Antonius Russel Ford v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 24, 2021
• Docket: 20-12435
• Status: Unpublished

Opinion

USCA11 Case: 20-12435 Date Filed: 05/24/2021 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-12435 Non-Argument Calendar ________________________

D.C. Docket Nos. 8:17-cv-01052-SDM-AEP; 8:13-cr-00230-SDM-AEP-4

ANTONIUS RUSSEL FORD,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(May 24, 2021)

Before WILSON, ANDERSON, and BLACK, Circuit Judges.

PER CURIAM: USCA11 Case: 20-12435 Date Filed: 05/24/2021 Page: 2 of 6

Antonius Ford appeals the district court’s denial of his 28 U.S.C. § 2255

motion asserting that his trial counsel was ineffective for failing to request a jury

instruction on a lesser-included offense of his charge of conspiracy to possess with

intent to distribute cocaine. This Court granted a certificate of appealability as to

“[w]hether trial counsel was constitutionally ineffective in failing to request that

the district court instruct the jury on the lesser-included offense of conspiracy to

possess cocaine, and whether the district court abused its discretion in denying this

ineffective assistance of counsel claim without an evidentiary hearing.”

Ford asserts he established both prongs of the ineffective assistance standard

in Strickland v. Washington, 466 U.S. 668 (1984). Specifically, Ford contends

that, because the trial evidence did not support a conclusion he intended to

distribute cocaine, reasonable counsel would have requested the lesser-included

offense instruction. He asserts his trial counsel’s performance prejudiced him

because, had the lesser-included offense instruction been given, there is a

reasonable probability the jury would have convicted him of only the lesser offense

and his resulting sentence would have been significantly lower. Alternatively,

Ford contends the district court abused its discretion by denying his § 2255 motion

without holding an evidentiary hearing. After review, 1 we affirm the district court.

1 In § 2255 proceedings, we review legal conclusions de novo and factual findings for clear error. Osley v. United States, 751 F.3d 1214, 1222 (11th Cir. 2014). We review de novo a claim of ineffective assistance of counsel, which is a mixed question of law and fact. Id. We 2 USCA11 Case: 20-12435 Date Filed: 05/24/2021 Page: 3 of 6

To prove ineffective assistance of counsel, a defendant must show that:

(1) counsel’s performance was deficient; and (2) the deficient performance

prejudiced the defendant. Strickland, 466 U.S. at 687. Counsel’s performance is

deficient only if it falls below the wide range of competence demanded of

attorneys in criminal cases. Strickland, 466 U.S. at 687-89. The defendant must

show that “his attorney’s representation was unreasonable under prevailing

professional norms and that the challenged action was not sound strategy.”

Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). To meet that standard, the

defendant must establish that no competent counsel would have taken the action

that his counsel took, taking into consideration only what reasonably could have

motivated counsel and not counsel’s actual strategy or oversights. Gordon v.

United States, 518 F.3d 1291, 1301 (11th Cir. 2008). “The reasonableness of

counsel’s performance is to be evaluated from counsel’s perspective at the time of

the alleged error and in light of all of the circumstances.” Kimmelman, 477 U.S. at

384.

A defendant may request a jury instruction on lesser-included offenses if he

establishes that the charged offense encompasses all of the elements of a lesser

offense. United States v. Whitman, 887 F.3d 1240, 1246 (11th Cir. 2018); see also

review a district court’s denial of an evidentiary hearing in a § 2255 proceeding for abuse of discretion. Aron v. United States, 291 F.3d 708, 714 n.5 (11th Cir. 2002).

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Fed. R. Crim. P. 31(c)(1). The defendant also must establish that the evidence

would have permitted a rational jury to find him guilty of the lesser offense but

acquit him of the greater offense. United States v. Gumbs, 964 F.3d 1340, 1348-49

(11th Cir. 2020).

The district court did not err in denying Ford’s ineffective assistance of

counsel claim because he failed to show that trial counsel’s decision not to request

a lesser-included offense instruction constituted deficient performance. Ford has

not shown that no competent counsel would have foregone the lesser-included

offense instruction for the chance that, with minimal evidence of distribution, the

jury would have acquitted him on the sole conspiracy to distribute charge. See

Kimmelman, 477 U.S. at 384; Gordon, 518 F.3d at 1301. Trial counsel’s own

theory of defense, which included admitting to Ford’s possession of cocaine but

arguing that the Government could not prove that he planned to distribute it,

supports that foregoing the lesser-included offense instruction was a reasonable

trial strategy. Ford cannot show that his trial counsel erred by pursuing a total

acquittal, let alone that no objectively competent counsel would have done so. See

Kimmelman, 477 U.S. at 384 (holding that the defendant must show that “the

challenged action was not sound strategy”); Gordon, 518 F.3d at 1301. And

because the inquiry is an objective one, i.e., what a reasonably competent lawyer

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would have done, Ford’s trial counsel’s arguable admission of error in his affidavit

is not controlling. See Gordon, 518 F.3d at 1301.

Second, trial counsel could not have been deficient for failing to anticipate a

change in this Court’s law, and, in any event there was not a precedential change

because this Court’s decision in United States v. Gray, 544 F. App’x 870, 893

(11th Cir. 2013), issued after Ford’s trial, was unpublished. See Steiner v. United

States, 940 F.3d 1282, 1293 (11th Cir. 2019) (“An attorney’s failure to anticipate a

change in the law does not constitute ineffective assistance.”); United States v.

Izurieta, 710 F.3d 1176, 1179 (11th Cir. 2013) (“Unpublished opinions are not

binding precedent.”).

Third, because trial counsel’s performance was not constitutionally deficient

under the totality of the circumstances, we need not consider whether the district

court also correctly concluded that Ford did not show prejudice. See Holladay v.

Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (explaining because both parts of the

Strickland test must be met, we need not consider one prong if the defendant fails

to establish the other). Finally, because Ford’s allegation that trial counsel’s

performance was deficient was affirmatively contradicted by the record, for the

reasons explained above, the district court also did not abuse its discretion by

denying his request for an evidentiary hearing. See Aron v. United States, 291 F.3d

708, 715 (11th Cir. 2002) (stating the district court is not required to hold an

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evidentiary hearing if the defendant’s “allegations are affirmatively contradicted by

the record”).

Even accepting all of the facts Ford alleged in his § 2255 motion as true and

construing them in his favor, including the statements trial counsel made in his

affidavit, Ford did not show that no reasonable counsel would have chosen not to

request the lesser-included offense instruction in favor of pursuing a total acquittal.

Accordingly, we affirm.

AFFIRMED.