                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               JUNE 30, 2008
                               No. 07-10563                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                D. C. Docket Nos. 06-00875-CV-ORL-19-DAB
                         05-00031-CR-ORL-19-KRS

JUAN JIMENEZ,


                                                            Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                           Respondent-Appellee.


                         ________________________

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

                                (June 30, 2008)

Before ANDERSON, HULL and PRYOR, Circuit Judges.

PER CURIAM:

     Juan Jimenez, a former federal prisoner proceeding pro se, appeals the
district court’s denial of his 28 U.S.C. § 2255 motion to vacate his sentence based

on ineffective assistance of counsel. After review, we affirm.

                                     I. BACKGROUND

      In 2005, Jimenez was charged with illegally reentering the United States

after previously having been deported, in violation of 8 U.S.C. § 1326(a) and

(b)(2). Jimenez pled guilty to the illegal reentry charge in federal district court in

Florida.1 In September 2005, Jimenez was sentenced to 33 months’ imprisonment

and 2 years supervised release. Jimenez did not file a direct appeal.

      Instead, in 2006, he filed a § 2255 motion to vacate his sentence. Jimenez’s

motion to vacate argued, inter alia, that the lawyer on the illegal reentry charge,

Stephen Langs, rendered ineffective assistance by failing to properly investigate

and discover evidence establishing that Jimenez is actually a United States citizen

(and not a citizen of Mexico, as the government contended in the illegal reentry

proceedings).

      More specifically, Jimenez, who was born in Mexico as the son of an

American citizen (his father) and a Mexican citizen (his mother), argued that Langs

advised him that after reviewing all relevant material and law, Jimenez had no

legal recourse for challenging the illegal reentry charge against him. As such,



      1
          There was no written plea agreement.

                                                 2
Jimenez pled guilty to the illegal reentry charge upon Langs’s advice.

       Subsequent to his guilty plea, however, Jimenez himself discovered an

affidavit in his Immigration and Naturalization Service (“INS”) file from his father

that stated, inter alia, that Jimenez’s mother and Jimenez’s father “had personal

problems and eventually she remarried and so did I.” (Emphasis added.) Jimenez

argued that this affidavit, along with affidavits from other family members,

constituted evidence that Jimenez’s parents had been married under the common

law of Texas at the time of Jimenez’s birth, such that Jimenez was actually a

United States citizen rather than a Mexican citizen at birth and therefore could not

have illegally reentered the United States.2 According to Jimenez, Langs’s failure

to investigate and make the argument that Jimenez was a United States citizen by

virtue of his parents’ Texas common law marriage amounted to ineffective

assistance of counsel.

       The district court denied Jimenez’s § 2255 motion, finding that under

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984),

Jimenez failed to establish either deficient performance or prejudice. As to



       2
         For instance, an affidavit from one of Jimenez’s aunts states that Jimenez’s mother and
father “were going to get married and I was to be a[] flower girl,” while another aunt’s affidavit
states that Jimenez’s mother and father lived together “as man and wife in the years 1953
through 1956 in El Paso, Texas . . . . They were planning on getting married eventually but their
relationship fell apart and they separated.”

                                                 3
performance, the district court determined that Langs had undertaken “an extensive

independent investigation into Mr. Jimenez’s background to determine whether he

had any defense(s) to the charge.” The district court concluded that even if Langs

had performed deficiently, Jimenez still could not establish prejudice because the

relationship between his parents fell short of a Texas common law marriage.

         This Court granted a certificate of appealability (“COA”) on the following

issue:

         Whether [Jimenez’s] counsel was ineffective for failing to investigate
         and advise him of a possible defense to the unlawful re-entry charge
         against him: that he might have been a United States citizen because
         his biological parents may have been married under Texas common
         law.3

                                     II. DISCUSSION 4

         Under Strickland’s first prong, a defendant has the heavy burden of

demonstrating that his counsel’s performance was deficient and fell below an

objective standard of reasonableness. See Strickland, 466 U.S. at 687, 104 S. Ct. at



         3
        Jimenez’s brief makes certain arguments that are outside the scope of the COA. Our
review in § 2255 cases is limited to the issues specified in the COA, and accordingly we do not
address Jimenez’s other arguments. See Murray v. United States, 145 F.3d 1249, 1250-51 (11th
Cir. 1998).
         4
         When reviewing a district court’s denial of a § 2255 motion, we review findings of fact
for clear error and legal conclusions de novo. See Lynn v. United States, 365 F.3d 1225, 1232
(11th Cir. 2004). The ultimate question of whether a criminal defendant received ineffective
assistance of counsel is a mixed question of fact and law. Mincey v. Head, 206 F.3d 1106, 1142
(11th Cir. 2000).

                                               4
2064; see also Gordon v. United States, 518 F.3d 1291, 1297, 1301 (11th Cir.

2008). There is a strong presumption that counsel’s performance was adequate,

and to overcome the presumption, a defendant must show that no competent

counsel would have taken the action that his counsel did take. Gordon, 518 F.3d at

1301.

        Jimenez has failed to show ineffective assistance. Jimenez contends that

Langs rendered deficient performance by failing to examine the 1952 Immigration

and Nationality Act (“INA”), which (Jimenez further contends) should have led

Langs to investigate whether Jimenez’s parents were married under Texas common

law at the time of Jimenez’s birth in 1952.5 However, the record in Jimenez’s

illegal reentry case establishes that Langs actually undertook investigation into

Jimenez’s background specifically to determine whether Jimenez had any


        5
        Specifically, the 1952 version of the INA provided, in pertinent part, that citizens of the
United States at birth included persons who were:

        born outside the geographical limits of the United States . . . [to] parents one of
        whom is an alien, and the other a citizen of the United States who, prior to the birth
        of such person, was physically present in the United States . . . [for a certain period
        of time].

8 U.S.C. § 1401(a)(7) (1952) (emphasis added). However, a person only qualified as a “parent”
under the 1952 version of the INA when, inter alia, their child was “a legitimate child” or was
“legitimated under the law of the child’s residence or domicile, or under the law of the father’s
residence or domicile.” 8 U.S.C. § 1101(b)(1)-(2) (1952) (also qualifying a person as a “parent”
when the child became their stepchild before the child reached the age of eighteen). Since it is
undisputed that Jimenez was born out of technical wedlock, the question that he argues Langs
should have raised is whether Jimenez was “legitimated” under Texas law by virtue of his
parents’ purported Texas common law marriage.

                                                  5
citizenship-based defenses to the reentry charge. Indeed, Langs’s motion to

compel discovery in Jimenez’s illegal reentry case stated that “there were several

means by which Mr. Jimenez could have obtained American citizenship,” but

Langs’s investigation of those “vehicles to citizenship” had proven fruitless.

Despite this, Langs’s motion to compel sought Jimenez’s mother’s INS file in an

effort to explore yet another possible way in which Jimenez might have obtained

derivative American citizenship—through his mother’s naturalization.6

Additionally, at Jimenez’s sentencing, Langs advised the court that Jimenez was

“likely to be deported” after serving his sentence on the reentry charge, adding that

the impending deportation was “unfortunate” and that he had “yelled at Mr.

Jimenez about that,” because Jimenez “had a number of opportunities to get his

citizenship here while in the United States, and every lead that [Langs] tracked

down through [Jimenez’s] biological father, his adoptive stepfather . . . through his

mother and through his own marriage,” showed that Jimenez never obtained

citizenship. (Emphasis added.)

       Thus, the record in Jimenez’s illegal reentry case establishes that Langs

specifically explored the possibility of various citizenship-based defenses to the

reentry charge. Moreover, although the record is silent as to whether Langs


       6
           The docket in Jimenez’s criminal case reflects that Langs’s motion to compel was
granted.

                                                  6
actually explored the specific Texas common law marriage defense raised by

Jimenez in this § 2255 case, “[a]n ambiguous or silent record is not sufficient to

disprove the strong and continuing presumption” of counsel’s competence.

Chandler v. United States, 218 F.3d 1305, 1314 & n.15 (11th Cir. 2000) (en banc).

Accordingly, Jimenez has failed to establish that Langs rendered constitutionally

deficient performance.

      Alternatively, even assuming arguendo that Langs rendered constitutionally

deficient performance, Jimenez has also failed to establish prejudice. To satisfy

Strickland’s prejudice prong, Jimenez must show a reasonable probability that, but

for Langs’s alleged errors, Jimenez would not have pleaded guilty and “would

have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366,

370 (1985) (applying Strickland to a challenge to a guilty plea based on ineffective

assistance).

      Here, Jimenez has failed to establish prejudice because he has failed to

establish that his parents were in fact married under Texas common law at the time

of his birth. Specifically, although Texas recognized common law marriage in

1952 (and still recognizes it today), to establish a common law marriage in Texas

in 1952, a party had to prove three elements: (1) that the couple had an agreement

to be married; (2) that after the agreement, the couple lived together professedly as



                                          7
husband and wife; and (3) that the couple was recognized by the community as

husband and wife. See Hodge v. Hicks, 233 S.W.2d 557, 557 (Tex. 1950)

(following Walton v. Walton, 228 S.W. 921, 922 (Tex. Comm’n App. 1921));

Grigsby v. Reib, 153 S.W. 1124, 1125, 1130 (Tex. 1913); see also Ex parte Threet,

333 S.W.2d 361, 364 (Tex. 1960) (citing Grigsby).

        In this case, the affidavits are at best ambiguous in terms of establishing

that Jimenez’s parents were married under Texas common law. While the affidavit

from Jimenez’s father does state that he and Jimenez’s mother eventually both

“remarried” after breaking up, the affidavit also states that Jimenez was “born out

of wedlock.” This suggests that Jimenez’s father and mother did not hold

themselves out to others as husband and wife at the time of Jimenez’s birth. See

Threet, 333 S.W.2d at 364-65.

      Additionally, the affidavits reflect that after Jimenez’s mother and father

separated, Jimenez’s mother married another man, Arthur Daly, who helped to

raise Jimenez. Under Texas law, “the act of one of the parties to an alleged

common-law marriage in celebrating a ceremonial marriage with another person

without having first obtained a divorce, tends to discredit the first relationship and

to show that it was not valid.” Claveria’s Estate v. Claveria, 615 S.W.2d 164, 166

(Tex. 1981) (emphasis added) (citing Higgins v. Higgins, 246 S.W.2d 271 (Tex.



                                           8
Civ. App. 1952); Nye v. State, 179 S.W. 100 (Tex. Crim. App. 1915)); see also

Williams v. Williams, 336 S.W.2d 757, 759 (Tex. Civ. App. 1960) (stating that if a

man and a woman “had in truth and in fact entered into a common law marriage as

alleged . . . said status or relationship of the parties could be dissolved only by

death or by divorce”). Here, it is undisputed that both of Jimenez’s parents were

alive when Jimenez’s mother married Daly, and Jimenez points to no record

evidence that his father and mother ever “divorce[d].” Jimenez has not shown that

his parents were married under Texas common law at the time of his birth.7

                                    III. CONCLUSION

       For the foregoing reasons, we affirm the district court’s denial of Jimenez’s

§ 2255 motion.

       AFFIRMED.




       7
        Additionally, we note that at the time of Jimenez’s birth, Texas law did “not favor, but
merely tolerate[d], common-law marriages.” Texas Employers’ Ins. Ass’n v. Elder, 274 S.W.2d
144, 147 (Tex. Civ. App. 1955).


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