           Case: 11-13884   Date Filed: 04/17/2013   Page: 1 of 3


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 11-13884
                        Non-Argument Calendar
                      ________________________

   D.C. Docket Nos. 6:10-cv-01144-GAP-DAB; 6:08-cr-00028-GAP-DAB-1



MARCUS ROGOZINSKI,

                                                       Petitioner-Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                     Respondent-Appellee.

                      ________________________

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

                             (April 17, 2013)

Before WILSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 11-13884     Date Filed: 04/17/2013    Page: 2 of 3


      Marcus Rogozinski appeals pro se the denial of his motion to vacate his

conviction. 28 U.S.C. § 2255. Rogozinski argues that counsel had a conflict of

interest and that his conviction was predicated on perjured testimony. We affirm.

      The district court did not err in concluding that Rogozinski failed to prove

that “an actual conflict of interest adversely affected his lawyer’s performance.”

Caderno v. United States, 256 F.3d 1213, 1218 (11th Cir. 2001) (quoting Cuyler v.

Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 1718 (1980)). Rogozinski criticized

counsel before trial, but the district court determined at a pre-trial hearing that

Rogozinski’s dissatisfaction stemmed from counsel’s refusal to file pretrial

motions that Rogozinski had prepared. Later, Rogozinski filed a civil complaint

against his counsel, but the district court dismissed that complaint as frivolous. We

affirmed the dismissal of that complaint. Rogozinski v. Spaulding, 330 Fed. App’x

170 (11th Cir. 2009). Rogozinski argues that his pretrial motions should have been

filed by counsel, but Rogozinski fails to identify what motions should have been

filed or to explain how they would have affected his case. Rogozinski also alleges

that counsel should have objected to certain questions and arguments made by the

prosecutor and to the admission of a duplicate of a check, but counsel did not act

inconsistent with Rogozinski’s interests by failing to raise arguments that we

rejected as meritless on direct appeal, United States v. Rogozinski, 339 F. App’x

963, 968-69 (11th Cir. 2009). See Freeman v. Att’y Gen., 536 F.3d 1225, 1233


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(11th Cir. 2008) (“A lawyer cannot be deficient for failing to raise a meritless

claim.”).

      The district court correctly concluded that Rogozinski’s argument about

perjured testimony was procedurally barred. Rogozinski defaulted his claim that

he was “indicted and/or convicted on perjured testimony” by failing to raise the

argument on direct appeal. See Bouslely v. United States, 523 U.S. 614, 623, 118

S. Ct. 1604, 1611 (1998); Mills v. United States, 36 F.3d 1052, 1055 (11th Cir.

1994). And Rogozinski failed to provide cause to excuse his default, see Reece v.

United States, 119 F.3d 1462, 1465 (11th Cir. 1997), or to establish that he was

actually innocent, see Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 867

(1995).

      We AFFIRM the denial of Rogozinski’s motion to vacate his conviction.




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