                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 08-15255                 ELEVENTH CIRCUIT
                                                                JULY 15, 2009
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                  CLERK

                D. C. Docket Nos. 07-08007-CV-2-RDP-PWG,
                              05-00398-CR-2-R

ERIC MABRY,



                                                             Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                        _________________________

                                 (July 15, 2009)

Before BIRCH, HULL and WILSON, Circuit Judges.

PER CURIAM:

     Eric Mabry, a federal prisoner proceeding pro se, appeals the dismissal of
his 28 U.S.C. § 2255 motion to vacate his sentence. We granted a certificate of

appealability (“COA”) on the following issue: “Whether the district court erred in

finding that appellant’s new claims, raised in his reply brief, were time-barred

because they did not relate back to the original § 2255 motion.”

       After the government responded to Mabry’s original § 2255 motion and

after § 2255(f)’s one-year time limit had expired, Mabry raised several new claims.

On appeal, Mabry argues that his new claims relate back to his original § 2255

motion because his new claims and original claims all have in common the

interpretation of his plea agreement.1

       In Part I, we discuss the applicable law. In Part II, we discuss each of

Mabry’s claims. We affirm as to four of these claims. We vacate and remand as to

one.

                                              I.

       We review de novo a district court’s conclusion that a § 2255 motion is

time-barred. Jones v. United States, 304 F.3d 1035, 1037 (11th Cir. 2002) (per

curiam) (citation omitted). “Rule 15 of the Federal Rules of Civil Procedure

applies to civil actions brought under 28 U.S.C. § 2255. Application of Rule 15(c)



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         Mabry attempts to raise additional issues outside the scope of the COA that we do not
address. See Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998) (per curiam) (“[W]e
will not decide any issue not specified in the COA . . . .”).

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is reviewed for abuse of discretion.” Davenport v. United States, 217 F.3d 1341,

1343 n.4 (11th Cir. 2000) (citation and quotation marks omitted).

      There is a one-year statute of limitations on § 2255 motions. 28 U.S.C.

§ 2255(f). If a prisoner amends his § 2255 motion after the statute of limitations

expires, the new claims are untimely unless they relate back under Rule 15(c) to

one of the claims in the original motion. Davenport, 217 F.3d at 1344. “‘Relation

back’ causes an otherwise untimely claim to be considered timely by treating it as

if it had been filed when the timely claims were filed.” Id. A pleading relates back

to the original pleading when the pleading asserts a claim “that arose out of the

conduct, transaction, or occurrence set out—or attempted to be set out—in the

original pleading.” F ED. R. C IV. P. 15(c)(1)(b).

      For a claim to relate back in a § 2255 proceeding, “the untimely claim must

have more in common with the timely filed claim than the mere fact that they arose

out of the same trial and sentencing proceedings.” Davenport, 217 F.3d at 1344.

“Instead, in order to relate back, the untimely claim must have arisen from the

same set of facts as the timely filed claim, not from separate conduct or a separate

occurrence in both time and type.” Id. (quotation marks and citations omitted).

“So long as the original and amended petitions state claims that are tied to a

common core of operative facts, relation back will be in order.” Mayle v. Felix,



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545 U.S. 644, 664, 125 S. Ct. 2562, 2574 (2005). An amendment that serves to

expand facts or cure deficiencies in an original claim relates back to the original

claim. Dean v. United States, 278 F.3d 1218, 1223 (11th Cir. 2002) (per curiam).

                                           II.

      We discuss each of Mabry’s claims in turn.

1.    The government breached the plea agreement at sentencing.

      Mabry now claims that the government breached the plea agreement at

sentencing by failing to recommend (1) a three-level reduction for acceptance of

responsibility and (2) a sentence at the low end of the advisory range. The closest

claim in the original motion to which these two new claims can relate back is

Mabry’s claim that the government breached the plea agreement by failing to

adequately inform the district court of the details of his substantial assistance in a

§ 5K1.1 motion.

      Mabry’s new claims focus on the government’s actions during the

sentencing hearing. His original claim, however, focused on the government’s

§ 5K1.1 motion. Mabry’s new claims do not relate back to the original claim

because the new claims involve entirely different alleged breaches. Mayle, 545

U.S. at 664, 125 S. Ct. at 2574 (“So long as the original and amended petitions

state claims that are tied to a common core of operative facts, relation back will be



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in order.”). Thus, the district court did not abuse its discretion as to these claims.

2.    Counsel rendered ineffective assistance by not seeking a sentencing cap in
      the plea agreement.

      The core operative facts of this claim are counsel’s plea negotiations with

the government and the drafting of the plea agreement. But none of Mabry’s

original claims have core facts in common with the sentencing-cap claim because

all of the original claims revolve around counsel’s performance during or after the

sentencing and not during the plea negotiations. Thus, the district court did not

abuse its discretion by finding that Mabry’s sentencing-cap claim does not relate

back to the original § 2255 motion.

3.    Counsel rendered ineffective assistance by failing to alert the court that the
      government was required to recommend a sentence at the low end of the
      advisory guideline range.

      The closest claim in Mabry’s original § 2255 motion was that his counsel

rendered ineffective assistance by failing to bring to the district court’s attention

that the government did not explain fully the details of Mabry’s substantial

assistance. The original claim could be described as counsel being ineffective for

failing to bring to the court’s attention that the government was not fulfilling its

obligations under the plea agreement. Or it could be described as a claim

surrounding a specific obligation in the plea agreement. Regardless, the

construction of the claims does not affect our analysis. Even under the broad

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construction, the claims do not have core facts that coincide. Accordingly, the

district court did not abuse its discretion by finding that the new claim does not

relate back.

4.     Counsel rendered ineffective assistance by failing to assist the sentencing
       court in arriving at the correct guideline level before a potential departure
       and misstating to the court that he had sold cocaine to a government
       informant.

       The closest claim in Mabry’s original § 2255 motion was that his counsel

was ineffective for failing to bring to the district court’s attention that the

government did not explain fully the details of Mabry’s substantial assistance.

Although both claims involve counsel’s performance at sentencing, they involve

very different aspects of counsel’s performance. Since the original and new claims

have different core facts, the district court did not abuse its discretion by finding

that the new claim does not relate back.

5.     Counsel rendered ineffective assistance by telling Mabry that he had waived
       all of his rights to an appeal, even though Mabry’s sentence appeal waiver
       allowed him to appeal the overruling of the objection to the use of the prior
       conviction to enhance Mabry’s sentence.

       The closest claim in the original motion was that counsel was ineffective by

allowing Mabry to forego his appellate rights without proper investigation, review,

and consultation. Although Mabry does not mention that specific claim in this

appeal, he asserts that the reply memorandum that he filed in the district court



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illustrated the extent of his counsel’s ineffective assistance.

      The government concedes that the new claim has a connection to the original

claim. It argues, however, that we implicitly determined that Mabry’s new claim

lacked merit. The government notes that, in granting the COA, we determined that

Mabry failed to show that his counsel rendered ineffective assistance by allowing

him to waive his right to appeal because the plea agreement reserved Mabry’s right

to appeal on certain issues.

      We must, however, construe liberally a pro se petitioner’s pleadings.

Gomez-Diaz v. United States, 433 F.3d 788, 791 (11th Cir. 2005) (citation

omitted). In Dean, we found that a habeas petitioner’s claim that “serve[d] to

expand facts or cure deficiencies in the original claims” was “not [an] entirely new

claim[].” 278 F.3d at 1223. By reversing the district court’s finding in Dean that

the claim did not relate back to the original petition, we found that the district court

abused its discretion by finding that the claim does not relate back when it clarifies

an original claim. See id.

      Construed liberally, Mabry’s new claim clarifies that he was addressing

counsel’s error in advising him that he could not appeal the sentence, even though

he specifically reserved the right to appeal the use of his prior convictions to

enhance his sentence. In light of Dean, the district court abused its discretion by



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finding that Mabry’s new claim does not relate back to his original § 2255 motion.

                                  CONCLUSION

      Mabry’s claim that counsel rendered ineffective assistance by incorrectly

advising Mabry that he could not appeal his sentence relates back to his original

§ 2255 motion. Thus, the district court abused its discretion by finding that claim

untimely. The court properly determined, however, that Mabry’s other four claims

did not relate back to his original § 2255 motion. Accordingly, we affirm in part

and vacate and remand in part with instructions for the district court to consider the

one claim that relates back to the original § 2255 motion.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART

WITH INSTRUCTIONS.




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