FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JAN 30, 2012

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 11-10484 

Non-Argument Calendar

 ________________________

 D.C. Docket Nos. 1:09-cv-21806-MGC, 1:03-cr-20155-MGC-1

JAVIER GARCIA, 

llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,

versus

UNITED STATES OF AMERICA, 

llllllllllllllllllllllllllllllllllllllll Respondent-Appellee.

________________________

 Appeal from the United States District Court

 for the Southern District of Florida

 ________________________

(January 30, 2012)

Before CARNES, PRYOR, and KRAVITCH, Circuit Judges.

PER CURIAM:
Javier Garcia, proceeding pro se, appeals the district court’s denial of his

motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. He

contends that his counsel was ineffective in failing to (1) object to the

government’s submission of allegedly “tainted” transcripts to both the jury and

mental health professionals who evaluated his competency before trial, (2) hire an

independent psychologist to evaluate his competency, and (3) request discovery

about an alleged confidential informant in the case. Garcia also contends that the

district court violated Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc), by

failing to adequately dispose of all the constitutional claims he raised in his habeas

petition. 

I.

After a jury trial, Garcia was convicted of conspiracy to possess with intent

to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846;

conspiracy to affect commerce by robbery, in violation of 18 U.S.C. § 1951(a);

and conspiracy to use and carry a firearm during and in relation to a drug

trafficking crime, in violation of 18 U.S.C. § 924(o). The district court sentenced

him to 200 months of imprisonment and 5 years of supervised release. Garcia

appealed his convictions, challenging only the government’s impeachment of a co2
conspirator at trial. We affirmed those convictions. United States v. Garcia, 271

F. App’x 904, 905 (11th Cir. 2008) (unpublished opinion). 

Garcia then sought habeas relief under 28 U.S.C. § 2255 asserting four

grounds: (1) the government suborned perjury and submitted tainted evidence to

the grand jury and at trial; (2) the government acted outrageously by “supplanting”

a witness; (3) the government tampered with evidence; and (4) defense counsel

was ineffective for failing to (a) move to dismiss the indictment based on the

misconduct alleged in grounds 1 through 3; (b) conduct a proper investigation; (c)

hire an independent psychologist; (d) object to perjured testimony; (e) move to

suppress tainted evidence; (f) object to his “illegal” sentence; (g) pursue an

insanity defense at trial; (h) hire an expert to analyze transcripts of recorded

conversations, translated from Spanish to English, after being informed that the

transcripts were inaccurate; (i) appeal any of these issues; and (j) forward him his

criminal file. 

This matter was referred to a magistrate judge, who issued a report

recommending that Garcia’s petition be denied. On the ineffective assistance of

counsel grounds, the subject of this appeal, the magistrate judge found that

Garcia’s claims of counsel error were not prejudicial or were merely conclusory

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allegations that were “bereft” of record support. Garcia objected to the

magistrate’s report and asserted numerous Clisby violations. 

The district court conducted a de novo review and adopted the magistrate

judge’s report. Garcia filed a notice of appeal and a motion for a certificate of

appealability, asking the district court to allow him to appeal all the issues he

raised in his § 2255 motion and his objections to the magistrate judge’s report. 

The district court granted Garcia a certificate of appealability as to “Ground IV”

only, which is his ineffective assistance of counsel claims, but denied it as to

“Grounds I, II, and III.” 

This Court dismissed Garcia’s appeal for lack of prosecution in June 2011. 

Garcia submitted a motion to expand the certificate of appealability, but that

motion was not filed with the Court because he had not moved to reinstate the

appeal. In August 2011 this Court granted Garcia’s motion to reinstate his appeal

but he did not thereafter move to expand the certificate of appealability. 

Garcia contends that his counsel was ineffective for failing to: (a) prevent

psychological evaluators and the jury from reviewing “tainted” transcripts; (b) hire

an independent psychologist; (c) request discovery about an alleged confidential

informant in the case. He also contends that the district court violated Clisby by

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adopting the magistrate’s report, which failed to completely dispose of every claim

he raised in his § 2255 motion. 

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 II.

A.

We review de novo the district court’s ruling on an ineffective-assistanceof-counsel claim as a mixed question of law and fact. Payne v. United States,

566 F.3d 1276, 1277 (11th Cir. 2009). To make a successful claim under the Sixth

Amendment for ineffective assistance of counsel, a defendant must show that (1)

his counsel’s performance was deficient and (2) the deficient performance

prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 2064 (1984). 

To establish prejudice, “the petitioner must show that there is a reasonable

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

proceeding would have been different.” Marquard v. Sec’y, Dep’t of Corr., 429

F.3d 1278, 1305 (11th Cir. 2005) (quotation marks omitted). When evaluating

 “Our review on the merits of a [habeas] petition is limited to those issues specified in a 1

certificate of appealability.” Pardo v. Sec’y, Fla. Dep’t of Corr., 587 F.3d 1093, 1103 (11th Cir.

2009). Neither the district court nor this Court has issued Garcia a certificate of appealability on

his Clisby claims. Therefore, we do not review those claims here. Murray v. United States, 145

F.3d 1249, 1250 (11th Cir. 1998).

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prejudice, the court should look at the “entire evidentiary picture.” See Agan v.

Singletary, 12 F.3d 1012, 1019 (11th Cir. 1994). The petitioner will not carry his

burden to establish prejudice by raising “bare allegations of deficient

performance.” Yeck v. Goodwin, 985 F.2d 538, 542 (11th Cir. 1993). 

B. 

First, Garcia contends that his counsel was ineffective by not objecting to

Garcia’s psychological evaluators’ review of transcripts from audio and video

surveillance during a reverse sting operation. Garcia claims the transcripts were

altered to misattribute statements to him. He also contends that his counsel should

have moved for a mistrial once prosecutors offered those transcripts as evidence to

the jury. During the reverse sting operation, Miami-Dade police officers recorded

numerous discussions with Garcia as he planned what he thought would be a fourman, armed robbery of a narcotics dealer to steal 25 kilograms of cocaine. 

Garcia’s bare allegations that the transcripts were altered without

identifying which statements were misattributed to him fails to meet his prejudice

burden. He also has not shown that but for the allegedly altered transcripts he

would not have been found competent to stand trial. At least four separate reviews

of Garcia found him competent to stand trial. The first psychologist, a private

practitioner, found that he was feigning schizophrenic hallucinations. Evaluators

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at the Federal Medical Center in Butner, North Carolina, who assessed him next,

also initially believed he was malingering before they concluded that he was not

competent to stand trial. They reversed that position, however, when federal

prosecutors forwarded them affidavits of two of Garcia’s co-defendants in the

planned robbery who stated Garcia had intended to feign mental illness if

prosecuted. Prosecutors also forwarded the evaluators transcripts of audio and

video surveillance of Garcia during the reverse sting operation. Two later

evaluations by a federal medical center in Minnesota and a private Florida

psychologist also concluded he was competent to stand trial. Garcia has not

proven that the transcripts—and not the affidavits—were the cause for either the

Butner evaluators’ reversal on Garcia’s competency to stand trial or the

competency determination by the two final evaluators. Likewise, Garcia cannot

show that his counsel’s failure to move for a mistrial following the presentation of

the allegedly tainted transcripts prejudiced his case. His counsel objected to the

transcripts’ submission to the jury at trial, and the district court determined the

proper remedy was a curative instruction. Following the prosecution’s offering of

the transcripts as evidence to the jury and during the general charge to the jury at

the close of trial, the district court told the jurors that they were to determine

whether the transcripts accurately reflected the conversations and the speakers’

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identities based on the evidence. Garcia has not shown counsel error much less a

prejudicial one. 

Second, Garcia contends his counsel was ineffective for failing to hire an

independent psychologist to determine his mental competency for trial. The crux

of Garcia’s argument is that the final doctor to evaluate him, Merry Haber, a

private Florida psychologist, was not independent because the government

apparently recommended her. Again, his bare allegations are insufficient to meet

his prejudice burden. See Yeck, 985 F.2d at 542. Garcia presents no evidence

that Haber was biased. Garcia also neglects the fact that every doctor who

reviewed eventually came to the same conclusion: he was competent to stand trial. 

Garcia has not shown that an “independent” psychologist would have reached a

different conclusion. 

Third, Garcia contends that his counsel was ineffective for failing to request

discovery about a confidential informant allegedly involved in the case who,

according to Garcia, preyed upon Garcia’s mental problems to recruit him into the

planned robbery. Even if Garcia’s claims were correct, they are of no

constitutional consequence. The government presented significant evidence

against Garcia at trial, specifically his repeated discussions about planning the

robbery, his presence at the planned robbery scene, and the tools of the robbery

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found on him, on his conspirators, and within and just outside their vehicles.

2

Based on all of that evidence, Garcia cannot show any prejudice regarding

discovery about the confidential informant’s role. Information relating to a

confidential informant who allegedly preyed upon Garcia’s mental instabilities

could be material if Garcia had presented an insanity defense at trial, which he did

not. Garcia does argue that his counsel was ineffective for failing to present an

insanity defense, but he waited to raise that issue in his reply brief. That is too

late; the issue is waived. Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1342

(11th Cir. 2005) (“[A]rguments raised for the first time in a reply brief are not

properly before a reviewing court.” (quotation marks omitted)). 

AFFIRMED.

Specifically, Garcia had a stocking mask hidden in his right rear pants pocket. The other 2

men who traveled with him to the planned robbery scene had a collapsible baton, a walkie-talkie,

and latex gloves, all concealed in some manner. In the car Garcia was riding in officers found a

stun gun, a roll of duct tape, a walkie-talkie, and a pair of gloves. Another car that his coconspirators were riding in contained a knife, a pair of gloves, and a can of pepper spray. On the

ground near the front passenger door of that car, officers found a loaded .357 Magnum revolver.

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