Richard Anthony Siler v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 21, 2021
• Docket: 19-12701
• Status: Unpublished

Opinion

USCA11 Case: 19-12701 Date Filed: 04/21/2021 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12701 Non-Argument Calendar ________________________

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: USCA11 Case: 19-12701 Date Filed: 04/21/2021 Page: 2 of 8

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.

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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.