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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10439
________________________
D.C. Docket Nos. 8:12-cv-00723-JDW-TGW,
8:08-cr-00318-JDW-TGW-1
CHARLES JACKSON FRIEDLANDER,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 30, 2014)
Before JORDAN, Circuit Judge, and BARTLE, * and BERMAN, ** District Judges.
*
Honorable Harvey Bartle III, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
**
Honorable Richard M. Berman, United States District Judge for the Southern District of New
York, sitting by designation.
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PER CURIAM:
Dr. Charles Jackson Friedlander appeals the district court’s denial, without
an evidentiary hearing, of his motion to vacate his conviction and 30-year sentence
for child enticement. See 18 U.S.C. § 2422(b). Following oral argument and a
review of the record, we affirm. We presume the parties’ familiarity with the facts
and the record, and set out only what is necessary to explain our decision.
I
To prevail on his claims of ineffective assistance of counsel, Dr. Friedlander
must establish two things: (1) that “counsel’s performance was deficient,” meaning
it “fell below an objective standard of reasonableness,” and (2) that “the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,
687-88 (1984). To satisfy the deficient performance prong, Dr. Friedlander must
show that counsel made errors so serious that he was not functioning as the counsel
guaranteed by the Sixth Amendment. See id. at 687. And he must rebut the strong
presumption that his counsel’s conduct fell within the range of reasonable
professional assistance. See id. at 689. He may satisfy the prejudice prong by
showing a “reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. “The
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likelihood of a different result must be substantial, not just conceivable.”
Harrington v. Richter, U.S. , 131 S. Ct. 770, 792 (2011).
A claim of ineffective assistance of counsel presents a mixed question of law
and fact that we review de novo. See Gordon v. United States, 518 F.3d 1291,
1296 (11th Cir. 2008). We review the district court’s legal conclusions de novo,
but our review of the district court’s subsidiary factual findings is only for clear
error. See Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004).
II
We granted Dr. Friedlander a certificate of appealability on three issues:
(1) Whether the district court erred in finding that [Dr.]
Friedlander’s trial counsel were not ineffective in their
preparation of Dr. Frederick Berlin for a Daubert1
hearing?
(2) Whether the district court erred in finding that [Dr.]
Friedlander’s trial counsel were not ineffective for failing
to call Dr. Berlin as a witness at sentencing?
(3) Whether the district court erred in finding that [Dr.]
Friedlander’s appellate counsel were not ineffective for
failing to challenge the use of uncharged conduct as
“relevant conduct” for purposes of U.S.S.G. § 1.B1.3?
We conclude that the district court did not err in its rulings.
1
Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579 (1993).
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A
We agree with the district court that, even if trial counsel rendered deficient
performance in improperly preparing Dr. Berlin for the Daubert hearing, Dr.
Friedlander has not shown a reasonable probability that the jury would have
acquitted him at the second trial. The first ineffectiveness claim therefore fails
under the prejudice prong of Strickland.
After the Daubert hearing, the district court ruled that Dr. Berlin could not
testify about the topic of Internet fantasy, but could testify that in his opinion Dr.
Friedlander was not a pedophile or sexual sadist. Dr. Berlin testified at the first
trial, which resulted in a mistrial, but did not testify at the second trial, in which the
jury found Dr. Friedlander guilty. Assuming that Dr. Berlin, with proper
preparation for the Daubert hearing, would have been allowed to testify about
Internet fantasy, and assuming that he would have been called as a witness at the
second trial, he would only have been able to tell the jury that (a) sometimes
people act out sexual fantasies and take on fictional personas on the Internet, (b)
that there are certain factors that he would look at to determine whether someone
was simply engaged in fantasies, and (c) that those who engage in fantasies do not
do harm to others (including children). Under Rule 704(b), he would not have
been able to testify about Dr. Friedlander’s actual mental state, which was an
element of the child enticement offense. See Dr. Berlin’s Expert Report [D.E. 6-
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8] at 4-5, 7-8; Dr. Berlin’s Affidavit [D.E. 12-1] at 4-5; Dr. Berlin’s Testimony at
the Daubert Hearing [D.E. 280 in Case No. 8:08-CR-318-T-27TGW (M.D. Fla.
2008)] at 16-26, 56-60.
Dr. Friedlander did not testify at the second trial and he cannot show that Dr.
Berlin’s testimony would have created a reasonable probability of an acquittal.
The evidence at trial showed that Dr. Friedlander traveled to meet with the person
who turned out to be the undercover officer, and in his car he had some of the
devices or instruments he had mentioned in the chats. That strongly suggests a
desire to carry out what had been discussed during the online chats. See Purvis v.
Crosby, 451 F.3d 734, 738 (11th Cir. 2006) (“When we are considering defective
performance at the guilt stage, the question is whether there is a reasonable
probability that, absent the errors, the factfinder would have had a reasonable
doubt respecting guilt.”) (internal quotation marks omitted). We therefore
conclude that Dr. Friedlander has failed to satisfy the prejudice prong of
Strickland.
B
Dr. Friedlander also has not shown Strickland prejudice from his trial
counsel’s failure to call Dr. Berlin as a witness at sentencing or from his appellate
counsel’s failure to challenge the use of purported relevant conduct at sentencing.
Assuming that trial counsel’s decision not to use Dr. Berlin at sentencing was not a
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reasonable strategic decision, and that appellate counsel rendered deficient
performance in not raising the relevant conduct argument, Dr. Friedlander has not
demonstrated a reasonable probability of a lesser sentence or a reversal on direct
appeal.
Looking at the sentencing hearing first, we conclude that there is no
reasonable probability that the district court would have sentenced Dr. Friedlander
to less time in prison had Dr. Berlin presented his opinions on future
dangerousness and treatment. We come to this conclusion for a number of
reasons: (1) trial counsel provided the district court with a letter written by Dr.
Berlin at sentencing, and the district court, referencing that letter and the testimony
at the Daubert hearing, disagreed with Dr. Berlin’s opinion that Dr. Friedlander’s
conduct was fantasy role playing, see Sentencing Transcript [Case No. 8:08-CR-
318-T-27TGW (M.D. Fla. 2008), D.E. 304] at 79; (2) the district court found that
“[t]his wasn’t just fantasy,” see id. at 80; (3) the district court found that Dr.
Friedlander had testified falsely at his first trial, see id. at 78; (4) the district court
imposed a 30-year sentence despite recognizing that at Dr. Friedlander’s advanced
age “any sentence [was] . . . likely to be a death sentence,” see id. at 79; (5) the
district court found that Dr. Friedlander had an interest in children and posed a risk
to them, see id. at 81-83; and (6) the district court thought that the sentence
imposed had to provide for general deterrence, see id. at 83-84. Indeed, in denying
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§ 2255 relief, the district court ruled that Dr. Berlin’s testimony about future
dangerousness and treatment options would not have led to a different sentence.
See Order Denying Motion to Vacate [D.E. 14] at 28.
With respect to the ineffectiveness claim relating to appellate counsel, the
relevant proceeding for evaluating prejudice is Dr. Friedlander’s direct appeal. See
Dell v. United States, 710 F.3d 1267, 1274 (11th Cir. 2013); Heath v. Jones, 941
F.2d 1126, 1132 (11th Cir. 1991). But errors in calculating the advisory sentencing
guidelines can be harmless, see United States v. Barner, 572 F.3d 1239, 1247 (11th
Cir. 2009), and we conclude that any error as to relevant conduct would have been
deemed harmless on direct appeal because the district court’s findings and
comments indicate that the same sentence would have been imposed.
The relevant conduct that Dr. Friedlander now says his appellate counsel
should have challenged added one level to the offense level, placing Dr.
Friedlander at level 41 (with a range of 324 - 405 months). Without that conduct
being considered under the advisory guidelines, Dr. Friedlander would have been
at level 40 (with a range of 292 - 365 months). Not only were these ranges
overlapping, the district court indicated that the guideline ruling would not likely
impact the ultimate sentence. “I don’t think as a practical matter [the relevant
conduct finding] i[s] going to make any difference. It does impact the guidelines,
but overall under [§] 3553(a), I certainly can consider it.” Sentencing Transcript
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[D.E. 304 in Case No. 8:08-CR-318-T-27TGW (M.D. Fla. 2008)] at 49-50. As we
read the record, any error in determining relevant conduct was harmless, and thus
Dr. Friedlander was not prejudiced by appellate counsel’s purportedly deficient
performance.
III
Because we conclude that Dr. Friedlander has failed to satisfy the prejudice
prong of Strickland with respect to the ineffective assistance of counsel claims
contained in the certificate of appealability, we affirm the denial of his motion to
vacate.2
AFFIRMED.
2
We decline Dr. Friedlander’s request to expand the certificate of appealability.
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