David Hayden v. USA

Filing

Opinion issued by court as to Appellant David Hayden. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-12104

Date Filed: 12/20/2016

Page: 1 of 2

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12104
Non-Argument Calendar
________________________
D.C. Docket No. 2:14-cv-14091-KMM; 2:11-cr-14044-KMM-1

DAVID HAYDEN,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 20, 2016)
Before TJOFLAT, MARCUS, and JORDAN, Circuit Judges.
PER CURIAM:

Case: 15-12104

Date Filed: 12/20/2016

Page: 2 of 2

David Hayden, a federal prisoner proceeding with counsel, appeals the
district court’s denial of his motion to vacate under 28 U.S.C. § 2255. We granted
Mr. Hayden a certificate of appealability on a single issue: “Whether Hayden’s
appellate counsel was constitutionally ineffective for failing to raise on direct
appeal the issue of whether the district court abused its discretion in admitting and
publishing videos depicting child pornography to the jury in open court.”
Mr. Hayden’s counsel, however, failed to raise any substantive arguments
concerning this issue in his nearly 50-page opening brief. Because arguments not
raised in an opening brief are not properly before this Court, See Herring v. Sec’y,
Dep’t of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005), and because “the scope of
our review of an unsuccessful § 2255 motion is limited to the issues enumerated in
the COA,” McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011), we
affirm the district court’s denial of the § 2255 motion. 1
AFFIRMED.

1

We add, in an abundance of caution, that the reply brief fails to show that appellate counsel
rendered constitutionally deficient performance under Strickland v. Washington, 466 U.S. 668
(1984), and its progeny.
2