[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10657 ELEVENTH CIRCUIT
________________________ SEPTEMBER 13, 2010
JOHN LEY
CLERK
D.C. Docket No. 1:06-cv-22893-PCH
GARY WILLIAM BAUDER,
lllllllllllllllllllll Petitioner - Appellee,
versus
DEPARTMENT OF CORRECTIONS STATE OF
FLORIDA, Walter A. McNeil,
lllllllllllllllllllll Respondent - Appellant,
SECRETARY FLORIDA DEPARTMENT OF
CHILDREN AND FAMILIES, et al.,
llllllllllllllllllll Respondents.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 13, 2010)
Before BARKETT and MARCUS, Circuit Judges, and HOOD,* Judge.
*
Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
PER CURIAM:
The State of Florida appeals the district court’s grant of Gary William
Bauder’s petition for habeas corpus under § 2254, in which the district court ruled
that Bauder’s criminal defense attorney was ineffective by misadvising Bauder
regarding the possibility of being civilly committed as a result of pleading to a
charge of aggravated stalking of a minor.1
In 2002, Bauder was charged with aggravated stalking of a minor, in
violation of Fla. Stat. § 84.048(5). Bauder, who was represented by counsel,
entered plea negotiations with the State immediately before his trial was set to
begin and ultimately entered a plea of no contest, during which no mention was
made of the possibility of civil commitment. Bauder was adjudicated guilty by the
trial court and sentenced to 270 days in jail, one year of community control, and
five years probation. Bauder appealed his conviction and sentence, which were
affirmed by the appellate court. The Florida Supreme Court dismissed Bauder’s
subsequent petition for review.
1
Florida’s civil commitment statute, Fla. Stat. § 394.910, et seq., allows the State of
Florida to indefinitely detain individuals adjudicated to be sexually violent predators beyond their
period of criminal incarceration.
2
Bauder then filed a motion for post-conviction relief pursuant to Fla. R.
Crim. P. 3.850, in which he alleged that his attorney misadvised him by informing
him, prior to his plea, that he could not face involuntary civil commitment under
Florida law pursuant to Fla. Stat. § 394.910, et seq.. The motion was summarily
denied by the trial court, which misperceived Bauder’s claim and instead
addressed whether a failure to inform of the possibility for civil commitment could
constitute ineffective assistance of counsel. The appellate court affirmed without
opinion.
Bauder then filed this petition for habeas corpus pro se in federal district
court in November 2006, likewise alleging, inter alia, that his counsel provided
ineffective assistance of counsel by affirmatively telling him that pleading no
contest to aggravated stalking would not subject him to civil commitment.2 The
district court initially denied the petition, construing Bauder’s claim as one
alleging that counsel failed to provide any advice on civil commitment. Bauder
appealed, and this Court reversed and remanded to the district court for
consideration of the claim that Bauder’s counsel had affirmatively misadvised
2
Bauder was incarcerated in December 2006 after admitting violations of the terms of his
community control, and was set to be released on August 1, 2007. On July 30, 2007, however,
the State of Florida filed a petition to have Bauder declared a sexually violent predator pursuant
to Florida’s civil commitment statute, which the state court granted, and Bauder has been
involuntarily committed since then.
3
him. Bauder v. Dep’t of Corr. of Fla., No. 08-10221, 333 Fed. Appx. 422 (11th
Cir. May 28, 2009). On remand, the district court appointed the Federal Public
Defender as counsel for Bauder and accepted briefing from both parties. The
magistrate judge issued a report and recommendation concluding that Bauder’s
petition should be granted, and, after a hearing on the State’s objections to the
magistrate’s report, the district court granted Bauder’s petition.3
In support of his petition for habeas corpus, Bauder submitted to the district
court testimony from his counsel during the state criminal proceeding, in an
affidavit, affirming that he “did not believe that the facts of this case could ever
trigger a [civil commitment] proceeding against Mr. Bauder” and “[h]ad [he] any
reason to believe that this particular case would trigger a Jimmy Ryce prosecution,
[he] would have recommended proceeding to trial.” He testified that he “did state
both at the time of his plea bargain . . . and subsequently thereafter to Mr. Bauder
that [he] never believed that the facts [of Bauder’s case] would be sufficient to
trigger a [civil commitment] proceeding.” Based on this testimony, which the
district court found credible, the district court found that counsel affirmatively
3
While federal courts typically must give deference to state court adjudications of claims
in a habeas petition, see 28 U.S.C. § 2254(d)(1), such deference is not required if the state court
failed to address the merits of a claim asserted by the petitioner. See Davis v. Sec’y for the Dep’t
of Corr., 341 F.3d 1310, 1313 (11th Cir. 2003). The district court found that deference was not
required because the state courts failed to address the merits of Bauder’s claim. We agree.
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misadvised Bauder and concluded that the affirmative misadvice constituted
deficient performance under Strickland v. Washington, 466 U.S. 668 (1984). The
district court also concluded that the misadvice prejudiced Bauder because (1)
there was not overwhelming evidence of Bauder’s guilt, (2) Bauder maintained his
innocence of the crime throughout the state criminal proceeding, (3) Bauder
averred in his pleadings that he would not have entered a plea had he been
correctly advised about the potential for civil commitment, and (4) Bauder’s
attorney stated that he would have recommended that Bauder proceed to trial if he
had any reason to believe that Bauder risked being civilly committed as a result of
pleading.
DISCUSSION
The State raises two arguments on appeal. First, the State argues that the
district court clearly erred in finding that Bauder’s counsel misadvised Bauder on
the collateral consequence of civil commitment stemming from his plea. Based on
counsel’s testimony described above, we cannot say that the district court’s factual
finding that counsel misadvised Bauder is clearly erroneous.
Second, the State argues that the district court erred in ruling that counsel’s
performance was deficient because the issue of whether Bauder would be subject
5
to civil commitment was being litigated at the time of Bauder’s plea. In support,
the State cites a number of cases holding that attorneys cannot be found to have
deficient performance when they fail to anticipate changes in law. While it is true
that attorneys are not expected to anticipate changes in the law, this case does not
involve a change in the law. Fla. Stat. § 394.910, et seq., was passed in 1999,
years before Bauder’s plea. Even if one could argue that the law was unclear, the
Supreme Court has noted that when the law is unclear a criminal defense attorney
must advise his client that the “pending criminal charges may carry a risk of
adverse [collateral] consequences.” Padilla v. Kentucky, 130 S. Ct. 1473, 1483
(2010).
Counsel’s deficient performance was not his inability to anticipate a ruling
on the interpretation of the Florida civil commitment statute. Rather, his deficient
performance was his affirmative representation that Bauder would not be exposing
himself to further detention past his sentence were Bauder to plead to the charge
of aggravated stalking. Here, counsel did not tell Bauder that there was a possible
risk of civil commitment, or that the law was unclear as to whether it could apply
to Bauder, or that he simply did not know. Rather, counsel told Bauder that
pleading to the criminal charge would not subject Bauder to civil commitment, and
6
this constituted affirmative misadvice. For these reasons, the district court’s grant
of Bauder’s petition for habeas corpus is
AFFIRMED.
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