            Case: 12-15350   Date Filed: 02/28/2014   Page: 1 of 6


                                                         [DO NOT PUBLISH]


              IN THE UNITED STATS COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                    _____________________________

                             No. 12-15350
                         Non-Argument Calendar
                    _____________________________

                  D.C. Docket Nos. 0:11-cv-62319-KAM,
                         0:08-cr-60309-KAM-1

DONALD DUHART,

                                                      Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                      Respondent-Appellee.

                    _____________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                   _____________________________

                             (February 28, 2014)

Before TJOFLAT, JORDAN, and COX, Circuit Judges.

PER CURIAM:
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      Donald Duhart, a federal prisoner proceeding pro se, appeals the district

court’s denial of his 28 U.S.C. § 2255 motion to vacate his conviction based on his

guilty plea and his resulting sentence. We granted Duhart a certificate of

appealability (COA) on two issues:

             (1)Whether the district court erred in concluding that Claim
      One (claiming ineffective assistance of counsel) was waived by virtue
      of Duhart’s voluntary and knowing guilty plea; and
             (2) If the district court erred in concluding that Claim One was
      waived, whether it properly denied his sub-claim that counsel was
      ineffective in the pre-plea stage for advising him that U.S.S.G.
      § 2B3.1(b)(3)(C) applied to his conduct.

(See Dkt. 27). While we agree with Duhart that the district court erred by finding

that he waived the ability to challenge the knowing and voluntary nature of his

guilty plea, we affirm his conviction and sentence because Duhart fails to show

that his counsel provided ineffective assistance that impacted the knowing and

voluntary nature of his guilty plea.

      We review a district court’s factual findings for clear error on a motion to

vacate, set aside, or correct a sentence, and we review the district court’s legal

determinations de novo. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir.

2004). Whether counsel provided ineffective assistance is a mixed question of law

and fact that we also review de novo. Gomez-Diaz v. United States, 433 F.3d 788,

790 (11th Cir. 2005).




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      Ordinarily, a defendant’s knowing and voluntary guilty plea waives all

nonjurisdictional defects in the proceedings. United States v. Yunis, 723 F.2d 795,

796 (11th Cir. 1984). But, a defendant can still maintain an attack on the voluntary

and knowing nature of the guilty plea itself. Such an attack can be based upon

ineffective assistance of counsel claims that go to the knowing and voluntary

nature of the plea. See Wilson v. United States, 962 F.2d 996, 997 (11th Cir.

1992). Because Duhart’s claim of ineffective assistance of counsel challenged the

knowing and voluntary nature of the plea itself, the district court erred by

concluding (based upon the magistrate judge’s recommendation) that Duhart had

waived the ability to raise this claim. See Wilson, 962 F.2d at 997.

      The district court should have applied Strickland v. Washington’s, 466 U.S.

668, 104 S. Ct. 2052 (1984), test and evaluated the merits of Duhart’s claim. See

Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370 (1985). The two-part

Strickland test “applies to challenges to guilty pleas based on ineffective assistance

of counsel.” Id. To establish a constitutional claim for ineffective assistance of

counsel, a petitioner must establish two things: (1) that counsel’s performance was

deficient and (2) that the deficient performance prejudiced the outcome of the case.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To succeed, a petitioner must

satisfy both prongs. If a petitioner cannot satisfy one prong, we need not review

the other prong. Id. at 697, 104 S. Ct. at 2069.

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      To prove deficient performance under the first prong of Strickland, the

prisoner must show that counsel made errors so serious that petitioner’s counsel

failed to function as the counsel guaranteed by the Sixth Amendment. Id. at 687,

104 S. Ct. at 2064. The prisoner must show “that counsel’s representation fell

below an objective standard of reasonableness” measured against “prevailing

professional norms.” Id. at 688, 104 S. Ct. at 2064–65. Scrutiny of counsel’s

performance is highly deferential, and a strong presumption exists that counsel’s

performance fell within the range of reasonable professional assistance. Id. at 689,

104 S. Ct. at 2065. While counsel’s “tactical or strategic decision is unreasonable

if it is based on a failure to understand the law,” Hardwick v. Crosby, 320 F.3d

1127, 1163 (11th Cir. 2003), “counsel will not have rendered deficient

performance for an error in judgment” where the “legal principle at issue is

unsettled.” Black v. United States, 373 F.3d 1140, 1144 (11th Cir. 2004).

      Under U.S.S.G. § 2B3.1(b)(3)(C), a defendant’s offense level is increased by

six “[i]f any victim sustained bodily injury” and if the degree of bodily injury was

permanent or life threatening. U.S.S.G. § 2B3.1(b)(3)(C). Although several of our

sister courts of appeals have held that bystanders and responding police officers

qualify as victims under § 2B3.1(b)(3)(C), the parties have called to our attention

no binding caselaw of either the Supreme Court or this Court that has decided the




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question of whether a co-defendant injured during a robbery qualifies as a victim

under U.S.S.G. § 2B3.1(b)(3)(C).

      Duhart claims that his counsel performed ineffectively by advising him to

accept a plea agreement applying the § 2B3.1(b)(3)(C) bodily-injury enhancement

and failing to challenge the enhancement’s applicability where his codefendant

was the “victim.” Despite these contentions, the district court did not err in

denying Duhart’s ineffective assistance claim because his counsel’s advice to enter

into this plea agreement fell within the range of reasonable professional assistance.

      Although none of the cases the Government brought to our attention directly

address the issue of whether the term “victim” for the purposes of § 2B3.1(b)(3)(C)

includes a co-defendant, these cases do illustrate a body of persuasive law from

which the Government could have reasonably argued that the enhancement applied

in this case—and on which the district court in fact relied in determining that the

enhancement did apply. See United States v. Garcia-Ortiz, 528 F.3d 74 (1st Cir.

2008); United States v. Hidalgo, 197 F.3d 1108, 1109 (11th Cir. 1999). A

reasonable attorney could have challenged the applicability of the enhancement

based on the absence of controlling law. But it was not objectively unreasonable

for counsel to have advised Duhart that the enhancement applied given the absence

of controlling law on the issue. See Black v. United States, 373 F.3d 1140, 1144

(11th Cir. 2004); see also Pitts v. Cook, 923 F.2d 1568, 1573 (11th Cir. 1991).

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      Given the penalties Duhart faced, it was not objectively unreasonable for

counsel to advise him to enter into a plea agreement which included the

enhancement in exchange for the Government agreeing to dismiss three other

counts against him—one of which carried a maximum penalty of life

imprisonment. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064–65. Because we

conclude that Duhart failed to establish deficient performance under the first prong

of the Strickland test, we need not address the second prong of the test involving

prejudice. Id. at 697, 104 S. Ct. at 2069. After careful consideration of the parties’

arguments, we affirm the district court’s dismissal of Duhart’s 28 U.S.C. § 2255

motion. 1



      AFFIRMED.




      1
          Duhart’s motion to file his reply brief out of time is GRANTED.
                                               6
