Donald Duhart v. United States , 556 F. App'x 897 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATS COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
No. 12-15350
Non-Argument Calendar
_____________________________
D.C. Docket Nos. 0:11-cv-62319-KAM,
0:08-cr-60309-KAM-1
DONALD DUHART,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
_____________________________
Appeal from the United States District Court
for the Southern District of Florida
_____________________________
(February 28, 2014)
Before TJOFLAT, JORDAN, and COX, Circuit Judges.
PER CURIAM:
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Donald Duhart, a federal prisoner proceeding pro se, appeals the district
court’s denial of his 28 U.S.C. § 2255 motion to vacate his conviction based on his
guilty plea and his resulting sentence. We granted Duhart a certificate of
appealability (COA) on two issues:
(1)Whether the district court erred in concluding that Claim
One (claiming ineffective assistance of counsel) was waived by virtue
of Duhart’s voluntary and knowing guilty plea; and
(2) If the district court erred in concluding that Claim One was
waived, whether it properly denied his sub-claim that counsel was
ineffective in the pre-plea stage for advising him that U.S.S.G.
§ 2B3.1(b)(3)(C) applied to his conduct.
(See Dkt. 27). While we agree with Duhart that the district court erred by finding
that he waived the ability to challenge the knowing and voluntary nature of his
guilty plea, we affirm his conviction and sentence because Duhart fails to show
that his counsel provided ineffective assistance that impacted the knowing and
voluntary nature of his guilty plea.
We review a district court’s factual findings for clear error on a motion to
vacate, set aside, or correct a sentence, and we review the district court’s legal
determinations de novo. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir.
2004). Whether counsel provided ineffective assistance is a mixed question of law
and fact that we also review de novo. Gomez-Diaz v. United States, 433 F.3d 788,
790 (11th Cir. 2005).
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Ordinarily, a defendant’s knowing and voluntary guilty plea waives all
nonjurisdictional defects in the proceedings. United States v. Yunis, 723 F.2d 795,
796 (11th Cir. 1984). But, a defendant can still maintain an attack on the voluntary
and knowing nature of the guilty plea itself. Such an attack can be based upon
ineffective assistance of counsel claims that go to the knowing and voluntary
nature of the plea. See Wilson v. United States, 962 F.2d 996, 997 (11th Cir.
1992). Because Duhart’s claim of ineffective assistance of counsel challenged the
knowing and voluntary nature of the plea itself, the district court erred by
concluding (based upon the magistrate judge’s recommendation) that Duhart had
waived the ability to raise this claim. See Wilson, 962 F.2d at 997.
The district court should have applied Strickland v. Washington’s, 466 U.S.
668, 104 S. Ct. 2052 (1984), test and evaluated the merits of Duhart’s claim. See
Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370 (1985). The two-part
Strickland test “applies to challenges to guilty pleas based on ineffective assistance
of counsel.” Id. To establish a constitutional claim for ineffective assistance of
counsel, a petitioner must establish two things: (1) that counsel’s performance was
deficient and (2) that the deficient performance prejudiced the outcome of the case.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To succeed, a petitioner must
satisfy both prongs. If a petitioner cannot satisfy one prong, we need not review
the other prong. Id. at 697, 104 S. Ct. at 2069.
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To prove deficient performance under the first prong of Strickland, the
prisoner must show that counsel made errors so serious that petitioner’s counsel
failed to function as the counsel guaranteed by the Sixth Amendment. Id. at 687,
104 S. Ct. at 2064. The prisoner must show “that counsel’s representation fell
below an objective standard of reasonableness” measured against “prevailing
professional norms.” Id. at 688, 104 S. Ct. at 2064–65. Scrutiny of counsel’s
performance is highly deferential, and a strong presumption exists that counsel’s
performance fell within the range of reasonable professional assistance. Id. at 689,
104 S. Ct. at 2065. While counsel’s “tactical or strategic decision is unreasonable
if it is based on a failure to understand the law,” Hardwick v. Crosby, 320 F.3d
1127, 1163 (11th Cir. 2003), “counsel will not have rendered deficient
performance for an error in judgment” where the “legal principle at issue is
unsettled.” Black v. United States, 373 F.3d 1140, 1144 (11th Cir. 2004).
Under U.S.S.G. § 2B3.1(b)(3)(C), a defendant’s offense level is increased by
six “[i]f any victim sustained bodily injury” and if the degree of bodily injury was
permanent or life threatening. U.S.S.G. § 2B3.1(b)(3)(C). Although several of our
sister courts of appeals have held that bystanders and responding police officers
qualify as victims under § 2B3.1(b)(3)(C), the parties have called to our attention
no binding caselaw of either the Supreme Court or this Court that has decided the
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question of whether a co-defendant injured during a robbery qualifies as a victim
under U.S.S.G. § 2B3.1(b)(3)(C).
Duhart claims that his counsel performed ineffectively by advising him to
accept a plea agreement applying the § 2B3.1(b)(3)(C) bodily-injury enhancement
and failing to challenge the enhancement’s applicability where his codefendant
was the “victim.” Despite these contentions, the district court did not err in
denying Duhart’s ineffective assistance claim because his counsel’s advice to enter
into this plea agreement fell within the range of reasonable professional assistance.
Although none of the cases the Government brought to our attention directly
address the issue of whether the term “victim” for the purposes of § 2B3.1(b)(3)(C)
includes a co-defendant, these cases do illustrate a body of persuasive law from
which the Government could have reasonably argued that the enhancement applied
in this case—and on which the district court in fact relied in determining that the
enhancement did apply. See United States v. Garcia-Ortiz, 528 F.3d 74 (1st Cir.
2008); United States v. Hidalgo, 197 F.3d 1108, 1109 (11th Cir. 1999). A
reasonable attorney could have challenged the applicability of the enhancement
based on the absence of controlling law. But it was not objectively unreasonable
for counsel to have advised Duhart that the enhancement applied given the absence
of controlling law on the issue. See Black v. United States, 373 F.3d 1140, 1144
(11th Cir. 2004); see also Pitts v. Cook, 923 F.2d 1568, 1573 (11th Cir. 1991).
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Given the penalties Duhart faced, it was not objectively unreasonable for
counsel to advise him to enter into a plea agreement which included the
enhancement in exchange for the Government agreeing to dismiss three other
counts against him—one of which carried a maximum penalty of life
imprisonment. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064–65. Because we
conclude that Duhart failed to establish deficient performance under the first prong
of the Strickland test, we need not address the second prong of the test involving
prejudice. Id. at 697, 104 S. Ct. at 2069. After careful consideration of the parties’
arguments, we affirm the district court’s dismissal of Duhart’s 28 U.S.C. § 2255motion. 1
AFFIRMED.
1
Duhart’s motion to file his reply brief out of time is GRANTED.
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