[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCTOBER 25, 2006

THOMAS K. KAHN

N o . 05-15216

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket Nos. 04-01613-CV-ORL-19-DAB & 01-00183-CR-ORL

A U B R E Y JERMAINE CUMMINGS,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

A p p e al from the United States District Court

fo r the Middle District of Florida

(O cto b er 25, 2006)

B efo re MARCUS, WILSON and PRYOR, Circuit Judges.

P E R CURIAM:

A u b rey Jermaine Cummings, a pro se federal prisoner serving a life term of im p riso n m en t -- an enhanced term, pursuant to 21U.S.C. § 841(b)(1)(A), based on th e fact that Cummings previously had been convicted of three felony drug o ffen ses -- for conspiring to possess with intent to distribute 50 grams or more of cr ac k cocaine and 5 kilograms or more of cocaine, appeals the district court's d en ial of his 28U.S.C. § 2255 motion to vacate his sentence. 1 On appeal, C u m m in g s argues that the district court erred by finding that his claims were p ro ced u rally barred. We review a district court's legal conclusions in a 28U.S.C.

§ 2255 proceeding de novo. Garcia v. United States, 278 F.3d 1210, 1212 (11th C ir. 2002). After careful review, we affirm.

In his motion to vacate, Cummings asserted the following claims, which we h a v e slightly rephrased as follows: (1) the original trial court lacked subject matter ju risd ictio n because the indictment alleged a non-offense; (2) in light of Apprendi v . New Jersey2 and Blakely v. Washington,3 his conviction and life sentence must b e vacated; and (3) he received ineffective assistance of counsel. The district court f o u n d that the first two claims were procedurally barred because they had not been raised on direct appeal and that Cummings had not alleged or demonstrated cause a n d prejudice to excuse the procedural default. The district court determined that th e ineffective-assistance claim failed on the merits, under the applicable Strick la n d v. Washington 4 standard. We granted a certificate of appealability on o n e issue:5 W h e th e r the district court improperly determined that [rep h rased ] claims [(1) and (2)] listed in appellant's 28U.S.C.

§ 2255 motion to vacate were procedurally barred? O n appeal, Cummings argues, in essence, that claims (1) and (2) were collateral a tta ck s based on ineffective assistance of counsel and, therefore, the district court im p ro p erly determined that they were procedurally barred based on his failure to a ss er t them on direct appeal. Thus, he urges the district court should have reached th e merits of the claims.

" U n d e r the procedural default rule, a defendant generally must advance an av ailab le challenge to a criminal conviction or sentence on direct appeal or else the d efen d an t is barred from presenting that claim in a § 2255 proceeding." Lynn v. U n ited States, 365 F.3d 1225, 1234 (11th Cir. 2004). By contrast, the Supreme C o u rt has held that "an ineffective-assistance-of-counsel claim may be brought in a c o lla te ra l proceeding under § 2255, whether or not the petitioner could have raised th e claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504 (2003).

M o reo v er, we generally will not consider on direct appeal claims of ineffective assistan c e of counsel if the district court neither entertained the claims nor d ev elo p ed a factual record. United States v. Bender, 290 F.3d 1279, 1284 (11th C ir. 2002).

C o n stru in g Cummings's pro se pleadings liberally, as the district court also w as required to do, Mederos v. United States, 218 F.3d 1252, 1254 (11th Cir. 2 0 0 3 ) , it is clear that Cummings's claims (1) and (2) were, in fact, collateral attack s asserting ineffective assistance of counsel. On his § 2255 motion form, C u m m in g s stated that these claims were being raised because of his prior counsel's failu re to raise them at trial or on direct appeal. Moreover, on the form he e x p lic itly identified the Apprendi/Blakely claims as being ineffective-assistance claim s. And in the memorandum that Cummings filed in conjunction with his § 2255 form, he noted that his attorney had failed to make Apprendi objections, resu ltin g in his conviction and subsequent enhanced sentence. In a later pleading, C u m m in g s stated that his claims were "raised in conjunction with ineffective as sistan ce of counsel claims." Finally, in his reply brief to the government's r esp o n se to his § 2255 motion, Cummings reiterated his prior assertions of c o u n s el's failure to object on Apprendi grounds, explicitly noted counsel's failure to object to the sufficiency of the indictment, and identified all of these failures as d em o n stratin g ineffective assistance of counsel.

Cummings's pleadings, liberally construed, set out specific failures by his trial counsel and assert that each of these failures rendered counsel constitutionally in e ffectiv e. As ineffective-assistance-of-counsel claims may be raised in a § 2255 m o tio n , regardless of whether they could have been raised on direct appeal, the d is tr ic t court improperly determined that Cummings's claims (1) and (2) were p ro ced u rally barred. Despite this error, we need not remand for the district court to co n sid er the claims, as Cummings urges us to do, because our own review of the m e r its reveals that the claims have no merit. Cf. Peoples v. Campbell, 377 F.3d 1 2 0 8 , 1235-36 (11th Cir. 2004) (in the § 2254 context, opting to review merits of in effectiv e-assistan ce claims for the first instance on appeal, rather than remanding, w h ere the district court erroneously found claims were procedurally defaulted and d id not reach merits).

To demonstrate that counsel's assistance was so defective as to require rev ersal of a conviction, a defendant must show that (1) counsel's errors were so d eficien t as to render his assistance not reasonably effective, and (2) there is a r e aso n ab le probability that, but for counsel's errors, the result of the proceeding w o u ld have been different. Strickland v. Washington, 466 U.S. 668, 687-96 (1 9 8 4 ). "A reasonable probability is a probability sufficient to undermine c o n f id e n c e in the outcome." Id. at 694. When the effectiveness of counsel at sen ten cin g is questioned, the test is not whether the sentencing court might have issu e d a different sentence, but only whether the original sentence comported with th e law. Jones v. United States, 224 F.3d 1251, 1259 (11th Cir. 2000).

C u m m in g s asserts his counsel rendered constitutionally defective assistance w h en he (1) failed to object on the ground that the indictment charged Cummings w ith a "non-offense" because it stated that he conspired with other persons without sp ecifically identifying a co-conspirator, and (2) failed to object on Apprendi or B lak ely grounds to the district court's finding of drug type and drug quantity in c o n v ic tin g and sentencing Cummings. Simply put, both of these claims fail under th e first prong of Strickland. First, counsel was not constitutionally deficient for failin g to object to the absence of a specified co-conspirator in the indictment b ecau se, under the law of this Circuit, "an individual can be convicted of co n sp iracy with `unknown persons' referred to in the indictment." United States v. F ig u e ro a , 720 F.2d 1239, 1244-45, 1245 n. 8 (11th Cir.1983). Second, counsel w as not constitutionally deficient for failing to object on Apprendi or B lak ely grounds because the indictment charged and the jury specifically found th a t Cummings's drug offense had involved more than five kilograms of cocaine, th u s making him eligible for 21U.S.C. § 841(b)(1)(A)'s statutory maximum sen ten ce of life imprisonment, which he received.

Accordingly, we affirm the denial of Cummings's § 2255 motion, albeit on d ifferen t grounds from the district court's analysis. Cf. Powers v. United States, 9 9 6 F.2d 1121, 1123-24 (11th Cir.1993) (stating that this Court can affirm on any g r o u n d that appears in the record, "whether or not that ground was relied upon or e v e n considered by the court below").

A F F IR M E D .

1 We previously affirmed Cummings's convictions and sentence. See United States v. Cummings, No. 02-14349 (11th Cir. Jun. 6, 2003) (unpublished).

2 Apprendi v. New Jersey, 530 U.S. 466 (2000).

3 Blakely v. Washington, 542 U.S. 296 (2004).

4 Strickland v. Washington, 466 U.S. 668, 688-90 (1984) 5 To the extent Cummings raises other arguments beyond the scope of our COA, we do not consider them.