[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 11264 Non

- Argument Calendar

________________________ D.C. Docket No s . 1:14

- cv - 22340

- RNS ; 1:11

- cr - 20698

- RNS

- 3

FRANK J. BALLESTEROS, Petitioner

- Appellant,

versus UNITED STATES OF AMERICA, Respondent

- Appellee.

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

________________________ (April 12, 2018) Before MARCUS , WILLIAM PRYOR and ROSENBAUM , Circuit Judges.
PER CURIAM:

Case: 16-11264 Date Filed: 04/12/2018 Page: 1 of 62 Frank J. Ballesteros appeals the denial of his a mended m otion to vacate his
sentence

. 28 U.S.C. § 2255. After the expiration of the one

- year statute of limitation, id. § 2255(f), Ballesteros moved to supplement his amended motion with new claims, but the district court ruled that the new claims were untimely

. We issu ed a certificate of appealability to address two issues : (1) whether Ballesteros’s supplemental claim that his trial counsel was ineffective for failing to object to calculations in his presentence investigation report was timely under the relat ion

back doctrine ; and (2) whether the district c ourt should have treate d Ballesteros’s supplemental claim “ that the government violated Brady v. Maryland , 373 U.S. 83 (1963), by failing to disclose exculpatory and impeaching evid ence . . . [as] timely under 28 U.S.C. § 2255(f)(4)

. ” We affirm. In 2012, a jury convicted Ballesteros , a physician, of conspiring to possess with intent to distribute oxycodone and oxymorphone, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846, two counts of possessing with intent to distribute oxycodone and oxymorphone, id. §§ 841(a)(1), 841(b)(1)(C); 18 U.S.C. § 2, and conspiring to defraud Medicare, id. § 1349. Ballesteros appealed his conviction for conspiracy fo r health care fraud, and w e affirmed

. United States v. Ballesteros , 523 F. App ’ x 611 (11th Cir. 2013)

. That judgment became final 90 days later when Ballesteros failed to petition the Supreme Court for a writ of certiorari. See Sup. Ct. R. 13.

Case: 16-11264 Date Filed: 04/12/2018 Page: 2 of 63 On May 25, 2014, Ballesteros filed a pro se motion to vacate , which he later amended to comply with Rule 2(c) of the Rules Governing Section 2255 Proceedings

. 28 U.S.C. § 2255. As provided in the order to amend, Ballesteros’s

“ amended motion [ became ] the sole operative pleading in [the] case and only the claims listed in it [would] be considered by the Court, subject to all timeliness and procedural requirements.” Ballesteros ’s amended motion raised 12 issues challenging the effectiveness of his trial and appel late counsel. Ballesteros a llege d that his trial counsel was ineffective for failing to move to sever his trial from codefendant Billy Joe McCoy , to explain the advantages and disadvantages of testifying at trial , to inform Ballesteros of a plea offer , to request the district court judge to recuse , to call certain witnesses, and to present Brady material and evidence that had been suppressed by the district court and withheld by the government. Ballesteros also

a lleg ed that his appellate counsel was ineffective for “fail[ing] to raise on Appeal, Sentencing Objections preserved by [his] trial attorney,” who had “object[ed] regarding [the] amount of ‘total loss’” and to the “‘amounts’[ of drugs] where the Court based its determination [s]

. . . on a so - c alled ‘spread sheet. ’” In January 2015, Ballesteros moved to supplement his amended motion

. Ballesteros sought to add new claims that his trial counsel was ineffective for failing to object at sentencing to the use of the spreadsheet used to determine his

Case: 16-11264 Date Filed: 04/12/2018 Page: 3 of 64 drug quantity and to calculate restitution and for failing to move for a new trial based on Brady violations that he had discovered in another case. The government opposed Ballesteros’s amended motion and argued that his supplemental claims were untimely and did not relate back to his earlier pleading

. T he district court adopted the recommendation of a magistrate judge to den y Ballesteros’s amended motion and to treat his new claims as untimely

. The district court ruled that Ballesteros’s motion to supple ment did not relate back to his amended motion. The district court did not err by d ismissing as untimely Ballesteros’s new claim that trial counsel was ineffective at sentencing. Ballesteros filed his motion to supplement more than one year after his conviction became final , s ee 28 U.S.C. § 2255(f) , so his new claim wa s untimely unless i t relate d back to his amended
motion

. S ee Davenport v. United States , 217 F.3d 1341 , 1344 (11th Cir. 2000); Fed. R. Civ. P. 15(c) . The amended motion became Ballesteros’s “sole operative pleading” when he filed it in the district court , and it wa s the only pleading that we
mention ed in our order granting h is certificate of appealability

. For Ballesteros’s

new claim t o relate back, it ha d to “ ar [i] se out of the conduct, transaction, or
occurrence set out

— or attempted to be set out

— in the ” amended motion

. See Fed.
R. Civ. P. 15(c)(1)(B). Ballesteros’s new claim involves “an entirely different transaction” and falls outside what “ Rule 15(c) contemplates[, which is] that

Case: 16-11264 Date Filed: 04/12/2018 Page: 4 of 65 parties [ can ] correct technical deficiencies or expand facts alleged in the original pleading . . . .” Dean v. United States , 278 F.3d 1218, 1221 (11th Cir. 2002). Ballesteros ’s new c laim challenge d trial counsel’s failure to object at sentencing to a spreadsheet used to calculate his sentence and restitution , but his earlier amended motion discussed deficiencies in counsel’s pre - trial strategy, consultation, and negotiations and counsel’ s conduct during trial

. And Ballesteros’s new claim was at odds with his amended motion in which he commended trial counsel for “preserv[ing] [his] objection[s]” to the spreadsheet and blame d appellate counsel for failing to appeal the “preserved” issue. Because Bal lesteros’s new claim involve d “ a separate occurrence in both time and type ” from that mentioned in his amended motion , Davenport , 217 F.3d at 1344 , the new claim d id not relate back

a nd w as untimely

. As to Ballesteros’s Brady claim, t he scope of our review is limited to the issue identified in the certificate of appealability , Hodges v. Att ’ y Gen., State of Fla. , 506 F.3d 1337, 1340 (11th Cir. 2007) , which is whether the claim was based

on newly discovered evidence that triggered a new period of limitation, see 28 U.S.C. § 2255(f)(4). Ballesteros argues that the Brady claim was timely because it relate d back to his amended motion, but we squarely rejected that argument when

we grant ed a certificate of appealability

. That argument “ simply will not be reviewed ” again. Tompkins v. Moore , 193 F.3d 1327, 1332 (11th Cir. 1999)

. A

Case: 16-11264 Date Filed: 04/12/2018 Page: 5 of 66 judge of this Court certified instead that “reasonable jurists would debate the district court’s conclusion that the claim was untimely” on the ground that he had “asserted a valid claim of the denial of constitutional rights

— that the government violated due process by failing to disclose Brady material and counsel was ineffective or failing to move for a new trial on that basis.” See Hunter v. United
States , 10 1 F.3d 1565, 1575 (11th Cir. 1996) (en banc) (“Under the plain language of the rule, an applicant for the writ gets two bites at the appeal certificate apple: one before the district judge, and if that one is unsuccessful, he gets a second one before a cir cuit judge.”). In his reply brief, Ballesteros refuses to address the issue we certified because the district court never addressed it, but we asked Ballesteros to brief whether the district court erred by failing to consider it. By refus ing to address the issue identified in the certificate of appealability, Ballesteros has waived his Brady claim.
We AFFIRM the denial the Ballesteros’s amended motion to vacate. Case: 16-11264 Date Filed: 04/12/2018 Page: 6 of 6