[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 96-3807

Non-Argument Calendar

________________________

D.C. Docket No. 96-1619-CIV-T-17B

JASON TODD MURRAY, 

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

__________________________

Appeal from the United States District Court for the

Middle District of Florida

_________________________

(July 7, 1998)

Before BLACK, CARNES and HULL, Circuit Judges.

PER CURIAM:
2

Jason Todd Murray appeals the district court’s dismissal of his pro se 28

U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. Initially, we

decide that this appeal is limited to the one issue specified in the certificate of

appealability. Turning to that issue, we also decide that the district court’s

judgment dismissing Murray’s ineffective assistance of counsel claim is due to

be affirmed.

I. BACKGROUND

In 1989, Murray pled guilty to possession of cocaine base with intent to

distribute in violation of 21 U.S.C. § 841, and was subsequently sentenced to

188 months in prison. In 1991, he filed a direct appeal of his conviction and

sentence. We affirmed.

On August 23, 1996, Murray filed this 28 U.S.C. § 2255 motion claiming:

(1) a Fourth Amendment violation due to an illegal stop and search of his car;

(2) ineffective assistance of counsel due to his counsel’s failure to inform him

of or to litigate his meritorious Fourth Amendment claim; (3) a sentence based

on erroneous and false information; and (4) a double jeopardy violation.

Without conducting an evidentiary hearing, the district court rejected all

of Murray’s asserted grounds for relief and dismissed his § 2255 motion.
3

Murray appealed the denial of relief, and we granted a certificate of

appealability (“COA”) pursuant to 28 U.S.C. § 2253(c). We limited the COA

to the following issue:

Whether appellant received ineffective assistance of counsel in that his

attorney failed to argue that the stop and search of appellant’s car violated

the Fourth Amendment. 

See § 2253(c)(3) (the COA “shall indicate which specific issue or issues satisfy

the showing required.”). Notwithstanding our specification of only one issue in

the COA, Murray’s brief raises other issues. It argues the merits of his Fourth

Amendment claim, and also presents instances of ineffective assistance of

counsel other than the one specified in the COA.

II. ISSUES PRESENTED

Murray’s appeal raises two issues. The first is whether we consider on

appeal any issues other than the ones for which a COA was granted pursuant to

28 U.S.C. § 2253(c). The second issue is whether the district court erred by

dismissing, without an evidentiary hearing, Murray’s claim that he received

ineffective assistance of counsel because of his counsel’s performance in

connection with the allegedly meritorious Fourth Amendment claim. 

III. THE CERTIFICATE OF APPEALABILITY ISSUE
4

Murray’s attempt to have us decide issues other than the one for which we

granted a certificate of appealability presents us with a threshold question: Does

the granting of a COA open up to appellate review all of the issues that

petitioner wishes to pursue, or is review instead confined to the issue specified

in the COA? Although this is a question of first impression in this circuit, see

Hunter v. United States, 101 F.3d 1565, 1571 n.4 (11th Cir. 1996) (en banc)

(reserving the issue), it is not a difficult one.

The Fifth Circuit answered this question in Lacky v. Johnson, 116 F.3d

149, 151-52 (5th Cir. 1997), concluding that the plain import of 28 U.S.C. §

2253(c)(3) requires that the scope of review in a habeas appeal be limited to

issues specified in the COA. Section 2253(c)(3) mandates that the COA indicate

“which specific issue or issues satisfy the showing” necessary for granting such

a certificate. See also Hunter, 101 F.3d at 1584 (remanding a case with

instructions that the district court specify the issue or issues meant to be covered

in the COA). As the Fifth Circuit pointed out in Lacky, there would be little

point in Congress requiring specification of the issues for which a COA was

granted if appellate review was not to be limited to the issues specified. See 116

F.3d at 152. 
5

We agree with the Fifth Circuit’s reasoning and add a point of our own.

Before enactment of the Antiterrorism and Effective Death Penalty Act

(“ADEPA”), which included the 28 U.S.C. § 2253(c)(3) COA issue

specification provision, a certificate of probable cause (CPC) to appeal

requirement served much the same appellate gatekeeping function in 28 U.S.C.

§ 2254 proceedings as the COA requirement does in both §§ 2254 and 2255

proceedings now. See Hunter, 101 F.3d at 1571 & n.4. Under the pre-ADEPA

regime, we held that when a CPC was granted on fewer than all of the issues in

a habeas case, the appeal was limited to the issues specified. See Clisby v.

Alabama, 52 F.3d 905, 906 (11th Cir. 1995) (where district court granted CPC

limited to one issue); Clark v. Dugger, 901 F.2d 908, 910 (11th Cir. 1990) (where

we granted CPC limited to one issue). Thus, even though there was no

requirement that a CPC specify the issues that could be appealed, if it did do so

appellate review was limited to the issues specified. In view of that prior circuit

law, it would be anomalous for us to hold, now that there is an issue

specification requirement, see § 2253(c)(3), that the appeal is not limited to the

issues specified. Consistent with our own prior decisions in Clisby and Clark,

with the Fifth Circuit’s Lacky decision, and with the obvious import of §
6

2253(c)(3), we hold that in an appeal brought by an unsuccessful habeas

petitioner, appellate review is limited to the issues specified in the COA. We

turn now to the issue specified in the COA issued in this case.

IV. THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

Although we will not decide any issue not specified in the COA, we will

construe the issue specification in light of the pleadings and other parts of the

record. Because Murray pleaded guilty, we construe the issue specified to

include all aspects of counsel’s performance in connection with the Fourth

Amendment claim as it relates to Murray’s plea conviction. The issue is

whether Murray is entitled to an evidentiary hearing on his § 2255 motion. We

begin with his allegations and the facts concerning the proceedings to date.

A. MURRAY’S PLEA AGREEMENT

In support of his contention that he received ineffective assistance of

counsel in connection with Fourth Amendment claim, Murray first alleges

certain facts regarding the stop and search of his car on the day of his arrest.

However, the facts that Murray alleges in his § 2255 motion differ from the facts

Murray expressly agreed to in his plea agreement at the time of the entry of his
7

guilty plea. The facts surrounding Murray’s arrest were outlined in his plea

agreement, paragraph 13 of which states as follows:

13. Defendant will plead guilty because he is in

fact guilty of the charges contained in Count One of the

Indictment. In pleading guilty to this Count, defendant

acknowledges the facts as stated in the stipulation

contained below are true, and were the case to go to

trial, the government would be able to prove beyond a

reasonable doubt the following:

Stipulated Facts

On July 27, 1989, the defendant Jason Todd

Murray was operating a motor vehicle in Pinellas

County, Florida. Defendant Deniceso Lopez

Washington was a passenger in the car. Pursuant to an

investigatory stop a deputy with the Pinellas County

Sheriff Department stopped the defendant’s vehicle.

Defendant Murray was questioned by law enforcement

officers and produced a baggie containing marihuana.

The defendant Murray was arrested for the possession

of marihuana. 

During the search of the defendant’s rental car

incident to the arrest law enforcement found a bag

containing approximately 884 grams of crack cocaine.

A Pinellas County lab later confirmed that the

substance found was cocaine base a schedule II narcotic

drug.

Fingerprints were found on the outside of the bag

which contained the crack cocaine. These fingerprints
8

have been identified as those of the passenger in the

vehicle, defendant Washington.

After the arrest defendant Murray admitted to

control of the cocaine and knowledge of its presence.

Defendant Murray further told officers that Washington

had control of the cocaine and knowledge of its

presence.

Murray initialed each page of his plea agreement and entered his plea on

the day of his scheduled trial on November 28, 1989. He had two prior felony

convictions for drug-related offenses and was facing the possibility of a

mandatory life sentence if the government filed the information for

enhancement. As part of the plea agreement, the government agreed not to file

the information for enhancement if Murray did not proceed with his Motion to

Suppress.

The plea transcript shows that the government specifically acknowledged

on the record its verbal agreement not to file enhancement information. The

plea transcript also shows that Murray’s counsel specifically acknowledged that

the government could establish the stipulated facts enumerated above and that

Murray was waiving his Motion to Suppress by stipulating to these facts.

B. MURRAY’S MOTIONS TO WITHDRAW HIS PLEA
9

After the presentence report was issued showing his guideline sentence,

Murray filed a pro se one-page Motion to Withdraw his plea on February 2,

1990, on the general ground that he believed that it was in his best interest to

withdraw his plea and go to trial. Murray did not mention the Motion to

Suppress. On February 7, 1990, the magistrate judge issued an order stating that

the Motion to Withdraw the plea did not comply with the local rules and giving

Murray additional time to file an amended motion that complied with the local

rules. When no amended motion was filed, the magistrate judge issued a report,

dated February 20, 1990, recommending that the Motion to Withdraw Plea be

denied. On February 26, 1990, Mr. Dillinger, Murray’s retained counsel, filed

an Amended Motion to Withdraw Plea stating that the amended ground for

withdrawing the plea was as follows:

The basis [sic] for the withdrawal of the plea

include the Defendant’s claim of innocence, the belief

that a polygraph would corroborate his innocence, the

belief that the motion to suppress if argued differently

would be granted and that the Defendant having been

mentally prepared for trial in light of the minimum

mandatory life sentence which would have resulted

from a plea and having been offered on the morning of

trial a different plea agreement, did not have sufficient

time to consider the alternatives and as such was under
10

intense pressure to make a quick decision on this

serious matter.

(emphasis supplied.)

Interestingly, the Amended Motion to Withdraw Plea also states that a

Motion to Suppress had been filed previously and was scheduled to be heard the

morning of trial but that the government agreed not to file the information for

enhancement if the defendant did not proceed with his Motion to Suppress:

1. Defendant was scheduled for trial. A motion

to suppress had been previously filed and was

scheduled to be heard on the morning of trial.

2. The Defendant had two (2) or more prior

felony convictions for drug related offenses and as such

under the statute was facing the possibility of a

mandatory life sentence. The Government however,

had not filed the Information for enhancement as of

November 28th.

3. On November 28th, the Government agreed to

not file the Information for enhancement if the

Defendant did not proceed with his motion to suppress.

The Defendant was offered the possibility of testifying

against the Co-defendant as far as a reduction in the

guidelines as well as for a reduction for the admission

of guilt. The Defendant by this plea was only subjected

to a mandatory ten (10) years.
11

In opposition to the amended motion, the government emphasized that

Murray had never maintained or made an assertion of innocence at any time and

that he had offered to testify against his co-defendant Washington; however,

after the court denied Washington’s Motion to Suppress and Washington pled

guilty, Murray was not needed for that purpose.

On April 25, 1990, the district court denied both Murray’s pro se Motion

to Withdraw his plea and the Amended Motion to Withdraw his plea filed by his

counsel, Mr. Dillinger. In its order the district court stated that “[d]efendant has

also argued that a motion to suppress would succeed, if argued differently. In

knowingly waiving a trial by jury, Defendant waived this issue.”

Sentencing was set but later continued because Murray said that his

counsel had made certain representations to him regarding his plea. As a result,

the Federal Public Defender was appointed as new counsel for Murray to

explore the matter. On June 18, 1990, the Public Defender’s Office filed for

Murray a Second Amended Motion to Withdraw Plea for Murray requesting that

the plea be withdrawn on the ground that Murray asserted that his prior counsel

had advised him that if his co-defendant Washington had prevailed on this
12

Motion to Suppress, then Murray would be allowed to withdraw his plea, stating

specifically as follows:

In addition to those matters raised in the previous

motions to withdraw, the defendant would allege the

following.

Prior to the entry of his plea, the defendant was

advised by his then attorney that if the co-defendant

prevailed on the motion to suppress, the defendant

would be allowed to withdraw his plea. According to

the defendant, his attorney was confident that the

motion to suppress would be granted.

On June 18, 1990, the district court referred Murray’s Second Amended

Motion to Withdraw Plea to the magistrate judge for disposition. On July 6,

1990, the magistrate judge scheduled for July 19, 1990 an evidentiary hearing

on the Second Amended Motion to Withdraw Plea. 

Thereafter, the magistrate judge entered a detailed report recommending

denial of the Second Amended Motion to Withdraw Plea. The report chronicles

most of the above history of Murray’s plea and motions to withdraw his plea.

The magistrate judge’s report also recites that at the July 19 evidentiary hearing

“neither party had any evidence to offer” and that Murray, “upon conferring
13

with counsel, elected not to testify.” At the end of the report, the magistrate

judge summarized the basis for recommending denial of the motion as follows:

The second amended motion was set for an

evidentiary hearing on July 19, 1990. However, at the

hearing, neither party had any evidence to offer. The

defendant, upon conferring with counsel, elected not to

testify. Moreover, neither party secured the appearance

of Robert Dillinger, the defendant’s counsel during the

events in question. Under these circumstances, there

obviously is no basis for granting the motion to

withdraw plea.

In the first place, the defendant’s motion does not

set forth a claim supporting withdrawal of a guilty plea.

Thus, the only new ground alleged in the second

amended motion was the assertion that defense counsel

had told the defendant that, if the co-defendant were

successful with his motion to suppress, then the

defendant would be permitted to withdraw his plea.

This alleged conditional representation, however, does

not support relief since the co-defendant’s motion to

suppress was denied.

In any event, no evidence was presented that

defense counsel made any such representations. Most

significantly, the defendant declined to testify in

support of his allegation.

For the foregoing reasons, the Second Amended

Motion to Withdraw Plea should be denied.
14

No objections were filed to the magistrate judge’s report and

recommendation. On August 24, 1990, the district court adopted the magistrate

judge’s report and denied Murray’s Second Amended Motion to Withdraw his

plea and directed that the Courtroom Deputy schedule the case for sentencing.

On October 26, 1990, sentencing was set again and this time Murray

raised another claim as follows: that his prior attorney, Mr. Dillinger, had

advised him that he had fifteen days to withdraw his plea if he should later

change his mind. The district court continued the sentencing again and ordered

Murray to file an affidavit setting forth all of his claims. On November 19,

1990, Murray’s same new counsel with the Federal Public Defender’s office

filed a short Affidavit from Murray, which stated that his prior counsel made

these two representations to him prior to entry of his plea as follows:

1. On November 28, 1989, I entered a plea of

guilty to a one-count indictment charging possession

with intent to distribute 50 grams or more of “crack”

cocaine. This plea was entered on the advice of my

attorney, Robert H. Dillinger. I hereby waive the

attorney client privilege that Mr. Dillinger and I shared

during the preparation of the instant case.

2. Prior to the entry of my plea on November 28th,

Mr. Dillinger made the following representations to me
15

which I relied upon in arriving at my decision to plead

guilty. Those representations are set forth below.

3. I had fifteen (15) days within which to

withdraw the plea if I should later decide that a plea

would not be in my best interest.

4. If my co-defendant, Deniceso Washington,

prevailed on his motion to suppress, then I could

withdraw my plea and proceed to trial.

5. The above statements represent all of the

assurances made to me by Mr. Dillinger in connection

with the entry of the plea.

On January 14, 1991, new counsel also filed a Third Amended Motion to

Withdraw Plea and Request an Evidentiary Hearing. On January 23, 1991, the

district court entered an order denying Murray’s Third Amended Motion to

Withdraw Plea and Request for an Evidentiary Hearing, finding that Murray had

already had a full opportunity to raise these particular issues regarding

representations of counsel in his prior evidentiary hearing but that Murray had

elected not to present them.

C. SENTENCING

At the sentencing hearing on February 15, 1991, Murray’s counsel

reviewed the offense conduct in the presentence report to which Murray
16

objected. Regarding the traffic stop of his vehicle, Murray’s new counsel stated

that Murray’s position was that he stopped as soon as he was blue-lighted by the

officer, that his co-defendant Washington started running but that Murray did

not, and that when the officer asked him about cocaine, Murray denied having

it. Murray’s counsel also states that Murray “told the officers he did have

marijuana and voluntarily emptied his pockets.” At the sentencing Murray

denied knowing about any cocaine in the vehicle and professed his innocence.

The government stressed this contradicted the facts to which Murray stipulated

when he pled guilty.

D. APPEAL

The same attorney with the Federal Public Defender’s office represented

Murray in his direct appeal. The only issue raised in Murray’s appellate brief

was whether the district court’s refusal to permit withdrawal of the plea

constituted an arbitrary or unreasonable decision given the circumstances of the

case. This court affirmed the decision of the district court under Eleventh

Circuit Rule 36-1. See United States v. Murray, 946 F.2d 1547 (11th Cir. 1991),

cert. denied 502 U.S. 1113, 112 S.Ct. 1220 (1992).

E. DISCUSSION
17

Assuming that Murray was ever entitled to an evidentiary hearing on

whether he received effective assistance of counsel in regard to his guilty plea,

he got it in connection with his Second Amended Motion to Withdraw Plea. At

that hearing, Murray, represented by new counsel, elected not to testify and

presented no evidence at all to back up his allegations. The most Murray is

entitled to is one opportunity to prove his allegations, and he got it. He is not

entitled to two opportunities. To the extent Murray has raised different

allegations of ineffectiveness in relation to the plea since his Second Amended

Motion to Withdraw Plea was denied, that does not entitle him to another

evidentiary hearing either.

 A guilty plea means something. It is not an invitation to a continuing

litigation dialogue between a criminal defendant and the court. A defendant

who is given an evidentiary hearing on the validity of his guilty plea must seize

the opportunity and present every allegation and all the supporting evidence he

has then at the peril of being foreclosed from doing so in the future. Murray had

a chance to come forward with evidence to back up his allegations, and he

decided not to do so. He could not thereafter change his mind about that, as he

apparently has about his guilty plea, and expect the law to accommodate him.
18

V. CONCLUSION

The district court’s dismissal of Murray’s 28 U.S.C. § 2255 motion to

vacate, set aside, or correct his sentence is AFFIRMED.