                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                                No. 07-13592                ELEVENTH CIRCUIT
                            Non-Argument Calendar           FEBRUARY 19, 2009
                          ________________________           THOMAS K. KAHN
                                                                  CLERK
          D. C. Docket Nos. 06-80597-CV-DTKH, 04-80138 CR-DTK

ROSEMARY SCHIER,

                                                            Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                           Respondent-Appellee.

                          ________________________

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

                               (February 19, 2009)

Before BIRCH, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Rosemary Schier, a former federal prisoner, appeals the denial of her motion

for habeas relief, brought pursuant to 28 U.S.C. § 2255 before the termination of

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her term of supervised release.1          Schier argues that her trial counsel provided

ineffective assistance by (1) stipulating that the ice pick was a dangerous weapon,

(2) conceding her guilt in his opening statements and his direct examination of

Schier, and (3) failing to present evidence that the ice pick was not a valuable

collectible. After careful review, we affirm.

       Whether a defendant’s trial counsel was ineffective is a mixed question of

fact and law subject to de novo review. Brownlee v. Haley, 306 F.3d 1043, 1058

(11th Cir. 2002). “[I]n habeas proceedings, unlike direct appeals, the petitioner

bears the burden of establishing [her] right to relief . . . .” Blankenship v. Hall, 542

F.3d 1253, 1274 (11th Cir. 2008).

       To prevail on a claim of ineffective assistance of counsel, the defendant

must show: (1) that her counsel’s performance was deficient, i.e., the performance

fell below an objective standard of reasonableness, and (2) that she suffered

prejudice as a result of that deficient performance. Strickland v. Washington, 466

U.S. 668, 687-88 (1984). We need not “address both components of the inquiry if

the defendant makes an insufficient showing on one.” Id. at 697.


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         Schier was convicted and sentenced to two years’ supervised release on March 18, 2005,
meaning that her sentence should have expired on March 17, 2007, at the latest. Schier filed the
present § 2255 petition on June 20, 2006, before her sentence had expired. Although her case
continued after her sentence expired, her motion to vacate is not moot because she filed her motion
while she was still serving her sentence for the conviction. Van Zant v. Fla. Parole Comm’n,
104 F.3d 325, 327 n.2 (11th Cir. 1997).

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      To meet the deficient performance prong of the Strickland test, the

defendant must show that counsel made errors so serious that he or she was not

functioning as the counsel guaranteed by the Sixth Amendment. Id. at 687. There

is a strong presumption that counsel’s conduct fell within the range of reasonable

professional assistance. Id. at 689. Counsel is not incompetent so long as the

particular approach taken could be considered sound strategy. Chandler v. United

States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc). Even if a decision appears

to have been wrong, the decision will be held ineffective only if it was so

unreasonable that no competent attorney would have chosen it.          Adams v.

Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983); see also Chandler, 218 F.3d at

1315 (“for a petitioner to show that the conduct was unreasonable, a petitioner

must establish that no competent counsel would have taken the action that his

counsel did take”).

      To prove prejudice, “[t]he 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.”        Strickland, 466 U.S. at 694.     “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. It is not enough for the defendant to show that the error had some

conceivable effect on the outcome of the proceeding. Id. at 693.



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      First, we find no merit to Schier’s argument that her trial counsel provided

ineffective assistance by stipulating that the ice pick was a dangerous weapon.

“An individual shall be fined under title 18, imprisoned for not more than 10 years,

or both, if the individual . . . when on, or attempting to get on, an aircraft in, or

intended for operation in, air transportation or intrastate air transportation, has on

or about the individual or the property of the individual a concealed dangerous

weapon that is or would be accessible to the individual in flight.”        49 U.S.C.

§ 46505(b)(1) (originally enacted as 49 U.S.C. § 1472(l)). In United States v.

Dukovich, we cited with approval United States v. Brown, 508 F.2d 427, 430 (8th

Cir. 1974), in which the Eighth Circuit affirmed the district court’s finding that a

loaded tear gas gun discovered in a preboarding search was a “dangerous weapon”

within the meaning of 49 U.S.C. § 1472(l) under both the “per se (inherent) and

use capacities of the weapon,” and it was not necessary to show any evidence that

the appellant intended to use the pistol in a dangerous manner. United States v.

Dukovich, 11 F.3d 140, 142 (11th Cir. 1994) (concerning the applicability of a

sentencing guideline enhancement for possession of a “dangerous weapon”). In

United States v. Garrett, 984 F.2d 1402, 1406-09 (5th Cir. 1993), the Fifth Circuit

discussed at length several cases from different circuits that have considered what

constitutes a “dangerous weapon” under 49 U.S.C. § 46505(b)(1), including United



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States v. Dishman, 486 F.2d 727 (9th Cir. 1973), which held that there is no need

to show any intent to use the dangerous weapon, and United States v. Margraf,

483 F.2d 708 (3d Cir. 1973) (en banc), vacated and remanded on other grounds,

414 U.S. 1106 (1973) (vacated and remanded by the Supreme Court based on

Solicitor General’s recommendation that the complaint be dismissed), which held

that there is no need to show that the defendant was aware that his weapon, a

pocket knife, was dangerous.

      As this case law shows, Schier has not met the first prong of the Strickland

test by demonstrating that counsel’s stipulation that the ice pick was an inherently

dangerous weapon was not within the “range of reasonable professional

assistance.” Strickland, 466 U.S. at 687-89. Counsel’s decision to stipulate that

the ice pick was an inherently dangerous weapon could be considered “sound trial

strategy,” because: (1) there is no caselaw to support Schier’s argument that the

court needed to find that she had any intent to use the ice pick; and (2) it allowed

counsel to focus the court’s attention on whether Schier’s actions met the

“knowingly” element of the crime. Accordingly, Schier has not demonstrated that

her counsel’s conduct was so unreasonable that no competent attorney would have

chosen it, and it does not constitute ineffective assistance under the first prong of

Strickland. See Adams, 709 F.2d at 1445; Chandler, 218 F.3d at 1315.



                                          5
      Second, we are unpersuaded that trial counsel was ineffective and violated

her right to counsel when he conceded her guilt in his opening statements and by

preparing her to testify in a manner that resulted in an inadvertent concession of

guilt. Although counsel’s complete concession of a client’s guilt in front of the

jury may constitute ineffective assistance of counsel, there is a distinction between

a statement which constitutes a tactical retreat, and one which amounts to a

“surrender of the sword.” Messer v. Kemp, 760 F.2d 1080, 1091 n.6 (11th Cir.

1985) (quotations omitted). It is only a “ complete concession of the defendant’s

guilt” which constitutes ineffective assistance of counsel. Id. (quotations omitted).

      As the record shows, Schier’s counsel never completely conceded her guilt.

Rather, Schier’s trial counsel acknowledged in his opening statement that Schier

concealed the ice pick while on the plane. Additionally, counsel did not instruct

Schier to admit her guilt; instead, her testimony indicates she was instructed to

admit putting the ice pick in her sleeve. In light of the fact that two government

witnesses would testify to seeing Schier hide the ice pick in her sleeve, as well as

her post-arrest statements admitting she concealed the ice pick, counsel made the

strategic choice to acknowledge that she briefly tried to hide the ice pick. While it

is true that Schier’s confession that she put the ice pick in her sleeve undermined

her defense that she did not knowingly possess the ice pick, it was within the range



                                          6
of reasonable professional assistance for the defense not to contest what two

witnesses saw.     Moreover, counsel’s decision to argue that Schier did not

knowingly bring the ice pick onto the plane was reasonable in light of the record.

Because Schier’s counsel made a tactical decision to admit certain elements of the

crime in the face of overwhelming evidence, while focusing the defense on

Schier’s mental state, his conduct was not so unreasonable that no competent

attorney would have chosen it, and it does not constitute ineffective assistance

under the first prong of Strickland. See Adams, 709 F.2d at 1445; Chandler, 218

F.3d at 1315; Messer, 760 F.2d at 1091 n.6.

      Finally, we reject Schier’s claim that trial counsel was ineffective for failing

to present evidence that the ice pick was not a valuable collectible. On this record,

evidence of the ice pick’s value was not dispositive as to whether Schier would

have wanted to keep the item. It was therefore reasonable for trial counsel not to

present evidence on the collateral issue of the ice pick’s worth, and instead to focus

the court’s attention on whether Schier knowingly boarded the plane with the ice

pick. And while evidence that the ice pick was not valuable may have bolstered

the argument that one of the government witnesses incorrectly remembered his

conversation with Schier, Schier’s counsel presented other evidence to discredit

this witness. As we have said, “counsel’s reliance on particular lines of defense to



                                          7
the exclusion of others -- whether or not he investigated those other defenses -- is a

matter of strategy and is not ineffective unless the petitioner can prove the chosen

course, in itself, was unreasonable.” Chandler, 218 F.3d at 1318. In short, trial

counsel’s decision not to present evidence concerning the value of the ice pick was

a strategic decision that fell within the range of reasonable professional assistance.

See Strickland, 466 U.S. at 687-89; Chandler, 218 F.3d at 1314.

      Accordingly, we affirm the district court’s denial of Schier’s § 2255 motion.

      AFFIRMED.




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