Case: 19-13363 Date Filed: 06/11/2020 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-13363 Non-Argument Calendar ________________________ D.C. Docket No. 1:13-cv-20187-CMA NELSON VIERA, Petitioner-Appellant, versus FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (June 11, 2020) Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges. PER CURIAM: Nelson Viera, a Florida prisoner proceeding pro se, appeals the dismissal of his motion to set aside the order denying his 28 U.S.C. § 2254 petition. Viera argues that the district court erred in dismissing his motion for lack of jurisdiction Case: 19-13363 Date Filed: 06/11/2020 Page: 2 of 7 and without considering the merits of his allegations of fraud on the court. He also argues the district court erred in treating his motion as an impermissible second or successive § 2254 petition. After careful review, we affirm. *** On August 7, 2017, a Florida jury found Viera guilty of trafficking heroin. He was initially sentenced to 40-years imprisonment but appealed and, on remand, was resentenced to 25-years imprisonment. Viera sought post-conviction relief pursuant to Florida Rule of Criminal Procedure 8.850, which was denied. In January 2013, he filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the Southern District of Florida. Viera’s § 2254 petition raised numerous grounds for relief. Among these, he claimed that trial counsel was ineffective for failing to protect his constitutional right to confront a confidential informant (“CI”) named Jose Raul Gallardo, by not deposing him or securing his presence at trial. In support of this claim, Viera asserted that the state falsely claimed that Gallardo was unavailable to testify at trial because he had been deported when, in fact, Gallardo had not been deported. A magistrate judge recommended denying Viera’s § 2254 petition. As relevant here, it recommended denying Viera’s ineffective assistance claim based on counsel’s failure to call Gallardo. It reasoned that trial counsel adequately investigated the facts and Viera failed to produce competent evidence that the CI 2 Case: 19-13363 Date Filed: 06/11/2020 Page: 3 of 7 was actually available to testify at trial or would have provided exculpatory testimony were he available. The district court overruled Viera’s objections, adopted the magistrate judge’s recommendation, and denied the § 2254 petition. It held that trial counsel properly investigated whether the CI was available to testify and that Viera failed to establish “any tangible, prejudicial effect counsel’s alleged failure [to call the CI as a witness] had on Viera’s trial.” Viera’s motion for a certificate of appealability was denied. Viera v. Florida Dep’t of Corr., Case No. 13-15850 (11th Cir. May 20, 2014), ECF No. 6. In April 2019, Viera sought leave to file a second or successive § 2254 petition based on newly discovered evidence. A panel of this Court denied his motion. In re: Nelson Viera, Case No. 19-11295 (11th Cir. May 6, 2019), ECF No. 2. ...
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