                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                          OCTOBER 15, 2007
                             No. 06-16155                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

       D. C. Docket Nos. 03-02582-CV-T-27TGW & 00-00013-CR-27T

EDWARD VINCENT DIPIETRO,



                                                   Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                   Respondent-Appellee.


                       ________________________

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

                            (October 15, 2007)


Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      Edward DiPietro, through counsel, appeals the district court’s denial of his

pro se motion to vacate, set aside, or correct his sentence, filed pursuant to 28

U.S.C. § 2255. In his motion, DiPietro raised claims including, inter alia,

prosecutorial misconduct and failure to disclose exculpatory evidence.

Specifically, DiPietro claimed the Government (1) “tricked” the district court into

believing the transaction for which he was arrested was to be for ten kilograms

rather than four, and (2) failed to release certain telephone conversations

mentioned in the criminal complaint. We granted a certificate of appealability

(COA) with regard to “(1) [w]hether the appellate counsel on direct appeal was

ineffective for failing to assert appellant’s prosecutorial misconduct and failure to

disclose exculpatory evidence claims[,]” and “(2) [i]f so, whether counsel’s

ineffectiveness constitutes sufficient cause and prejudice to excuse the appellant’s

procedural default in failing to raise those two claims at trial or on direct appeal.”

      The district court did not address whether DiPietro’s counsel was ineffective

for failing to bring these claims. Thus, we assume, arguendo, that ineffective

assistance of counsel caused DiPietro’s procedural default, and focus on the

prejudice prong of the second question. However, we first address DiPietro’s

argument the district court erred by determining he procedurally defaulted his

claims of prosecutorial misconduct and failure to disclose exculpatory evidence.



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                                          I.

      Normally, our review is limited to the issues specified in the COA. Murray

v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998). However, we have also

held that procedural issues, such as whether a claim has been procedurally

defaulted, that must be resolved before we can address the claim specified in the

COA are presumed to be encompassed in the COA. Wright v. Sec’y for Dep’t of

Corr., 278 F.3d 1245, 1258 (11th Cir. 2002). The district court’s finding that a

claim is procedurally barred presents a mixed question of law and fact that we

review de novo. Ogle v. Johnson, 488 F.3d 1364, 1368 (11th Cir. 2007).

      A criminal defendant who fails to object at trial, or to raise an available

ground of error on direct appeal, is procedurally barred from raising the claim in a

§ 2255 motion, absent a showing of cause and prejudice or a fundamental

miscarriage of justice. Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994).

“A ground of error is usually ‘available’ on direct appeal when its merits can be

reviewed without further factual development.” Id.

      Contrary to DiPietro’s assertions that the errors were not apparent on the

face of the record, the recorded phone conversations were identified in the criminal

complaint. Moreover, Detective Garcia testified at trial that the recordings had

been made. Therefore, the existence of the recordings was apparent from the face



                                          3
of the record, and DiPietro had the opportunity to object to his lack of access to

them both at trial and on appeal. Similarly, there was testimony at both the trial

and the sentencing hearing that the transaction was for ten kilograms of cocaine.

Therefore, this issue also was apparent from the face of the record. Furthermore,

DiPietro’s argument that he could not have brought the issues on appeal because

counsel failed to object at trial presents circular logic in that the failure to object,

either at trial or on appeal, was, itself, the procedural default. See Mills, 36 F.3d at

1055. Accordingly, DiPietro procedurally defaulted the claims of prosecutorial

misconduct and failure to disclose exculpatory evidence, and therefore, he was

required to prove cause and prejudice in order to obtain review of these claims.

                                            II.

       In a 28 U.S.C. § 2255 proceeding, we review a district court’s legal

conclusions de novo and its findings of fact for clear error. Garcia v. United

States, 278 F.3d 1210, 1212 (11th Cir. 2002). In order to for a claim to be

cognizable under 28 U.S.C. § 2255, it generally must be based on a constitutional

right. Richards v. United States, 837 F.2d 965, 966 (11th Cir. 1988). In some

cases, prosecutorial misconduct may be so great as to constitute a violation of the

Due Process Clause of the Constitution. Parker v. Head, 244 F.3d 831, 838 (11th

Cir. 2001). Accordingly, although the district court’s analysis of non-



                                             4
constitutional claims was correct, it erred to the extent it viewed DiPietro’s

prosecutorial misconduct claim as completely foreclosed by § 2255.

       Nevertheless, the district court correctly noted that, where a defendant

procedurally defaults a claim, he must show cause for, and actual prejudice from,

any alleged error. See Mills, 36 F.3d at 1055.1 Ineffective assistance of counsel

may constitute cause to excuse procedural default. Eagle v. Linahan, 279 F.3d

926, 937 (11th Cir. 2001). In order to establish prejudice, a defendant must show

that “errors at trial worked to his actual and substantial disadvantage, infecting his

entire trial with error of constitutional dimensions.” Cross v. United States, 893

F.2d 1287, 1292 (11th Cir. 1990) (alteration in original).

       A defendant may avoid the need to show cause and prejudice on a

procedurally defaulted claim by raising a substantive issue of ineffective assistance

of counsel for failure to assert the claim. Eagle, 279 F.3d at 938 (holding, in the

§ 2254 context, that where appellate counsel did not bring a Batson 2 challenge on

appeal, the defendant would have to show cause and prejudice to obtain review of

that claim, but could obtain review of his ineffective assistance of counsel claim

without such a showing). However, here, DiPietro presented defaulted, substantive

       1
         Because DiPietro has not argued that he can prove actual innocence, we find it
unnecessary to consider whether he may obtain review based on actual innocence. See Mills, 36
F.3d at 1055.
       2
           Batson v. Kentucky, 106 S. Ct. 1712 (1986).

                                                 5
claims of prosecutorial misconduct and failure to disclose exculpatory evidence

(and asserted ineffective assistance of counsel as cause), rather than a substantive

ineffective-assistance-of-counsel claim. Therefore, assuming that ineffective

assistance of counsel constituted cause, he still was required to prove prejudice in

order to excuse the default. See Eagle, 279 F.3d at 938.

      Under Brady, “‘the suppression by the prosecution of evidence favorable to

an accused upon request violates due process where the evidence is material either

to guilt or to punishment.’” Grossman v. McDonough, 466 F.3d 1325, 1341 (11th

Cir. 2006) cert. denied, 127 S. Ct. 2430 (2007) (quoting Brady, 83 S. Ct. at 1196-

97). “Evidence is material ‘if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have

been different.’” Id. at 1341-42 (quoting United States v. Bagley, 105 S. Ct. 3375,

3383 (1985)). In other words, “the materiality standard for Brady claims is met

when the favorable evidence could reasonably be taken to put the whole case in

such a different light as to undermine confidence in the verdict.” Banks v. Dretke,

124 S. Ct. 1256, 1276 (2004) (quotation marks omitted).

      Assuming, arguendo, that DiPietro’s counsel was ineffective, constituting

cause for his procedural default, DiPietro had to also show that he was actually

prejudiced by the failure to bring the claims in order to obtain review of them. See



                                           6
Cross, 893 F.2d at 1292. First, with regard to the claim the Government “tricked”

the district court into believing that ten kilograms were involved in the transaction,

contrary to DiPietro’s claim the testimony at trial was that only four kilograms

were involved, both Munoz and Detective Garcia testified at trial that the

agreement was for ten kilograms of cocaine. Moreover, at sentencing, the district

court apparently did not rely on any statement made at the sentencing hearing in

finding that ten kilograms were involved, but said “I will determine based on the

evidence presented to the jury that the amount of cocaine that was the subject of

the conspiracy . . . exceeded five kilograms or more . . . of cocaine.” (Emphasis

added). Because there is no evidence the Government attempted to “trick” the

court into finding that ten kilograms were involved, the district court correctly

found that DiPietro had not shown prejudice based on this alleged error.

      With regard to the failure to disclose the recordings, the district court did not

make a finding as to whether the Government suppressed the evidence of the

recordings. Assuming, arguendo, the Government suppressed the recordings, there

is no evidence they would have had any effect on the outcome of the trial. First,

DiPietro did not identify anything specific in the recordings that would have cast

doubt on the credibility of Munoz or the confidential informant or on the procedure

used in obtaining their cooperation. Moreover, with regard to Munoz’s credibility,



                                           7
the jury was already presented with reason to doubt Munoz’s credibility when

(1) Agent Keiken testified that Munoz changed the story he told to officers,

(2) Munoz admitted he had been living illegally in the United States, and

(3) DiPietro’s counsel cross-examined Munoz about the favorable terms he would

receive if he were to testify. Finally, with regard to the amount of cocaine, even if

the recordings show Munoz and the confidential informant agreed on four

kilograms of cocaine, Munoz testified the deal was originally for four kilograms,

but that the parties later agreed on ten kilograms. In light of all these

considerations, DiPietro failed to show there was a reasonable probability the

recordings would have affected the outcome of the trial, and therefore, the district

court did not err in determining DiPietro failed to establish prejudice on this basis.

       DiPietro has not established prejudice on either ground. Thus, we affirm the

district court.

       AFFIRMED.




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