            Case: 13-13905   Date Filed: 06/08/2016   Page: 1 of 6


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13905
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:12-cv-61003-RNS



FRANK JACKSON,

                                                           Petitioner-Appellant,

                                  versus

DEPARTMENT OF CORRECTIONS,

                                                          Respondent-Appellee.

                       ________________________

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

                               (June 8, 2016)



Before TJOFLAT, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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       Frank Jackson, a Florida prisoner, appeals the district court’s denial of his

petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. On petition

for post-conviction relief, the Florida trial court held that Jackson failed to

establish deficient performance by counsel. Jackson contends the district court

erred in holding that the state habeas court did not unreasonably apply Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). After review, 1 we affirm.

       In state court, Jackson was originally charged with armed robbery with a

firearm, but prior to jury selection, the state amended the information to instead

charge Jackson with attempted armed robbery with a firearm. After trial, a jury

convicted Jackson of the charge, and the Fourth District Court of Appeal affirmed

the conviction.

       In his state court motion for post-conviction relief, Jackson contended his

trial counsel rendered ineffective assistance 2 by affirmatively misadvising

Jackson’s sentence exposure such that Jackson decided not to accept a plea deal

offered by the state. Jackson claimed that (1) trial counsel told him that his

       1
         “We review de novo the district court’s denial of a § 2254 petition. Hall v. Thomas, 611
F.3d 1259, 1284 (11th Cir. 2010). On de novo review, we, like the district court, consider
“whether the state court acted contrary to clearly established federal law, unreasonably applied
federal law, or made an unreasonable determination of fact.” Id. (quotation omitted). Indeed,
review under § 2254(d)(1) “goes no further” than asking whether “there is no possibility
fairminded jurists could disagree that the state court’s decision conflicts with [Supreme Court]
precedent[].” Harrington v. Richter, 562 U.S. 86, 102, 131 S. Ct. 770, 786 (2011).
       2
          To prevail on a claim of ineffective assistance of counsel, Jackson must have
demonstrated that his counsel’s performance was deficient and that he suffered prejudice as a
result of counsel’s deficient performance. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
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maximum sentence under the amended information was 15 years; (2) the state had

offered a 5-year sentence if Jackson would plead guilty and testify against his co-

defendant; and (3) Jackson would have accepted the plea deal if he had known that

his maximum sentence was 30 years. The state trial court summarily denied

Jackson’s motion. On appeal, the Fourth District Court of Appeal reversed the trial

court’s order and remanded for the trial court to attach portions of the record

refuting Jackson’s claim or to conduct an evidentiary hearing regarding the claim.

       After an evidentiary hearing, the state trial court found that the state never

offered a plea deal and that Jackson’s counsel had properly advised Jackson

regarding his sentence exposure under the original information. The trial court

found, however, that Jackson’s counsel never informed Jackson of his sentence

exposure under the amended information, which was amended by ore tenus motion

immediately before trial. The trial court concluded that Jackson “ha[d] not proved

that his counsel was ineffective on the ground alleged” and therefore failed to

satisfy the deficient performance prong of Strickland.3 The court also noted that

“[d]efense counsel appeared to be arguing that [Jackson] was entitled to relief on

grounds beyond the specific claim raised in his motion” and held that it could not




       3
         Because the petitioner must establish both prongs of the Strickland test, a court may
conclude that the petitioner cannot satisfy one prong and decline to address the other prong. See
Dell v. United States, 710 F.3d 1267, 1274 (11th Cir. 2013).
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“provide relief on any ground not raised in the motion.” The Fourth District Court

of Appeal affirmed without comment.

      On Jackson’s § 2254 petition in the Southern District of Florida, the

magistrate judge issued a report and recommendation in which he found the state

trial court’s findings to be supported by the evidence and agreed that Jackson failed

to establish deficient performance. The district court agreed with the R&R and

entered an order denying Jackson’s motion. On appeal, Jackson argues that the

state trial court’s findings of fact lead to the unavoidable conclusion that Jackson’s

counsel did misadvise Jackson regarding his sentence exposure. Jackson’s counsel

advised Jackson that he would be sentenced to life in prison on the original

information but never amended that advice when the state amended the

information.

      Jackson’s argument fails for two reasons. First, that is not what Jackson

argued in state post-conviction proceedings. Jackson did not argue that he believed

himself to still be facing life imprisonment due to counsel’s failure to update

Jackson on the implications of the state’s amendment. Rather, Jackson argued and

testified that his counsel affirmatively told him that his maximum exposure under

the amended information was 15 years. There is no testimony that Jackson

believed his counsel’s original sentence-exposure advice remained accurate after

the state amended the information. In fact, Jackson repeatedly claimed to believe


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that the amendment reduced his exposure to 15 years. Jackson’s argument on this

appeal deviates from the grounds raised in his post-conviction motion and from the

testimony elicited in state court.

      Second, even if the state court had been presented with this argument,

Jackson fails to show that the state court unreasonably applied Strickland in

declining to find deficient performance under these facts. Although Jackson cites

authority stating that defense counsel must properly advise a defendant regarding

sentence exposure in order to facilitate an informed decision regarding how to

plead, no case addresses facts comparable to those before us. See Jenkins v.

Greene, 630 F.3d 298, 309 (2d Cir. 2010) (Parker, J., dissenting) (opining that the

majority should have considered the merits of a New York prisoner’s § 2254

petition alleging that defense counsel was ineffective for advising the prisoner that

he would receive between 10 and 12 years when his actual sentence was 50 years);

United States v. Booth, 432 F.3d 542, 548–50 (3d Cir. 2005) (ordering an

evidentiary hearing on a federal prisoner’s § 2255 petition to determine whether

defense counsel failed to inform the defendant that he could enter an open plea and

receive a three-level reduction under the Sentencing Guidelines for acceptance of

responsibility); United States v. Herrera, 412 F.3d 577, 580–82 (5th Cir. 2005)

(declining to decide whether defense counsel’s alleged 27-month miscalculation of




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a defendant’s maximum sentence exposure constituted ineffective assistance and

instead ordering an evidentiary hearing on a federal prisoner’s § 2255 petition).

      It is not an unreasonable application of Strickland to hold that a defense

attorney is not constitutionally deficient when he fails to update the defendant on

the possible sentencing effect of a last-minute, pre-trial amendment to the

information. See Ponticelli v. Sec’y, Fla. Dep’t of Corr., 690 F.3d 1271, 1291

(11th Cir. 2012) (“[W]e may issue a writ of habeas corpus only when the state

court’s ruling on the claim being presented in federal court was so lacking in

justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” (quotations omitted));

Williams v. Taylor, 529 U.S. 362, 410, 120 S. Ct. 1495, 1522 (2000) (O’Connor, J.,

writing for the majority) (“[A]n unreasonable application of federal law is

different from an incorrect application of federal law.” (emphasis in original)).

      AFFIRMED.




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