[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12944 ELEVENTH CIRCUIT
MAY 7, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket Nos. 05-00259-CV-T-27MSS,
99-00078-CR-T-2
GERALD PAYNE,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 7, 2009)
Before BLACK, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Gerald Payne, a federal prisoner proceeding pro se, appeals the district
court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his
sentence. Payne v. United States, 546 F. Supp. 2d 1312 (M.D. Fla. 2008). We
granted a certificate of appealability on the issue of “[w]hether appellate counsel
was ineffective for failing to argue that the trial court erred by enhancing
appellant’s sentence based on abuse of a trust position.” Payne, who received the
enhancement based on his status as a pastor, asserts his appellate counsel provided
him with ineffective assistance by failing to challenge his two-level sentencing
enhancement for abuse of a position of trust. He notes this Court reversed the
abuse-of-trust enhancement given to one of his codefendants who was also a pastor
in United States v. Hall, 349 F.3d 1320 (11th Cir. 2003).
An ineffective-assistance-of-counsel claim presents a mixed question of law
and fact, which this Court reviews de novo. Devine v. United States, 520 F.3d
1286, 1287 (11th Cir. 2008). To prevail on a claim for ineffective assistance of
counsel, a defendant must show (1) his counsel’s performance was deficient, and
(2) this deficient performance prejudiced his defense. Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). An attorney’s performance is
deficient if he does not provide reasonably effective assistance. Id., 104 S. Ct. at
2064. “Judicial scrutiny of counsel’s performance must be highly deferential.” Id.
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at 689, 104 S. Ct. at 2065. In evaluating an attorney’s conduct, a court must avoid
“the distorting effects of hindsight” and must “evaluate the conduct from counsel’s
perspective at the time.” Id., 104 S. Ct. at 2065.
The Supreme Court has held a criminal defendant’s appellate counsel is not
required to raise all nonfrivolous issues on appeal. Jones v. Barnes, 463 U.S. 745,
751-54, 103 S. Ct. 3308, 3312-14 (1983). In so holding, the Court noted,
“[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 751-52, 103 S. Ct.
at 3313. Therefore, it is difficult for a defendant to show 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, 287-88, 120 S. Ct.
746, 765-66 (2000).
Section 3B1.3 of the Sentencing Guidelines provides for a two-level
sentencing enhancement in a case in which “the defendant abused a position of
public or private trust . . . in a manner that significantly facilitated the commission
or concealment of the offense.” Whether the defendant occupied a position of trust
is judged from the perspective of the victims. United States v. Garrison, 133 F.3d
831, 837 (11th Cir. 1998). In the context of fraud, we have held abuse of a
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position of trust occurs in two situations: “(1) where the defendant steals from his
employer, using his position in the company to facilitate the offense, and (2) where
a fiduciary or personal trust relationship exists with other entities, and the
defendant takes advantage of the relationship to perpetrate or conceal the offense.”
Id. at 837-38 (quotations omitted).
In Hall, we held the defendant did not occupy a position of trust under the
Sentencing Guidelines and reversed his U.S.S.G. § 3B1.3 sentencing enhancement
for abuse of a position of trust. 349 F.3d at 1321. In determining whether Hall
occupied a position of trust, we focused on the relationship between Hall and the
victims from the perspective of the victims. Id. at 1325. Instead of presenting
evidence to show there was in fact a personal trust relationship between Hall and
one of the victims, the government relied solely on Hall’s status as a pastor as the
basis for the enhancement. Id. Hall was the first time this Circuit addressed the
abuse-of-trust enhancement in the context of a defendant who is a pastor.
Payne cannot show deficient performance by his appellate counsel. Payne’s
appellate counsel did not have the benefit of this Court’s opinion in Hall at the
time he prepared Payne's direct appeal. Avoiding “the distorting effects of
hindsight” and “evaluat[ing] the conduct from counsel’s perspective at the time,” it
was not deficient performance for Payne’s appellate counsel to conclude Payne
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would likely not be successful in challenging his abuse-of-trust enhancement on
appeal. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Payne’s codefendants
raised many other issues, and the case also presented a lengthy record. See United
States v. Payne, No. 01-14746, manuscript op. at 3-5. Therefore, it was a
reasonable strategy for counsel to focus this Court’s attention on those issues that
he felt were the strongest.
Because Payne’s appellate counsel provided him with reasonably effective
assistance, counsel’s performance was not deficient.1 Accordingly, we conclude
Payne’s appellate counsel did not render ineffective assistance by failing to
challenge his abuse-of-trust enhancement on appeal, and the district court did not
err in denying Payne’s § 2255 motion as to this claim.
AFFIRMED.
1
Because Payne has failed to meet the first prong of the Strickland test, we need not
address whether he can meet the prejudice prong. See Holladay v. Haley, 209 F.3d 1243, 1248
(11th Cir. 2000).
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