[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 19, 2006
Nos. 05-10865 & 05-11665 THOMAS K. KAHN
Non-Argument Calendar CLERK
D. C. Docket Nos.
02-21852-CV-DMM
95-00605-CR-PAS
FRANCISCO SALDANA,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeals from the United States District Court
for the Southern District of Florida
(September 19, 2006)
Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Francisco Saldana (“Saldana”), a federal prisoner proceeding
through counsel, appeals the district court’s order denying his motion to vacate,
pursuant to 28 U.S.C. § 2255, seeking relief from his life-plus 15 years sentence
on drug trafficking and weapons charges. In his motion, Saldana asserted claims
that (1) his appellate counsel was ineffective for failing to raise an issue on appeal
concerning the magistrate judge’s jurisdiction to preside over jury deliberations
without his consent; and (2) his trial counsel was ineffective for failing to object to
the jurisdiction of the magistrate judge who presided over jury deliberations in his
trial. These are the only issues upon which Saldana obtained a certificate of
appealability.
I.
In a proceeding on a motion to vacate, set aside, or correct sentence, we
review the district court’s factual findings for clear error and the legal issues de
novo. See Castillo v. United States, 200 F.3d 735, 736 (11th Cir. 2000). We
review trial counsel’s performance for “reasonableness under prevailing
professional norms.” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir.
2000) (en banc) (quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 2065).
When a convicted defendant claims that his counsel’s assistance was ineffective,
the defendant must show that (1) counsel’s performance was deficient and (2) the
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deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.
687, 104 S. Ct. 2052, 2064 (1984). “Unless a defendant makes both showings, it
cannot be said that the conviction . . . resulted from a breakdown in the adversary
process that renders the result unreliable.” Id. “[T]he performance inquiry must
be whether counsel’s assistance was reasonable considering all the
circumstances.” Id. at 688, 104 S. Ct. at 2065. To establish prejudice, the
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, 104 S. Ct. 2068. Prejudice is only presumed where “counsel has entirely
failed to function as the client’s advocate.” Florida v. Nixon, 543 U.S. 175, 189,
125 S. Ct. 551, 561 (2004) (citation omitted). “We have held many times that
‘[r]easonably effective representation cannot and does not include a requirement to
make arguments based on predictions of how the law may develop.’” Spaziano v.
Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994) (citations omitted).
II.
On appeal, Saldana first argues that his appellate counsel was ineffective for
failing to argue on appeal that the magistrate judge did not have jurisdiction to
preside over the jury deliberations in his trial without his consent, which he did
not personally give to the court.
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The jurisdiction and powers of magistrate judges are set forth in 28 U.S.C. §
636. Magistrate Judges “may be assigned such additional duties as are not
inconsistent with the Constitution and laws of the United States.” 28 U.S.C. §
636(b)(3). In Gomez v. United States, 490 U.S. 858, 109 S. Ct. 2237 (1989), the
Supreme Court stated,
[b]y a literal reading this additional duties clause would permit
magistrates to conduct felony trials. But the carefully defined grant
of authority to conduct trials of civil matters and of minor criminal
cases should be construed as an implicit withholding of the authority
to preside at a felony trial.
490 U.S. at 871-72, 109 S. Ct. at 2246. The Supreme Court held that Congress did
not intend for magistrate judge’s to conduct voir dire in felony trials. Id. at 875-
76, 109 S. Ct. at 2248. As voir dire is a critical stage of a criminal trial, the
harmless-error standard did not apply where the magistrate exceeded his
jurisdiction by selecting a jury over the defendant’s objection. Id. at 876, 109 S.
Ct. at 2248. Subsequently, the Supreme Court held that “supervision of voir dire
in a felony proceeding is an additional duty that may be delegated to a magistrate
judge under 28 U.S.C. § 636(b)(3) if the litigants consent.” Peretz v. United
States, 501 U.S. 923, 935, 111 S. Ct. 2661, 2668 (1991). In arriving at the
decision, the Court held that Gomez did not apply “when the defendant has not
objected to the magistrate’s conduct of the voir dire.” Id. at 933, 111 S. Ct. 2668.
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It held that “permitting a magistrate to conduct the voir dire in a felony trial when
the defendant raises no objection is entirely faithful to the congressional purpose
in enacting and amending the Federal Magistrates Act.” Id. at 940, 111 S. Ct. at
2671.
In United States v. Brantley, 733 F.2d 1429 (11th Cir. 1984), a pre-Gomez
and Peretz decision, the district court asked the parties if they would object to a
magistrate judge accepting the verdict, and the parties did not object. Id. at 1442.
The district court then stated that “if the jury requested recharging, the counsel
‘should get together on it, if you can. If you cannot, then they will just have to
remain in there until I get up here. . .’” Id. During the deliberations, the magistrate
told counsel that the jury requested an instruction and he responded. Id. Though
counsel objected to the instruction on appeal, they did not object to the magistrate
issuing the instruction. Id. at 1443 n.23. We found that counsel waived the right
to have a district judge preside over the deliberations. Id. at 1443. Though the
magistrate erred in instructing the jury prior to consultation with counsel, counsel
did not object or try to locate the district judge. Id. Further, as the instruction was
correct, the error was harmless. Id.
In United States v. Maragh, 174 F.3d 1202 (11th Cir. 1999), we stated that
“[t]he Supreme Court’s interpretation of section 636(b)(3) establishes the presence
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or absence of consent as the crucial factor in determining what duties the section
encompasses.” 174 F.3d at 1204. The court need not personally address the
defendant, but the record must clearly show personal consent from the defendant.
Id. at 1206. In United States v. Desir, 257 F.3d 1233 (11th Cir. 2001), we held
that a magistrate’s responding to a jury question without defendant’s consent went
beyond the ministerial task of accepting the verdict. 257 F.3d at 1238. Thus, we
concluded that reversal was mandated when a magistrate judge solely conducts a
critical stage in the criminal procedure, instructing the jury, without the express
consent of all the parties. Id. at 1238.
After reviewing the record, we conclude here that the district court did not
err in finding that Saldana’s trial counsel was not ineffective. The record shows
that counsel agreed to permit the magistrate judge to answer jury questions. The
record also supports the district court’s finding that Saldana gave his counsel, Yale
Galanter, his consent to the exercise of jurisdiction by the magistrate judge after
Galanter had informed Saldana of some of the differences between the district and
magistrate judges. Thus, the district court did not clearly err in finding that
Saldana gave Galanter consent and Galanter relayed that consent to the court. As
Saldana consented to the procedure, his counsel was not deficient for failing to
challenge the presence of the magistrate judge at his deliberations on appeal.
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Furthermore, even if Galanter erred, Saldana has not shown prejudice
resulting from the error. Though the magistrate judge incorrectly answered the
first question from the jury in stating that a jail bond board had not been entered
into evidence, his answer was consistent with the district court’s prior ruling that
the board was not permitted in the jury room. Additionally, the district court
admitted and permitted the underlying exhibits in the jury room, but did not allow
the demonstrative evidence in the jury room. The magistrate judge correctly
answered the jury’s second question as an exhibit list had not been admitted into
evidence. Lastly, the magistrate judge correctly instructed the jury to refrain from
deciding any issues related to a forfeiture issue and informed them he would fully
answer their question after consulting the district judge. The jury withdrew its last
question before he could consult with the district judge and returned its verdict.
As Saldana cannot show that the magistrate judge answered any of the jury’s
questions in a materially incorrect way, he cannot show the necessary prejudice to
establish a claim of ineffective assistance of counsel. Accordingly, we affirm the
district court’s order on this ground.
Saladana also argues that his trial counsel erred in failing to object to the
magistrate judge’s exercise of jurisdiction over the jury deliberations in his trial as
his consent was not knowing or voluntary because he did not know the difference
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between the magistrate judge and the district judge’s duties. The relevant
standards of review and substantive law are stated above.
Again, upon review, we find no reversible error. Saldana’s counsel was not
ineffective for failing to object at trial because there was sufficient evidence that
Saldana consented to having a magistrate preside over the jury deliberations. John
Howes, an attorney for Saldana’s co-defendant, testified that he told Saldana that
he (Saldana) could object to the presence of the magistrate judge. He also testified
that Galanter told Saldana the differences between the duties of a magistrate judge
and a district judge. Galanter also testified that he spoke to Saldana concerning
his consent to having the magistrate judge preside over the deliberations. Though
Saldana denied that his counsel provided him sufficient information to inform his
consent, his counsel testified otherwise. The district court made a credibility
determination that is not clearly erroneous. Moreover, as discussed above,
Saldana has not shown how his counsel’s failure to raise an objection resulted in
prejudice. For the above-stated reasons, we affirm the district court’s order
denying Saldana’s motion to vacate.
AFFIRMED.
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