                                                        [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                           September 19, 2006
                       Nos. 05-10865 & 05-11665           THOMAS K. KAHN
                        Non-Argument Calendar                   CLERK



                            D. C. Docket Nos.
                           02-21852-CV-DMM
                           95-00605-CR-PAS

FRANCISCO SALDANA,

                                              Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                              Respondent-Appellee.



               Appeals from the United States District Court
                   for the Southern District of Florida


                          (September 19, 2006)

Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:
      Appellant Francisco Saldana (“Saldana”), a federal prisoner proceeding

through counsel, appeals the district court’s order denying his motion to vacate,

pursuant to 28 U.S.C. § 2255, seeking relief from his life-plus 15 years sentence

on drug trafficking and weapons charges. In his motion, Saldana asserted claims

that (1) his appellate counsel was ineffective for failing to raise an issue on appeal

concerning the magistrate judge’s jurisdiction to preside over jury deliberations

without his consent; and (2) his trial counsel was ineffective for failing to object to

the jurisdiction of the magistrate judge who presided over jury deliberations in his

trial. These are the only issues upon which Saldana obtained a certificate of

appealability.

                                          I.

      In a proceeding on a motion to vacate, set aside, or correct sentence, we

review the district court’s factual findings for clear error and the legal issues de

novo. See Castillo v. United States, 200 F.3d 735, 736 (11th Cir. 2000). We

review trial counsel’s performance for “reasonableness under prevailing

professional norms.” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir.

2000) (en banc) (quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 2065).

When a convicted defendant claims that his counsel’s assistance was ineffective,

the defendant must show that (1) counsel’s performance was deficient and (2) the

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deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.

687, 104 S. Ct. 2052, 2064 (1984). “Unless a defendant makes both showings, it

cannot be said that the conviction . . . resulted from a breakdown in the adversary

process that renders the result unreliable.” Id. “[T]he performance inquiry must

be whether counsel’s assistance was reasonable considering all the

circumstances.” Id. at 688, 104 S. Ct. at 2065. To establish prejudice, the

defendant must show “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id.

at 694, 104 S. Ct. 2068. Prejudice is only presumed where “counsel has entirely

failed to function as the client’s advocate.” Florida v. Nixon, 543 U.S. 175, 189,

125 S. Ct. 551, 561 (2004) (citation omitted). “We have held many times that

‘[r]easonably effective representation cannot and does not include a requirement to

make arguments based on predictions of how the law may develop.’” Spaziano v.

Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994) (citations omitted).

                                         II.

      On appeal, Saldana first argues that his appellate counsel was ineffective for

failing to argue on appeal that the magistrate judge did not have jurisdiction to

preside over the jury deliberations in his trial without his consent, which he did

not personally give to the court.

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      The jurisdiction and powers of magistrate judges are set forth in 28 U.S.C. §

636. Magistrate Judges “may be assigned such additional duties as are not

inconsistent with the Constitution and laws of the United States.” 28 U.S.C. §

636(b)(3). In Gomez v. United States, 490 U.S. 858, 109 S. Ct. 2237 (1989), the

Supreme Court stated,

      [b]y a literal reading this additional duties clause would permit
      magistrates to conduct felony trials. But the carefully defined grant
      of authority to conduct trials of civil matters and of minor criminal
      cases should be construed as an implicit withholding of the authority
      to preside at a felony trial.

490 U.S. at 871-72, 109 S. Ct. at 2246. The Supreme Court held that Congress did

not intend for magistrate judge’s to conduct voir dire in felony trials. Id. at 875-

76, 109 S. Ct. at 2248. As voir dire is a critical stage of a criminal trial, the

harmless-error standard did not apply where the magistrate exceeded his

jurisdiction by selecting a jury over the defendant’s objection. Id. at 876, 109 S.

Ct. at 2248. Subsequently, the Supreme Court held that “supervision of voir dire

in a felony proceeding is an additional duty that may be delegated to a magistrate

judge under 28 U.S.C. § 636(b)(3) if the litigants consent.” Peretz v. United

States, 501 U.S. 923, 935, 111 S. Ct. 2661, 2668 (1991). In arriving at the

decision, the Court held that Gomez did not apply “when the defendant has not

objected to the magistrate’s conduct of the voir dire.” Id. at 933, 111 S. Ct. 2668.

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It held that “permitting a magistrate to conduct the voir dire in a felony trial when

the defendant raises no objection is entirely faithful to the congressional purpose

in enacting and amending the Federal Magistrates Act.” Id. at 940, 111 S. Ct. at

2671.

        In United States v. Brantley, 733 F.2d 1429 (11th Cir. 1984), a pre-Gomez

and Peretz decision, the district court asked the parties if they would object to a

magistrate judge accepting the verdict, and the parties did not object. Id. at 1442.

The district court then stated that “if the jury requested recharging, the counsel

‘should get together on it, if you can. If you cannot, then they will just have to

remain in there until I get up here. . .’” Id. During the deliberations, the magistrate

told counsel that the jury requested an instruction and he responded. Id. Though

counsel objected to the instruction on appeal, they did not object to the magistrate

issuing the instruction. Id. at 1443 n.23. We found that counsel waived the right

to have a district judge preside over the deliberations. Id. at 1443. Though the

magistrate erred in instructing the jury prior to consultation with counsel, counsel

did not object or try to locate the district judge. Id. Further, as the instruction was

correct, the error was harmless. Id.

        In United States v. Maragh, 174 F.3d 1202 (11th Cir. 1999), we stated that

“[t]he Supreme Court’s interpretation of section 636(b)(3) establishes the presence

                                           5
or absence of consent as the crucial factor in determining what duties the section

encompasses.” 174 F.3d at 1204. The court need not personally address the

defendant, but the record must clearly show personal consent from the defendant.

Id. at 1206. In United States v. Desir, 257 F.3d 1233 (11th Cir. 2001), we held

that a magistrate’s responding to a jury question without defendant’s consent went

beyond the ministerial task of accepting the verdict. 257 F.3d at 1238. Thus, we

concluded that reversal was mandated when a magistrate judge solely conducts a

critical stage in the criminal procedure, instructing the jury, without the express

consent of all the parties. Id. at 1238.

      After reviewing the record, we conclude here that the district court did not

err in finding that Saldana’s trial counsel was not ineffective. The record shows

that counsel agreed to permit the magistrate judge to answer jury questions. The

record also supports the district court’s finding that Saldana gave his counsel, Yale

Galanter, his consent to the exercise of jurisdiction by the magistrate judge after

Galanter had informed Saldana of some of the differences between the district and

magistrate judges. Thus, the district court did not clearly err in finding that

Saldana gave Galanter consent and Galanter relayed that consent to the court. As

Saldana consented to the procedure, his counsel was not deficient for failing to

challenge the presence of the magistrate judge at his deliberations on appeal.

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      Furthermore, even if Galanter erred, Saldana has not shown prejudice

resulting from the error. Though the magistrate judge incorrectly answered the

first question from the jury in stating that a jail bond board had not been entered

into evidence, his answer was consistent with the district court’s prior ruling that

the board was not permitted in the jury room. Additionally, the district court

admitted and permitted the underlying exhibits in the jury room, but did not allow

the demonstrative evidence in the jury room. The magistrate judge correctly

answered the jury’s second question as an exhibit list had not been admitted into

evidence. Lastly, the magistrate judge correctly instructed the jury to refrain from

deciding any issues related to a forfeiture issue and informed them he would fully

answer their question after consulting the district judge. The jury withdrew its last

question before he could consult with the district judge and returned its verdict.

As Saldana cannot show that the magistrate judge answered any of the jury’s

questions in a materially incorrect way, he cannot show the necessary prejudice to

establish a claim of ineffective assistance of counsel. Accordingly, we affirm the

district court’s order on this ground.

      Saladana also argues that his trial counsel erred in failing to object to the

magistrate judge’s exercise of jurisdiction over the jury deliberations in his trial as

his consent was not knowing or voluntary because he did not know the difference

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between the magistrate judge and the district judge’s duties. The relevant

standards of review and substantive law are stated above.

      Again, upon review, we find no reversible error. Saldana’s counsel was not

ineffective for failing to object at trial because there was sufficient evidence that

Saldana consented to having a magistrate preside over the jury deliberations. John

Howes, an attorney for Saldana’s co-defendant, testified that he told Saldana that

he (Saldana) could object to the presence of the magistrate judge. He also testified

that Galanter told Saldana the differences between the duties of a magistrate judge

and a district judge. Galanter also testified that he spoke to Saldana concerning

his consent to having the magistrate judge preside over the deliberations. Though

Saldana denied that his counsel provided him sufficient information to inform his

consent, his counsel testified otherwise. The district court made a credibility

determination that is not clearly erroneous. Moreover, as discussed above,

Saldana has not shown how his counsel’s failure to raise an objection resulted in

prejudice. For the above-stated reasons, we affirm the district court’s order

denying Saldana’s motion to vacate.

      AFFIRMED.




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