David Hayden v. USA, No. 15-12104 (11th Cir. 2016)

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Case: 15-12104 Date Filed: 12/20/2016 Page: 1 of 2 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 15-12104 Non-Argument Calendar ________________________ D.C. Docket No. 2:14-cv-14091-KMM; 2:11-cr-14044-KMM-1 DAVID HAYDEN, Petitioner - Appellant, versus UNITED STATES OF AMERICA, Respondent - Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (December 20, 2016) Before TJOFLAT, MARCUS, and JORDAN, Circuit Judges. PER CURIAM: Case: 15-12104 Date Filed: 12/20/2016 Page: 2 of 2 David Hayden, a federal prisoner proceeding with counsel, appeals the district court’s denial of his motion to vacate under 28 U.S.C. § 2255. We granted Mr. Hayden a certificate of appealability on a single issue: “Whether Hayden’s appellate counsel was constitutionally ineffective for failing to raise on direct appeal the issue of whether the district court abused its discretion in admitting and publishing videos depicting child pornography to the jury in open court.” Mr. Hayden’s counsel, however, failed to raise any substantive arguments concerning this issue in his nearly 50-page opening brief. Because arguments not raised in an opening brief are not properly before this Court, See Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005), and because “the scope of our review of an unsuccessful § 2255 motion is limited to the issues enumerated in the COA,” McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011), we affirm the district court’s denial of the § 2255 motion. 1 AFFIRMED. 1 We add, in an abundance of caution, that the reply brief fails to show that appellate counsel rendered constitutionally deficient performance under Strickland v. Washington, 466 U.S. 668 (1984), and its progeny. 2

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