     Case: 08-40842     Document: 00511009968          Page: 1    Date Filed: 01/21/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          January 21, 2010

                                     No. 08-40842                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,
v.

STEWART ROLAND NUZZI,

                                                   Defendant–Appellant.




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                     USDC Nos. 4:01-CR-72-1 & 4:04-CV-41


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Stewart Roland Nuzzi, federal prisoner # 09325-078 appeals the district
court’s denial of his 28 U.S.C. § 2255 motion challenging his convictions for
conspiracy to possess with intent to distribute methamphetamine, possession
with the intent to distribute methamphetamine, using or carrying a firearm in
connection with a drug-trafficking offense, and possession of a firearm by a user
of illegal drugs. We affirm.


        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 08-40842    Document: 00511009968     Page: 2     Date Filed: 01/21/2010

                                  No. 08-40842

                                        I
      In 2001, Nuzzi and James Edward Taylor were charged in a seven-count
indictment    with   violations    of   21   U.S.C.   §§    846,   841(a)(1)    and
18 U.S.C. §§ 924(c)(1), 922(g)(3). Nuzzi’s case proceeded to trial, but after the
jury was selected and sworn, Nuzzi’s counsel informed the trial court that Nuzzi
wished to plead guilty to two counts of the indictment. Nuzzi was then re-
arraigned in the presence of the jury, but the court failed to conduct a colloquy
as required under Federal Rule of Criminal Procedure 11. Nuzzi entered not
guilty pleas to Count One, which charged him with conspiracy to possess with
intent to distribute 500 grams or more of a mixture or substance containing
methamphetamine, and Count Four, which charged him with using or carrying
a firearm in connection with a drug trafficking offense. He pleaded guilty to
Count Two, which charged him with possession with the intent to distribute 98
grams of a mixture or substance containing methamphetamine, and Count Five,
which charged him with possession of a firearm by a user of illegal drugs.
      The court accepted Nuzzi’s guilty pleas, and the case proceeded to trial on
the other counts. The jury found Nuzzi guilty of Counts One and Four. The
district court sentenced Nuzzi to 168 months of imprisonment on Counts One
and Two, and 120 months on Count Five, all to run concurrently, plus 60 months
on Count 4, to run consecutively to the other three. Nuzzi appealed, claiming
that the evidence was insufficient to sustain his conviction for possession of a
firearm during a drug trafficking offense. On November 13, 2002, this court
affirmed.
      Nuzzi timely filed a motion under § 2255 to vacate, set aside, or correct his
sentence. The district court denied the motion as well as Nuzzi’s subsequent
Certificate of Appealability (COA). We granted COA on two issues: (1) whether
the trial court erred in failing to conduct a colloquy as required by Rule 11 and



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                                         No. 08-40842

(2) whether Nuzzi’s trial counsel was ineffective for failing to object to the trial
court’s noncompliance with Rule 11.
                                                II
       In an appeal from a § 2255 proceeding, we review the district court’s
findings of fact for clear error and its legal conclusions de novo.1
                                                A
      Nuzzi first contends that the district court erred in failing to conduct a plea
colloquy as required by Rule 11. Nuzzi did not raise this issue in his direct
appeal, and thus his claim would typically be procedurally defaulted absent a
showing of “cause” and “prejudice.”2                However, “[t]o invoke the procedural
bar . . . the government must raise it in the district court.” 3                   Since the
Government did not raise the procedural bar in district court with regard to
Nuzzi’s Rule 11 claim, it has waived the issue.
      Rule 11 lists specific items that must be addressed during a plea colloquy.4
Relief from a violation of Rule 11 is available in a § 2255 collateral attack only
upon a showing of prejudice by the defendant.5 The defendant must show that
the alleged error “was inconsistent with the rudimentary demands of fair
procedure or constituted a complete miscarriage of justice.” 6 The defendant
might establish prejudice by showing that “he entered a plea of guilty to a crime




       1
           United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001).
       2
           See Bousley v. United States, 523 U.S. 614, 622 (1998).
       3
           United States v. Drobny, 955 F.2d 990, 995 (5th Cir. 1992).
       4
       F    ED .   R. CRIM . P. 11(b).
       5
           United States v. Armstrong, 951 F.2d 626, 629 (5th Cir. 1992).
       6
        United States v. Vonn, 535 U.S. 55, 64 (2002) (quoting United States v. Timmreck, 441
U.S. 780, 783 (1979)) (internal quotation marks omitted).

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                                         No. 08-40842

which, based on the facts developed in the record, he did not actually commit”7
or that “‘if he had been properly advised by the trial judge, he would not have
pleaded guilty.’”8 But “[a] defendant will rarely, if ever, be able to obtain relief
for Rule 11 violations under § 2255.”9
      Although the record reflects that the district court failed to follow the plea
colloquy procedure in Rule 11, Nuzzi has not shown that he was prejudiced by
this failure. He has not asserted that he is innocent, and the evidence adduced
at trial on the two related charges shows that there was extensive evidence of his
guilt. In addition, Nuzzi has not shown that if the proper procedure had been
conducted he would have entered a not-guilty plea. Consequently, the district
court did not err in rejecting this claim.
                                                B
      Nuzzi next argues that his trial counsel’s failure to object to the Rule 11
violations constitutes ineffective assistance of counsel. To establish ineffective
assistance, a defendant must demonstrate that his counsel’s performance was
deficient and prejudiced the defense.10 To establish deficient performance, Nuzzi
must overcome the “strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.”11 In the context of a guilty
plea, the prejudice requirement “focuses on whether counsel’s constitutionally
ineffective performance affected the outcome of the plea process.” 12                      The
defendant “must show that there is a reasonable probability that, but for


       7
           Armstrong, 951 F.2d at 629.
       8
           Peguero v. United States, 526 U.S. 23, 28 (1999) (quoting Timmreck, 526 U.S. at 784).
       9
           United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004).
       10
            Strickland v. Washington, 466 U.S. 668, 687 (1984).
       11
            See id. at 689.
       12
            Hill v. Lockhart, 474 U.S. 52, 59 (1985).

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                                      No. 08-40842

counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.”13
      Without deciding whether counsel’s performance was deficient, we conclude
that Nuzzi has not made a showing that he was prejudiced by his counsel’s
alleged error. Nuzzi has not asserted that he would have otherwise pleaded not
guilty to the relevant charges. Nor has he shown that counsel’s failure to object
to the Rule 11 errors influenced the outcome of the jury’s verdict on the other
counts.      Accordingly, Nuzzi has failed to establish ineffective assistance of
counsel.
                                  *        *     *
      For the foregoing reasons, the judgment of the district court is AFFIRMED.




       13
            Id.

                                           5
