Case: 13-12005    Date Filed: 07/23/2014    Page: 1 of 4


                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-12005
                            Non-Argument Calendar
                          ________________________

      D.C. Docket Nos. 6:11-cv-00724-JA-KRS; 6:04-cr-00104-JA-KRS-2



BENNIE C. RIVERA,

                                                               Petitioner-Appellant,

                                       versus

UNITED STATES OF AMERICA,

                                                              Respondent-Appellee.

                          ________________________

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

                                  (July 23, 2014)

Before HULL, MARCUS and BLACK, Circuit Judges.

PER CURIAM:

      Bennie Rivera, proceeding pro se, appeals the district court’s denial of his

motion to vacate his sentence under 28 U.S.C. § 2255 following his convictions for
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conspiring to possess with intent to distribute at least one kilogram of heroin and at

least 500 grams of cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(B)(ii), and 846; and with possessing with intent to distribute at least one

kilogram of heroin, in violation of § 841(a)(1), (b)(1)(A)(i), and 18 U.S.C. § 2. In

his § 2255 motion, Rivera argued, inter alia, that his counsel provided ineffective

assistance by failing to object to the admission of evidence of his prior conviction

for conspiring to possess with intent to distribute cocaine base. We granted a

certificate of appealability on the following question: “Did the District Court err in

denying Mr. Rivera’s claim that trial counsel was ineffective for failing to object to

the admission of his prior conviction?” 1 Upon review, 2 we answer this question in

the negative and affirm the district court’s denial of Rivera’s petition.

       Under Federal Rule of Evidence 404(b), evidence of a prior conviction “is

not admissible to prove a person’s character in order to show on a particular

occasion the person acted in accordance with the character.” Fed. R. Evid.

404(b)(1). However, the evidence may be admissible if it is relevant to other

material issues such as intent. See Fed. R. Evid. 404(b)(2). Under our three-part

test for the admissibility of extrinsic evidence under Rule 404(b), evidence of


       1
         Our review “is limited to the issues specified in the [certificate of appealability].” See
Murray v. United States, 

, 1250-51 (11th Cir. 1998). Consequently, we do not
consider Rivera’s arguments that go beyond the scope of the certified question.
       2
         “Whether counsel rendered ineffective assistance is a mixed question of law and fact
that we review de novo.” Hagins v. United States, 

, 1204 (11th Cir. 2001).


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Rivera’s prior conviction was admissible. See United States v. Calderon, 

, 1330 (11th Cir. 1997) (asking whether the evidence under review (1) is

“relevant to an issue other than the defendant’s character,” (2) is “sufficient to

support a finding that the defendant actually committed the extrinsic act,” and

(3) has “probative value [that is not] substantially outweighed by unfair prejudice.”

(internal quotation marks omitted)). First, Rivera’s prior drug trafficking

conviction is highly probative of his intent to distribute the drugs involved in the

instant case, see, e.g., 

United States v. Cardenas, 

, 1343-

44 (11th Cir. 1990), and Rivera’s intent was at issue in his trial, see 

. Second, Rivera’s conviction is clearly sufficient to support a finding

that he actually committed the prior act. See 

. Third,

whatever prejudice evidence of Rivera’s prior conviction might have caused was

ameliorated by the district court’s limiting instruction such that under the

circumstances the possibility of prejudice did not substantially outweigh the

evidence’s probative value. See 

. Thus,

evidence of Rivera’s prior conviction was admissible under Rule 404(b).

      In light of this conclusion, Rivera’s ineffective-assistance claim based on his

counsel’s failure to object to the admission of evidence concerning his prior

conviction fails, because the failure to object to this admissible evidence did not

“f[a]ll below an objective standard of reasonableness in light of prevailing



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professional norms.” Cummings v. Sec’y for Dep’t of Corr., 

, 1356

(11th Cir. 2009) (internal quotation marks omitted). Moreover, given the

likelihood the district court would have admitted the evidence of Rivera’s prior

conviction over any objection his counsel might have made, Rivera cannot

establish any prejudice arising from counsel’s failure to object. See Strickland v.

Washington, 

, 694 (1984) (“The defendant must show that there is a

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

proceeding would have been different.”). That two of Rivera’s codefendants

testified that he participated in a scheme to distribute the heroin at issue further

diminishes the possibility the jury in his trial would have reached a different result

had Rivera’s counsel objected to the admission of the evidence in question.

       Accordingly, as to the certified question on appeal, Rivera has failed to carry

his burden to establish ineffective assistance under Strickland, and the district court

did not err in denying his petition.3

       AFFIRMED.




       3
         We do not consider whether the government failed to provide reasonable notice under
Rule 404(b) because Rivera did not raise this argument in his initial brief on appeal and has
therefore abandoned it. See Timson v. Sampson, 

, 874 (11th Cir. 2008).


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