Richard Anthony Siler v. United States

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12701
Non-Argument Calendar
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D.C. Docket Nos. 1:17-cv-24294-DPG; 1:14-cr-20116-DPG-1
RICHARD ANTHONY SILER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 21, 2021)
Before GRANT, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Richard Siler, a federal prisoner proceeding pro se, appeals the district
court’s denial of his petition under 28 U.S.C. § 2255. We granted a certificate of
appealability (“COA”) on three issues: (1) whether Siler’s appellate counsel was
ineffective for not arguing that the district court erred by refusing to clarify a jury
question; (2) whether the district court erred by failing to address whether the
cumulative error of claims 1 through 12 warranted habeas relief; and (3) whether
the district court abused its discretion in failing to hold an evidentiary hearing.
I.
In § 2255 proceedings, we review a district court’s legal conclusions de novo
and its factual findings for clear error. Rhode v. United States, 583 F.3d 1289,
1290 (11th Cir. 2009). The scope of review on appeal is limited to the issues
specified in the COA. Id. at 1290-91.
The Sixth Amendment guarantees criminal defendants the right to the
assistance of counsel during criminal proceedings against them. Strickland v.
Washington, 466 U.S. 668, 684-85 (1984). To prevail on a claim of ineffective
assistance of counsel, a petitioner must demonstrate that: (1) his or her counsel’s
performance was deficient, i.e., the performance fell below an objective standard
of reasonableness; and (2) he or she suffered prejudice as a result of that
deficiency. Id. at 687-88. The benchmark for judging a claim of ineffective
assistance of counsel is whether counsel’s performance so undermined the proper
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functioning of the adversarial process that the trial cannot be relied on as having
produced a just result. Id. at 686. Ineffective assistance of counsel claims present
mixed questions of law and fact, which we review de novo. Osley v. United States,
751 F.3d 1214, 1222 (11th Cir. 2014).
To establish deficient performance, the defendant must show that, in light of
all the circumstances, counsel’s performance was outside the wide range of
professional competence. Strickland, 466 U.S. at 690. “Surmounting Strickland’s
high bar is never an easy task.” Harrington v. Richter, 562 U.S. 86, 105 (2011)
(internal quotation marks omitted). There is a “strong presumption” that an
attorney’s performance was reasonable, and that their strategic decisions
represented “the exercise of reasonable professional judgment.” Strickland, 466
U.S. at 689-90.
Regarding the prejudice component, the Supreme Court has explained “[t]he
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id.
at 694. A reasonable probability is one sufficient to undermine confidence in the
outcome. Id.Once a court has determined that the defendant fails to establish either the
performance or prejudice prong, it need not address the remaining prong.
Strickland, 466 U.S. at 697.
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Claims of ineffective appellate counsel are governed by the same standards
applied to trial counsel under Strickland. Dell v. United States, 710 F.3d 1267,
1273 (11th Cir. 2013). In the appellate context, the Supreme Court has observed
that “it is difficult to demonstrate that counsel was incompetent.” Smith v.
Robbins, 528 U.S. 259, 288 (2000). “[A]ppellate counsel who files a merits brief
need not (and should not) raise every nonfrivolous claim, but rather may select
from among them in order to maximize the likelihood of success on appeal.” Id.Indeed, a “brief that raises every colorable issue runs the risk of burying good
arguments . . . in a verbal mound made up of strong and weak contentions.” Jones
v. Barnes, 463 U.S. 745, 753 (1983). Appellate counsel is not ineffective for
failing to raise claims reasonably considered to be without merit. United States v.
Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000).
We review a district court’s response to a jury question solely for an abuse
of discretion. United States v. Lopez, 590 F.3d 1238, 1247 (11th Cir. 2009).
District courts have considerable discretion as to the extent and character of
supplemental jury instructions, but they do not have discretion to misstate the law
or confuse the jury. Id. “A challenged supplemental jury instruction is reviewed
as part of the entire jury charge, in light of the indictment, evidence presented and
argument of counsel to determine whether the jury was misled and whether the
jury understood the issues.” Id. at 1248. We will reverse only when we are left
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with a substantial and ineradicable doubt as to whether the jury was properly
guided in its deliberations. Id.A defendant who challenges the district court’s handling of a jury question
must show that the district court’s answer prejudiced him. United States v.
Pacchioli, 718 F.3d 1294, 1306 (11th Cir. 2013). The district court has broad
discretion when responding to a jury request that evidence be reread. United States
v. Delgado, 56 F.3d 1357, 1370 (11th Cir. 1995). No reversible error exists if the
district court’s original and supplemental instructions accurately present the
substantive law. United States v. Sanfilippo, 581 F.2d 1152, 1154 (5th Cir. 1978).
Here, appellate counsel was not ineffective because the district court did not
abuse its discretion in responding to the jury’s question. At trial, Siler failed to
develop a record conclusively establishing whether it is legal, in some
circumstances, to sell another person’s Social Security number. It therefore would
have been improper for the district court to answer the jury’s question with a
simple “yes,” as Siler requested. Doing so would have required the district court to
interpret ambiguous evidence in Siler’s favor and would have misled the jury by
presenting new facts not already found in the trial record.
The district court also had broad discretion in deciding whether to reread
certain evidence potentially bearing on this topic. Siler asked the district court to
direct the jury to a particular witness’s testimony that some private businesses
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legally sell “client information,” but that testimony did not specifically resolve the
jury’s question regarding Social Security numbers. Consequently, there was a
significant risk that rereading this evidence would only confuse or mislead the jury.
The district court therefore acted within its discretion by instead directing the jury
to rely on the evidence in the record and the original jury instructions.
Because the district court did not abuse its discretion in answering jury’s
question, Siler’s appellate counsel did not act ineffectively by failing to raise this
non-meritorious claim. Accordingly, we affirm as to this issue.
II.
We review de novo whether the district court adequately addressed all of the
claims in a § 2255 motion. Dupree, 715 F.3d at 1298. We have held that a district
court must resolve all claims for relief raised in a § 2255 motion, regardless of
whether relief is granted or denied and regardless of whether the claims for relief
arise out of the same operative facts. Clisby v. Jones, 960 F.2d 925, 936 (11th Cir.
1992) (addressing a § 2254 petition); see also Rhode, 583 F.3d at 1291–92
(applying Clisby in the § 2255 context). A “claim for relief” is defined as “any
allegation of a constitutional violation.” Clisby, 960 F.2d at 936. Allegations of
distinct constitutional violations constitute separate claims for relief, even if the
allegations arise from the same operative facts. Id.6
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If the district court failed to consider a claim raised in a § 2255 motion, we
will vacate and remand the case to allow the district court to consider the claim.
Clisby, 960 F.2d at 938. Under Clisby, our only role is to determine whether the
district court failed to address a claim, and, where we determine that it did, to
vacate the judgment without prejudice and remand the case for consideration of the
claim. Dupree, 715 F.3d at 1299. We do not address whether the underlying claim
is meritorious. Id.
Here, the district court implicitly addressed Siler’s cumulative-error claim
by separately addressing each of his other claims and finding no error by trial or
appellate counsel. Where there is no error or only a single error, there can be no
cumulative error. United States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011).
The district court also found explicitly that none of the alleged errors, either
individually or cumulatively, deprived Siler of his right to a fair trial and due
process of law. Accordingly, we affirm as to this issue as well.
III.
We review the district court’s denial of an evidentiary hearing for abuse of
discretion. Breedlove v. Moore, 279 F.3d 952, 959 (11th Cir. 2002). Whenever a
§ 2255 movant alleges facts that, if true, would entitle him to relief, the district
court should order an evidentiary hearing. Aron v. United States, 291 F.3d 708,
714-15 (11th Cir. 2002). The district court is not required to hold a hearing,
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however, if the petitioner’s claims are affirmatively contradicted by the record or
are patently frivolous. Id.; see also 28 U.S.C. § 2255(b) (establishing an exception
to the notice and evidentiary hearing requirement where the record conclusively
shows that the prisoner is entitled to no relief).
A party who fails to object to a factual or legal finding contained in a
magistrate judge’s report and recommendation waives the right to challenge that
finding on appeal, if the party was informed of the time period for objecting and
the consequences on appeal for failing to object. 11th Cir. R. 3-1. In the absence
of a proper objection, however, we may review on appeal for plain error when
necessary in the interests of justice. Id.Here, the district court did not commit plain error or abuse its discretion by
denying Siler an evidentiary hearing because the claims in his § 2255 motion were
unsupported by the record. Siler’s claims at issue on appeal raised purely legal
questions, not disputed issues of fact, and thus his § 2255 motion did not allege
facts that, if true, would have entitled him to relief. An evidentiary hearing was
therefore unnecessary, and we affirm as to this final issue.
AFFIRMED.
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