Randall Scott Anderson v. United States , 633 F. App'x 520 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15569
Non-Argument Calendar
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D.C. Docket Nos. 4:14-cv-0114-HLM-WEJ,
4:11-cr-00006-HLM-WEJ-1
RANDALL SCOTT ANDERSON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
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(December 2, 2015)
Before TJOFLAT, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
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Randall Scott Anderson appeals the denial of his motion to vacate, set aside,
or correct his sentence, pursuant to 28 U.S.C. § 2255. We granted Anderson a
certificate of appealability on two issues:
1. Whether Mr. Anderson’s trial counsel’s mishandling of
argument and evidence regarding his HIV status and disclosure
constituted ineffective assistance resulting in a higher sentence.
2. Whether Mr. Anderson’s counsel rendered ineffective
assistance on direct appeal by failing to argue sufficiently the
impact on sentencing of the HIV information.
I.
We review an ineffective-assistance-of-counsel claim de novo as a mixed
question of law and fact. Payne v. United States, 566 F.3d 1276, 1277 (11th Cir.
2009). We review the district court’s factual findings for clear error. Murphy v.
United States, 634 F.3d 1303, 1306 (11th Cir. 2011).
To demonstrate ineffective assistance of counsel, the petitioner must show
that (1) his counsel’s representation fell below an objective standard of
reasonableness, and (2) there is a reasonable probability that the proceeding’s
result would have been different, but for his counsel’s ineffective assistance.
Chandler v. United States, 218 F.3d 1305, 1312-13 (11th Cir. 2000) (en banc). A
court is not required to consider the performance component of the
ineffective-assistance test before the prejudice component, nor is it required to
examine both components of the ineffective-assistance test if the defendant fails to
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show that he received objectively unreasonable representation or fails to show that
he suffered prejudice. Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct.
2052, 2069, 80 L. Ed. 2d. 674 (1984). We engage in a “highly deferential” review
of counsel’s performance. Chandler, 218 F.3d at 1314. We presume that a
petitioner’s counsel acted competently, and the petitioner must prove that his
attorney’s representation was unreasonable under prevailing professional norms.
Id at 1314 n.15. “[A] petitioner must establish that no competent counsel would
have taken the action that his counsel did take.” Id. at 1315.
Counsel does not have an absolute duty to investigate particular facts or
certain defenses. Id. at 1317. Counsel is not required to present all of the
mitigating evidence in the defendant’s favor, because effective advocacy “requires
winnowing out some arguments, witnesses, [and] evidence . . . to stress others.”
Id. at 1319 (internal quotation omitted).
At sentencing, the district court is permitted to consider any information
with sufficient indicia of reliability, so long as the court makes explicit findings of
credibility and the defendant is given an opportunity to rebut the evidence. United
States v. Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010). “A defendant has a due
process right, however, not to be sentenced based on false or unreliable
information.” Id. To prove a due process violation based on the court’s
consideration of false or unreliable information, a defendant must demonstrate that
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the evidence is “materially false or unreliable,” and that the district court actually
used that information as the basis for the sentence. Id. The defendant must show
that the court explicitly relied on the false or unreliable information. Id. In
United States v. Lebowitz, we determined that Lebowitz’s HIV status was relevant
to his offense of attempting to entice a child to engage in unlawful sexual activity
because “clandestine exposure of his minor victims to even a minimal risk of HIV
infection was a circumstance of his offense conduct.” 676 F.3d 1000, 1006, 1016
(11th Cir. 2012).
Anderson has not shown that his sentencing counsel provided deficient
representation by failing to rebut the Government’s statement that he never
disclosed his HIV status to an undercover officer because the Government did not
provide false information to the court when it said that Anderson withheld his HIV
status from the undercover officer during their communications. Anderson never
claimed that he affirmatively communicated his HIV status to the undercover
officer, and the Government’s argument relied on a factual assertion that he
withheld his HIV status by not affirmatively communicating it. Because the
Government did not provide materially false or unreliable information, Anderson’s
sentencing counsel did not render ineffective assistance by failing to counter the
alleged due process violation, because a competent attorney could have chosen to
focus on other arguments for a lower sentence rather than questioning the
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Government’s interpretation of the conversations between Anderson and the
undercover officer. See Chandler, 218 F.3d at 1319 (acknowledging that
competent counsel can choose not to present all mitigating information in order to
emphasize particular information).
Anderson also has not shown that he was prejudiced by his counsels’ failure
to object to the Government’s claim that he carried an “extremely communicable”
disease or their failure to present evidence to show the minimal risk of HIV
transmission. The district court enunciated several other aggravating factors that
justified Anderson’s within-guidelines imprisonment sentence. Furthermore, the
district court did not indicate clearly that it considered whether Anderson’s HIV
was highly communicable, because it only stated that Anderson was HIV-positive
and that any sexual act with the potential victims would have endangered them.
Finally, the district court still could have considered evidence that Anderson was
extremely unlikely to transmit HIV as evidence of an aggravating factor. See
Lebowitz, 676 F.3d at 1016. Therefore, we affirm the district court’s denials of
Anderson’s ineffective-assistance-of-sentencing-counsel claims.
II.
A petitioner raising an ineffective-assistance claim relating to the
performance of appellate counsel must show that (1) the counsel’s performance fell
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below an objective standard of reasonableness, and (2) the outcome of his appeal
would have been different, but for the unreasonably deficient performance. Black
v. United States, 373 F.3d 1140, 1142 (11th Cir. 2004). An attorney is not required
to raise all non-frivolous issues on appeal. Payne, 566 F.3d at 1277. An appellate
attorney may render objectively unreasonable performance by ignoring a
well-defined legal principle, but an error in judgment concerning an unsettled
principle generally will not be considered deficient performance. Black, 373 F.3d
at 1144.
Anderson has not demonstrated that he received ineffective assistance from
his appellate counsel because there was not a reasonable probability that the
evidence presented during his § 2255 proceedings would have changed our
conclusion on direct appeal that the district court committed no error by
considering Anderson’s HIV status as an aggravating factor. Anderson’s claim on
direct appeal that the district court erred by considering his HIV status as an
aggravating factor was foreclosed by prior precedent. Moreover, Anderson’s brief
on direct appeal argued that the district court issued an unreasonable sentence
because it had no evidence to show that Anderson’s intended sexual activity would
have endangered the minors, and we rejected his claim on Eighth Amendment and
substantive reasonableness grounds. Anderson argues that his appellate counsel
could have distinguished his case from Lebowitz, but any error in judgment
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regarding an unsettled principle of law does not demonstrate that his appellate
counsel rendered deficient performance. Because Anderson has not shown that
there was a reasonable probability of a different result if his attorneys had
presented evidence about the unlikelihood of HIV transmission on direct appeal,
we affirm the district court’s denial of his claim based on ineffective assistance of
appellate counsel.
Therefore, we affirm the district court’s denial of Anderson’s § 2255 motion
to vacate.
AFFIRMED.
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