Anthony Bernard Etheridge v. United States

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 24, 2008
No. 06-14023 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos.
04-21090-CV-PAS & 01-00653 CR-PAS
ANTHONY BERNARD ETHERIDGE,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 24, 2008)
Before TJOFLAT, ANDERSON and PRYOR, Circuit Judges.
PER CURIAM:
On July 13, 2001, Southern District of Florida grand jury returned a two-
count indictment against petitioner, Anthony Bernard Etheridge, and Isaiah Byrnes,
charging them in Count I with conspiracy to possess with intent to distribute five
kilograms or more of cocaine, in violation of 21 U.S.C. § 846, and in Count II with
possession of 500 or more grams of cocaine with intent to distribute, in violation of
21 U.S.C. § 841(a). Plea negotiations failed, the Government filed Notice of
Sentencing Enhancement under 21 U.S.C. § 851, and petitioner proceeded to trial.
The jury found him guilty, and the district court sentenced him to prison sentences
totaling 240 months. He appealed his convictions, claiming as a ground for
reversal that his attorney rendered constitutionally ineffective assistance of
counsel. We affirmed his convictions without reaching the ineffective assistance
issue. United States v. Etheridge, 65 Fed. Appx. 714 (11th Cir. 2003)(table).
On May 10, 2004, petitioner moved the district court to vacate his
convictions on the ineffective assistance ground he had raised on direct appeal. He
contended that he received ineffective assistance of counsel because his attorney,
although operating under a mistaken belief, advised him that there was an offer of
120-months’ incarceration available to him as long as he did not take his case to
trial. He says that this affirmative misrepresentation, together with the fact that the
outcome of his case would have been different absent the misrepresentation,
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amounted to ineffective assistance of counsel. Following extensive evidentiary
hearings before a magistrate judge and ultimately the district court, the district
court found that no agreement had existed between defense counsel and the
prosecutor initially assigned to the case – to the effect that the Government’s offer
to accept a plea of guilty and recommend sentences totaling 120 months would be
available up to the day of trial – and that counsel was not ineffective for failing to
memorialize his understanding of such agreement in writing. The court therefore
denied petitioner’s motion on the ground that petitioner failed to satisfy
Strickland’s first prong, ineffective performance of counsel. We issued a
certificate of appealability, thusly:
Whether trial counsel was ineffective for advising [petitioner] that the
government’s 12-month plea offer would continue to be available
until trial.
The Sixth Amendment gives criminal defendants the right to effective
assistance of counsel. U.S. Const., amend. VI; Strickland v. Washington, 466 U.S.
668, 684-86, 104 S.Ct. 2052, 2063 (1984). To prevail on a claim of ineffective
assistance of counsel, the defendant must demonstrate (1) that his counsel's
performance was deficient, i.e., the performance fell below an objective standard of
reasonableness, and (2) that he suffered prejudice as a result of that deficient
performance. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65. The court
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need not "address both components of the inquiry if the defendant makes an
insufficient showing on one." Id. at 697, 104 S.Ct. at 2069.
There is a “strong presumption in favor of competence, and the petitioner’s
burden of persuasion – though the presumption is not insurmountable – is a heavy
one.” Chandler v. United States, 218 F.3d 1305, 1314-15 (11th Cir. 2000). When
the trial counsel is experienced, the presumption of competence is even higher. Id.Our review of counsel's performance should focus on "not what is possible or what
is prudent or appropriate, but only [on] what is constitutionally compelled."
Chandler, 218 F.3d at 1313 (quoting Burger v. Kemp, 483 U.S. 776, 107 S.Ct.
3114, 3126, 97 L.Ed.2d 638 (1987)). Our review must be highly deferential, and
we must avoid second-guessing. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
An attorney's “affirmative misrepresentation in response to a specific inquiry
from the defendant may, however, under certain circumstances, constitute
ineffective assistance of counsel.” United States v. Campbell, 778 F.2d 764,
768-69 (11th Cir.1985). An attorney has a duty to advise a defendant, who is
considering a guilty plea, of the available options and possible sentencing
consequences. Brady v. United States, 397 U.S. 742, 756, 90 S.Ct. 1463, 25
L.Ed.2d 747 (1970); see also Beckham v. Wainwright, 639 F.2d 262, 267 (11th
Cir.1981) (holding counsel's misrepresentation that the defendant could only be
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sentenced to five years incarceration on withdrawal of his guilty plea fell “outside
of the range of competence of attorneys in criminal cases”) (internal quotations
omitted); Finch v. Vaughn, 67 F.3d 909, 915-16 (11th Cir.1995) (holding counsel's
misrepresentation that the defendant's state sentence would be served concurrently
with his federal sentence constituted erroneous advice and ineffective assistance of
counsel).
Here, although the district court did not clearly err in its factual finding that
no binding agreement existed between the Government and defense counsel to the
effect that the offer of 120- months’ confinement (if petitioner pled guilty) would
be kept open until trial commenced, the court erred in concluding that the evidence
failed to establish a prima facie case as to Strickland’s first prong, that counsel’s
performance was constitutionally deficient. The evidence showed that defense
counsel continued to affirmatively mislead petitioner into believing that the 120-
months’ offer was “on the table” and that the offer would remain open unless he
went to trial. In short, petitioner carried his burden of showing that counsel’s
performance was deficient. Brady, 397 U.S. 756, 90 S.Ct. 1463.
The district court did not address Strickland’s second prong, prejudice. We
therefore vacate its judgment and remand the case, with the instruction that the
court consider the prejudice issue. We of course intimate no view as to the
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appropriate disposition of that issue.
VACATED and REMANDED.
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