                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                                                                    FILED
                                                           U.S. COURT OF APPEALS
                          ________________________           ELEVENTH CIRCUIT
                                                                MARCH 14, 2007
                                No. 05-12506                  THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

           D. C. Docket Nos. 00-08055-CV-B-S & 97-00266-CR-B-S

MICAH RUDISILL,

                                                       Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                       Respondent-Appellee.

                          ________________________

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

                               (March 14, 2007)

Before TJOFLAT, ANDERSON, and HULL, Circuit Judges.

PER CURIAM:

      In 1998, following a jury trial, Micah Rudisill was convicted of various

federal crimes, including, as relevant here, conspiracy to commit money
laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(h). He was

sentenced to serve 210 months in prison. On direct appeal, we affirmed his

“convictions and sentences in all respects.” United States v. Rudisill, 187 F.3d

1260, 1262 (11th Cir. 1999).

       In 2000, Rudisill moved the district court to vacate his conviction, under

28 U.S.C. § 2255, alleging, as relevant here, that his trial counsel rendered

constitutionally ineffective assistance when he failed to challenge Count 13 of the

indictment (conspiracy to commit money laundering) on the grounds that it was

duplicitous of other counts in the indictment or, alternatively, that it lacked the

specificity necessary to charge an offense.1 A magistrate judge recommended that

Rudisill’s § 2255 motion be dismissed in its entirety. With regard to Rudisill’s

ineffective assistance claim based on his counsel’s failure to challenge Count 13

of the indictment, the magistrate judge, relying on our decision in United States v.

Rivera, 77 F.3d 1348, 1352 n.4 (11th Cir. 1996) (citing former version of Fed. R.

Crim. Pro. 12(b), (f)), concluded as follows: “This claim is waived because

       1
          This allegation was made in a February 2001 amendment to Rudisill’s original § 2255
motion. In response to Rudisill’s proposed amendment, the Government argued that it was
untimely under AEDPA and that the new allegation did not relate back to the timely filed original
motion. In the report and recommendation on Rudisill’s § 2255 motion, the magistrate judge
concluded, at least implicitly, that the amended allegations were timely. The Government did not
file an objection to the recommendation. The district court adopted the recommendation without
expressly addressing the matter. The Government has renewed its untimeliness argument on
appeal, but we do not consider it because it is outside the scope of the COA.

                                               2
[Rudisill] failed to raise the issue before trial.” Without ruling on the merits of

Rudisill’s ineffective assistance claim, the district court adopted the magistrate

judge’s recommendation and dismissed Rudisill’s § 2255 motion. Rudisill moved

the district court for a certificate of appealability (COA) on various issues

pertaining to the court’s ruling. The district court did not grant a COA on any

issue.

         We likewise refused to grant a COA on all but one of the issues Rudisill

sought to raise on appeal. We granted a COA on the following issue:

         Whether the district court erred by finding that [Rudisill’s] claim that
         trial counsel should have objected to the money laundering count of
         the indictment was waived because [Rudisill] failed to raise the issue
         before trial?

That is the sole issue currently before us. See Murray v. United States, 145 F.3d

1250-51 (11th Cir. 1998) (per curiam) (limiting appellate jurisdiction in “an appeal

brought by an unsuccessful habeas petitioner” to “the issues specified in the

COA”); see also Dodd v. United States, 365 F.3d 1273, 1281 (11th Cir. 2004)

(issues beyond the scope of the COA are “not properly reviewed by this Court”).

The merits of Rudisill’s ineffective assistance claim are not before us. After

review, we conclude that the district court erred in treating Rudisill’s ineffective

assistance claim as having been waived.



                                            3
       In finding that Rudisill waived his ineffective assistance claim, the

magistrate judge (and the district court by adoption) relied upon our statement in

Rivera that the appellant in that case, who failed to make a pretrial objection to the

constitutional validity of his indictment, “waived” his right to argue that issue on

direct appeal. Rivera, 77 F.3d at 1352 n.4. Rivera did not involve a claim of

ineffective assistance of counsel. Our waiver determination in Rivera was based

on the interplay between Federal Rule of Criminal Procedure 12(b)(2), which, in

its then-current form,2 stated that objections “based on defects in the indictment”3

. . . “must be raised prior to trial,” and Rule 12(f), which stated that the “[f]ailure

by a party to raise . . . objections . . . which must be made prior to trial . . . shall

constitute waiver thereof.” Fed. R. Crim. Pro. 12(b)(2), (f) (pre-2002 version). In

Rivera, because the appellant’s challenge to the indictment was not jurisdictional

and not based on the indictment’s failure to charge an offense, we observed that,

under Rule 12(b)(2), the challenge had to be raised before trial. 77 F.3d at 1352

n.4. And because the challenge was not raised before trial, we noted that, under



       2
         Stylistic amendments were made to Rule 12 in 2002. The pre-2002 version of Rule 12
that we relied upon in Rivera was in force at the time of Rudisill’s trial in 1998.
       3
          Other defects in the indictment—e.g., those involving the failure of the indictment to
show jurisdiction or the failure of the indictment to charge an offense—need not have been raised
prior to trial, but instead “shall be noticed by the court at any time during the pendency of the
proceedings.” Fed. R. Crim. Pro. 12(b)(2) (pre-2002 version).

                                               4
Rule 12(f), the appellant had waived the right to pursue the issue on appeal. Id.

      The problem in this case, and the reason why we find it was error to hold

that Rudisill’s ineffective assistance claim was waived, stems from the district

court’s failure to recognize that Rudisill, unlike the appellant in Rivera, is not

attempting to assert a direct challenge to his indictment. What he has instead

alleged in his § 2255 motion is a Sixth Amendment claim attacking his trial

counsel’s performance in not arguing, during the pendency of the criminal

proceedings, that the indictment was defective—i.e., that the money-laundering

conspiracy count was either duplicitous or failed to charge an offense. It is one

thing to assert, after the criminal proceedings have concluded, that an indictment

was in some way defective; it is something altogether different to assert, in a

§ 2255 proceeding, that one’s counsel was constitutionally deficient for failing to

make such an argument during the pendency of the criminal proceedings. Those

are separate and distinct legal claims. In the former situation (involving a

substantive challenge to the indictment), Rule 12 places time limits on when such

a claim can be asserted and prescribes waiver as the consequence of failing to

abide by those limits. In the latter situation (a collateral challenge to the

performance of one’s counsel), Rule 12 has nothing to say about treating an

ineffective assistance claim as waived. Thus, the district court’s reliance on

                                           5
Rivera was misplaced because Rule 12(f)’s waiver provision simply does not

apply to the ineffective assistance claim alleged in Rudisill’s § 2255 motion.

Rudisill, therefore, has not waived his ineffective assistance claim.4

       Nor is Rudisill’s ineffective assistance claim procedurally defaulted as a

consequence of his having failed to assert it in his direct appeal. See Massaro v.

United States, 538 U.S. 500, 509, 123 S. Ct. 1690, 1696 (2003) (“We [] hold that

failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not

bar the claim from being brought in a later, appropriate proceeding under

§ 2255”).

       For the foregoing reasons, we conclude that Rudisill’s ineffective assistance

claim is not barred by waiver or procedural default. We thus vacate the judgment

of the district court and remand for further proceedings the ineffective assistance

claim addressed in this opinion. We express no view on the merits of Rudisill’s

claim. Instead, we leave to the district court the task of addressing the merits in

the first instance.

VACATED AND REMANDED.




       4
           We note that the Government does not disagree with this conclusion.

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