                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                               July 24, 2008
                             No. 06-14023                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                           D. C. Docket Nos.
                 04-21090-CV-PAS & 01-00653 CR-PAS


ANTHONY BERNARD ETHERIDGE,



                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

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

                              (July 24, 2008)

Before TJOFLAT, ANDERSON and PRYOR, Circuit Judges.

PER CURIAM:
      On July 13, 2001, Southern District of Florida grand jury returned a two-

count indictment against petitioner, Anthony Bernard Etheridge, and Isaiah Byrnes,

charging them in Count I with conspiracy to possess with intent to distribute five

kilograms or more of cocaine, in violation of 21 U.S.C. § 846, and in Count II with

possession of 500 or more grams of cocaine with intent to distribute, in violation of

21 U.S.C. § 841(a). Plea negotiations failed, the Government filed Notice of

Sentencing Enhancement under 21 U.S.C. § 851, and petitioner proceeded to trial.

The jury found him guilty, and the district court sentenced him to prison sentences

totaling 240 months. He appealed his convictions, claiming as a ground for

reversal that his attorney rendered constitutionally ineffective assistance of

counsel. We affirmed his convictions without reaching the ineffective assistance

issue. United States v. Etheridge, 65 Fed. Appx. 714 (11th Cir. 2003)(table).

      On May 10, 2004, petitioner moved the district court to vacate his

convictions on the ineffective assistance ground he had raised on direct appeal. He

contended that he received ineffective assistance of counsel because his attorney,

although operating under a mistaken belief, advised him that there was an offer of

120-months’ incarceration available to him as long as he did not take his case to

trial. He says that this affirmative misrepresentation, together with the fact that the

outcome of his case would have been different absent the misrepresentation,



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amounted to ineffective assistance of counsel. Following extensive evidentiary

hearings before a magistrate judge and ultimately the district court, the district

court found that no agreement had existed between defense counsel and the

prosecutor initially assigned to the case – to the effect that the Government’s offer

to accept a plea of guilty and recommend sentences totaling 120 months would be

available up to the day of trial – and that counsel was not ineffective for failing to

memorialize his understanding of such agreement in writing. The court therefore

denied petitioner’s motion on the ground that petitioner failed to satisfy

Strickland’s first prong, ineffective performance of counsel. We issued a

certificate of appealability, thusly:

       Whether trial counsel was ineffective for advising [petitioner] that the
       government’s 12-month plea offer would continue to be available
       until trial.


       The Sixth Amendment gives criminal defendants the right to effective

assistance of counsel. U.S. Const., amend. VI; Strickland v. Washington, 466 U.S.

668, 684-86, 104 S.Ct. 2052, 2063 (1984). To prevail on a claim of ineffective

assistance of counsel, the defendant must demonstrate (1) that his counsel's

performance was deficient, i.e., the performance fell below an objective standard of

reasonableness, and (2) that he suffered prejudice as a result of that deficient

performance. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65. The court

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need not "address both components of the inquiry if the defendant makes an

insufficient showing on one." Id. at 697, 104 S.Ct. at 2069.

      There is a “strong presumption in favor of competence, and the petitioner’s

burden of persuasion – though the presumption is not insurmountable – is a heavy

one.” Chandler v. United States, 218 F.3d 1305, 1314-15 (11th Cir. 2000). When

the trial counsel is experienced, the presumption of competence is even higher. Id.

Our review of counsel's performance should focus on "not what is possible or what

is prudent or appropriate, but only [on] what is constitutionally compelled."

Chandler, 218 F.3d at 1313 (quoting Burger v. Kemp, 483 U.S. 776, 107 S.Ct.

3114, 3126, 97 L.Ed.2d 638 (1987)). Our review must be highly deferential, and

we must avoid second-guessing. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

      An attorney's “affirmative misrepresentation in response to a specific inquiry

from the defendant may, however, under certain circumstances, constitute

ineffective assistance of counsel.” United States v. Campbell, 778 F.2d 764,

768-69 (11th Cir.1985). An attorney has a duty to advise a defendant, who is

considering a guilty plea, of the available options and possible sentencing

consequences. Brady v. United States, 397 U.S. 742, 756, 90 S.Ct. 1463, 25

L.Ed.2d 747 (1970); see also Beckham v. Wainwright, 639 F.2d 262, 267 (11th

Cir.1981) (holding counsel's misrepresentation that the defendant could only be



                                          4
sentenced to five years incarceration on withdrawal of his guilty plea fell “outside

of the range of competence of attorneys in criminal cases”) (internal quotations

omitted); Finch v. Vaughn, 67 F.3d 909, 915-16 (11th Cir.1995) (holding counsel's

misrepresentation that the defendant's state sentence would be served concurrently

with his federal sentence constituted erroneous advice and ineffective assistance of

counsel).

      Here, although the district court did not clearly err in its factual finding that

no binding agreement existed between the Government and defense counsel to the

effect that the offer of 120- months’ confinement (if petitioner pled guilty) would

be kept open until trial commenced, the court erred in concluding that the evidence

failed to establish a prima facie case as to Strickland’s first prong, that counsel’s

performance was constitutionally deficient. The evidence showed that defense

counsel continued to affirmatively mislead petitioner into believing that the 120-

months’ offer was “on the table” and that the offer would remain open unless he

went to trial. In short, petitioner carried his burden of showing that counsel’s

performance was deficient. Brady, 397 U.S. 756, 90 S.Ct. 1463.

      The district court did not address Strickland’s second prong, prejudice. We

therefore vacate its judgment and remand the case, with the instruction that the

court consider the prejudice issue. We of course intimate no view as to the



                                            5
appropriate disposition of that issue.

      VACATED and REMANDED.




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