Donald Brown v. USA

Filing

Opinion issued by court as to Appellant Donald Floyd Brown. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. Motion for Leave to File Out of Time filed by Appellant Donald Floyd Brown is GRANTED. [6710573-2]. (See 08/09/13 opinion)(SM/BBM.PTF)

Donald Brown v. USA

Doc. 1117124197

Case: 12-13270

Date Filed: 08/09/2013

Page: 1 of 9

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13270
Non-Argument Calendar
________________________
D.C. Docket Nos. 4:11-cv-00167-BAE-GRS
4:07-cr-00308-BAE-GRS-1
DONALD FLOYD BROWN,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(August 9, 2013)
Before MARCUS, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Donald Floyd Brown appeals the denial of his pro se motion to vacate, set
aside, or correct sentence, filed pursuant to 28 U.S.C. § 2255.

By way of

background, Brown was convicted of, inter alia, attempted robbery of a credit

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union, in violation of 18 U.S.C. §§ 2113(a) and 2, and possession of an
unregistered short barreled shotgun, in violation of 26 U.S.C. §§ 5861(d), 5841,
and 18 U.S.C. § 2. The indictment charged, inter alia, that Brown “did knowingly
and willfully attempt to take, by force and violence and by intimidation, property
and money belonging to and in the care” of a credit union. The evidence at trial
showed that Brown and his codefendant arrived at a credit union with the intention
of robbing it, but they were arrested prior to entering the building. In its jury
instructions, the district court said that, to be convicted of attempted credit union
robbery, Brown had to knowingly and willfully intend to commit the substantive
crime of credit union robbery -- which required that Brown take property from a
credit union “by means of force or violence or intimidation” -- and to take a
substantial step towards the commission of the crime. On direct appeal, Brown
argued that a conviction for attempted credit union robbery required the
government to establish that the defendant had used actual force and violence or
intimidation, rather than just an attempt to engage in an act of intimidation.
Reviewing the issue for plain error since Brown’s counsel had not preserved the
objection at trial, we rejected the claim because there was a circuit split and no
controlling precedent from us or the Supreme Court.
Brown thereafter moved the district court for relief under 28 U.S.C. § 2255,
which the district court denied in its entirety, concluding on the relevant ineffective

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assistance of counsel claims that an attorney could not be ineffective for failing to
argue an issue for which there was no controlling authority. Nevertheless, the
district court issued a certificate of appealability (“COA”) for these two issues:
[W]hether Brown’s trial lawyer provided ineffective assistance of counsel . .
. by failing to argue before the district court that the Government needed to
prove, beyond a reasonable doubt, that Brown used actual force, violence, or
intimidation during an attempted bank robbery, thus causing his appellate
lawyer to lose an otherwise valid claim on appeal; and
[W]hether Brown’s trial lawyer provided [ineffective assistance of counsel]
by failing to object to jury instructions that, Brown claims, amended the
indictment by allowing the jury to convict Brown of an attempted bank
robbery without finding that he used actual force, violence, or intimidation.
On appeal, Brown raises these issues, and also argues that the district court erred in
concluding that his counsel was not ineffective for failing to argue that a § 5861(d)
conviction required the government to prove that he knew the characteristics of the
firearm that brought it within the statute’s scope.1 After careful review, we affirm.
In a § 2255 appeal, we review legal conclusions de novo and factual findings
for clear error. Devine v. United States, 520 F.3d 1286, 1287 (11th Cir. 2008).
We review de novo both prongs of the ineffective assistance of counsel test set out
in Strickland v. Washington, 466 U.S. 668 (1984). Dell v. United States, 710 F.3d
1267, 1272 (11th Cir. 2013).

An issue not briefed on appeal is considered

abandoned. United States v. Willis, 649 F.3d 1248, 1254 (11th Cir. 2011).
1

By separate order, we have construed this third argument as a motion to expand the COA,
and denied the motion. To the extent he raises it now, we decline to address it since it is outside
the scope of the COA. See Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998).
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To make a successful claim of ineffective assistance of counsel, the
defendant must show that (1) counsel’s performance was deficient, and (2) the
deficient performance prejudiced his defense. Strickland, 466 U.S. at 687. Courts
need not “address both components of the inquiry if the defendant makes an
insufficient showing on one.” Strickland, 466 U.S. at 697.
Under the first prong, the defendant must establish that counsel’s
performance was deficient by demonstrating that counsel’s performance was
unreasonable under prevailing professional norms. Id. at 688. Under the second
prong, the defendant must establish prejudice by showing a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.”

Id. at 694.

A “reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id.
Where the prisoner alleges that counsel failed to preserve an issue for
appeal, we have rejected the argument that the inquiry into prejudice is whether the
appellate panel would have arrived at a different conclusion on direct appeal.
Instead, we’ve held that the relevant inquiry is whether the objection would have
caused the factfinder to have a reasonable doubt about the defendant’s guilt.
Purvis v. Crosby, 451 F.3d 734, 738-39 (11th Cir. 2006). This holding was due in
part to Strickland’s requirement that courts determine prejudice based on the
outcome of the trial, not the outcome on appeal, when the claimed error occurred at

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the guilt stage of a trial. Id. at 739. We also relied on Jackson v. Herring, 42 F.3d
1350 (11th Cir. 1995), where the trial attorney had remained completely silent
while the prosecutor struck all blacks from the jury, and we’d asked if there was a
reasonable probability of a different result at trial that was sufficient to undermine
our confidence in the outcome of the case. Id. at 1361-62.2
First, we find unavailing Brown’s claim that his counsel was ineffective for
failing to argue that the government needed to prove that he engaged in force and
violence or intimidation to convict him under § 2113(a). That section criminalizes
[w]hoever, by force and violence, or by intimidation, takes, or attempts to
take, from the person or presence of another, or obtains or attempts to obtain
by extortion any property or money or any other thing of value belonging to,
or in the care, custody, control, management, or possession of, any . . . credit
union.
18 U.S.C. § 2113(a). Neither this Court nor the Supreme Court has decided if
attempted robbery under § 2113(a) requires proof of force and violence or
intimidation, rather than just an attempt to engage in an act of intimidation.
Here, the district court did not err by denying Brown’s claim of ineffective
assistance because Brown did not establish Strickland prejudice. For starters, the
2

In Purvis, we distinguished Davis v. Sec’y, Dep’t of Corrs., 341 F.3d 1310 (11th Cir.
2003), where we had determined that the relevant inquiry was whether there was a reasonable
likelihood of a more favorable outcome on direct appeal had the claim been preserved. We
pointed out that in Davis, counsel’s alleged failures were committed “solely” in the attorney’s
role as appellate counsel. Purvis, 451 F.3d at 739. We said that Davis was an unusual case
because, there, counsel had recognized and pressed an issue before the trial court, but had
neglected to take a step that was relevant only to the appellate stage of the proceedings. Id. at
740. We characterized Davis as a “razor thin exception” to the general rule that prejudice is
measured in terms of the impact on the result of the trial, not the appeal. Id.
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relevant inquiry is not whether Brown was prejudiced on direct appeal, but,
instead, whether there was a reasonable probability that the factfinder would have
had a reasonable doubt about Brown’s guilt if his trial counsel had argued this
issue before the district court. See Purvis, 451 F.3d at 739-40. This case does not
fall within the “razor thin exception” created in Davis because, unlike in Davis,
where the attorney only failed to perfect an objection after raising it initially,
Brown’s attorney never raised the issue before the district court. See id. at 739-40;
Davis, 341 F.3d at 1315-16.
As applied here, Brown did not establish Strickland prejudice concerning his
guilt because he did not meet his burden of proving that there was a reasonable
probability that the district court would have upheld any objection or argument on
whether attempted robbery under § 2113(a) requires proof of force and violence or
intimidation. Indeed, there is a lack of controlling authority on the issue, and the
majority of circuits that have addressed the issue have not decided the issue in
Brown’s favor.

While a favorable decision on the issue would likely have

precluded the jury from finding him guilty on the § 2113(a) count, as the
government did not present any evidence that Brown actually used force and
violence or intimidation, Brown’s argument amounts to mere speculation that the
district court would have resolved the issue favorably to him, and that is
insufficient to establish prejudice. See Strickland, 466 U.S. at 694.

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We also reject Brown’s constructive amendment claim. A constructive
amendment of an indictment -- which occurs “when the essential elements of the
offense contained in the indictment are altered to broaden the possible bases for
conviction beyond what is contained in the indictment” --constitutes per se
reversible error. United States v. Ward, 486 F.3d 1212, 1226-27 (11th Cir. 2007).
Construing Brown’s brief broadly, he argues that his counsel erred by failing
to object to jury instructions that did not require the jury to find that he had used
actual force and violence or intimidation, which effectively amended the
indictment. But the district court did not err by denying this claim for the reasons
established in the first claim. As we’ve already described, there was a lack of
controlling authority concerning whether a conviction under § required the jury to
find actual force and violence or intimidation, and the majority of circuits that have
addressed the issue have not decided the issue in Brown’s favor. Thus, even if the
indictment were constructively amended by not requiring the jury to find either
violence or intimidation, Brown did not establish that he was prejudiced at trial by
his attorney’s failure to object to this constructive amendment.

Accordingly,

Brown did not meet his burden of proof to demonstrate that his counsel was
ineffective. See Strickland, 466 U.S. at 687.
AFFIRMED. 3

3

Brown’s motion to file a reply brief out of time is GRANTED.
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MARTIN, Circuit Judge, concurring:
I agree with the majority’s conclusion that the District Court’s denial of Mr.
Brown’s § 2255 petition should be affirmed because he has not shown prejudice
under Strickland v. Washington, 466 U.S. 688, 694, 104 S. Ct. 2052, 2068 (1984).
I write separately to emphasize two points. First, given trial counsel’s complete
failure to raise the § 2113(a) issue in the District Court, Mr. Brown’s case does not
implicate Davis v. Sec’y, Dep’t of Corr., 341 F.3d 1310, 1316 (11th Cir. 2003)
(“[W]hen a defendant raises the unusual claim that trial counsel, while efficacious
in raising an issue, nonetheless failed to preserve it for appeal, the appropriate
prejudice inquiry asks whether there is a reasonable likelihood of a more favorable
outcome on appeal had the claim been preserved.”). Davis remains binding circuit
precedent and may provide the controlling prejudice standard in the appropriate
case.
Second, while the Court need not address Strickland’s deficient performance
prong because Mr. Brown makes an insufficient showing as to prejudice, see
Strickland, 466 U.S. at 697, 104 S. Ct. at 2069, it bears repeating that “the mere
absence of [controlling circuit] authority does not automatically insulate counsel’s
failure to object” from being deemed deficient. Gallo-Chamorro v. United States,
233 F.3d 1298, 1304 (11th Cir. 2000). Since I agree with the majority’s

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conclusion that Mr. Brown was not prejudiced by his counsel’s failure to raise the
§ 2113(a) issue, I express no opinion about counsel’s performance.

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