Case: 12-15102 Date Filed: 08/13/2013 Page: 1 of 18
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15102
Non-Argument Calendar
________________________
D.C. Docket Nos. 1:09-cv-20976-ASG; 1:05-cr-20818-ASG-1
TAURUS GETER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 13, 2013)
Before CARNES, Chief Judge, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Taurus Geter, a federal prisoner serving a 210-month sentence for his
conviction for conspiracy to possess with intent to distribute at least 5 grams of
Case: 12-15102 Date Filed: 08/13/2013 Page: 2 of 18
heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846, appeals the denial of his
motion to vacate his sentence, filed pursuant to 28 U.S.C. § 2255. After review,
we affirm.
I. BACKGROUND
Because this appeal involves a procedural default, we review the full history.
A. 2006 Criminal Proceedings
In 2006, a jury convicted Geter of one count of conspiracy to possess with
intent to distribute at least 5 grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1)
and 846.
The Presentence Investigation Report (“PSI”) classified Geter as a career
offender under U.S.S.G. § 4B1.1(a) because Geter had at least two prior felony
convictions for either a crime of violence or a controlled substance offense.
Specifically, Geter had one prior conviction for possessing cocaine with intent to
sell and two separate prior convictions for carrying a concealed firearm in violation
of Florida law. Geter’s career-offender designation led to a total offense level of
32 and automatically placed him into a criminal history category of VI, resulting in
a guidelines range of 210 to 240 months’ imprisonment. 1
1
Without the career-offender designation, Geter’s total offense level was 18 and his
criminal history category was IV, yielding a guidelines range of 41 to 51 months’ imprisonment.
See United States Sentencing Commission, Guidelines Manual, Ch. 5, Part A (Sentencing Table)
(Nov. 2006).
2
Case: 12-15102 Date Filed: 08/13/2013 Page: 3 of 18
Geter objected to his classification as a career offender, arguing that his two
convictions for carrying a concealed firearm did not qualify as crimes of violence
under U.S.S.G. § 4B1.2, and that the facts underlying those convictions did not
support a finding that those were crimes of violence.
At his January 5, 2007 sentencing hearing, Geter reiterated his objections to
the career-offender enhancement. Overruling Geter’s objections, the district court
reasoned that under this Court’s then-binding precedent, specifically United States
v. Gilbert, 138 F.3d 1371, 1372 (11th Cir. 1998), a Florida conviction for carrying
a concealed weapon was considered a crime of violence. When the sentencing
hearing continued on January 26, 2007, the district court found that Geter qualified
as a career offender and sentenced him to 210 months’ imprisonment, the low end
of his guidelines range.
In his direct appeal, Geter did not challenge the district court’s finding that
he qualified as a career offender. See United States v. Geter, 274 F. App’x 805,
811 (11th Cir. 2008) (“Geter does not challenge the district court’s finding that he
qualified as a career offender or otherwise challenge the procedural reasonableness
of his sentence on appeal.”). On April 21, 2008, this Court affirmed Geter’s
conviction and sentence. Id.
3
Case: 12-15102 Date Filed: 08/13/2013 Page: 4 of 18
B. 2009 § 2255 Proceedings
On April 14, 2009, Geter filed a counseled § 2255 motion to vacate his
sentence, raising two claims. First, Geter’s § 2255 motion argued that he was
erroneously sentenced in 2007 as a career offender under U.S.S.G. § 4B1.1(a)
because, in light of the subsequent 2008 decisions in Begay v. United States, 553
U.S. 137, 128 S. Ct. 1581 (2008), and United States v. Archer, 531 F.3d 1347
(11th Cir. 2008), his two prior Florida convictions for carrying concealed weapons
no longer qualified as crimes of violence.
On April 16, 2008, about a year before Geter’s § 2255 motion was filed, the
Supreme Court in Begay held that driving under the influence (“DUI”) is not a
“violent felony” within the meaning of the Armed Career Criminal Act (“the
ACCA”), 18 U.S.C. § 924(e)(1), because the offense does not involve “purposeful,
violent, and aggressive conduct.” 553 U.S. at 145, 128 S. Ct. at 1586–87. Shortly
thereafter, on June 26, 2008, this Court decided United States v. Archer, 531 F.3d
1347 (11th Cir. 2008), holding that “in light of the Supreme Court’s decision in
Begay [involving the ACCA], the crime of carrying a concealed firearm may no
longer be considered a crime of violence under the Sentencing Guidelines.” Id. at
1352. This Court in Archer also recognized that “Begay . . . has undermined
Gilbert to the point of abrogation . . . and we are thus bound to follow this new rule
of law.” Id.
4
Case: 12-15102 Date Filed: 08/13/2013 Page: 5 of 18
Second, Geter’s § 2255 motion contended that his appellate counsel
provided ineffective assistance by failing to challenge his career-offender
enhancement on direct appeal. In this regard, we note the timing of events
surrounding Geter’s direct appeal. On February 2, 2007, Geter filed his notice of
appeal in the district court. On July 16, 2007, Geter’s appellate counsel filed his
opening brief in this Court. On September 4, 2007, the government filed its
response brief, and the briefing concluded when Geter filed his reply brief on
September 28, 2007. Thus, the briefing was completed in Geter’s direct appeal for
over six months before Begay was decided on Wednesday, April 16, 2008.
The following Monday, April 21, 2008, this Court affirmed Geter’s
conviction and sentence. See Geter, 274 F. App’x at 805. On May 8, 2008, Geter
filed a petition for panel rehearing. In this petition, Geter renewed a challenge that
he had raised in his briefs on appeal to the admission of certain testimony at his
trial; the petition did not discuss either Begay or Geter’s career-offender
enhancement.
While Geter’s petition for rehearing was pending, and more than two months
after our opinion in Geter’s direct appeal was issued, this Court decided Archer on
June 26, 2008. See 531 F.3d at 1347. Shortly thereafter, on July 1, 2008, Geter
moved to supplement his petition for rehearing in light of Archer. In this motion to
5
Case: 12-15102 Date Filed: 08/13/2013 Page: 6 of 18
supplement, Geter acknowledged that in his briefs to this Court on appeal, he
did not specifically raise the district court’s ruling that calculated his
advisory career offender guideline range on the basis of his two State
convictions for carrying a concealed weapon because [Gilbert] . . .
foreclosed that issue. Counsel simply did not anticipate this Court’s
decision in Archer, which effectively overturned [Gilbert], because in
Begay the Supreme Court . . . did not address the concealed weapon
issue.
Because of this change in controlling law, Geter requested that (1) this Court
permit him to supplement his petition for rehearing to include arguments related to
his career-offender enhancement and the effect of Archer; (2) grant his petition for
rehearing; and (3) vacate his sentence and remand his appeal to the district court
for resentencing.
The government opposed Geter’s motion to supplement, arguing that Geter
had waived any challenge to his career-offender sentencing enhancement by not
raising the challenge in his briefs on appeal. In support of its argument, the
government cited the “well-established” rule that a party to an appeal abandons an
issue by not raising it in his initial brief. The government also noted that this rule
operated “notwithstanding the intervention of favorable [legal] authority,” and that
a petition for rehearing could not be used to raise a “new point of appeal.”
On September 3, 2008, this Court denied Geter’s petition for rehearing and
his motion to supplement that petition. The Court held that “Geter’s failure to brief
the ‘crime of violence’ argument in his opening brief constituted a waiver of that
6
Case: 12-15102 Date Filed: 08/13/2013 Page: 7 of 18
argument. For that reason, notwithstanding our recent decision in Archer, Geter’s
Petition for Rehearing is DENIED.” (citations omitted). The mandate issued in
Geter’s direct appeal one week later, on September 10, 2008.
C. Magistrate Judge’s Report on § 2255 Motion
After the government’s § 2255 response, the magistrate judge issued a report
recommending that the district court deny Geter’s § 2255 motion. The magistrate
judge first determined that Geter procedurally defaulted his career-offender claim
because he failed to raise that claim in his direct appeal. The magistrate judge
further determined that Geter’s procedural default was not excused under the
miscarriage-of-justice exception because an erroneous career-offender designation
did not constitute actual innocence.
As to Geter’s ineffective-assistance claim, the magistrate judge concluded
that, in the direct appeal, Geter’s appellate attorney did not perform deficiently in
failing to anticipate Begay and Archer’s change to controlling law. Furthermore,
Geter could not show that he suffered prejudice as a result of his appellate
counsel’s failure to seek leave to file a supplemental brief in light of Begay, a
decision the Supreme Court issued six months after the briefs were filed in Geter’s
7
Case: 12-15102 Date Filed: 08/13/2013 Page: 8 of 18
direct appeal and only “two business days” before this Court ruled on Geter’s
direct appeal. 2
The magistrate judge also reasoned that, even if Geter’s appellate counsel
had filed a supplemental brief, that action would have been futile because this
Court does not permit parties to raise new issues in supplemental briefing. In
support of this reasoning, the magistrate judge cited our decisions in United States
v. Padilla-Reyes, 247 F.3d 1158, 1164 (11th Cir. 2001), and United States v.
Nealy, 232 F.3d 825, 830 (11th Cir. 2000), in which this Court affirmed its
longstanding rule that parties are barred from raising a new issue in a supplemental
brief, even if the issue arises based on an intervening decision or other new legal
development.
D. District Court’s Order
Geter objected to the magistrate judge’s report. The district court overruled
Geter’s objections, adopted the report, and denied Geter’s § 2255 motion to vacate.
In its order, the district court added that Geter (1) procedurally defaulted his
career-offender challenge by failing to raise it on direct appeal; (2) and failed to
show either cause—i.e., ineffective assistance of appellate counsel—and prejudice
or a miscarriage of justice sufficient to overcome the procedural default.
2
Begay involved a DUI crime under the ACCA, while Geter’s issue related to concealed
weapon convictions under the career-offender classification in the Sentencing Guidelines.
8
Case: 12-15102 Date Filed: 08/13/2013 Page: 9 of 18
In considering Geter’s ineffective-assistance claim, the district court
determined that Geter’s appellate counsel was not constitutionally ineffective for
failing to anticipate a change in the law and raise on direct appeal a challenge to
Geter’s career-offender designation. The district court noted that, even though
Begay (a DUI case under the ACCA) was pending at the time of Geter’s direct
appeal, appellate counsel’s failure to anticipate the outcome of Begay did not fall
below the reasonable standards of professional competence. Moreover, appellate
counsel was not ineffective for failing to file a supplemental appellate brief raising
a claim under Begay regarding Geter’s career-offender classification under the
Guidelines because under its precedent this Court would have considered the
argument to have been untimely made.
Finally, the district court issued a certificate of appealability (“COA”) on
“whether Petitioner is excused from procedural default where, as occurred in
Petitioner’s appeal, the appellate court decision affirming his conviction and
sentence was rendered after the Supreme Court decision offering relief on an
(albeit non-briefed) issue.” Geter timely appealed. 3
II. DISCUSSION
3
In reviewing a district court’s denial of a § 2255 motion, we review findings of fact for
clear error and questions of law de novo. Rhode v. United States, 583 F.3d 1289, 1290 (11th Cir.
2009). The issue of whether a § 2255 movant’s claims are subject to procedural default is a
mixed question of law and fact, which we review de novo. Fordham v. United States, 706 F.3d
1345, 1347 (11th Cir. 2013).
9
Case: 12-15102 Date Filed: 08/13/2013 Page: 10 of 18
In this § 2255 appeal, Geter’s sole argument is that his procedural default
should be excused due to his appellate counsel’s ineffective assistance.
Specifically, Geter asserts that on direct appeal his appellate counsel was
ineffective for failing to argue that he was erroneously sentenced as a career
offender under U.S.S.G. § 4B1.1(a) because (1) trial counsel raised this guidelines
argument before the district court, and (2) at the time his direct appeal was
decided, Geter’s two predicate state convictions for carrying a concealed weapon
no longer qualified as “crimes of violence” under § 4B1.2(a) of the Guidelines.
A. Standards Governing Procedural Default & Ineffective Assistance of
Counsel
To avoid procedurally defaulting a claim, “a defendant generally must
advance an available challenge to a criminal conviction or sentence on direct
appeal or else the defendant is barred from presenting that claim in a § 2255
proceeding.” McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011)
(internal quotation marks omitted), cert. denied, 133 S. Ct. 112 (2012). A
procedural default may be excused, however, if the defendant can demonstrate that
one of two exceptions applies: (1) cause and prejudice, or (2) actual innocence.
Bousley v. United States, 523 U.S. 614, 622, 118 S. Ct. 1604, 1611 (1998).
Here, Geter does not dispute that he procedurally defaulted his
career-offender claim because he failed to raise it on direct appeal. Thus, Geter
must show that one of the two exceptions to the procedural default rule applies.
10
Case: 12-15102 Date Filed: 08/13/2013 Page: 11 of 18
See Bousley, 523 U.S. at 622, 118 S. Ct. at 1611. Geter concedes that the actual-
innocence exception to procedural default does not apply, and we need not
consider this exception. See McKay, 657 F.3d at 1196 (“Because [petitioner] does
not argue on appeal that the cause and prejudice exception applies . . . we do not
address this exception.”). Therefore, we turn to whether Geter has shown cause
and prejudice necessary to excuse his procedural default.
“Under the cause and prejudice exception, a § 2255 movant can avoid
application of the procedural default bar by showing cause for not raising the claim
of error on direct appeal and actual prejudice from the alleged error.” McKay, 657
F.3d at 1196 (internal quotation marks and alterations omitted). To demonstrate
cause, a § 2255 movant “must show that some objective factor external to the
defense prevented [the movant] or his counsel from raising his claims on direct
appeal and that this factor cannot be fairly attributable to [the movant’s] own
conduct.” Lynn v. United States, 365 F.3d 1225, 1235 (11th Cir. 2004).
Ineffective assistance of counsel may serve as the cause required to excuse a
movant’s procedural default. United States v. Nyhuis, 211 F.3d 1340, 1344 (11th
Cir. 2000). “In order to do so, however, the claim of ineffective assistance must
have merit.” Id.
To prevail on a claim of ineffective counsel, a movant must demonstrate that
(1) counsel’s performance was deficient, falling below an objective standard of
11
Case: 12-15102 Date Filed: 08/13/2013 Page: 12 of 18
reasonableness, and (2) the movant suffered prejudice as a result of the deficient
performance. Strickland v. Washington, 466 U.S. 668, 687–88, 104 S. Ct. 2052,
2064 (1984). The standard governing counsel’s performance is “reasonableness
under prevailing professional norms.” Id. at 688, 104 S. Ct. at 2065. In light of the
strong presumption in favor of competence, a movant seeking to prove a Sixth
Amendment violation must establish that “no competent counsel would have taken
the action that his counsel did take.” Chandler v. United States, 218 F.3d 1305,
1315 (11th Cir. 2000) (en banc).
It is well-settled that an attorney’s failure to anticipate a change in the law
will not support a claim of ineffective assistance of appellate counsel. See, e.g.,
Black v. United States, 373 F.3d 1140, 1146 (11th Cir. 2004) (“ [A]ppellate
counsel’s performance was not deficient for failing to predict what was not yet a
certain holding.”); Jones v. United States, 224 F.3d 1251, 1257–58 (11th Cir. 2000)
(“Since the district court would be required to follow the law of this circuit until it
was overruled, . . . it was not completely unreasonable for counsel to make a
strategic decision to forego a claim that was a loser under the then-current state of
the law. . . . [W]e are not prepared to say categorically that counsel’s failure to
[preserve a losing argument] constituted prejudicial, ineffective nonfeasance while
the law was still unsettled.”); Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir.
1994) (“We have held many times that reasonably effective representation cannot
12
Case: 12-15102 Date Filed: 08/13/2013 Page: 13 of 18
and does not include a requirement to make arguments based on predictions of how
the law may develop.” (internal quotation marks and alterations omitted)).
The rule applies even if the claim, based upon anticipated changes in the
law, was reasonably available at the time counsel failed to raise it. See Dell v.
United States, 710 F.3d 1267, 1282 (11th Cir. 2013) (“[I]t generally does not fall
below the objective standard of reasonableness for . . . counsel to fail to raise a
claim in anticipation that undeniably would lose under current law but might
succeed based on the outcome of a forthcoming Supreme Court decision.”); Pitts v.
Cook, 923 F.2d 1568, 1572–74 (11th Cir. 1991) (holding that even though a claim
based on Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), was reasonably
available to counsel at the time of trial, failure to anticipate the Batson decision and
raise that claim was not ineffective assistance of counsel).
B. Counsel’s Failure to Raise Career-Offender Claim on Direct Appeal
The district court properly denied Geter’s § 2255 motion because Geter did
not establish that his appellate counsel was ineffective, such as to excuse his
procedural default of his career-offender claim. At the time of Geter’s sentencing,
and when counsel filed and briefed Geter’s direct appeal, a conviction for carrying
a concealed firearm was a crime of violence for career-offender sentencing
purposes; any argument to the contrary was squarely foreclosed under this Court’s
precedent. See Gilbert, 138 F.3d at 1372 (holding expressly that carrying a
13
Case: 12-15102 Date Filed: 08/13/2013 Page: 14 of 18
concealed weapon in violation of Florida law is a crime of violence under
§ 4B1.2(a)). Appellate counsel’s failure to raise a non-meritorious claim in
Geter’s direct appeal, despite the fact that trial counsel had raised the claim at
sentencing, does not constitute deficient performance under Strickland.
On July 16, 2007, when Geter filed his opening brief on direct appeal, the
Supreme Court had not even granted a writ of certiorari in Begay. See Begay v.
United States, 128 S. Ct. 32 (Sept. 25, 2007) (granting writ of certiorari and motion
for leave to proceed in forma pauperis). Additionally, Begay was briefed, argued,
and decided by the Supreme Court after Geter’s initial and reply briefs were filed
in Geter’s direct appeal. In light of this timing, and the uncertainty about the
outcome of Begay, Geter’s appellate counsel’s failure to anticipate a change in the
law and raise a Begay- or Archer-type claim was not unreasonable “under
prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S. Ct. at 2065.
“We have held many times that reasonably effective representation cannot and
does not include a requirement to make arguments based on predictions of how the
law may develop.” Spaziano, 36 F.3d at 1039 (internal quotation marks and
alteration omitted); see also Pitts, 923 F.2d at 1573–74 (“[B]ecause law is not an
exact science, an ordinary, reasonable lawyer may fail to recognize or to raise an
issue, even when the issue is available, yet still provide constitutionally effective
assistance.” (internal quotation marks omitted)).
14
Case: 12-15102 Date Filed: 08/13/2013 Page: 15 of 18
C. Counsel’s Failure to Move to File a Supplemental Brief on Appeal
In this § 2255 appeal, Geter does not appear to have renewed his claim that
his appellate counsel was ineffective because he failed to move to file—in the
two-day window between when Begay was decided and when this Court issued its
decision affirming Geter’s conviction and sentence—a supplemental brief to
address Begay or its effect on Geter’s status as a career offender. Even if Geter has
not abandoned his supplemental-brief argument, it is without merit. Because Geter
did not challenge his career-offender designation in his opening appellate brief,
counsel’s attempt to raise an argument related to that designation for the first time
in a supplemental brief would have been futile. See United States v. Levy, 379
F.3d 1241, 1242–43 (11th Cir. 2004) (“[E]ven before a decision on the merits of a
direct appeal is issued, this Court repeatedly has denied motions to file
supplemental briefs that seek to raise new issues not covered in an appellant's
initial brief on appeal.”); see also United States v. Njau, 386 F.3d 1039, 1041–42
(11th Cir. 2004) (refusing to consider a claim under Blakely v. Washington, 542
U.S. 296, 124 S. Ct. 2531 (2004), first raised in a letter submitted pursuant to Fed.
R. App. P. 28(j)); United States v. Hembree, 381 F.3d 1109, 1110 (11th Cir. 2004)
(denying a motion to file a substitute or amended principal brief raising a Blakely
claim); United States v. Curtis, 380 F.3d 1308, 1310–11 (11th Cir. 2004) (denying
a motion to file a supplemental brief raising a Blakely claim), modified on other
15
Case: 12-15102 Date Filed: 08/13/2013 Page: 16 of 18
grounds, 400 F.3d 1334 (11th Cir. 2005); United States v. Padilla-Reyes, 247 F.3d
1158, 1164 (11th Cir. 2001) (“[B]ecause Padilla did not raise this issue in his
initial brief to this court, we apply the rule that parties cannot properly raise new
issues at supplemental briefing, even if the issues arise based on intervening
decisions or new developments cited in supplemental authority.”); United States v.
Ardley, 242 F.3d 989, 990 (11th Cir. 2001) (refusing to consider, on remand from
the Supreme Court, an issue arising under Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348 (2000), not raised in the initial or reply brief during the original
appeal).
In light of this futility, under Strickland Geter cannot show that his appellate
counsel performed deficiently by failing to raise a career-offender claim based on
the decision in Begay for the first time on appeal through a supplemental brief.
Indeed, as outlined earlier, Geter’s appellate counsel on direct appeal did file
a petition for rehearing and motion to supplement that petition, wherein appellate
counsel recognized that Begay and Archer effected a change to the controlling law
of this Circuit by abrogating Gilbert. Appellate counsel then attempted to raise
Geter’s career-offender sentencing enhancement issue in a motion to supplement
the petition for rehearing, admitting that he “simply did not anticipate” the change
in controlling law. This Court denied the petition for rehearing and motion to
supplement on the very basis identified above: appellate counsel’s “failure to brief
16
Case: 12-15102 Date Filed: 08/13/2013 Page: 17 of 18
the [career-offender sentencing enhancement] argument in his opening brief
constituted a waiver of that argument . . . . notwithstanding our recent decision in
Archer.”
D. Government’s Argument on Appeal
The government argues that the underlying claim in Geter’s § 2255
motion—a challenge to his career offender designation—is not cognizable and
cannot be brought in a § 2255 proceeding anyway because the claim does not turn
on whether Geter’s “sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.” See 28 U.S.C. § 2255(a). However,
because we decide Geter’s appeal on procedural default grounds, “we leave for
another day the question of whether this type of claim is cognizable under § 2255
in the first instance.” McKay, 657 F.3d at 1195.
III. CONCLUSION
Because Geter has failed to demonstrate that his appellate counsel rendered
ineffective assistance, he has not satisfied the “cause” component of the cause-and-
prejudice exception to the procedural default rule. See Strickland, 466 U.S. at
687–88, 104 S. Ct. at 2064–65; Nyhuis, 211 F.3d at 1344. Thus, the district court
did not err in denying Geter’s § 2255 motion because the only claim that Geter
17
Case: 12-15102 Date Filed: 08/13/2013 Page: 18 of 18
sought to raise in that motion—a challenge to his career-offender designation—
was procedurally defaulted, and no exceptions to the procedural default rule apply
here. We therefore affirm the denial of Geter’s § 2255 motion to vacate.
AFFIRMED.
18