FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 23, 2012

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 10-15185

Non-Argument Calendar

________________________

D.C. Docket Nos. 1:09-cv-22646-JIC, 1:08-cr-20685-JIC-1

VERTILIO DE LA ROSA,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

_________________________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________________________

(March 23, 2012)

Before EDMONDSON, WILSON, and BLACK, Circuit Judges.

PER CURIAM:
Vertilio De La Rosa, a federal prisoner proceeding with the assistance of

appointed appellate counsel, appeals the denial of his pro se 28 U.S.C. § 2255

motion to vacate. Reversible error has been shown; we affirm in part and vacate

in part and remand. 

De La Rosa received a total sentence of 48 months’ imprisonment after

pleading guilty to making a false statement on a passport application, illegal reentry into the United States, and aggravated identity theft. In his section 2255

motion De La Rosa raised seven claims -- only three of which are at issue on

appeal -- including that his trial counsel was ineffective for (1) failing to recognize

or make De La Rosa aware of the immigration consequences of his guilty plea and

failing to negotiate effectively with the government to avoid automatic

deportation; (2) failing to move for a downward departure based on De La Rosa’s

immigration status; and (3) failing to argue, based on Flores-Figueroa v. United

States, 129 S.Ct. 1886 (2009), that De La Rosa was not guilty of aggravated

identity theft because he did not know that the identification he used belonged to

another person. 

The magistrate judge construed Claims 1 and 2 as a single claim -- that De

La Rosa’s counsel was ineffective for failing to move for a downward departure to

offset the additional time he would serve while the government processed his

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deportation order -- and recommended denying it. Next, the magistrate construed

Claim 3 as asserting both an ineffective assistance of counsel claim and an

underlying claim that De La Rosa’s conviction was invalid because the

government failed to prove each element of the offense. 

The magistrate recommended denying the ineffective assistance of counsel

claim raised in Claim 3 but recommended granting De La Rosa’s motion based on

his underlying challenge to his aggravated identity theft conviction. In doing so,

the magistrate concluded that Flores-Figueroa applied retroactively and that,

although De La Rosa failed to raise this argument on direct appeal, he overcame

procedural default because he was actually innocent of aggravated identity theft.

Although the district court adopted the magistrate’s report and

recommendation in part, it reversed the magistrate’s recommendation on Claim 3. 

In doing so, the district court concluded that De La Rosa failed to overcome his

procedural default because sufficient evidence existed for a reasonable juror to

conclude that De La Rosa knew that the means of identification belonged to

another person.

We granted a certificate of appealability (“COA”) on these issues:

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(1) Whether the district court violated Clisby v. Jones, 960 F.2d

925, 936 (11th Cir. 1992) when it failed to address De La

Rosa’s argument in Claim 1, that his plea was invalid because

counsel failed to make himself or De La Rosa aware of the

immigration consequences of a guilty plea and failed to

negotiate more favorable deportation terms with the

government?

(2) As to Claim 3:

(a) whether the district court erred in construing this claim

as raising an independent actual innocence claim or a

claim that his plea did not qualify as intelligent following

the narrowed definition of aggravated identity theft

announced in United States v. Flores-Figueroa . . . ,

(b) and, whether the district court erred in finding that De La

Rosa failed to overcome procedural default to bring his

claim pursuant to 28 U.S.C. § 2255?

On appeal, De La Rosa argues that the district court violated Clisby by

failing to address the issues raised in Claim 1. In considering a district court’s 1

denial of a section 2255 motion, we review fact determinations for clear error and

questions of law de novo. Thomas v. United States, 572 F.3d 1300, 1303 (11th

Cir. 2009).2

We will not consider De La Rosa’s arguments about the merits of Claim 1 because these 1

arguments are outside the scope of the COA. See Murray v. United States, 145 F.3d 1249, 1251

(11th Cir. 1998) (stating that, in a section 2255 proceeding, “appellate review is limited to the issues

specified in the COA”). 

In addition, we construe liberally pro se pleadings. Tannenbaum v. United States, 148 F.3d 2

1262, 1263 (11th Cir. 1998). 

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In Clisby, we wrote that district courts must “resolve all constitutional

claims presented in a petition for writ of habeas corpus pursuant to 28 U.S.C. §

2254 before granting or denying relief.” 960 F.2d at 934; see also Rhode v.

United States, 583 F.3d 1289, 1291 (11th Cir. 2009) (extending Clisby’s

requirement to resolve all claims for relief to section 2255 motions). A “claim for

relief” is defined as “any allegation of a constitutional violation”; and allegations

of distinct constitutional violations constitute separate claims for relief “even if

both allegations arise from the same alleged set of operative facts. Clisby, 960

F.2d at 936. 

The district court failed to consider the arguments raised in Claim 1 of De

La Rosa’s section 2255 motion. Construed liberally, De La Rosa asserted in

Claim 1 that his counsel was ineffective for (a) failing to recognize and to advise

De La Rosa that he would be subject to additional imprisonment while awaiting

deportation; (b) failing to recognize and to advise De La Rosa that he would be

subject to automatic deportation if convicted of a crime for which the possible

sentence exceeded one year; and (c) failing to negotiate a more favorable plea

agreement. Because each of these arguments constitutes a separate constitutional

claim under Clisby but was not addressed by the district court, we vacate the

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denial of the motion and remand the case with instructions for the district court to

consider each distinct claim raised in Claim 1. 

Next, we address the Claim 3 issues. De La Rosa argues -- and the

government concedes -- that the district court properly construed Claim 3 as

raising an independent actual innocence claim. We agree. De La Rosa argued

plainly that he was not guilty of aggravated identity theft because he did not intend

to steal another person’s identity and did not know that the identification he used

belonged to an actual person. 

We also agree, however, with the district court’s conclusion that De La

Rosa failed to overcome his procedural default on that claim. “Where a defendant

has procedurally defaulted a claim by failing to raise it on direct review, the claim

may be raised in [a section 2255 motion] only if the defendant can first

demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.’” 

Bousley v. United States, 118 S.Ct. 1604, 1611 (1998) (citations omitted). In this

case, De La Rosa argues only that he is actually innocent. To establish actual

innocence, De La Rosa must demonstrate that, in the light of all the evidence, “it is

more likely than not that no reasonable juror would have convicted him.” Id. 

Because “‘actual innocence’ means factual innocence, not mere legal

insufficiency,” the government may rely on admissible evidence of De La Rosa’s

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guilt even if that evidence was not presented during the plea colloquy. See id. at

1611-12. 

In Flores-Figueroa -- decided after De La Rosa was sentenced -- the United

States Supreme Court concluded that to obtain a conviction for aggravated identity

theft, the government must prove “that the defendant knew that the means of

identification at issue belonged to another person.” 129 S.Ct. at 1894. And the

government may rely on circumstantial evidence to establish that element of the

offense. United States v. Gomez-Castro, 605 F.3d 1245, 1249 (11th Cir. 2010). 

“Both the circumstances in which an offender obtained a victim’s identity and the

offender’s later misuse of that identity can shed light on the offender’s knowledge

about that identity.” Id. at 1248. For example, in Gomez-Castro, we concluded

that circumstantial evidence supported an aggravated identity theft conviction

when the defendant paid a large sum of $2,500 for a birth certificate and social

security card and then “repeatedly and successfully tested the authenticity” of

those documents by using them to obtain a driver’s license, two credit cards, a

bank card, and a United States passport. Id. In a similar case, we determined that

a reasonable juror could have found beyond a reasonable doubt that the defendant

knew that a social security card belonged to a real person when she used it to

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obtain a United States passport, a driver’s license, and a line of credit. United

States v. Holmes, 595 F.3d 1255, 1258 (11th Cir. 2010). 

After reviewing the record, we conclude that sufficient circumstantial

evidence existed to prove that De La Rosa knew that the identification he used

belonged to an actual person. He purchased a birth certificate and social security

card in the name of A.S.B. for $1,500. He also successfully used those documents

to obtain a Florida driver’s license, to obtain a mortgage, and to open a checking

account, all in A.S.B.’s name. In the light of this evidence, it is unlikely that no

reasonable juror would have convicted De La Rosa of aggravated identity theft as

that offense is defined in Flores-Figueroa. Thus, De La Rosa has failed to 3

demonstrate that he is “actually innocent” of his offense such that he may

overcome his procedural bar. 

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AFFIRMED IN PART; VACATED IN PART; AND REMANDED.

In his appellate brief, De La Rosa argues that the district court erred in failing to rely on or

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address this Court’s unpublished decision in United States v. Gaspar, 344 F. App’x 541 (11th Cir.

2009). We reject this argument because our unpublished decisions do not constitute binding

precedent. See Moore v. Barnhart, 405 F.3d 1208, 1211 n.3 (11th Cir. 2005). 

Because the record affirmatively contradicts De La Rosa’s allegations of actual innocence, the 4

district court did not abuse its discretion in denying De La Rosa’s section 2255 motion without an

evidentiary hearing. See Aron v. United States, 291 F.3d 708, 715, 715 n.5 (11th Cir. 2002). 

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