                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                          OCTOBER 25, 2006
                             No. 05-15216                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

     D. C. Docket Nos. 04-01613-CV-ORL-19-DAB & 01-00183-CR-ORL


AUBREY JERMAINE CUMMINGS,


                                               Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,


                                               Respondent-Appellee.

                       ________________________

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

                            (October 25, 2006)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Aubrey Jermaine Cummings, a pro se federal prisoner serving a life term of

imprisonment -- an enhanced term, pursuant to 21 U.S.C. § 841(b)(1)(A), based on

the fact that Cummings previously had been convicted of three felony drug

offenses -- for conspiring to possess with intent to distribute 50 grams or more of

crack cocaine and 5 kilograms or more of cocaine, appeals the district court’s

denial of his 28 U.S.C. § 2255 motion to vacate his sentence. 1              On appeal,

Cummings argues that the district court erred by finding that his claims were

procedurally barred. We review a district court’s legal conclusions in a 28 U.S.C.

§ 2255 proceeding de novo. Garcia v. United States, 278 F.3d 1210, 1212 (11th

Cir. 2002). After careful review, we affirm.

      In his motion to vacate, Cummings asserted the following claims, which we

have slightly rephrased as follows: (1) the original trial court lacked subject matter

jurisdiction because the indictment alleged a non-offense; (2) in light of Apprendi

v. New Jersey2 and Blakely v. Washington,3 his conviction and life sentence must

be vacated; and (3) he received ineffective assistance of counsel. The district court

found that the first two claims were procedurally barred because they had not been



      1
      We previously affirmed Cummings’s convictions and sentence. See United States v.
Cummings, No. 02-14349 (11th Cir. Jun. 6, 2003) (unpublished).
      2
          Apprendi v. New Jersey, 530 U.S. 466 (2000).
      3
          Blakely v. Washington, 542 U.S. 296 (2004).

                                               2
raised on direct appeal and that Cummings had not alleged or demonstrated cause

and prejudice to excuse the procedural default. The district court determined that

the ineffective-assistance claim failed on the merits, under the applicable

Strickland v. Washington 4 standard. We granted a certificate of appealability on

one issue:5

                 Whether the district court improperly determined that
                 [rephrased] claims [(1) and (2)] listed in appellant’s 28 U.S.C.
                 § 2255 motion to vacate were procedurally barred?

On appeal, Cummings argues, in essence, that claims (1) and (2) were collateral

attacks based on ineffective assistance of counsel and, therefore, the district court

improperly determined that they were procedurally barred based on his failure to

assert them on direct appeal. Thus, he urges the district court should have reached

the merits of the claims.

       “Under the procedural default rule, a defendant generally must advance an

available challenge to a criminal conviction or sentence on direct appeal or else the

defendant is barred from presenting that claim in a § 2255 proceeding.” Lynn v.

United States, 365 F.3d 1225, 1234 (11th Cir. 2004). By contrast, the Supreme

Court has held that “an ineffective-assistance-of-counsel claim may be brought in a


       4
           Strickland v. Washington, 466 U.S. 668, 688-90 (1984)
       5
        To the extent Cummings raises other arguments beyond the scope of our COA, we do
not consider them.

                                                 3
collateral proceeding under § 2255, whether or not the petitioner could have raised

the claim on direct appeal.” Massaro v. United States, 538 U.S. 500, 504 (2003).

Moreover, we generally will not consider on direct appeal claims of ineffective

assistance of counsel if the district court neither entertained the claims nor

developed a factual record. United States v. Bender, 290 F.3d 1279, 1284 (11th

Cir. 2002).

      Construing Cummings’s pro se pleadings liberally, as the district court also

was required to do, Mederos v. United States, 218 F.3d 1252, 1254 (11th Cir.

2003), it is clear that Cummings’s claims (1) and (2) were, in fact, collateral

attacks asserting ineffective assistance of counsel. On his § 2255 motion form,

Cummings stated that these claims were being raised because of his prior counsel’s

failure to raise them at trial or on direct appeal.    Moreover, on the form he

explicitly identified the Apprendi/Blakely claims as being ineffective-assistance

claims. And in the memorandum that Cummings filed in conjunction with his

§ 2255 form, he noted that his attorney had failed to make Apprendi objections,

resulting in his conviction and subsequent enhanced sentence. In a later pleading,

Cummings stated that his claims were “raised in conjunction with ineffective

assistance of counsel claims.”   Finally, in his reply brief to the government’s

response to his § 2255 motion, Cummings reiterated his prior assertions of



                                         4
counsel’s failure to object on Apprendi grounds, explicitly noted counsel’s failure

to object to the sufficiency of the indictment, and identified all of these failures as

demonstrating ineffective assistance of counsel.

      Cummings’s pleadings, liberally construed, set out specific failures by his

trial counsel and assert that each of these failures rendered counsel constitutionally

ineffective. As ineffective-assistance-of-counsel claims may be raised in a § 2255

motion, regardless of whether they could have been raised on direct appeal, the

district court improperly determined that Cummings’s claims (1) and (2) were

procedurally barred. Despite this error, we need not remand for the district court to

consider the claims, as Cummings urges us to do, because our own review of the

merits reveals that the claims have no merit. Cf. Peoples v. Campbell, 377 F.3d

1208, 1235-36 (11th Cir. 2004) (in the § 2254 context, opting to review merits of

ineffective-assistance claims for the first instance on appeal, rather than remanding,

where the district court erroneously found claims were procedurally defaulted and

did not reach merits).

      To demonstrate that counsel’s assistance was so defective as to require

reversal of a conviction, a defendant must show that (1) counsel’s errors were so

deficient as to render his assistance not reasonably effective, and (2) there is a

reasonable probability that, but for counsel’s errors, the result of the proceeding



                                          5
would have been different.     Strickland v. Washington, 466 U.S. 668, 687-96

(1984).   “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694. When the effectiveness of counsel at

sentencing is questioned, the test is not whether the sentencing court might have

issued a different sentence, but only whether the original sentence comported with

the law. Jones v. United States, 224 F.3d 1251, 1259 (11th Cir. 2000).

      Cummings asserts his counsel rendered constitutionally defective assistance

when he (1) failed to object on the ground that the indictment charged Cummings

with a “non-offense” because it stated that he conspired with other persons without

specifically identifying a co-conspirator, and (2) failed to object on Apprendi or

Blakely grounds to the district court’s finding of drug type and drug quantity in

convicting and sentencing Cummings. Simply put, both of these claims fail under

the first prong of Strickland. First, counsel was not constitutionally deficient for

failing to object to the absence of a specified co-conspirator in the indictment

because, under the law of this Circuit, “an individual can be convicted of

conspiracy with ‘unknown persons’ referred to in the indictment.” United States v.

Figueroa, 720 F.2d 1239, 1244-45, 1245 n. 8 (11th Cir.1983). Second, counsel

was not constitutionally deficient for failing to object on Apprendi or

Blakely grounds because the indictment charged and the jury specifically found



                                         6
that Cummings’s drug offense had involved more than five kilograms of cocaine,

thus making him eligible for 21 U.S.C. § 841(b)(1)(A)’s statutory maximum

sentence of life imprisonment, which he received.

      Accordingly, we affirm the denial of Cummings’s § 2255 motion, albeit on

different grounds from the district court’s analysis. Cf. Powers v. United States,

996 F.2d 1121, 1123-24 (11th Cir.1993) (stating that this Court can affirm on any

ground that appears in the record, “whether or not that ground was relied upon or

even considered by the court below”).

      AFFIRMED.




                                        7
