Smith v. Moore

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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FILED
No. 96-2421 U.S. COURT OF APPEALS
-------------------------------------------- ELEVENTH CIRCUIT
03/25/99
D. C. Docket No. 95-387-CIV-ORL-22 THOMAS K. KAHN
CLERK
TYRONE SMITH,
Petitioner-Appellant,
versus
HARRY K. SINGLETARY, JR.,
ROBERT BUTTERWORTH,
Respondents-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(March 25, 1999)
Before EDMONDSON and BLACK, Circuit Judges, and RESTANI*, Judge.
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* Honorable Jane A. Restani, Judge, U.S. Court of International Trade, sitting
by designation.
EDMONDSON, Circuit Judge:
Tyrone Smith, a prisoner of the state of Florida, appeals
the district court's denial of his petition for a writ of habeas
corpus under 28 U.S.C. § 2254 on grounds of ineffective
assistance of counsel. We affirm the district court's denial of
Smith's petition.
Background
In 1989, defendant Tyrone Smith was charged by
information with one count of robbery and one count of
obstructing or opposing an officer with violence. Before his
arrest on these charges, Smith had at least one out-of-state
felony conviction.1
Before trial, the state prosecution offered Smith a plea
bargain: ”State would offer bottom half of whichever guideline
cell that [Smith] falls within and no filing of the notice for
Smith was convicted of first-degree robbery in 1979 in New
1
York.
habitual offender.” After discussing the state’s offer with his
counsel, Smith declined the offer and decided to proceed to
trial.
A jury later convicted Smith on both counts of the
information, and the state filed its notice of intent to seek a
habitual-violent-felony-offender enhancement under Florida
law, Fla. Stat. § 775.084(1)(b). The Florida court determined
that Smith was a habitual violent felony offender (based on his
out-of-state conviction) and therefore subjected him to an
enhanced sentence. He was sentenced to thirty-years’
imprisonment, with a mandatory minimum of ten years, for the
robbery count and a consecutive term of five years’ supervised
probation for the opposing or obstructing count.
After exhausting his state remedies, Smith brought this
habeas corpus petition pro se. He contends that he is entitled
to relief because he received ineffective assistance of counsel.
Smith contends that he rejected the state’s plea offer -- which
3
would have resulted in a sentence between nine and twelve
years -- because his trial counsel told him that if he were found
guilty at trial he would not be subject to enhanced sentencing.
Smith alleges that his counsel assured him that an out-of-state
conviction could not serve as a predicate offense under
Florida’s habitual-offender law and advised Smith that the
maximum sentence he faced if convicted at trial was seventeen
years.
We accept that, while an out-of-state conviction cannot be
used to establish habitual-felony-offender status under Fla.
Stat. § 775.084(1)(a) (Supp. 1988),2 it can be used to enhance
a defendant’s sentence as a habitual violent felony offender
under Fla. Stat. § 775.084(1)(b) (Supp. 1988).3 See Canales v.
2
A habitual felony offender is a defendant who “has
previously been convicted of two or more felonies in this
state.” Fla. Stat. § 775.08(1)(a) (Supp. 1988) (emphasis
added).
A“habitual violent felony offender” is a defendant who “has
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previously been convicted of a felony or an attempt or
4
State, 571 So. 2d 87, 88 (Fla. Dist. Ct. App. 1990). Smith
contends that he would have accepted the state’s plea offer if
his counsel had properly advised him that the court could
sentence him as a habitual violent felony offender.
The district court granted the state summary judgment.
Smith appeals the district court’s denial of his ineffective-
assistance claim and seeks an evidentiary hearing.4 No
evidentiary hearing on Smith’s claim has been held in either
federal or state court.
conspiracy to commit a felony and one or more of such
convictions was for” one (or more) of a list of enumerated
violent felonies. Fla. Stat. § 775.08(1)(b) (Supp. 1988).
4
Smith’s petition to the district court also included a claim
challenging the state court’s use of his out-of-state conviction
to enhance his sentence. Smith does not appeal the district
court’s denial of that claim.
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Discussion
Smith contends that his counsel was ineffective for
advising him that his out-of-state conviction could not be used
to enhance his sentence. Even though we accept that Smith’s
counsel gave him incorrect advice about Florida law, his claim
still fails.
To prevail on an ineffective-assistance-of-counsel claim, a
habeas corpus petitioner must show that: (1) his lawyer’s
performance was deficient, and (2) “‘a reasonable probability
that, but for counsel’s errors, he would . . . have pleaded guilty
and would [not] have insisted on going to trial.’” Coulter v.
Herring, 60 F.3d 1499, 1504 (11th Cir. 1995) (quoting Hill v.
Lockhart, 474 U.S. 52, 59 (1985)). When analyzing ineffective-
assistance claims, reviewing courts must indulge a strong
presumption that counsel’s conduct fell within the wide range of
reasonably professional assistance. Strickland v. Washington,
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466 U.S. 668, 689 (1984); Harich v. Dugger, 844 F.2d 1464,
1469 (11th Cir. 1988). Because ineffective-assistance claims
present mixed questions of law and fact, we exercise plenary
review. Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).
A habeas corpus petitioner is entitled to an evidentiary
hearing on his claim “if he alleges facts which, if proven, would
entitle him to relief.” Futch v. Dugger, 874 F.2d 1483, 1485
(11th Cir. 1989). A district court, however, need not conduct an
evidentiary hearing if it can be conclusively determined from the
record that the petitioner was not denied effective assistance of
counsel. See Dickson v. Wainwright, 683 F.2d 348, 351 (11th
Cir. 1982).
A lawyer’s affirmative misrepresentation about the
consequences of a guilty plea may, in some cases, fall below
the wide range of professional competence. But ultimately, “[i]n
any case presenting an ineffectiveness claim, the performance
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inquiry must be whether counsel’s assistance was reasonable
considering all the circumstances.” Strickland, 466 U.S. at 688.
The clarity or lack of clarity of Florida law about the use of
an out-of-state conviction to enhance a defendant’s sentence
under the habitual-violent-felony-offender provision, Fla. Stat. §
775.084(1)(b), is important in determining whether the advice
given by Smith’s counsel was reasonable when it was given.
Ignorance of well-defined legal principles is nearly inexcusable.
See Cooks v. United States, 461 F.2d 530, 532 (5th Cir. 1972)
(holding counsel ineffective where controlling Supreme Court
precedents, decided more than a decade before counsel
rendered his advice, demonstrated unequivocally that counsel’s
advice was erroneous); 2 Ronald E. Mallen & Jeffrey M. Smith,
Legal Malpractice § 17.4, at 502 (4th ed. 1996).5 But, as an
Because a lawyer’s performance must be evaluated under
5
prevailing professional norms, see Strickland, 466 U.S. at
688, cases involving allegations of attorney negligence -- also
evaluated based on an objective standard of reasonableness -
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acknowledgment that law is no exact science, “the rule that an
attorney is not liable for an error of judgment on an unsettled
proposition of law is universally recognized . . . .” Id., § 17.1, at
497 (citing cases); Pitts v. Cook, 923 F.2d 1568, 1573-74 (11th
Cir. 1991) (concluding that counsel’s failure to raise Batson-
type claim before Batson had been decided was not
constitutionally ineffective assistance of counsel).
The giving of legal advice that later is proven to be
incorrect, therefore, does not necessarily fall below the
objective standard of reasonableness. See generally Cooks,
461 F.2d at 532 (“[C]ounsel’s inability to foresee future
- can be useful to our analysis. We do not even hint,
however, that every act of legal malpractice amounts to
ineffective assistance of counsel under the Constitution. We
are certain that the civil liability standard and the constitutional
standard do not exactly coincide. When we cite to
malpractice treatises or precedents, this is our reasoning:
ordinarily, at least, lawyers’ acts or omissions that do not rise
to the level of professional malpractice, a fortiori, cannot
amount to a constitutional violation.
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pronouncements [by the courts] . . . does not render counsel’s
representation ineffective . . . . Clairvoyance is not a required
attribute of effective representation.”) (citations omitted); see
also Cianbro Corp. v. Jeffcoat & Martin, 804 F. Supp. 784, 790
(D.S.C. 1992) (“[A]n attorney cannot be held liable for following
the plain terms of a statute when there are not compelling
circumstances to suggest [otherwise,]” even when a court later
decides that interpretation is erroneous.).
In the instant case, Smith was sentenced under section
775.084(1)(b), Fla. Stat. (Supp. 1988), which was effective 1
October 1988. Section 775.084(1)(b) does not specifically say
whether out-of-state convictions may serve as predicate
offenses for an enhanced sentence.
The state made its plea offer in January 1990, and Smith
rejected it the same day it was made. The earliest appellate
decision to hold that the habitual-violent-felony-offender
provision authorizes an enhanced sentence on the basis of an
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out-of-state conviction, Canales v. Florida, 571 So. 2d 87 (Fla.
Dist. Ct. App. 1990), was not decided until 13 December 1990.
The defendant in Canales argued that, because the
habitual-violent-felony-offender provision does not specifically
permit the enumerated offenses to have been committed
outside Florida, the court should apply a rule of lenity and
construe the provision in his favor, to exclude his out-of-state
conviction. Id. at 88. The Canales court rejected that argument
after determining that it was contrary to the intent of the Florida
legislature, writing, “a careful reading of the entire statute
shows that the legislature intended to treat habitual felons and
habitual violent felons differently and elected not to require both
felonies to be committed in Florida when dealing with violent
felons.” Id. at 88-89.
The reasonableness of Smith’s lawyer’s advice must be
assessed in the light of the uncertainty in Florida law at the time
the advice was given, that is, pre-Canales. Under the
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circumstances presented in this case, the alleged advice of
Smith’s counsel was not unreasonable. The version of the
habitual-violent-felony-offender provision under which Smith
was sentenced became effective less than a year and a half
before Smith’s counsel had to evaluate the state’s plea offer.
When the advice was given, there were no appellate decisions
providing guidance to Smith’s counsel. The later Canales
decision evidences, that at the time pertinent to this case, the
applicable law was not settled against Smith: it was a live issue
in Florida law. See Mallen & Smith, supra, § 17.7, at 511-12 (“A
commonly quoted view is that there is no [malpractice] liability for
a judgmental error regarding a proposition of law ‘which has not
been settled by the court of last resort in the State and on which
reasonable doubt may be entertained by well-informed lawyers.’”
(quoting Hodges v. Carter, 80 S.E.2d 144, 146 (N.C. 1954)).
Smith has not pointed to case law that existed when his
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counsel rendered his advice that was contrary to his counsel’s
conclusion.
Smith instead argues that the habitual-offender provisions
are inherently clear. He says that a comparison of sections
775.084(1)(a) and 775.084(1)(b) shows the obvious error in his
counsel’s advice: the phrase “in this state” modifying the
qualifying convictions is conspicuously absent from the
habitual- violent-felony-offender provision, though it appears in
the habitual-felony-offender provision. This comparison can
give rise to an inference, one which Canales seems to accept.
But, even if many reasonable lawyers, at the pertinent time,
would not have interpreted the habitual-violent-felony-offender
provision as Smith’s counsel did, no relief can be granted
unless it is shown that no reasonable lawyer, in the same
circumstances, would have interpreted it as Smith’s counsel
did. See Rogers, 13 F.3d at 386; see also Waters v. Thomas,
46 F.3d 1506, 1512 (11th Cir. 1995) (en banc) (“‘The
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[ineffective-assistance] test has nothing to do with what the
best lawyers would have done. Nor is the test even what most
good lawyers would have done. We ask only whether some
reasonable lawyer . . . could have acted, in the circumstances,
as defense counsel acted . . . .’”) (quoting White v. Singletary,
972 F.2d 1218, 1220 (11th Cir. 1992)).
The statute is not so unmistakably plain that no
reasonable lawyer could have misconstrued it. See Kimel v.
State of Florida Bd. of Regents, 139 F.3d 1426, 1431 (11th Cir.
1998) (“Although we make no definite rule about it, the need to
construe one section [of a statute] with another, by its very
nature, hints that no unmistakable or unequivocal declaration is
present.”), cert. granted, 119 S. Ct. 901 (1999). The defendant
in Canales asserted the same view that Smith’s counsel
allegedly held: that out-of-state convictions could not be used to
enhance a defendant’s sentence under section 775.084(1)(b).
The Canales court never indicated that the defendant’s
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contentions were frivolous or otherwise unreasonable, though it
ultimately discounted them. And the Canales court does not
use words like “plain meaning” or “unambiguous” in its opinion
construing the pivotal statute.
Also, section 775.084(1)(b) designates specific offenses
that will trigger an enhancement. Each of these offenses is
defined by Florida law. See, e.g., Fla. Stat. § 806.01 (defining
arson); Fla. Stat. § 794.011 (defining sexual battery); Fla. Stat.
§ 812.13 (defining robbery). It was not unreasonable for
Smith’s counsel to think, in the context of Florida’s criminal law,
that section 775.084(1)(b) referred to those offenses as they
are designated by Florida law, in other words, that the Florida
statute contemplated convictions under Florida law for the listed
offenses. At the pertinent time, Smith’s counsel (or more
accurately, every reasonable lawyer) did not have to conclude
that Florida intended to give some kind of extraterritorial effect
to the criminal law of other jurisdictions.
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Under the conditions existing in this case, Smith cannot
show that the advice his counsel gave could not result from the
proper exercise of skill and professional judgment. Because
the record conclusively establishes that his counsel’s
performance was not deficient, we AFFIRM the district court’s
decision on that ground.
The district court’s denial of Smith’s petition is AFFIRMED.
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