Case: 11-15620   Date Filed: 06/24/2014   Page: 1 of 7


                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 11-15620
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket Nos. 1:07-cv-22659-KMM,
                       0:99-cr-06153-KMM-7

FABIO OCHOA,

                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (June 24, 2014)


Before PRYOR, MARTIN, and ANDERSON, Circuit Judges.
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PER CURIAM:

      Fabio Ochoa appeals the district court’s denial of his 28 U.S.C. §2255

motion to vacate, set aside, or correct his judgment and his 365-month total

sentence following jury convictions for conspiracy to possess with intent to

distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. §§841(a)(1)

and 846, and conspiracy to import 5 kilograms or more of cocaine into the United

States, in violation of 21 U.S.C. §§952 and 963. On appeal, Ochoa contends that

the district court erred when it did not reach the merits of Ochoa’s ineffective

assistance of counsel/conflict of interest §2255 claim because the merits resolution

of a related issue, which was decided on direct appeal, did not resolve the “totality”

of Ochoa’s §2255 claim.

      “In a Section 2255 proceeding, we review legal issues de novo and factual

findings under a clear error standard.” Lynn v. United States, 

, 1232

(11th Cir. 2004) (quotation omitted). “We review de novo the district court’s

application of the law of the case doctrine.” Alphamed, Inc. v. B. Braun Med.,

Inc., 

, 1285 (11th Cir. 2004). An appellant granted a certificate of

appealability (“COA”) on one issue cannot simply brief other issues as he desires

in an attempt to force both us and his opponent to address them. Hodges v. Att’y

Gen. State of Fla., 

, 1340-42 (11th Cir. 2007). COA orders

specifying the issues that will be considered at the merits stage of an appeal are
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generally treated as controlling absent rare circumstances, such as where it is

unclear which issues will be addressed on the merits or the parties have briefed the

issue at our direction. See 

(refusing to apply 11th

Cir. R. 27-1(g) to COA order because it would effectively repeal 28 U.S.C.

§2253(c)(3)’s requirement that a COA specify the issues that will be considered at

the merits stage of the appeal). We have explained, “It is one thing for an appellate

court in an unusual case to be persuaded during its consideration of the merits of a

granted issue to expand the COA to include a related issue and to request

supplemental briefing on that previously excluded issue. It is another thing for an

appellant to simply ignore the COA order and brief any issue he pleases. We

recognize the former practice and condemn the latter.” 

-

42.

       As a preliminary matter, since both a single judge and a two-member panel

from our Court rejected a COA on the issues on which Ochoa requests, again on

appeal, an expansion of his granted COA, we strike all of Ochoa’s arguments not

covered under the COA. See 

. Thus, the only issue in

this appeal is set forth in the COA issued by this Court on October 18, 2012, to-

wit:

       Whether the district court erred by failing to reach the merits of
       Ochoa’s claim in his 28 U.S.C. §2255 motion to vacate, that his
       initially retained counsel, Joaquin Perez, was constitutionally
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      ineffective due to a conflict of interest, based on its finding that the
      claim was barred from review by this Court’s decision on direct
      appeal.

      We will not generally consider claims of ineffective assistance of counsel

raised on direct appeal where the district court did not entertain the claim or

develop a factual record. United States v. Patterson, 

, 1328 (11th Cir.

2010). The preferred means for deciding a claim of ineffective assistance of

counsel is through a 28 U.S.C. §2255 motion even if the record contains some

indication of deficiencies in counsel’s performance. 

(citing Massaro

v. United States, 

, 504, 

, 1694 (2003)). We will,

however, consider those claims on direct appeal if the record is sufficiently

developed. 

      The Supreme Court has established that a previous federal determination of

a claim on collateral review is controlling in a subsequent round of review if

“(1) the same ground presented in the subsequent application was determined

adversely to the applicant on the prior application, (2) the prior determination was

on the merits, and (3) the ends of justice would not be served by reaching the

merits of the subsequent application.” Sanders v. United States, 

, 15, 

, 1077 (1963). Sound judicial practice provides that a court generally

adheres to a decision in a prior appeal in the case unless one of three “exceptional

circumstances” exists: the evidence on a subsequent trial was substantially
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different, controlling authority has since made a contrary decision of the law

applicable to such issues, or the decision was clearly erroneous and would work a

manifest injustice. Outside the Box Innovations, LLC v. Travel Caddy, Inc., 

, 1301-02 (11th Cir. 2012).

      The Supreme Court has recognized that the Sanders bar to relitigation on

collateral review extends to claims that were determined on direct review. See

Davis v. United States, 

, 342, 

, 2303 (1974). We have

similarly held that, at least where there has been no intervening change in

controlling law, a claim or issue that was decided against a defendant on direct

appeal may not be the basis for relief in a §2255 proceeding. Rozier v. United

States, 

, 684 (11th Cir. 2012), cert. denied, 

(2013).

“While law of the case preclusion is limited to those issues previously decided, the

doctrine does operate to encompass issues decided by necessary implication as

well as those decided explicitly.” Luckey v. Miller, 

, 621 (11th Cir.

1991).

      “A rejected claim does not merit rehearing on a different, but previously

available, legal theory.” United States v. Nyhuis, 

, 1343 (11th Cir.

2000). The Supreme Court has explained that a “ground” for collateral relief is “a

sufficient legal basis for granting the relief,” and identical grounds may often be

proved by different factual allegations. 

, 83 S.Ct. at 1077.
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The Supreme Court cautioned, “Should doubts arise in particular cases as to

whether two grounds are different or the same, they should be resolved in favor of

the applicant.” 

that the district court erred in holding that Ochoa’s ineffective

assistance of counsel claim based upon Perez’ alleged conflict of interest was

previously denied on the merits in United States v. Ochoa-Vasquez, 

(11th Cir. 2005) (Ochoa I). In United States v. Ochoa-Vasquez, 179 Fed.Appx.

572, 

(11th Cir. 2006) (Ochoa II), in considering Ochoa’s motion

for new trial based on newly discovered evidence, we construed his claim that his

former counsel violated his Sixth Amendment rights by operating under conflict of

interest as essentially setting forth an ineffective assistance of counsel claim. We

held: “We conclude the record below is not sufficiently developed to evaluate

Ochoa’s ineffective assistance of counsel claim at this time. Thus, the claim would

be more appropriately addressed in a §2255 motion.” We agree. At most, Ochoa

I denied only that part of Ochoa’s ineffective assistance of counsel claim that

involved Perez’ representation of Bergonzoli with respect to a specific matter (i.e.,

Perez’ opposition to Ochoa’s attempt to unseal documents in Bergonzoli’s case).

Ochoa I denied that claim only on the basis of the record then before it.

      We conclude that a more thorough and refined analysis of Ochoa’s more

comprehensive ineffective assistance of counsel claim in this §2255 proceeding is
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necessary, and that the district court is best situated to conduct that analysis in the

first instance. Accordingly, the judgment of the district court is

      VACATED AND REMANDED.




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