224 F.3d 1251 (11th Cir. 2000)
Charles Larry JONES, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 97-8958.
United States Court of Appeals,Eleventh Circuit.
Aug. 29, 2000.Sept. 11, 2000.

[Copyrighted Material Omitted]
Appeal from the United States District Court for the Northern District of  Georgia. (No. 97-00041-3-CV-RLV), Jack T. Camp, Judge.
Before TJOFLAT, WILSON and FLETCHER*, Circuit Judges.
WILSON, Circuit Judge:


1
Charles Larry Jones, a federal prisoner convicted on drug charges, appeals the  denial of his motion under 28 U.S.C.  2255 to vacate, set aside, or correct his  sentence. As a threshold matter, we rule that we will expand Jones's certificate  of appealability (COA) to include issues beyond those certified by the district  court, especially when, as here, we have received a specific request directing  us to the particular issue the petitioner wishes to appeal. Because Jones has  shown that his counsel rendered ineffective assistance by failing to move for  suppression of evidence and failing to object to a general sentence, we remand  for further proceedings to determine whether his counsel's ineffectiveness  deprived Jones of a fair trial, and for resentencing if necessary.

BACKGROUND
The Underlying Criminal Case

2
On July 14, 1988, the government obtained an investigative warrant to tap  Jones's phone. Thereafter, the government intercepted and taped conversations  between Jones and others until August 18, 1988.1 Acting on information from the  intercepted conversations, the government arrested Jones and several other  alleged conspirators on August 18, 1988. Nothing in the trial court record shows  that the tapes from the tapped phone conversations were sealed pursuant to a  written sealing order. However, it appears that on September 19, 1988, a judge  orally granted a request to seal the tapes.2 This thirty-one-day delay became  significant in light of a development in Supreme Court precedent occurring while  Jones's case was pending.3


3
This development pertained to 18 U.S.C.  2518(8)(a)'s requirement that wiretap  tapes be sealed "immediately" upon expiration of the order authorizing the  wiretap. When Jones was arrested, the law of this circuit was that a court would  not grant a motion to suppress based on a delay in sealing wiretap evidence,  unless the defendant could show prejudice or that the integrity of the  recordings was disturbed.4 On October 10, 1989, the Supreme Court granted  certiorari to resolve an inter-circuit conflict regarding whether this  "prejudice" requirement was appropriate.5 Over one month after the grant of  certiorari, Jones's counsel moved to suppress the wiretap evidence. The motion  mentioned neither the delay in sealing the tapes nor the grant of certiorari.6  The magistrate judge recommended denying the motion to suppress.


4
The tapes were entered into evidence and played to the jury at trial. The jury  convicted Jones on four counts: conspiring to make and distribute  methamphetamine, manufacturing a precursor of methamphetamine called  phenyl-2-propanone, and two counts of attempting to make methamphetamine. The  district court imposed a general sentence of 360 months' imprisonment on all  four counts. Jones's counsel did not object to the general nature of the  sentence.


5
Jones's counsel filed a notice of appeal on April 30, 1990-the same day the  Supreme Court issued its opinion in United States v. Ojeda Rios.7 The record  does not reflect that Jones's counsel raised on appeal the change in law  regarding suppression of wiretap evidence. This court affirmed Jones's  conviction without mentioning the delay in sealing the wiretap evidence. See  United States v. Jones, 940 F.2d 673 (1991), cert. denied, sub nom. Newsome v.  United States, 502 U.S. 1076, 112 S.Ct. 977, 117 L.Ed.2d 141 (1992).

The  2255 Proceedings

6
Jones moved under 28 U.S.C.  2255 to vacate, set aside, or correct his  sentence. Among the grounds for Jones's motion were that his attorney  ineffectively failed to (1) move to suppress wiretap evidence; (2) object to an  unlawful general sentence; and (3) object to Jones's sentence being enhanced  based on a type of methamphetamine for which there was no proof Jones had made,  had attempted to make, or had conspired to manufacture. The district court  denied Jones's  2255 motion. Jones appealed. The district court certified only  two issues for appeal:


7
Whether the defendant was deprived of the effective assistance of counsel by    (1) his attorney's failure to require proof as to the kind of methamphetamine    for which the defendant was to be sentenced and (2) his attorney's failure to    object to the general sentence imposed by the court.


8
Jones then asked this court to expand the COA to cover the wiretap issue.

DISCUSSION
Certificate of Appealability (COA)

9
As a threshold matter, we must resolve whether we will expand our review beyond  the two issues certified for appeal by the district court. Jones appealed from  the denial of his  2255 motion on August 27, 1997. His appeal is therefore  governed by the COA requirements of the Antiterrorism and Effective Death  Penalty Act of 1996 (AEDPA). See Slack v. McDaniel, --- U.S. ----, 120 S.Ct.  1595, 1600, 146 L.Ed.2d 542 (2000) (when appeal is initiated after April 24,  1996, AEDPA's appellate provisions apply).


10
Under the AEDPA, a petitioner must obtain a COA before he can appeal the denial  of a  2255 motion. See 28 U.S.C.  2253(c)(1)(B). The COA must indicate  specific issues for which the appellant "has made a substantial showing of the  denial of a constitutional right." 28 U.S.C.  2253(c)(2); see 28 U.S.C.   2253(c)(3). Our review is limited to the issues specified in the COA. See Murray  v. United States, 145 F.3d 1249, 1250 (11th Cir.1998). Therefore, unless Jones  succeeds in expanding the district court's COA, we will not consider Jones's  uncertified appellate claim that he was deprived of the effective assistance of  counsel with respect to the suppression of wiretap evidence.


11
The COA process begins in the district court when the prisoner files either a  notice of appeal or a request for a COA. See Fed.R.App.P. 22(b); 11th Cir.R.  22-1; Edwards v. United States, 114 F.3d 1083, 1084 (11th Cir.1997). If the  district court declines to issue a COA, this court can issue one pursuant to  Fed.R.App.P. 22(b)(2). Thus, "[u]nder 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." Hunter v. United States, 101 F.3d 1565, 1575 (11th  Cir.1996) (en banc), partially overruled on other grounds by Lindh v. Murphy,  521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). An appellant can seek this  "second bite" by expressly requesting this court to issue a COA, or by filing a  notice of appeal. See Fed.R.App.P. 22(b)(2).


12
Therefore, the rules provide that a bare notice of appeal can serve as a request  for us to revisit a district court's complete refusal to issue a COA. But the  rules do not expressly cover the situation where the district court issues not a  total denial, but a partial denial, by granting a COA on less than all the  issues the petitioner wishes to appeal. Does a bare notice of appeal suffice as  a request to broaden the scope of the certificate?


13
The circuits are divided on whether an appellant seeking to expand a COA may do  so simply by filing a notice of appeal,8 or whether he or she must request a  broader COA by presenting the uncertified issue to the circuit court's attention  explicitly.9 The government argues that the Eleventh Circuit falls in the latter  category, citing Tompkins v. Moore, 193 F.3d 1327 (11th Cir.1999), petition for  cert. filed, --- U.S.L.W. ---- (U.S. June 12, 2000) (No. 99-10113). There we  suggested that AEDPA petitioners could expand a COA only by filing a request  with this court before briefing:


14
An application to expand the certificate must be filed promptly, well before    the opening brief is done. Arguments in a brief addressing issues not covered    in the certificate, including any expansion granted by the court of appeals,    will not be considered as a timely application for expansion of the    certificate; those issues simply will not be reviewed.


15
Id. at 1332. But because Tompkins involved pre-AEDPA law, its statements  regarding AEDPA procedure are dicta.


16
The "explicit request" requirement for expanding a COA has its pros and cons. It  furthers the usefulness of the COA by directing the parties' attention at an  early stage of the proceedings to the vital issues. On the other hand, an  appellant who receives a partial COA can be actually worse off than one whose  application for a COA is denied in full by the district court; when a COA  application is totally denied, we treat the notice of appeal as an application  for this court to issue a COA and consider de novo whether to grant one. Cf.  Fed.R.App.P. 22(b)(2); Hunter, 101 F.3d at 1575.


17
At any rate, we need not decide the issue today, for Jones has satisfied the  more stringent standard by presenting this court with an explicit request to  broaden his COA. He did so by moving in this court for an enlargement of time to  file an application for a COA covering all the issues raised in his  2255  motion. A judge of this court denied the motion and directed Jones to limit his  brief to the two issues certified for appeal. Jones moved for panel  reconsideration of the single-judge denial. Attached to his motion was an  application to amend the COA, specifically presenting the additional claim Jones  wishes to present before this court today: that he was denied effective  assistance of counsel with respect to the suppression of wiretap evidence.


18
The government moved to dismiss the portions of Jones's appeal that addressed  uncertified issues. A two-judge panel of this court ordered the government's  motion and Jones's motion for reconsideration to be carried with the case.  Later, a three-judge panel ordered that Jones's motion for reconsideration be  denied and that the government's motion to dismiss be carried with the case.


19
At oral argument, the government suggested that Jones should be limited to  arguing the two certified claims, as indicated by the denial of reconsideration  of the order limiting Jones to two issues. However, the motion panel's denial  does not bind the panel hearing the case on the merits. See 11th Cir. R. 27-1(g)  ("A ruling on a motion or other interlocutory matter ... is not binding upon the  panel to which the appeal is assigned on the merits, and the merits panel may  alter, amend, or vacate it."); Vann v. Citicorp Savings, 891 F.2d 1507, 1509 n.  2 (11th Cir.1990) (citing rule). In other words, the "law of the case"  doctrine10 does not apply to an administrative ruling issued pending oral  argument. Cf. Henry v. Department of Corrections, 197 F.3d 1361, 1366 n. 2 (11th  Cir.1999) (motions judge's ruling on COA was not law of the case on future  appeal).


20
Because Jones explicitly requested that his COA be expanded to cover the wiretap  suppression issue, and because we find that he has made a substantial showing  that he was denied his constitutional right to effective assistance of counsel,  we grant Jones's request to expand the scope of his certificate. We certify this  additional issue: whether the defendant was deprived of the effective assistance  of counsel by his attorney's failure to argue for the suppression of wiretap  evidence due to the sealing requirements of 18 U.S.C.  2518(8)(a).

Ineffective Assistance of Counsel

21
In reviewing the denial of a  2255 motion, we examine legal issues de novo and  underlying factual findings for clear error. See, e.g., Castillo v. United  States, 200 F.3d 735, 736 (11th Cir.2000) (per curiam). Ineffectiveness of  counsel is a mixed question of law and fact reviewed de novo. See Meeks v.  Moore, 216 F.3d 951, 959 (11th Cir.2000).


22
To establish that he was denied his Sixth Amendment right to effective counsel,  Jones must show two things. First, Jones must show that his counsel was  deficient; that is, that his representation " 'fell below an objective standard  of reasonableness.' " Williams v. Taylor, --- U.S. ----, 120 S.Ct. 1495, 1511,  146 L.Ed.2d 389 (2000) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104  S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Second, Jones must show that the deficient  performance prejudiced his right to a fair trial. See id. Prejudice is found  when " 'there is a reasonable probability that, but for counsel's unprofessional  errors, the result of the proceeding would have been different.' " Id. at 1512  (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). We address Jones's  contentions in turn.

Suppression of Wiretap Evidence

23
Jones states that his counsel was deficient in failing to argue for the  suppression of wiretap evidence based on the sealing requirements of 18 U.S.C.   2518(8)(a). We agree.


24
18 U.S.C.  2518(8)(a) requires that immediately upon expiration of an order  authorizing interception and recording of certain communications, the recordings  must be sealed under the direction of the judge who issued the order. The  statute contains "an explicit exclusionary remedy for noncompliance," providing  that " 'the presence of the seal ... or a satisfactory explanation for the  absence thereof, shall be a prerequisite for the use or disclosure of the  contents' " of the recordings, or evidence derived therefrom, in a proceeding.  United States v. Ojeda Rios, 495 U.S. 257, 260, 110 S.Ct. 1845, 109 L.Ed.2d 224  (1990) (quoting 18 U.S.C.  2518(8)(a)). In Jones's case, the record indicates  the tapes of the wiretap surveillance of his telephone were sealed, at best, no  earlier than thirty-one days after the surveillance terminated.11 The government  has proffered no explanation for the delay in sealing the tapes.


25
When the case against Jones began, the law of this circuit was that a delay in  the sealing of wiretap recordings did not require suppression if the government  "accounted for the delay" and there was no showing of prejudice or that the  integrity of the recordings was disturbed. United States v. Diadone, 558 F.2d  775, 780 (5th Cir.1977); see Bonner v. City of Prichard, 661 F.2d 1206, 1207  (11th Cir.1981) (en banc) (adopting as binding precedent all cases decided in  the Fifth Circuit prior to the close of business on September 30, 1981).


26
On October 10, 1989, the Supreme Court granted certiorari to review United  States v. Ojeda Rios, a Second Circuit case that reached a result contrary to  that which would have been reached under this court's precedent.12 From that  date, Jones's counsel was on notice that the Court would be considering the  circumstances under which wiretap evidence must be suppressed. Over a month  after the grant of certiorari, Jones's counsel moved to suppress the wiretap  evidence. Jones's motion did not raise the delay in sealing the tapes as a basis  for their suppression. Nor did it mention the grant of certiorari. Even two  months after the grant of certiorari, when filing a memorandum in support of the  suppression motion, counsel did not raise the issue.


27
Since the district court would be required to follow the law of this circuit  until it was overruled by the Supreme Court or an en banc panel of this court,  it was not completely unreasonable for counsel to make a strategic decision to  forego a claim that was a loser under the then-current state of the law.13 The  highest standards of practice would suggest that Jones's counsel should have  acted to preserve Jones's rights in light of the Supreme Court's unequivocal  signal that a ruling would be forthcoming.14 But we are not prepared to say  categorically that counsel's failure to do so constituted prejudicial,  ineffective nonfeasance while the law was still unsettled. See Strickland, 466  U.S. at 689, 104 S.Ct. 2052 (reviewing court should not second-guess or apply  hindsight); Sullivan v. Wainwright, 695 F.2d 1306, 1309 (11th Cir.1983)  (counsel's "failure to divine" change in unsettled law did not constitute  ineffective assistance); Nelson v. Estelle, 642 F.2d 903, 908 (5th Cir. Unit A  Apr.1981) ("counsel is normally not expected to foresee future new developments  in the law").


28
Once the Supreme Court ruled in Ojeda Rios, however, the situation became  completely different. There was no need for speculation or clairvoyance. The  Supreme Court had rejected the Eleventh Circuit's requirement that a defendant  had to show prejudice, or that the evidence had become compromised, as a  prerequisite to suppression. See Ojeda Rios, 495 U.S. at 264-65, 110 S.Ct. 1845  (statute requires "satisfactory explanation" for delay, not just "proof of  nontampering"). The law was then clear that unless the government could come up  with a satisfactory explanation for the thirty-one day delay in sealing Jones's  tapes, the tapes and all evidence derived from them should have been suppressed.  See Ojeda Rios, 495 U.S. at 265 and n. 5, 110 S.Ct. 1845 (overruling our  precedent in Diadone ); cf. United States v. Feiste, 961 F.2d 1349, 1350 (8th  Cir.1992) (affirming suppression when 31-day delay not excused).


29
Coincidentally, the Court issued its opinion in Ojeda Rios the same day Jones's  counsel filed his notice of appeal. The "satisfactory explanation" requirement  of Ojeda Rios applied retroactively to Jones's case, which had not even been  briefed on appeal, much less become final. See Harper v. Virginia Dep't of  Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (when Supreme  Court applies rule of federal law, that rule "must be given full retroactive  effect in all cases still open on direct review"); Griffith v. Kentucky, 479  U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) ("a new rule for the conduct  of criminal prosecutions is to be applied retroactively to all cases ... pending  on direct review or not yet final"). Once Ojeda Rios was decided, it was clear  that its holding applied to Jones's case. Therefore, failing to argue for  suppression in light of the thirty-one day delay in sealing the tapes fell below  an "objective standard of reasonableness." Strickland, 466 U.S. at 688, 104  S.Ct. 2052.


30
This failure alone, however, will not entitle Jones to relief unless he can show  he was prejudiced by it. See id. at 687, 104 S.Ct. 2052. Jones must show a  reasonable probability that the outcome of his case would have been different if  his counsel had argued for suppression based on the delay in sealing the tapes.  The district court did not resolve this issue because it erroneously considered  Jones's counsel to have acted effectively merely by filing the original  suppression motion.


31
Accordingly, we remand to the district court for consideration of whether  Jones's conviction could stand without the use of the wiretap evidence or its  fruits. Cf. Kimmelman v. Morrison, 477 U.S. 365, 389, 106 S.Ct. 2574, 91 L.Ed.2d  305 (1986) (test is "whether a reasonable probability exists that the trial  judge would have had a reasonable doubt concerning respondent's guilt if the  [excludible evidence] and related testimony had been excluded"). If the wiretap  evidence was crucial to Jones's conviction, the district court must then  determine whether the government had a "satisfactory explanation" for the  thirty-one day delay in sealing the tapes, if indeed they were ever sealed. See  Ojeda Rios, 495 U.S. at 265, 110 S.Ct. 1845 (government must explain "not only  why a delay occurred but also why it is excusable"); United States v. Carson,  969 F.2d 1480, 1483, 1491-98 (3d Cir.1992) (noting that circuit court had  remanded suppression issues for district court's consideration in light of Ojeda  Rios, and discussing factors excusing delay).15 If the government cannot  establish a satisfactory reason for the delay, and it is reasonably certain the  outcome of Jones's case would have been different if the wiretap evidence were  suppressed, Jones was deprived of his Sixth Amendment right to a fair trial and  deserves relief under 28 U.S.C.  2255.

Sentencing

32
If the district court determines that Jones's conviction and sentence should not  be vacated due to the use of the wiretap evidence, a second issue must be  reached. Jones argues that the district court erred in failing to vacate or  amend his sentence due to his attorney's failure to object to the general  sentence imposed by the court. "A defendant has a constitutional right to  effective assistance of counsel at sentencing." Wilson v. United States, 962  F.2d 996, 997 (11th Cir.1992). This court applies the Strickland test for  effective assistance of counsel to noncapital as well as capital sentencing  cases.16


33
Jones was convicted of four counts relating to the manufacture and distribution  of methamphetamine. The district court imposed a general sentence of 360 months'  imprisonment for all four counts. "A general sentence is an undivided sentence  for more than one count that does not exceed the maximum possible aggregate  sentence for all the counts but does exceed the maximum allowable sentence on  one of the counts." United States v. Woodard, 938 F.2d 1255, 1256 (11th  Cir.1991).


34
As the district court noted, since "general sentences have been held to be per  se illegal in our circuit,"17 if Jones had challenged his sentence on appeal,  this court would have vacated the sentence and remanded for resentencing. Under  this scenario, the district court concluded, it would have resentenced Jones to  the same 360-month term of imprisonment. Because Jones would not have received a  lesser sentence, the court reasoned, he suffered no prejudice and was not  entitled to relief under  2255.


35
The test, however, is not what the court might have done; the test is whether  the original sentence comported with the law. See Strickland, 466 U.S. at 695,  104 S.Ct. 2052 ("[E]vidence about, for example, a particular judge's sentencing  practices[ ] should not be considered in the prejudice determination.").  Accordingly, we vacate Jones's sentence and remand for resentencing.


36
Failing to Object to Holding Jones Accountable for D-methamphetamine


37
Jones argues that his counsel was ineffective in failing to object to his  sentence because he was not proven to have attempted or conspired to produce a  particular type of methamphetamine, D-methamphetamine, that draws a harsher  sentence than the more benign L-methamphetamine. D-methamphetamine produces the  physiological effects desired by the drug's users; L-methamphetamine has little  or no physiological effect, is not made intentionally but results from a botched  attempt to produce D-methamphetamine, and is utterly worthless. See Reece v.  United States, 119 F.3d 1462, 1469 (11th Cir.1997). To establish prejudice based  upon counsel's failure to object to the use of D-methamphetamine at sentencing,  a petitioner must represent that he can establish that the methamphetamine  involved was the L-type. See id. at 1468. Where the record and common sense  indicate no dispute as to which form of the drug was involved in the offense, no  prejudice can be shown. See id. at 1470-71.


38
Trial evidence revealed that Jones wanted to manufacture "some real strong  methamphetamine, strong enough so that it could be cut." Only D-methamphetamine  produces a strong physiological effect. See id. at 1469. Jones has not pointed  to any record evidence that establishes his intent to manufacture  L-methamphetamine. Thus, he cannot show prejudice from his counsel's failure to  object, and we affirm the district court's denial of relief.

CONCLUSION

39
We grant Jones's request to expand the certificate of appealability. Because  Jones's counsel failed to argue a change in controlling precedent that warranted  moving for suppression of wiretap evidence, we remand for consideration of  whether that failure deprived Jones of a fair trial under Strickland v.  Washington. Further, we vacate Jones's general sentence and remand for  resentencing if necessary. In all other respects, we affirm the judgment of the  district court.


40
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.



NOTES:


*
 Honorable Betty B. Fletcher, U.S. Circuit Judge for the Ninth Circuit, sitting  by designation.


1
 The warrant's expiration date, after being extended, was August 23, 1988.


2
 A transcript of proceedings in the Superior Court for Cobb County, Georgia shows  that Judge P. Harris Hines received the tapes and signed a receipt on the back  of the investigative warrant stating "Receipt of black, rectangular, metal box,  containing 21 cassette (sic) tapes hereby acknowledged. This the 19th day of  Sept., 1988."


3
 See 18 U.S.C.  2518(8)(a) (requiring sealing of evidence tapes "immediately"  upon expiration of order authorizing wiretap).


4
 See United States v. Diadone, 558 F.2d 775, 780 (5th Cir.1977); Bonner v. City  of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc) (adopting as binding  precedent all cases decided in the 5th Circuit prior to the close of business on  September 30, 1981).


5
 See United States v. Ojeda Rios, 493 U.S. 889, 110 S.Ct. 231, 107 L.Ed.2d 183  (1989) (granting certiorari to review United States v. Ojeda Rios, 875 F.2d 17  (2d Cir.1989)).


6
 A memorandum in support of the suppression motion, filed two months after the  grant of certiorari, likewise made no mention of the sealing delay.


7
 See United States v. Ojeda Rios, 495 U.S. 257, 110 S.Ct. 1845, 109 L.Ed.2d 224  (1990) (ruling that defendant need not show prejudice to obtain suppression;  government could not use wiretap evidence unless it could show either prompt  sealing of tapes or a reasonable excuse for not doing so).


8
 See Ross v. Ward, 165 F.3d 793, 797, 802 (10th Cir.) cert. denied sub nom. Ross  v. Gibson, --- U.S. ----, 120 S.Ct. 208, 145 L.Ed.2d 175 (1999) (considering  request to broaden certificate when petitioner requested in his brief that COA  be expanded, but ultimately ruling that petitioner had not made "substantial  showing" of denial of constitutional right on uncertified issues); Kincade v.  Sparkman, 117 F.3d 949, 953 (6th Cir.1997) ("By filing a notice of appeal,  Kincade filed an informal request with this Court to review the district court's  denial as to his remaining claims."); Porter v. Gramley, 112 F.3d 1308, 1312  (7th Cir.1997) (when district court granted limited certificate, notice of  appeal "in effect" asked circuit court to expand COA).


9
 See Bui v. DiPaolo, 170 F.3d 232, 237 (1st Cir.1999) ("[W]e will not treat an  inexplicit notice of appeal, without more, as an invitation to review the  district court's denial of certification with regard to the petitioner's  remaining claims."); United States v. Kimler, 150 F.3d 429, 430 (5th Cir.1998)  (requiring express request to expand COA and ruling that notice of appeal was  not a constructive request to expand certificate to cover uncertified issues);  cf. Hunter v. Bowersox, 172 F.3d 1016, 1019 (8th Cir.1999) (appellant applied  for expanded certificate; circuit court expanded certificate without  discussion), cert. denied, --- U.S. ----, 120 S.Ct. 987, 145 L.Ed.2d 936 (2000).  In the Ninth Circuit, a petitioner seeking to broaden the scope of appealable  issues must file a "motion for broader certification" within 35 days after the  district court issues a partial COA. See 9th Cir. R. 22-1(d); United States v.  Zuno-Arce, 209 F.3d 1095, 1099-100 (9th Cir.2000) (citing local rule and quoting  Advisory Committee Note that " 'if a party wishes to ask the merits panel to  broaden the scope of the appeal beyond what was allowed by a motions panel of  this court, such a motion ... may be filed in the court of appeals promptly  after the completion of briefing.' ").


10
 Cf. In re Justice Oaks II, Ltd. (Wallis v. Justice Oaks II, Ltd.), 898 F.2d  1544, 1549 n. 3 (11th Cir.1990) (explaining doctrine); 18 Wright, Miller, et  al., Federal Practice & Procedure  4478 (1981 and 2000 Supp.).


11
 Jones has provided this court with a transcript of state court proceedings in  which a Cobb County judge agreed to receive the tapes and seal them, but there  is currently no evidence in the district court record that the tapes were ever  judicially sealed at all.


12
 See United States v. Ojeda Rios, 493 U.S. 889, 110 S.Ct. 231, 107 L.Ed.2d 183  (1989) (granting certiorari to review United States v. Ojeda Rios, 875 F.2d 17  (2d Cir.1989)).


13
 Under Diadone, Jones would not be entitled to suppression unless he could have  shown that he was prejudiced by the delay or that the integrity of the tapes was  compromised. See Diadone, 558 F.2d at 780. Nothing in the record indicates that  Jones could have made such a showing.


14
 For example, see United States v. Carson, 969 F.2d 1480, 1483 (3d Cir.1992).  There, although pre-Ojeda Third Circuit precedent was similar to ours, counsel  moved to suppress tapes due to delays in sealing. The tapes were not suppressed.  Counsel preserved their clients' rights by moving for new trials, appealing, and  filing petitions for certiorari with the Supreme Court. See id. Thus, when the  Supreme Court issued its opinion in Ojeda Rios, the Third Circuit recalled its  mandate and remanded the cases to the district court for reevaluation of the  wiretap suppression issues. See id. Ideally, Jones's counsel would have taken  similar steps, preserving the issue for direct review.


15
 For cases discussing what constitutes excusable delay, see, e.g., United States  v. Quintero, 38 F.3d 1317, 1325-31 (3d Cir.1994); Feiste, 961 F.2d at 1351;  United States v. Pedroni, 958 F.2d 262, 266-267 (9th Cir.1992); United States v.  Maldonado-Rivera, 922 F.2d 934, 950 (2d Cir.1990).


16
 See Strickland, 466 U.S. at 686, 104 S.Ct. 2052 (leaving open the issue of how  to define "constitutionally effective assistance" in noncapital sentencing  cases); Reece v. United States, 119 F.3d 1462, 1464 (11th Cir.1997) (using  Strickland test to determine whether counsel effectively represented defendant  during sentencing phase of noncapital methamphetamine case).


17
 Woodard, 938 F.2d at 1256.


