Brian E. Bajorski v. United States ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 7, 2008
THOMAS K. KAHN
No. 06-16366
CLERK
Non-Argument Calendar
________________________
D. C. Docket Nos. 06-80328-CV-KLR & 04-80001 CR-KLR
BRIAN E. BAJORSKI,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 7, 2008)
Before DUBINA, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Appellant Brian Bajorski, a federal prisoner serving a 106-month sentence
for conspiracy to possess with the intent to distribute gamma hydroxybutyric acid
(GHB) and for carrying a firearm in relation to a drug trafficking crime, appeals
the district court’s denial of his motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255 (“§ 2255 motion”). Because he filed his § 2255
motion after the effective date of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Pub. L. No. 104-32, 110 Stat. 1214 (1996), the
provisions of that act apply. We granted a certificate of appealability on the
following issue:
Whether the district court erred in finding that appellant’s counsel at
the sentencing hearing was not ineffective for failing to move for a
continuance of the sentencing hearing until the U.S. Supreme Court
issued United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L.
Ed. 2d 621 (2005).1
On appeal, Bajorski argues that the district court erroneously found that his
counsel’s failure to request a continuance of his December 2004 sentencing
hearing did not constitute ineffective assistance in light of the fact that the court
indicated that it would have imposed a 72-month sentence if the Guidelines were
not mandatory. Bajorski contends that he timely raised the certified issue because
it relates back to his original § 2255 motion.
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The Supreme Court granted the petition for writ of certiorari on August 2, 2004.
United States v. Booker, 542 U.S. 956, 125 S. Ct. 11, 159 L. Ed. 2d 838 (2004). The Supreme
Court issued its opinion on January 12, 2005. Booker, 543 U.S. at 220, 125 S. Ct. at 738.
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I.
We review ineffective-assistance-of-counsel claims de novo. Chandler
v. United States, 218 F.3d 1305, 1312 (11th Cir. 2000). We may affirm on any
ground supported by the record, even if not addressed by the district court. McCoy
v. United States, 266 F.3d 1245, 1254 (11th Cir. 2001). Also, we may address
issues underlying the issue certified for appeal. Id. at 1248 n.2. Although we
liberally construe Bajorski’s pro se filings, his counseled pleadings are not so
construed. See Espey v. Wainwright, 734 F.2d 748, 749-50 (11th Cir. 1984).
A prisoner in federal custody may file a motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255, “claiming the right to be released
upon the ground that the sentence was imposed in violation of the Constitution or
laws of the United States, . . . or is otherwise subject to collateral attack.”
28 U.S.C. § 2255(a). A § 2255 motion must be filed within a one-year period of
limitation. 28 U.S.C. § 2255(f).
The United States Constitution provides that “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to have the Assistance of Counsel for his
defense.” U.S. Const. amend. VI. A defendant is entitled to the effective
assistance of counsel during sentencing. Jones v. United States, 224 F.3d 1251,
1259 (11th Cir. 2000). To make a successful claim of ineffective assistance of
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counsel, a defendant must show that: (1) his counsel’s performance was deficient;
and (2) the deficient performance prejudiced his defense. Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).
If the defendant cannot meet one of Strickland’s prongs, we do not need to address
the other prong. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).
In determining whether counsel gave adequate assistance, “counsel is
strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Strickland,
466 U.S. at 690, 104 S. Ct. at 2066. Counsel’s performance is deficient only if it
falls below the wide range of competence demanded of attorneys in criminal cases.
Id. at 689, 104 S. Ct. at 2065. The Supreme Court has defined prejudice as a
“reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694, 104 S. Ct. at 2068.
Although requests for continuance are not specifically addressed, Federal
Rule of Criminal Procedure 32 requires a district court to impose a sentence
“without unnecessary delay.” Fed.R.Crim.P. 32(b). We have considered an
ineffective assistance of counsel claim in the context of a counsel’s failure to
request a continuance. In order to assert a claim on this basis, the defendant must
establish an entitlement to the grant of the motion and prejudice from the failure to
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request the motion. See Jones v. Smith, 772 F.2d 668, 674 (11th Cir. 1985).
Nevertheless, we have held that counsel cannot be deemed ineffective for
failing to anticipate a change in the law. See Funchess v. Wainwright, 772 F.2d
683, 691 (11th Cir. 1985). Even if a claim based upon an anticipated change in the
law is reasonably available at the time counsel failed to raise it, such failure does
not constitute ineffective assistance. See Pitts v. Cook, 923 F.2d 1568, 1573-74
(11th Cir. 1991).
Assuming arguendo that Bajorski properly raised the certified claim before
the district court and that it was timely under AEDPA, we conclude that he failed
to establish the deficiency and prejudice prongs required by Strickland. His
counsel’s performance was not deficient because he was not required to act in
anticipation of Booker. Further, the district court stated that it would not have
granted the motion if it had been made. Thus, a reasonable probability does not
exist that a motion for continuance would have resulted in a hearing after Booker
and the subsequent imposition of a lesser sentence. Accordingly, we affirm the
district court’s order denying Bojorski’s § 2255 motion.
AFFIRMED.
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