[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10324 ELEVENTH CIRCUIT
SEPTEMBER 30, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket Nos. 99-01265-CV-J-20-TEM,
97-00136-CR-J-2
RONALD C. BROADWATER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 30, 2009)
Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
On September 29, 1997, a Middle District of Florida jury found Ronald C.
Broadwater guilty of possession of crack cocaine with intent to distribute, and on
November 21, 1997, the district court sentenced him to prison for a term of 294
months. He appealed his conviction, and we affirmed. United States v.
Broadwater, 1151 F.3d 1359 (11th Cir. 1998). He subsequently moved the district
court to vacate his conviction pursuant to 28 U.S.C. § 2255. The court summarily
denied his motion in a one-sentence order. He appealed, and we vacated the
court’s order and remanded the case with the instruction that the court provide an
explanation for its ruling so to provide this court with a basis for review.
Broadwater v. United States, 292 F.3d 1302 (11th Cir. 2002). On December 16,
2008, the district court entered an order explaining its decision for denying § 2255
relief. Broadwater appealed, and the district court granted a certificate of
appealability on three issues, all claiming the denial of effective assistance of
counsel as follows:
1. His attorney failed to appeal the district court’s determination of the
quantity of drugs attributable to him;
2. His attorney did not challenge the sufficiency of the evidence to convict
on appeal because he failed to preserve the issue; and
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3. At trial, his attorney failed to impeach a prosecution witness with prior
inconsistent testimony.1
The Sixth Amendment right to counsel is the right to the effective assistance
of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052,
2063, 80 L.Ed.2d 674 (1984). To succeed on a claim of ineffective assistance of
counsel, a § 2255 petitioner must satisfy both prongs of the Strickland test.
Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir. 2004). First, the
petitioner must show that counsel’s performance was deficient. Strickland, 466
U.S. at 687, 104 S.Ct. at 2064. Second, he must establish that the deficient
performance prejudiced the defense. Id.
Strickland’s “performance prong requires a petitioner to establish that
counsel performed outside the wide range of reasonable professional assistance and
made errors so serious that he failed to function as the kind of counsel guaranteed
by the Sixth Amendment.” Butcher, 368 F.3d at 1293. The proper measure of
attorney performance is “reasonableness under prevailing professional norms.”
Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. The petitioner must prove the
unreasonableness of counsel’s performance by a preponderance of the evidence.
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In his brief, Broadwater argues that the court should have held an evidentiary hearing
on these claims. We do not consider the argument as it is beyond the issues certified for review
and, moreover, is meritless.
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Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc).
Judicial review of counsel’s performance is highly deferential, and there is a strong
presumption that counsel’s performance was reasonable. Id. at 1314. To
overcome the presumption, the movant “must establish that no competent counsel
would have taken the action that his counsel did take.” Id. at 1315.
Strickland’s “prejudice prong requires a petitioner to demonstrate that
seriously deficient performance of his attorney prejudiced the defense.” Butcher,
368 F.3d at 1293. This requires a showing that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. (citation and internal quotation marks omitted).
The Supreme Court has held that a criminal defendant’s appellate counsel is
not required to raise all nonfrivolous issues on appeal. Jones v. Barnes, 463 U.S.
745, 751-754, 103 S.Ct. 3308, 3312-3314, 77 L.Ed.2d 987 (1983). In so holding,
the Court noted that “[e]xperienced advocates since time beyond memory have
emphasized the importance of winnowing out weaker arguments on appeal and
focusing on one central issue if possible, or at most on a few key issues.” Id. at
751-752, 103 S.Ct. at 3313. Therefore, it is difficult for a defendant to show that
his counsel was ineffective for failing to raise certain issues on appeal, particularly
if counsel did present other strong issues. Smith v. Robbins, 528 U.S. 259, 288-
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289, 120 S.Ct. 746, 765-66, 145 L.Ed.2d 756 (2000). With these principles in
hand, we address in order the issues before us.
I.
“Calculating the base offense level for drug distribution requires a
determination of the quantity of illegal drugs properly attributable to a defendant.”
United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995). Section 1B1.3 of
the Sentencing Guidelines requires a district court to attribute to a defendant all
drugs foreseeably distributed pursuant to a common scheme or plan of which that
defendant’s offense of conviction was a part. Id. In determining the quantity of
drugs attributable to a particular defendant, a district court must make proper
findings of fact. Id. The presentence report (“PSI”) serves a role similar to a
pretrial stipulation in a civil case by identifying factual and legal issues that remain
in dispute. Id. When a defendant challenges one of the factual bases of his
sentence as set forth in the PSI, the government has the burden of establishing the
disputed fact by a preponderance of the evidence. Id. Rule 32(i)(3) of the Federal
Rules of Criminal Procedure requires the sentencing court to rule on any disputed
portion of the PSI at sentencing.
The district court explicitly stated that Broadwater should be held
responsible for all of the crack cocaine that came out of 108-B Orion Road, and it
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adopted the undisputed facts and the probation officer’s position in the PSI as to
the disputed facts. The probation officer’s position was that Broadwater should be
held accountable for all of the drugs found at 108-B Orion Road. Therefore, by
adopting the probation officer’s position, the district court ruled on the disputed
portion of the PSI which attributed Broadwater with the 28.8 grams of crack
cocaine, 29.3 grams of powder cocaine, and 92.3 grams of marijuana found at 108-
B Orion Road.
Because the district court made proper findings of fact with respect to the
drugs attributable to Broadwater, the district court correctly held that Broadwater’s
counsel did not perform below an objectively reasonable standard when he failed
to raise this issue on appeal.
II.
Rule 29(a) of the Federal Rules of Criminal Procedure states that, “[a]fter
the government closes its evidence or after the close of all the evidence, the court
on the defendant’s motion must enter a judgment of acquittal of any offense for
which the evidence is insufficient to sustain a conviction.” “A motion for
judgment of acquittal is a direct challenge to the sufficiency of the evidence
presented against the defendant.” United States v. Aibejeris, 28 F.3d 97, 98 (11th
Cir. 1994). Broadwater’s counsel moved for a judgment of acquittal and renewed
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the motion at the close of the evidence. His motion on both occasions was
sufficient to preserve the issue for appeal.
Counsel did not raise the issue on appeal because it was meritless; the
evidence demonstrated conclusively that Broadwater possessed the drugs at issue
with intent to distribute. The prosecution presented evidence that (1) Broadwater
had rented the car involved in the crash on August 12, 1995, and he was driving
the car in the area of the Magnolia Springs Apartments at the time of the crash, (2)
he had a bag with him when he first entered the car, (3) a black bag was found
approximately 40 feet from the car after the crash, (4) his fingerprints were found
on a small plastic bag inside the black bag, and (5) the black bag contained crack
cocaine. Given this evidence, there was no reasonable probability that a
sufficiency of the evidence challenge would have prevailed on appeal.
III.
“The decision as to whether to cross-examine a witness is a tactical one well
within the discretion of a defense attorney. . . . Absent a showing of a single
specific instance where cross-examination arguably could have affected the
outcome of either the guilt or sentencing phase of the trial, a [petitioner] is unable
to show prejudice necessary to satisfy the second prong of Strickland.” Fugate v.
Head, 261 F.3d 1206, 1219 (11th Cir. 2001) (citations and internal quotation marks
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omitted). “Ineffective assistance . . . will not be found merely because other
testimony might have been elicited from those who testified,” though we have
“found ineffective assistance where counsel failed to impeach the key prosecution
witness with prior inconsistent testimony where the earlier testimony was much
more favorable to the defendant.” Id. at 1219-20 (internal quotation marks and
citations omitted) (emphasis added). Though counsel may have performed
deficiently in failing to impeach a witness, the defendant must still demonstrate
that prejudice resulted from the deficient cross-examination. See id. at 1220.
Battle’s prior testimony, where she first unequivocally stated (1) that she
saw Broadwater bring a bag into the car, and (2) that it could have been the same
bag as the one found at the crash, was not much more favorable to Broadwater,
even given the fact that she later stated on cross-examination that she only thought
that Broadwater had a bag. Therefore, Broadwater’s attorney did not perform
unreasonably in failing to impeach Battle with her prior testimony. Furthermore,
there was substantial evidence, as discussed above, establishing Broadwater’s
possession of the drugs, so there is not a reasonable probability that the outcome of
the trial would have been different had Broadwater’s counsel impeached Battle
with her prior testimony. See Butcher, 368 F.3d at 1293.
Since we resolve against Broadwater the issues certified for appeal, the
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district court’s order denying § 2255 relief is
AFFIRMED.
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