*1 not violate the FFCA.5 PETITION DENIED. Floyd BROWN,
Donald Petitioner-
Appellant, America,
UNITED STATES
Respondent-Appellee.
No. 12-13270
Non-Argument Calendar. Appeals,
United States Court of
Eleventh Circuit.
Aug. Brown, Salters, SC, Floyd
Donald pro se. Further, 2010).
5. There is no merit to Hernandez’s claim that the BIA took administrative the state court documents were not consid- notice of the state court documents and ex parties ered. The discussed the documents them, plicitly addressed but concluded that during hearings Hernandez’s and in their they probative weight they had little because Although briefs filed with the IJ. the IJ did not grand jury’s did not indicate the basis for the decision, mention them in his oral the IJ is 1003.1(d)(3)(iv) "no bill.” See 8 C.F.R. explicitly every piece to discuss (permitting BIA to take administrative notice presents. Ayala of evidence an alien See documents). contents of official Gen., Att’y U.S. Cir. *2 or in- and violence Stuchell, used actual force Tanner, Ed- had James C. Brian R. attempt timidation, just an to rather than Office, Attorney’s Tarver, U.S. ward J. Review- intimidation. in an act of engage Savannah, GA, Respondent-Appellee. for since Brown’s plain for error ing the issue the preserved had not counsel trial, claim because there rejected we the controlling prece- no split was a circuit and Supreme us or Court. dent from the district moved Brown thereafter FAY, MARCUS, MARTIN and Before 28 U.S.C. for relief under Judges. Circuit in its en- court denied which the district ineffec- the relevant tirety, concluding on PER CURIAM: claims an' of counsel tive assistance the denial Floyd appeals Donald Brown failing ineffective for attorney could not be aside, vacate, motion to set pro his se of which there was no an issue for argue to sentence, to pursuant filed Nevertheless, correct authority. controlling By way background, of 2255. U.S.C. appeal- of a certificate district court issued alia, of, at- inter (“COA”) Brown was convicted for these two issues: ability union, viola- robbery of a credit tempted [Wjhether lawyer provided trial Brown’s §§ and and of 18 U.S.C. tion by ... of counsel ineffective assistance bar- short unregistered of an possession the district court failing argue to before of 26 U.S.C. shotgun, reled violation prove, needed to that the Government 5861(d), 5841, § 2. 18 U.S.C. The doubt, §§ and that Brown beyond a reasonable alia, that Brown charged, violence, inter force, indictment or intimi- used actual willfully attempt to knowingly attempted bank during “did and rob- dation an lawyer intimi- take, by and bery, causing appellate force and thus his violence on dation, money belonging ap- to valid claim property and to lose an otherwise peal; a union. The and in the care” credit and of that Brown [Wjhether at trial showed and lawyer provided evidence at a credit union codefendant arrived his of fail- counsel] assistance [ineffective it, that, robbing they but intention object jury with the of instructions ing to claims, the indictment entering the build- Brown prior were arrested amended instructions, to convict Brown by allowing jury jury In its ing. robbery without find- that, attempt- attempted an bank to be convicted of court said violence, force, actual ing that he had used robbery, Brown ed credit union or intimidation. intend to willfully and commit knowingly credit union rob- crime of issues, substantive Brown raises these appeal, On Brown required that take bery court erred in district argues also —which “by means a union property from credit ineffec- was not concluding that his counsel 5861(d) intimidation”—and to force or violence or that a failing argue for tive towards the com- step government take a substantial conviction appeal, characteristics On direct that he prove mission of crime. knew at- it within the stat- brought a conviction for argued the firearm review, we careful af- scope.1 After robbery required ute’s credit union tempted firm. that the defendant government expand order, argument a motion to third as By separate we have construed this
In appeal, legal we review con sufficient to undermine confidence in the de novo and factual outcome.” findings clusions for Id. clear error. Devine United 520 Where prisoner alleges that counsel (11th Cir.2008). F.3d re We preserve issue for we
view de
prongs
novo both
of the ineffective
rejected
have
argument
that the inqui
*3
assistance of counsel test set out in Strick
ry
prejudice
into
is whether
appellate
the
668,
land Washington,
v.
466 U.S.
104 panel would have arrived at a different
2052,
(1984).
S.Ct.
L.Ed.2d 674
Dell v.
conclusion
Instead,
on direct appeal.
States,
(11th
1267,
United
710 F.3d
we’ve held that
the
inquiry
relevant
is
Cir.2013). An issue not
appeal
briefed on
whether the
would have caused
is considered abandoned.
United States
the factfinder to have a reasonable doubt
Willis,
1248, 1254(11th Cir.2011).
649 F.3d
about
guilt.
defendant’s
Purvis v.
(11th
Crosby,
734,
451 F.3d
738-39
Cir.
To make a successful claim of ineffective 2006).
holding
This
was
in part
due
to
counsel,
assistance of
must
defendant
Strickland’s, requirement
that courts de
(1)
show
performance
that
counsel’s
was
prejudice
termine
based on the
outcome
(2)
deficient, and
performance
deficient
trial,
not the
outcome on
when
prejudiced
Strickland,
his defense.
466 the claimed error occurred at
guilt
687,
U.S. at
or obtains intimi- violence or money any or used force and actually or any property tortion to, dation, argument or amounts belonging value thing of other control, care, management, custody, speculation mere of, union. any favorably ... credit the issue possession or resolved would have him, is insufficient to establish 2113(a). Neither this Court 18 U.S.C. Strickland, See prejudice. if at- has decided Supreme nor Court 104 S.Ct. requires robbery under tempted intimidation, of force and violence proof Brown’s constructive reject also We attempt engage just than rather A amend- claim. constructive amendment *4 intimidation. an of act occurs an indictment —which ment of not Here, err the district elements of the offense essential “when the assis- claim of ineffective denying Brown’s indictment are altered in the contained did not establish tance because for conviction possible bases broaden starters, For prejudice. Strickland in the indict- what is contained beyond whether Brown was is not inquiry relevant error. per se reversible ment”—constitutes but, instead, on direct prejudiced Ward, 1212, 486 F.3d States United probabili- a reasonable there was whether Cir.2007). (11th 1226-27 a have had factfinder would ty that broadly, if his he ar- guilt Construing Brown’s Brown’s brief doubt about reasonable by failing to this issue before counsel erred argued gues had his trial counsel Purvis, at 451 F.3d that did not jury court. See instructions object within the does not fall used jury This case to find that he had require 739-40. intimidation, created Davis exception” thin “razor actual and violence force Davis, the attor- because, unlike in where amended the effectively which indictment. an after only perfect ney by deny- not court did err But district attorney never initially, Brown’s raising for the reasons established ing this claim the district court. the issue before already raised we’ve de- in the claim. As first Davis, 739-40; at 341 F.3d at See id. scribed, controlling was a lack of there 1315-16. concerning whether a conviction authority 2113(a) find jury under here, not establish Brown did applied As intimidation, and violence or actual force concerning guilt his prejudice Strickland have ad- majority of circuits that and the of meet burden he did not his because the issue have not decided dressed proba- that there was reasonable proving Thus, if even in Brown’s favor. issue would have bility the district court constructively amended were indictment argument on any objection or upheld either requiring jury find by not robbery under attempted whether intimidation, Brown did violence or 2113(a) and vio- requires proof force prejudiced he was Indeed, there ais lence or intimidation. con- object failure to this attorney’s his issue, authority on the controlling lack of Accordingly, amendment. structive have ad- majority of circuits that and the proof meet his burden Brown did not have not decided the issue dressed counsel ineffec- that his was demonstrate favorable favor. While a issue in Brown’s Strickland, tive. See likely have would on the issue decision finding guilty him S.Ct. 2052. jury precluded AFFIRMED.3
MARTIN, Judge, concurring: Circuit agree majority’s I with the conclusion HOROWITZ, Howard D. the District Court’s denial of Mr. Plaintiff-Appellant, petition should be af-
firmed prejudice because he has not shown Washington, under Strickland v. 466 U.S. CITIMORTGAGE, INC., Defendant-
668, 694, 2052, 2068, 104 S.Ct. 80 L.Ed.2d Appellee. (1984). I separately write to empha- First, size two points. given trial counsel’s No. 13-11383 complete failure to raise is- Non-Argument Calendar. Court, sue the District Mr. Brown’s implicate case does not Davis v. Sec’y, United States Court of Appeals, Corr., Dep’t Eleventh Circuit. Cir.2003) (“[Wjhen a defendant raises the counsel, unusual claim that trial while effi- Aug. issue, in raising cacious nonetheless *5 preserve it for the appro- priate prejudice inquiry asks whether
there is a reasonable likelihood of a more
favorable outcome on appeal had the claim preserved.”).
been binding Davis remains precedent may
circuit provide the con-
trolling prejudice appro- standard in the
priate case.
Second, while the Court need not ad-
dress performance Strickland’s deficient
prong because Mr. Brown makes an insuf- showing
ficient as to prejudice, see Strick-
land, S.Ct.
bears repeating that “the mere absence of
[controlling authority circuit] does not au-
tomatically insulate counsel’s failure to ob-
ject” being deemed deficient. Gallo-
Chamorro United (11th Cir.2000). agree Since I with majority’s conclusion that Mr. Brown prejudiced by
was not his counsel’s failure 2113(a) issue,
to raise the express I no
opinion about counsel’s performance. reply
3. Brown’s motion to file brief out of time is GRANTED.