FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

October 22, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-11372

Non-Argument Calendar

________________________

D. C. Docket Nos. 04-00042-CV-CB & 98-00056-CR-CB

MARCUS SANDERS,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Alabama

_________________________

(October 22, 2008)

Before BLACK, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
Marcus Sanders, a federal prisoner serving a life sentence for killing a

federal witness, appeals the district court’s denial of his 28 U.S.C. § 2255 motion

to vacate his conviction. The district court granted a certificate of appealability

(COA) only as to whether his trial attorneys acted reasonably by not calling a

potential alibi witness, Toni Yancey. Accordingly, we will consider this issue on

appeal. Sanders also asserts the district court erred by (1) ruling the issues set forth

in Sanders’ amended § 2255 motion did not relate back and were time barred; and

(2) ruling the cumulative effect of trial counsel’s errors was not prejudicial.

Because our review is limited to the issue specified in the COA, we must determine

whether to construe Sanders’ brief as an application to expand the COA. We

address the issues in turn and affirm the district court’s denial of Sanders’ § 2255

motion to vacate his conviction.

I.

In a § 2255 appeal, we review factual findings for clear error while legal

issues are reviewed de novo. Martin v. United States, 81 F.3d 1083, 1084 (11th

Cir. 1996). To prevail on an ineffectiveness-of-counsel claim, a petitioner must

show deficient performance and prejudice. Strickland v. Washington, 104 S. Ct.

2052, 2064 (1984). We do not need to address both prongs if the defendant makes

an insufficient showing on one. Id. at 2069. In deciding whether trial counsel’s

2
performance was deficient, “[t]here is a strong presumption that trial counsel’s

conduct is the result of trial strategy, and strategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable.” Sinclair v. Wainwright, 814 F.2d 1516, 1519 (11th Cir. 1987)

(citations omitted). To overcome the presumption of reasonableness, a defendant

must show that no competent lawyer, under the same or similar circumstances,

would have taken the action that his counsel took. Rogers v. Zant, 13 F.3d 384,

386 (11th Cir. 1994). “[C]ounsel’s reliance on particular lines of defense to the

exclusion of others–whether or not he investigated those other defenses–is a matter

of strategy and is not ineffective unless the petitioner can prove the chosen course,

in itself, was unreasonable.” Chandler v. United States, 218 F.3d 1305, 1318 (11th

Cir. 2000) (en banc). Trial counsel is not required to present every nonfrivolous

defense. Id. at 1319.

Whether to present certain testimonial evidence is a matter of trial strategy,

and complaints of uncalled witnesses generally are disfavored. Buckelew v. United

States, 575 F.2d 515, 521 (5th Cir. 1978). Accordingly, we ordinarily will not

1

second-guess tactical decisions of counsel in deciding whether to call an alibi

witness. See Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc)

 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), we 1

accepted as binding precedent all Fifth Circuit cases decided before October 1, 1981.

3
(“Which witnesses, if any, to call, and when to call them, is the epitome of a

strategic decision, and it is one that we will seldom, if ever, second guess.”).

Sanders’ claim that the district court erred by finding his trial attorneys were

not constitutionally deficient is without merit. Sanders’ trial attorneys were

concerned Yancey’s cross-examination could potentially raise matters detrimental

to Sanders’ defense. Sanders’ trial attorneys could have reasonably thought

Yancey would distract the jury from their challenge to the reliability of eyewitness

identification. See Chandler, 218 F. 3d at 1319 (“Good advocacy requires

winnowing out some arguments, witnesses, evidence, and so on, to stress others.”)

(quotation omitted). This decision was strategic, and we will not second guess it.

Because the trial attorneys’ decision not to call Yancey as an alibi witness was

reasonable, the district court did not err in concluding Sanders failed to satisfy

Strickland’s performance prong.

II.

Appellate review of a collateral challenge to a criminal conviction is limited

to the issues specified in the COA. Murray v. United States, 145 F.3d 1249,

1250-51 (11th Cir. 1998). An appeal of a district court’s denial of a COA is

procedurally improper. Pruitt v. United States, 274 F.3d 1315, 1319 (11th Cir.

2001). To expand the COA granted by the district court, a petitioner is required to

4
file a renewed application for a COA with this Court. Id. In the interest of judicial

economy, however, we may construe an appellate brief as an application to expand

the COA. See id. at 1319-20 (construing an appellate brief as application to

expand the COA and denying the application).

The district court granted a COA on the issue of whether Sanders’ trial

attorneys were reasonable in not calling an alibi witness. Although it is unclear

whether the COA included analysis of prejudice, the district court explicitly

excluded all other issues from the COA. Sanders is attempting to appeal the

district court’s denial of the COA on several issues, which is procedurally

improper. Pruitt, 274 F. 3d at 1319. Sanders did not explicitly make an

application with this court to expand the COA and challenges the limits of the

COA for the first time in his opening brief. Although we can construe the opening

brief as an application to expand the issues of the COA, the application is untimely.

See id. at 1319-20. Because the issues are beyond the scope of the COA, we will

not address whether Sanders’ new claims relate back to his original claims or

whether the cumulative effect of trial counsel’s error was prejudicial.

AFFIRMED.

5