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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14133
Non-Argument Calendar
____________________
MICHAEL EDWIN HARDING,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket Nos. 2:18-cv-14359-RLR,
2:15-cr-14057-RLR-1
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2 Opinion of the Court 21-14133
____________________
Before JORDAN, LAGOA, and HULL, Circuit Judges.
PER CURIAM:
Michael Harding is a federal prisoner serving a life sentence
after pleading guilty to distributing and possessing child
pornography (Counts 1-4) and nolo contendere to attempting to
coerce a minor to engage in sexual activity (Count 5) and
producing child pornography (Count 6). Harding appeals the
district court’s denial of his 28 U.S.C. § 2255 motion to vacate his
convictions on Counts 5 and 6 on grounds that his plea-stage
attorney rendered ineffective assistance. 1
This Court granted a certificate of appealability (“COA”) on
two issues: (1) “[w]hether the district court violated Clisby v. Jones,
960 F.2d 925 (11th Cir. 1992), by failing to address specifically
Harding’s claim that his plea was involuntary because his attorney
did not advise him that he could be subject to post-incarceration
civil commitment”; and (2) “[r]egardless of any potential Clisby
error, whether Harding’s attorney rendered ineffective assistance
by failing to advise him that his nolo contendere plea could result in
post-incarceration civil confinement, and, if so, whether that
ineffective assistance prejudiced him.” After careful review of the
record and briefs, we find no Clisby error and affirm the district
1 In the district court, Harding withdrew his § 2255 motion as to Counts 1
through 4 and clarified that he sought to vacate only his nolo contendere plea
as to Counts 5 and 6.
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court’s denial of Harding’s ineffective assistance claim as to Counts
5 and 6.
I. BACKGROUND
A. Offenses and Indictment
In 2015, federal agents investigated Harding, a police officer
in Port St. Lucie, Florida, for posting images of child pornography
to a Kik Messenger chatroom. A subsequent search of Harding’s
residence revealed a thumb drive containing hundreds of still
images and videos of minors engaged in sexually explicit conduct
with other minors and adults.
Pertinent to Counts 5 and 6, agents also searched a cell
phone taken from Harding’s nightstand and found, among other
things, messages with other individuals about engaging in sexual
activity with minors. Between August and September 2015,
Harding had conversations with an individual, identified as
“daddydearaimee,” in which Harding claimed to have engaged in
sexual activity with his nine-year-old stepdaughter. Harding and
daddydearaimee discussed exchanging their minor children for the
purposes of engaging in sexual acts with them. In interviews,
Harding’s two stepdaughters, aged nine and five, both said Harding
had engaged in sexual activity with them.
Additional forensic examination of Harding’s cell phone
uncovered a thumbnail image, created in November 2014, when a
video was recorded on the phone. The thumbnail image depicted
Harding’s then eight-year-old stepdaughter performing oral sex on
Harding. In his chats, Harding had discussed the video and said he
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had deleted it because he feared getting caught. A sex toy found
with the thumb drive at Harding’s residence was determined to
contain the stepdaughter’s DNA.
In a second superseding indictment, a federal grand jury
charged Harding in Counts 1 through 3 with distribution of child
pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1); in
Count 4 with possession of child pornography, in violation of 18
U.S.C. § 2252(a)(4)(B) and (b)(2); in Count 5 with attempting to
entice a minor to engage in sexual activity, in violation of 18 U.S.C.
§ 2422(b); and in Count 6 with production of child pornography, in
violation of 18 U.S.C. § 2251(a) and (e).
B. Plea
At a pretrial status conference, the parties advised the district
court that Harding planned to enter an open plea of guilty to
Counts 1 through 4. Defense counsel explained that Harding
wanted to plead nolo contendere to the remaining two counts
because the state of Florida was preparing to charge him with
multiple counts of capital sexual battery based on Harding’s
conduct with his stepdaughters, and Harding did not want to admit
facts that could be used against him in his state criminal
proceedings.
The district court expressed confusion about why Harding
wanted to enter a nolo contendere plea when his advisory
guidelines sentence would likely be life imprisonment. Defense
counsel explained that the state charges carried mandatory life
sentences, and, in defense counsel’s view, a nolo contendere plea
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to Counts 5 and 6 gave Harding a better chance of defending
himself against those charges.
At a February 2016 plea hearing, Harding entered an open
plea of guilty to Counts 1 through 4 and of nolo contendere to
Counts 5 and 6. The factual basis for Count 5 was Harding’s
conversations with daddydearaimee about exchanging their minor
children for the purposes of engaging in sexual activity. The factual
basis for Count 6 was the deleted video recording of Harding
engaging in sexual activity with his minor stepdaughter.
Before accepting Harding’s pleas, the district court
reviewed, among other things, the minimum and maximum
penalties for each count, including a maximum of life
imprisonment as to Count 5; that Harding’s guidelines sentence
could be up to life imprisonment; and that because of the nature of
Harding’s convictions, he would be subject to substantial
restrictions on where he could live, work, and associate if he were
released. Harding indicated that he understood all of these things.
The district court did not discuss with Harding the
possibility that he could face civil commitment upon release.
C. Sentencing and Direct Appeal
At Harding’s May 2016 sentencing hearing, the district court
determined, without objection, that under the Sentencing
Guidelines, Harding’s total offense level was 43 and his criminal
history category was I, which yielded an advisory guidelines range
of life imprisonment. Defense counsel asked the district court to
vary downward from the advisory guidelines sentence of life and
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impose a 360-month sentence. The district court imposed a total
life sentence comprised of 240-month terms on Counts 1 though 4,
a life term on Count 5, and a 360-month term on Count 6, all to be
served concurrently.
On direct appeal, Harding argued, inter alia, that his plea was
involuntary because the district court did not mention during the
plea colloquy that he would be required to register as a sex offender
and subject to other restrictions under state and federal sex-
offender registration laws. United States v. Harding, 696 F. App’x
955, 957 (11th Cir. 2017). This Court reviewed Harding’s challenge
to the plea colloquy for plain error, found none, and affirmed his
convictions and sentences. Id. at 957-59.
D. Current § 2255 Motion
On September 4, 2018, Harding, pro se, docketed the present
§ 2255 motion raising eight claims for relief, including several
claims of ineffective assistance of his defense counsel in the district
court. Relevant to this appeal, in Ground Two Harding alleged,
under penalty of perjury, that his counsel: (1) failed to properly
advise him as to the application of the Sentencing Guidelines,
which resulted in an advisory guidelines range of life imprisonment
and misadvised him that he would receive no more than a thirty-
year sentence; 2 and (2) failed to advise him that his guilty and nolo
2 The ineffective assistance claims raised in the first part of Ground Two are
outside the scope of the COA and are discussed only for context. See Murray
v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998) (explaining that “appellate
review is limited to the issues specified in the COA”).
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contendere pleas “would subject him to mandatory registration as
a sex offender and possible indefinite civil commitment.” 3 Harding
also stated under penalty of perjury that had his defense counsel
advised him that he would be subject to possible indefinite civil
commitment, he would not have entered his pleas and would have
insisted on going to trial.
E. Evidentiary Hearing
A magistrate judge appointed Harding new counsel and held
a two-day evidentiary hearing on Ground Two, as it pertained to
Counts 5 and 6. The majority of the hearing centered on the first
part of Ground Two, which challenged counsel’s pre-plea advice
about the possible length of Harding’s sentence.
Both Harding and his former defense counsel testified at the
hearing. Harding testified that his trial counsel discussed the
Sentencing Guidelines with him, told him he was looking at a
sentence in the thirty-year range, and advised him there was no
way he would receive a life sentence. Harding said he would have
insisted on going to trial if he had known his advisory guidelines
sentence would be life imprisonment even with a three-level
reduction in his offense level for acceptance of responsibility.
Defense counsel, on the other hand, testified that a few
months before the plea hearing, he had advised Harding that his
3 The federal civil-commitment statute authorizes the Attorney General to
detain a person released from the custody of the Bureau of Prisons if, after a
hearing, the person is found to be “sexually dangerous.” 18 U.S.C. § 4248.
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guidelines sentence would be life but that he did not believe the
judge would impose a life term. Defense counsel described
Harding’s case as “very difficult” and not “a good trial case” given
the government’s evidence and said that if the jury believed the
thumbnail image on Harding’s phone was of Harding having sex
with his stepdaughter, “it would be a very short verdict in this
case.”
Defense counsel explained that “one of the major driving
considerations” in Harding’s case was the imminent state charges.
Defense counsel advised Harding that pleading guilty to Counts 5
and 6 would be an admission that could be used against him in his
state case, which was something Harding “wanted to avoid at all
costs.” Defense counsel’s strategy was to put Harding “in the best
light possible” at sentencing by pleading nolo contendere to
Counts 5 and 6 and seeking a downward variance from the
advisory guidelines sentence of life based on “some very good
mitigation.” Defense counsel testified that he explained this
strategy to Harding, who understood it and agreed that “the better
choice was to enter a plea” of nolo contendere to Counts 5 and 6
rather than go to trial.
At the hearing, Harding testified that, based on his
experience as a police officer, he knew convicted sex offenders are
required to register and have mandatory reporting requirements.
However, at the hearing, no evidence was presented about what
Harding knew, or what advice defense counsel gave or did not give
him, about the possibility of post-incarceration civil commitment.
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Nor did Harding testify that he would have insisted on going to
trial had he been advised of the possibility of civil commitment.
F. Denial of Harding’s § 2255 Motion
The magistrate judge issued a report and recommendation
(“R&R”), recommending that Harding’s § 2255 motion be denied
in full.
The R&R described Harding’s Ground Two as whether
“counsel failed to advise him that a plea would subject him to a
possible life sentence and to mandatory registration as a sex
offender and possible indefinite civil commitment.” With regard
to civil commitment, the R&R noted that Harding relied on this
Court’s decision in Bauder v. Department of Corrections, 619 F.3d 1272
(11th Cir. 2010). In Bauder, this Court held that defense counsel’s
affirmative misadvice—that a state defendant’s conviction would
not subject him to Florida’s civil commitment statute—was
deficient performance under Strickland v. Washington, 466 U.S. 668
(1984). 619 F.3d at 1274-75.
In recommending that “this portion of Claim 2 should be
denied,” the R&R noted, inter alia, that Harding, as the movant,
had the burden to prove his ineffective assistance claim, but had
“not put on any testimony that he received any misadvice
regarding any indefinite civil commitment or registration as a sex
offender.” As to the life sentence portion of Claim 2, the R&R
discredited Harding’s testimony and credited trial counsel’s
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testimony that he advised Harding of the potential life sentence
and thus “did not misadvise [Harding].” 4
Over Harding’s objections, the district court adopted the
R&R and denied his § 2255 motion.
II. DISCUSSION
A. Clisby Error
As already noted, this Court granted a COA on whether the
district court committed Clisby error by failing to address Harding’s
claim that his attorney did not advise him that he could be subject
to post-incarceration civil commitment.
Under Clisby v. Jones, district courts must resolve all claims
for relief raised in a habeas petition prior to granting or denying
relief. 960 F.2d 925, 936 (11th Cir 1992) (en banc); see also Long v.
United States, 626 F.3d 1167, 1169 (11th Cir. 2010) (explaining that
under Clisby, “any and all cognizable claims” should be included
when conducting a merits review). A claim for relief “is any
allegation of a constitutional violation,” and “an allegation of one
constitutional violation and an allegation of another . . . constitute
two distinct claims for relief, even if both allegations arise from the
same alleged set of operative facts.” Clisby, 960 F.2d at 936. If the
district court fails to address all claims prior to issuing judgment,
4 The R&R also determined that even if Harding had been misadvised that he
faced only a thirty-year sentence, Harding had not shown any prejudice
because, during his plea colloquy, the district court advised him of the
potential life sentence, and Harding “acknowledged that possibility.”
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we “will vacate the district court’s judgment without prejudice and
remand the case for consideration of all remaining claims.” Id. at
938.
Consistent with Clisby, the district court must “facilitate
meaningful appellate review by developing adequate factual
records and making sufficiently clear findings as to the key issues.”
Long, 626 F.3d at 1170. “[R]eformulat[ing]” or “reframing” a
movant’s claim is permissible, so long as the district court “get[s]
to the root of the problem.” Senter v. United States, 983 F.3d 1289,
1294 (11th Cir. 2020). We review de novo the legal question of
whether the district court violated the rule in Clisby. Dupree v.
Warden, 715 F.3d 1295, 1299-1300 (11th Cir. 2013).
Here, the district court did not commit Clisby error. The
R&R, adopted by the district court, addressed each alleged failure
by defense counsel asserted in Ground Two, including Harding’s
claim that his defense counsel failed to advise him of the possibility
of civil commitment upon his release from prison. The district
court correctly identified this claim and specifically addressed
Bauder, the precedent Harding relied on for his civil commitment
claim. By analyzing the civil commitment claim under Bauder, the
district court reached “the root of the problem.” See Senter, 983
F.3d at 1294.
While the district court discussed Harding’s claims about
sex-offender registration and civil commitment together in the
same subsection, it concluded as to both claims that Harding failed
to carry his evidentiary burden as the § 2255 movant because he
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did not testify about defense counsel’s “misadvice” as to either
mandatory sex-offender registration or the possibility of civil
commitment. This finding is sufficiently clear to permit
meaningful appellate review. See Long, 626 F.3d at 1170.
In sum, the district court’s resolution of Harding’s civil-
commitment ineffective assistance claim, while brief, was sufficient
to comply with Clisby. We therefore turn to the merits of
Harding’s claim that his defense counsel was ineffective by failing
to advise Harding of the risk of civil confinement.
B. Ineffective Assistance General Principles
A movant under § 2255 bears the burden to prove he is
entitled to relief. Beeman v. United States, 871 F.3d 1215, 1222 (11th
Cir. 2017). To show ineffective assistance of counsel, a defendant
must show both that: (1) his counsel’s performance was deficient,
meaning it fell below an objective standard of reasonableness; and
(2) the deficient performance prejudiced his defense, that is, there
was a reasonable probability that the results of the proceeding
would have been different absent counsel’s errors. Strickland, 466
U.S. at 687-88, 694.
In reviewing a denial of a § 2255 motion, we review the
district court’s legal conclusions de novo and its factual findings for
clear error. Tribue v. United States, 929 F.3d 1326, 1328 n.2 (11th Cir.
2019). Likewise, whether a movant’s counsel is ineffective is “a
mixed question of law and fact” subject to de novo review. See
Holladay v. Haley, 209 F.3d 1243, 1247 (11th Cir. 2000). We may
affirm the denial of a § 2255 motion on any ground supported by
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the record, regardless of the ground stated in the district court’s
order or judgment. Beeman, 871 F.3d at 1221.
Strickland’s familiar two-pronged test applies to whether
counsel provided ineffective assistance in connection with the
defendant’s plea. Riolo v. United States, 38 F.4th 956, 967 (11th Cir.
2022). As to the first prong, the defendant must show his attorney’s
representation in the guilty plea context fell below an objective
standard of reasonableness. Id. This Court has held that defense
counsel’s affirmative misrepresentation during plea negotiations
that the defendant’s no contest plea would not subject him to post-
incarceration civil commitment constituted constitutionally
deficient performance. Bauder, 619 F.3d at 1274-75 (relying on
Padilla v. Kentucky, 559 U.S. 356 (2010), which held that attorneys
must advise clients when their guilty pleas are likely to result in
removal from the United States).
As for the prejudice prong, the movant “must show that
there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going
to trial.” Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); see also Diveroli
v. United States, 803 F.3d 1258, 1263 (11th Cir. 2015). “Moreover,
to obtain relief on this type of claim, a [movant] must convince the
court that a decision to reject the plea bargain would have been
rational under the circumstances.” Diveroli, 803 F.3d at 1263
(quotation marks omitted).
However, the Supreme Court has admonished courts to
“not upset a plea solely because of post hoc assertions from a defendant
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about how he would have pleaded but for his attorney’s
deficiencies. Judges should instead look to contemporaneous
evidence to substantiate a defendant’s expressed preferences.” Lee
v. United States, 582 U.S. 357, 369 (2017) (emphases added). Thus,
“[t]he defendant’s own conclusory after-the-fact assertion that he
would have accepted a guilty plea, without more, is insufficient to
satisfy the first prong of the prejudice test.” United States v. Smith,
983 F.3d 1213, 1222 (11th Cir. 2020) (emphasis added) (quotation
marks omitted); see also Diaz v. United States, 930 F.2d 832, 835 (11th
Cir. 1991) (concluding petitioner failed to establish prejudice where
he offered only “after the fact testimony concerning his desire to
plead”).
Because the Supreme Court’s Lee decision is particularly
instructive as to contemporaneous versus post hoc assertions, we
briefly summarize it. In Lee, the defendant, a lawful permanent
resident of 35 years, was primarily concerned with whether a
criminal conviction would affect his immigration status. 582 U.S.
at 360-61. Lee’s attorney assured him, incorrectly, that his guilty
plea to possession of ecstasy with intent to distribute would not
result in his deportation. Id. at 361-62. Because Lee “had no real
defense to the charge,” going to trial would have been very risky.
Id. at 360-61. Based on his attorney’s assurances that he would not
be deported, Lee decided to accept a plea deal to obtain a lighter
sentence than he would have faced had he gone to trial. Id. at 360-
61.
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After learning he faced mandatory deportation at the end of
his sentence, Lee filed a § 2255 motion alleging ineffective
assistance of counsel. Id. at 361-62. At an evidentiary hearing, both
Lee and his plea-stage attorney testified that avoiding “deportation
was the determinative issue” in deciding whether to plead guilty or
go to trial. Id. at 362 (quotation marks omitted). Lee testified that
he questioned his defense counsel so often about his immigration
status that defense counsel became upset and admonished him for
always worrying about something he did not need to worry about.
Id. Defense counsel testified that, although Lee’s case was weak,
he would have advised Lee to go to trial had he known Lee would
be deported upon pleading guilty. Id.
The Supreme Court concluded that Lee had shown he was
prejudiced by his counsel’s erroneous advice under the “unusual
circumstances” of his case. Id. at 369. As noted earlier, the
Supreme Court distinguished between “post hoc assertions” from
a defendant and “contemporaneous evidence” from discussions at
the time of the plea. See id. The Supreme Court emphasized the
undisputed testimony from Lee and his defense counsel that at the
time of the plea, “deportation was the determinative issue in Lee’s
decision whether to accept the plea deal” and that “Lee would have
gone to trial if he had known about the deportation consequences.”
Id. Because Lee’s claim that had he known he would be deported,
he would not have accepted a plea was “backed by substantial and
uncontroverted evidence,” the Supreme Court concluded that Lee
had demonstrated “that, but for [his] counsel’s errors, he would not
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have pleaded guilty and would have insisted on going to trial.” Id.
at 371 (alteration in original) (quoting Hill, 474 U.S. at 59).
C. Harding’s Ineffective Assistance Claim
In Ground Two of his § 2255 motion, Harding averred,
under penalty of perjury, that his defense counsel failed to advise
him that his plea would subject him to possible indefinite civil
commitment. While there was no testimony on this point at the
evidentiary hearing, the government does not dispute Harding’s
sworn statement.
Instead, the parties vigorously dispute whether defense
counsel’s silence—rather than the affirmative misadvice in
Bauder—regarding exposure to civil commitment can constitute
deficient performance. We need not, and do not, resolve that
performance issue because, even assuming arguendo that defense
counsel’s failure to advise Harding of the potential risk of civil
commitment after his life sentence was objectively unreasonable
performance, Harding has not shown he was prejudiced as a result.
See Holladay, 209 F.3d at 1248 (explaining that because both prongs
of Strickland must be met, the reviewing court “need not address
the performance prong if the defendant cannot meet the prejudice
prong”).
Harding did not carry his burden to prove there was a
reasonable probability that, but for his trial counsel’s failure to
advise him of the possibility of post-incarceration civil
commitment, he would have insisted on going to trial. See Diveroli,
803 F.3d at 1263. According to former trial counsel’s statements at
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the pretrial status conference in Harding’s criminal proceedings
and his credited testimony at the § 2255 evidentiary hearing, the
most significant factors in Harding’s decision to enter a plea of nolo
contendere to Counts 5 and 6 was (1) to prevent harm to Harding’s
defense to impending state charges for which Harding faced a
mandatory life sentence; and (2) to avoid a possible life sentence in
federal court (by improving his chances of a downward variance
from the advisory guidelines sentence of life). These factors
suggest, if anything, that the mere possibility of civil commitment
after Harding served his federal sentence would not have caused
him to insist on going to trial on those two counts and risk harming
his state court defense.
Moreover, neither Harding nor his former defense counsel
even mentioned civil commitment during their hearing testimony.
In other words, unlike in Lee, here Harding did not offer any, much
less substantial, contemporaneous evidence suggesting that had he
known of the possibility of post-incarceration civil commitment,
he would have rejected his defense counsel’s strategy to enter a
nolo contendere plea and instead gone to trial on Counts 5 and 6.
See Lee, 582 U.S. at 362, 369. And absent any such
contemporaneous substantiating evidence, Harding’s bald, post
hoc assertion in his § 2255 motion that he would have insisted on
going to trial, cannot satisfy Strickland’s prejudice prong. See id. at
369; Smith, 983 F.3d at 1222; Diaz, 930 F.2d at 835.
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III. CONCLUSION
The district court addressed Harding’s civil-commitment
ineffective assistance claim in Ground Two as required by Clisby
and properly denied that claim because Harding failed to satisfy his
burden to show he suffered prejudice as a result of his defense
counsel’s alleged deficient performance. For these reasons, we
affirm the district court’s denial of Harding’s § 2255 motion.
AFFIRMED.
Michael Edwin Harding v. United States
Combined Opinion