsel was

ineffective for failing to move to sever his trial from codefendant Billy Joe McCoy,

to explain the advantages and disadvantages of testifying at trial, to inform

Ballesteros of a plea offer, to request the district court judge to recuse, to call

certain witnesses, and to present Brady material and evidence that had been

suppressed by the district court and withheld by the government. Ballesteros also

alleged that his appellate counsel was ineffective for “fail[ing] to raise on Appeal,

Sentencing Objections preserved by [his] trial attorney,” who had “object[ed]

regarding [the] amount of ‘total loss’” and to the “‘amounts’[ of drugs] where the

Court based its determination[s] . . . on a so-called ‘spread sheet.’”

      In January 2015, Ballesteros moved to supplement his amended motion.

Ballesteros sought to add new claims that his trial counsel was ineffective for

failing to object at sentencing to the use of the spreadsheet used to determine his


                                            3
              Case: 16-11264      Date Filed: 04/12/2018   Page: 4 of 6


drug quantity and to calculate restitution and for failing to move for a new trial

based on Brady violations that he had discovered in another case.

      The government opposed Ballesteros’s amended motion and argued that his

supplemental claims were untimely and did not relate back to his earlier pleading.

The district court adopted the recommendation of a magistrate judge to deny

Ballesteros’s amended motion and to treat his new claims as untimely. The district

court ruled that Ballesteros’s motion to supplement did not relate back to his

amended motion.

      The district court did not err by dismissing as untimely Ballesteros’s new

claim that trial counsel was ineffective at sentencing. Ballesteros filed his motion

to supplement more than one year after his conviction became final, see 28 U.S.C.

§ 2255(f), so his new claim was untimely unless it related back to his amended

motion. See Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir. 2000);

Fed. R. Civ. P. 15(c). The amended motion became Ballesteros’s “sole operative

pleading” when he filed it in the district court, and it was the only pleading that we

mentioned in our order granting his certificate of appealability. For Ballesteros’s

new claim to relate back, it had to “ar[i]se out of the conduct, transaction, or

occurrence set out—or attempted to be set out—in the” amended motion. See Fed.

R. Civ. P. 15(c)(1)(B). Ballesteros’s new claim involves “an entirely different

transaction” and falls outside what “Rule 15(c) contemplates[, which is] that


                                           4
               Case: 16-11264     Date Filed: 04/12/2018    Page: 5 of 6


parties [can] correct technical deficiencies or expand facts alleged in the original

pleading . . . .” Dean v. United States, 278 F.3d 1218, 1221 (11th Cir. 2002).

Ballesteros’s new claim challenged trial counsel’s failure to object at sentencing to

a spreadsheet used to calculate his sentence and restitution, but his earlier amended

motion discussed deficiencies in counsel’s pre-trial strategy, consultation, and

negotiations and counsel’s conduct during trial. And Ballesteros’s new claim was

at odds with his amended motion in which he commended trial counsel for

“preserv[ing] [his] objection[s]” to the spreadsheet and blamed appellate counsel

for failing to appeal the “preserved” issue. Because Ballesteros’s new claim

involved “a separate occurrence in both time and type” from that mentioned in his

amended motion, Davenport, 217 F.3d at 1344, the new claim did not relate back

and was untimely.

      As to Ballesteros’s Brady claim, the scope of our review is limited to the

issue identified in the certificate of appealability, Hodges v. Att’y Gen., State of

Fla., 506 F.3d 1337, 1340 (11th Cir. 2007), which is whether the claim was based

on newly discovered evidence that triggered a new period of limitation, see 28

U.S.C. § 2255(f)(4). Ballesteros argues that the Brady claim was timely because it

related back to his amended motion, but we squarely rejected that argument when

we granted a certificate of appealability. That argument “simply will not be

reviewed” again. Tompkins v. Moore, 193 F.3d 1327, 1332 (11th Cir. 1999). A


                                           5
               Case: 16-11264     Date Filed: 04/12/2018     Page: 6 of 6


judge of this Court certified instead that “reasonable jurists would debate the

district court’s conclusion that the claim was untimely” on the ground that he had

“asserted a valid claim of the denial of constitutional rights—that the government

violated due process by failing to disclose Brady material and counsel was

ineffective or failing to move for a new trial on that basis.” See Hunter v. United

States, 101 F.3d 1565, 1575 (11th Cir. 1996) (en banc) (“Under the plain language

of the rule, an applicant for the writ gets two bites at the appeal certificate apple:

one before the district judge, and if that one is unsuccessful, he gets a second one

before a circuit judge.”). In his reply brief, Ballesteros refuses to address the issue

we certified because the district court never addressed it, but we asked Ballesteros

to brief whether the district court erred by failing to consider it. By refusing to

address the issue identified in the certificate of appealability, Ballesteros has

waived his Brady claim.

      We AFFIRM the denial the Ballesteros’s amended motion to vacate.




                                            6
