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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-12435
Non-Argument Calendar
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D.C. Docket Nos. 8:17-cv-01052-SDM-AEP; 8:13-cr-00230-SDM-AEP-4
ANTONIUS RUSSEL FORD,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 24, 2021)
Before WILSON, ANDERSON, and BLACK, Circuit Judges.
PER CURIAM:
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Antonius Ford appeals the district court’s denial of his
28 U.S.C. § 2255
motion asserting that his trial counsel was ineffective for failing to request a jury
instruction on a lesser-included offense of his charge of conspiracy to possess with
intent to distribute cocaine. This Court granted a certificate of appealability as to
“[w]hether trial counsel was constitutionally ineffective in failing to request that
the district court instruct the jury on the lesser-included offense of conspiracy to
possess cocaine, and whether the district court abused its discretion in denying this
ineffective assistance of counsel claim without an evidentiary hearing.”
Ford asserts he established both prongs of the ineffective assistance standard
in Strickland v. Washington,
466 U.S. 668 (1984). Specifically, Ford contends
that, because the trial evidence did not support a conclusion he intended to
distribute cocaine, reasonable counsel would have requested the lesser-included
offense instruction. He asserts his trial counsel’s performance prejudiced him
because, had the lesser-included offense instruction been given, there is a
reasonable probability the jury would have convicted him of only the lesser offense
and his resulting sentence would have been significantly lower. Alternatively,
Ford contends the district court abused its discretion by denying his § 2255 motion
without holding an evidentiary hearing. After review, 1 we affirm the district court.
1
In § 2255 proceedings, we review legal conclusions de novo and factual findings for
clear error. Osley v. United States,
751 F.3d 1214, 1222 (11th Cir. 2014). We review de novo a
claim of ineffective assistance of counsel, which is a mixed question of law and fact.
Id. We
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To prove ineffective assistance of counsel, a defendant must show that:
(1) counsel’s performance was deficient; and (2) the deficient performance
prejudiced the defendant. Strickland,
466 U.S. at 687. Counsel’s performance is
deficient only if it falls below the wide range of competence demanded of
attorneys in criminal cases. Strickland,
466 U.S. at 687-89. The defendant must
show that “his attorney’s representation was unreasonable under prevailing
professional norms and that the challenged action was not sound strategy.”
Kimmelman v. Morrison,
477 U.S. 365, 384 (1986). To meet that standard, the
defendant must establish that no competent counsel would have taken the action
that his counsel took, taking into consideration only what reasonably could have
motivated counsel and not counsel’s actual strategy or oversights. Gordon v.
United States,
518 F.3d 1291, 1301 (11th Cir. 2008). “The reasonableness of
counsel’s performance is to be evaluated from counsel’s perspective at the time of
the alleged error and in light of all of the circumstances.” Kimmelman,
477 U.S. at
384.
A defendant may request a jury instruction on lesser-included offenses if he
establishes that the charged offense encompasses all of the elements of a lesser
offense. United States v. Whitman,
887 F.3d 1240, 1246 (11th Cir. 2018); see also
review a district court’s denial of an evidentiary hearing in a § 2255 proceeding for abuse of
discretion. Aron v. United States,
291 F.3d 708, 714 n.5 (11th Cir. 2002).
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Fed. R. Crim. P. 31(c)(1). The defendant also must establish that the evidence
would have permitted a rational jury to find him guilty of the lesser offense but
acquit him of the greater offense. United States v. Gumbs,
964 F.3d 1340, 1348-49
(11th Cir. 2020).
The district court did not err in denying Ford’s ineffective assistance of
counsel claim because he failed to show that trial counsel’s decision not to request
a lesser-included offense instruction constituted deficient performance. Ford has
not shown that no competent counsel would have foregone the lesser-included
offense instruction for the chance that, with minimal evidence of distribution, the
jury would have acquitted him on the sole conspiracy to distribute charge. See
Kimmelman,
477 U.S. at 384; Gordon,
518 F.3d at 1301. Trial counsel’s own
theory of defense, which included admitting to Ford’s possession of cocaine but
arguing that the Government could not prove that he planned to distribute it,
supports that foregoing the lesser-included offense instruction was a reasonable
trial strategy. Ford cannot show that his trial counsel erred by pursuing a total
acquittal, let alone that no objectively competent counsel would have done so. See
Kimmelman,
477 U.S. at 384 (holding that the defendant must show that “the
challenged action was not sound strategy”); Gordon,
518 F.3d at 1301. And
because the inquiry is an objective one, i.e., what a reasonably competent lawyer
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would have done, Ford’s trial counsel’s arguable admission of error in his affidavit
is not controlling. See Gordon,
518 F.3d at 1301.
Second, trial counsel could not have been deficient for failing to anticipate a
change in this Court’s law, and, in any event there was not a precedential change
because this Court’s decision in United States v. Gray, 544 F. App’x 870, 893
(11th Cir. 2013), issued after Ford’s trial, was unpublished. See Steiner v. United
States,
940 F.3d 1282, 1293 (11th Cir. 2019) (“An attorney’s failure to anticipate a
change in the law does not constitute ineffective assistance.”); United States v.
Izurieta,
710 F.3d 1176, 1179 (11th Cir. 2013) (“Unpublished opinions are not
binding precedent.”).
Third, because trial counsel’s performance was not constitutionally deficient
under the totality of the circumstances, we need not consider whether the district
court also correctly concluded that Ford did not show prejudice. See Holladay v.
Haley,
209 F.3d 1243, 1248 (11th Cir. 2000) (explaining because both parts of the
Strickland test must be met, we need not consider one prong if the defendant fails
to establish the other). Finally, because Ford’s allegation that trial counsel’s
performance was deficient was affirmatively contradicted by the record, for the
reasons explained above, the district court also did not abuse its discretion by
denying his request for an evidentiary hearing. See Aron v. United States,
291 F.3d
708, 715 (11th Cir. 2002) (stating the district court is not required to hold an
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evidentiary hearing if the defendant’s “allegations are affirmatively contradicted by
the record”).
Even accepting all of the facts Ford alleged in his § 2255 motion as true and
construing them in his favor, including the statements trial counsel made in his
affidavit, Ford did not show that no reasonable counsel would have chosen not to
request the lesser-included offense instruction in favor of pursuing a total acquittal.
Accordingly, we affirm.
AFFIRMED.
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