                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                JUNE 22, 2009
                               No. 08-14661                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

            D. C. Docket Nos. 03-20335-CV-SH, 00-00933 CR-SH

RAUL ESPINOSA,



                                                             Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.


                         ________________________

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

                                 (June 22, 2009)

Before CARNES, HULL and WILSON, Circuit Judges.

PER CURIAM:

     Raul Espinosa appeals the district court’s denial of his 28 U.S.C. § 2255
motion to vacate his sentence. After review, we affirm.

                                  I. BACKGROUND

       Following a jury trial, Espinosa was convicted of money laundering and

sentenced to a term of 189 months’ imprisonment. Espinosa’s conviction was

affirmed on direct appeal. His conviction became final on February 13, 2003, with

the expiration of the time for filing a petition for certiorari.

       On February 14, 2003, Espinosa filed his counseled § 2255 motion, raising

claims that his trial counsel was ineffective at trial and sentencing. At an

evidentiary hearing on December 12, 2005, Espinosa also argued that his trial

counsel had been ineffective prior to trial by failing to communicate with him

regarding, inter alia, the government’s discovery information, the facts of the case,

potential defense witnesses or a defense theory. After the hearing, the magistrate

judge directed Espinosa to prepare a supplemental memorandum outlining his

specific claims and the government to file a response.

       In his supplemental memorandum, filed on January 3, 2006, Espinosa

identified six pretrial ineffective assistance claims. Specifically, he alleged that his

trial counsel: (1) did not discuss the indictment, charges or sentencing options with

him; (2) met with him only a few brief times; (3) did not discuss with him a

defense theory, trial strategy or factual or legal defenses; (4) did not inform him of



                                             2
his right to testify; (5) did not prepare him for a pre-trial McLain hearing;1 and (6)

did not review the government’s discovery material.

       The magistrate judge’s report (“R&R”) recommended denying Espinosa’s

§ 2255 motion. With respect to Espinosa’s six pretrial ineffective assistance

claims identified in his January 3, 2006 supplemental memorandum, the magistrate

judge concluded that only one–the failure to inform Espinosa of his right to

testify–was raised in the original § 2255 motion. The magistrate judge found that

the other five pretrial ineffective assistance claims were newly raised claims that

did not relate back to the claims in his § 2255 motion. Because the newly raised

claims were in the January 3, 2006 supplemental memorandum and that

supplemental memorandum was not filed within the Antiterrorism and Effective

Death Penalty Act’s (“AEDPA”) one-year statute of limitations, the magistrate

judge concluded the new claims were time-barred.

       As for the preserved pretrial ineffective assistance claim, the magistrate

judge concluded that Espinosa had not shown any prejudice with respect to his trial

counsel’s failure to inform him of his right to testify. The magistrate judge also


       1
         Under United States v. McLain, a defendant must be informed if a criminal investigation
against his attorney creates a potential conflict of interest. 823 F.2d 1457, 1463-64 (11th Cir.
1987), overruled on other grounds as recognized by United States v. Watson, 866 F.2d 381, 385
n.3 (11th Cir. 1989). Espinosa’s trial counsel had been indicted on state racketeering, fraud and
theft charges. At the McLain hearing, Espinosa indicated that he wished to keep his trial
counsel.

                                                3
found that Espinosa had failed to show any ineffective assistance with respect to

his trial or sentencing.

       Over Espinosa’s objections, the district court adopted the R&R and denied

Espinosa’s § 2255 motion. Espinosa filed this appeal. We granted a certificate of

appealability (“COA”) on the following issue:

       Whether the district court erred in finding that appellant’s argument,
       raised in his post-evidentiary hearing brief, that his counsel was
       ineffective for failing to discuss with him possible defenses, a defense
       theory or trial strategy prior to trial did not relate back to his 28
       U.S.C. § 2255 motion and was thus, untimely.2

                                      II. DISCUSSION

       The AEDPA established a one-year statute of limitations for § 2255

motions. 28 U.S.C. § 2255(f); Davenport v. United States, 217 F.3d 1341, 1343

(11th Cir. 2000). When a petitioner files a timely § 2255 motion, and then later

files an untimely amended or supplemental motion that raises additional claims, the

untimely claims are barred by the statute of limitations unless they “relate back” to

the original motion under Federal Rule of Civil Procedure 15(c). Davenport, 217

F.3d at 1344. A claim “relates back” if it “asserts a claim or defense that arose out

of the conduct, transaction, or occurrence set out--or attempted to be set out--in the

original pleading.” Fed. R. Civ. P. 15(c)(1)(B).


       2
        Thus, the district court’s rulings on Espinosa’s other ineffective assistance claims are not
before us.

                                                 4
       The United States Supreme Court has cautioned that the “conduct,

transaction, or occurrence” language of Rule 15(c) should not be defined “at too

high a level of generality,” because doing so would defeat Congress’s intent to

impose a strict time limit on claims for post-conviction relief. Mayle v. Felix, 545

U.S. 644, 661-62, 125 S. Ct. 2562, 2573-74 (2005) (quotation marks omitted).

Thus, an amended pleading relates back to an original pleading only if both

pleadings “state claims that are tied to a common core of operative facts.” Id. at

664, 125 S. Ct. at 2574. Similarly, this Court has held that “the untimely claim

must have arisen from the same set of facts as the timely filed claim, not from

separate conduct or a separate occurrence in both time and type.” Davenport, 217

F.3d at 1344 (quotation marks omitted). “[W]hile Rule 15(c) contemplates that

parties may correct technical deficiencies or expand facts alleged in the original

pleading, it does not permit an entirely different transaction to be alleged by

amendment.” Dean v. United States, 278 F.3d 1218, 1221 (11th Cir. 2002).3

       Here, the district court did not abuse its discretion in finding that the pretrial

ineffective assistance claims raised in Espinosa’s supplemental memorandum did




       3
         In the § 2255 context, we review the district court’s legal conclusions de novo and its
findings of fact for clear error. Mamone v. United States, 559 F.3d 1209, 1210 (11th Cir. 2009).
We review a district court’s application of Rule 15(c) for abuse of discretion. Davenport, 217
F.3d at 1343 n.4.

                                               5
not relate back to his original § 2255 motion filed on February 14, 2003.4

Espinosa’s § 2255 motion alleged that his trial counsel made an improper opening

statement, failed to object to Rule 404(b) evidence, conducted unnecessary,

improper and ineffective cross-examinations and failed to object to the presentence

investigation report. In other words, the conduct, transaction or occurrences set out

in the original § 2255 motion related to trial counsel’s performance during specific

moments of the trial and at sentencing. With the exception of his counsel’s failure

to advise him of his right to testify at trial, the § 2255 motion made no mention of

any pretrial conduct. Indeed, Espinosa’s counseled § 2255 motion’s contention

that his counsel was unprepared was made only in the context of claims that his

trial counsel’s performance at trial and sentencing was deficient. Thus, the newly

raised pretrial ineffective assistance claims are not “tied to a common core of

operative facts” with the trial and sentencing ineffective assistance claims and do

not relate back under Rule 15(c). See Mayle, 545 U.S. at 664, 125 S. Ct. at 2574.

And, his supplemental memorandum does not merely provide specifics to a claim

previously made in Espinosa’s original § 2255 motion, but raises new claims.

       Accordingly, the district court did not abuse its discretion in ruling that the


       4
         Although Espinosa argues that the government waived any argument with respect to the
timeliness of his pretrial ineffective assistance claims by not objecting at the evidentiary hearing,
this argument is outside the scope of the COA, and, therefore, we do not consider it. See Murray
v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998).

                                                  6
new claims in the supplemental memorandum did not relate back to the original

§ 2255 motion under Rule 15(c)(1)(B).

      AFFIRMED.




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