William A. Tendrich v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 27, 2020
• Docket: 19-12096
• Status: Unpublished

Opinion

USCA11 Case: 19-12096 Date Filed: 10/27/2020 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT _____________________

No. 19-12096 Non-Argument Calendar _____________________

D.C. Docket Nos. 2:17-cv-14343-JEM, 2:14-cr-14008-JEM-1

WILLIAM A. TENDRICH,

Petitioner-Appellant,

vs.

UNITED STATES OF AMERICA,

Respondent-Appellee.

_____________________

Appeal from the United States District Court for the Southern District of Florida _____________________

(October 27, 2020)

Before, JORDAN, BRANCH, and FAY, Circuit Judges.

PER CURIAM:

The sole issue in this appeal is whether William Tendrich’s counsel rendered

ineffective assistance by failing to amend a petition for writ of certiorari in the USCA11 Case: 19-12096 Date Filed: 10/27/2020 Page: 2 of 3

Supreme Court to include a reference to Mathis v. United States, 136 S. Ct. 2243

(2016). We agree with the magistrate judge and the district court that counsel did

not render deficient performance, and affirm the denial of Mr. Tendrich’s motion to

vacate under 28 U.S.C. § 2255.1

Mathis held that when an offense lists alternative means of committing a

single element, the modified categorical approach cannot be used to determine

whether a conviction is a predicate offense under the Armed Career Criminal Act,

18 U.S.C. § 924(e). See Mathis, 136 S. Ct. at 2253-54. Mr. Tendrich argues that,

had his counsel cited Mathis to the Supreme Court, it would have granted his

certiorari petition and granted him relief (presumably by striking or invalidating his

ACCA-enhanced sentence). This is because, Mr. Tendrich asserts, the

Massachusetts burglary statute that gave rise to his prior convictions—M.G.L.

Chapter 266, § 18—is not divisible. See Appellant’s Br. At 16-18.

The government argues that Mr. Tendrich’s ineffectiveness claim fails

because there is no constitutional right to counsel for the purpose of filing a certiorari

petition in the Supreme Court. See e.g., Steele v. United States, 518 F.3d 986, 988

(8th Cir. 2008). We decline to address this argument because the government failed

to present it in the district court. See, e.g., United States v. Ladson, 774 F.2d 436,

1 Because we write for the parties, and assume their familiarity with the record, we set out only what is necessary to explain our decision. 2 USCA11 Case: 19-12096 Date Filed: 10/27/2020 Page: 3 of 3

441 (11th Cir. 1985) (refusing to consider the good-faith exception to the

exclusionary rule because the government did not assert it in the district court).

We conclude that Mr. Tendrich’s counsel did not render deficient

performance. The “proper standard for attorney performance is that of reasonably

effective assistance,” Strickland v. Washington, 466 U.S. 668, 687 (1984), and there

were a couple of reasons why counsel could have reasonably chosen not to cite

Mathis in a supplemental filing. First, in 2005 the Supreme Court had suggested in

an ACCA case that a burglary statute like M. G. L. Chapter 266, § 18—the statute

under which Mr. Tendrich was previously convicted—is divisible and subject to the

modified categorical test. See Shepard v. United States, 544 U.S. 13, 17 (2005).

Second, at sentencing Mr. Tendrich (through counsel) acknowledged that the

Massachusetts statute was divisible.2

AFFIRMED.

2 Alternatively, we agree with the magistrate judge and the district court that Mathis does not apply in Mr. Tendrich’s case. See, e.g., D. E. 13 at 10-11 (magistrate judge’s report and recommendation). As a result, Mr. Tendrich cannot show prejudice under Strickland. See Steele, 588 F.3d at 988-89 (a petitioner who alleges that counsel was ineffective in failing to file a certiorari petition must show a reasonable probability (a) that the Supreme Court would have granted the petition and (b) that he would have prevailed on remand). 3