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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-15745
                         Non-Argument Calendar
                       ________________________

   D.C. Docket Nos. 8:11-cv-00428-EAK-AAS; 8:02-cr-00329-EAK-AAS-1



JOAQUIN MARIO VALENCIA-TRUJILLO,

                                                           Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                          Respondent-Appellee.

                       ________________________

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

                             (August 2, 2019)

Before ED CARNES, Chief Judge, TJOFLAT, and JORDAN, Circuit Judges.

PER CURIAM:
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       Joaquin Mario Valencia-Trujillo is a federal prisoner serving a 480-month

sentence after he was extradited from Colombia. In an earlier decision we found

that he did not have standing to raise a claim that the United States violated the

rule of specialty by prosecuting him for crimes beyond those that Colombia

authorized in his extradition agreement. United States v. Valencia-Trujillo, 573

F.3d 1171, 1173 (11th Cir. 2009). 1 Valencia-Trujillo then filed a motion to vacate

his sentence under 28 U.S.C. § 2255. The district court denied that motion in part

and we granted a certificate of appealability limited to the following issue:

Whether Valencia-Trujillo’s counsel was ineffective for failing to seek

enforcement of his extradition agreement and the rule of specialty and obtain

diplomatic protests from Colombia.

                                                 I.

       In 2003 Valencia-Trujillo was extradited from Colombia after being indicted

in the United States for conspiracy charges related to money laundering and

importing cocaine. His extradition papers stipulated that he could not be tried in

the United States for acts that occurred before December 17, 1997 so as not to

violate a provision of Colombia’s constitution. After he was extradited to, and



       1
          The rule of specialty is a principle of international law that “stands for the proposition
that the requesting state, which secures the surrender of a person, can prosecute that person only
for the offense for which he or she was surrendered by the requested state or else must allow that
person an opportunity to leave the prosecuting state to which he or she had been surrendered.”
Valencia-Trujillo, 573 F.3d at 1173–74 (quotation marks omitted).
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indicted in, the United States, Valencia-Trujillo moved to enforce the rule of

specialty by redacting from his indictment all references to any acts occurring

before December 17, 1997 and prohibiting the introduction of any evidence at trial

originating before that date.

      Before the district court scheduled a hearing on his motion to enforce

Valencia-Trujillo moved to postpone the hearing in March 2005. In his motion he

wrote that “both the Colombian Supreme Court and the administration of

Colombian President Uribe” had informed his Colombian counsel “that official

actions” relevant to his extradition were imminent. But at the rescheduled hearing

Valencia-Trujillo’s counsel said that although he had expected Colombia to

produce new documents regarding Valencia-Trujillo’s extradition, it had not done

so and he was not optimistic that such documents would be forthcoming. At the

hearing Valencia-Trujillo’s counsel also recognized that Valencia-Trujillo was

extradited only under an extradition agreement and not a treaty, but contended that

the rule of specialty applied regardless of whether a treaty was in effect.

      The district court issued an order redacting certain predicate acts from

Valencia-Trujillo’s indictment and putting in place several other measures

designed to prevent the jury from improperly considering evidence of conduct

occurring before 1997. But the court declined to prohibit the introduction of

evidence of pre-1997 conduct at trial if the evidence was otherwise admissible.


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      In 2006 a jury found Valencia-Trujillo guilty after a 66-day trial and the

court sentenced him to 480 months imprisonment. On direct appeal Valencia-

Trujillo argued that the district court violated the rule of specialty. See Valencia-

Trujillo, 573 F.3d at 1177. He based his theory of standing on the United States-

Colombia treaty of 1979, arguing that it gave him a private right of enforcement.

Id. at 1177–78. We held that he did not have standing to bring his rule of specialty

claim because the rule applied only to extraditions that, unlike Valencia-Trujillo’s,

were conducted under a treaty. Id. at 1179, 1181.

      In 2011 Valencia-Trujillo filed a pro se motion to vacate his sentence. He

asserted 36 grounds for relief, including his claim that his attorneys were

ineffective for failing to secure diplomatic protests from Colombia that would have

given him standing to assert his rule of specialty claim on direct appeal. His

motion was held in abeyance for several years until he was able to obtain new

counsel.

      In 2016 Valencia-Trujillo’s newly obtained counsel filed three diplomatic

notes issued by Colombia between 2014 and 2016 that expressed concern with our

holding on direct appeal that the rule of specialty could not be raised by a

defendant in the absence of an extradition treaty. The notes also alleged that the

district court did not honor Colombia’s extradition conditions, noting that the court

admitted evidence of acts that occurred before December 17, 1997, and that there


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were differences between the charges in the Unites States’ extradition request, the

indictment, and the final verdict.

       In 2017 the district court issued an order dismissing all but one of the 36

grounds in Valencia-Trujillo’s motion to vacate.2 Valencia-Trujillo now appeals,

contending that the district court erred in dismissing his claim that his attorneys

provided ineffective assistance of counsel by failing to secure diplomatic notes that

he contends would have given him standing to raise his rule of specialty claim on

direct appeal.




       2
          Valencia-Trujillo was later resentenced and again received a sentence of 480 months
imprisonment. He contends that the district court erred in resentencing him under the 2006
version of the United States Sentencing Guidelines instead of the 2000 version. We issued a
certificate of appealability only for the issue of whether his counsel was ineffective “for failing
to seek enforcement of the extradition agreement and the rule of specialty and obtain diplomatic
protests from Colombia.” It is unclear if Valencia-Trujillo’s challenge to his resentencing is a
claim raised for the first time on direct appeal or a collateral attack requiring a certificate of
appealability. See Davenport v. United States, 217 F.3d 1341, 1344 n.6 (11th Cir. 2000)
(holding that in reviewing a § 2255 motion our review is limited to the issues specified in the
certificate of appealability). In any event, we will resolve that ambiguity by granting a certificate
of appealability now and denying Valencia-Trujillo relief on the merits.

         Valencia-Trujillo argues that because applying the 2000 version of the manual would
have resulted in a lower guidelines range, the district court violated the ex post facto clause by
applying the later version because all of the predicate acts cited by the United States to justify his
extradition occurred before May 2000. See Peugh v. United States, 569 U.S. 530, 533 (2013)
(holding that it violates the ex post facto clause when a defendant is sentenced under guidelines
promulgated after he committed his criminal acts and the guidelines provide for a higher
sentencing range than those in place at the time of those acts). Even if we assume that Valencia-
Trujillo’s guidelines range would in fact have been lower under the 2000 guidelines, this
argument is meritless because the United States’ request for extradition explicitly noted that his
indictment “refer[s] to actions . . . continuing up to and including August 22, 2002.” So the
district court did not err in resentencing Valencia-Trujillo under the later version of the
guidelines.
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                                          II.

      “In reviewing the denial of a § 2255 motion, we examine legal issues de

novo and underlying factual findings for clear error.” Jones v. United States, 224

F.3d 1251, 1256 (11th Cir. 2000).

       To show that he was denied his Sixth Amendment right to effective

assistance of counsel a prisoner must show that (1) his counsel’s performance was

deficient in that it “fell below an objective standard of reasonableness,” and (2)

that his counsel’s deficient performance was prejudicial. Id. at 1257 (quoting

Strickland v. Washington, 466 U.S. 668, 688 (1984)). There is a “strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Strickland, 466 U.S. at 689. To show that challenged

conduct is unreasonable “a petitioner must establish that no competent counsel

would have taken the action that his counsel did take.” Chandler v. United States,

218 F.3d 1305, 1315 (11th Cir. 2000) (en banc). Reasonable conduct “cannot and

does not include a requirement to make arguments based on predictions of how the

law may develop.” Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994)

(quotation marks omitted).

      Valencia-Trujillo alleges that his attorneys were ineffective because they did

not obtain diplomatic protests from the Colombian government. We disagree. The

record shows that Valencia-Trujillo’s counsel collaborated with his Colombian


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counsel in an attempt to obtain diplomatic notes and convinced the district court to

postpone its hearing on Valencia-Trujillo’s motion to enforce in the hope that that

attempt would be successful. Valencia-Trujillo claims that such protests were

“readily available” in 2005, but presents no evidence that this is true other than the

fact that he was able to obtain them in 2014 and 2016. There are innumerable

reasons why Colombia might have been amenable to such entreaties in 2014, but

not nine years earlier. And given the evidence in the record, such an unsupported

assertion is far from enough to convince us that any competent counsel would have

done more to obtain such protests than Valencia-Trujillo’s attorneys did. Id.

      And even if we assumed that Valencia-Trujillo’s attorneys had the ability to

secure diplomatic protests in 2005, our precedent at that time did not establish that

such protests were necessary to preserve standing. See United States v. Puentes,

50 F.3d 1567, 1574 (11th Cir. 1995) (“[E]ven in the absence of a protest from the

requested state, an individual extradited pursuant to a treaty has standing to

challenge the court’s personal jurisdiction under the rule of specialty.”). An

attorney’s performance cannot fall below an objective standard of reasonableness

for failing to predict developments in the law, and we do not think Valencia-

Trujillo’s counsel performed deficiently here. See Spaziano, 36 F.3d at 1039.

      AFFIRMED.




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