           Case: 14-15569   Date Filed: 12/02/2015   Page: 1 of 7


                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-15569
                        Non-Argument Calendar
                      ________________________

                D.C. Docket Nos. 4:14-cv-0114-HLM-WEJ,
                       4:11-cr-00006-HLM-WEJ-1


RANDALL SCOTT ANDERSON,

                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (December 2, 2015)

Before TJOFLAT, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Randall Scott Anderson appeals the denial of his motion to vacate, set aside,

or correct his sentence, pursuant to 28 U.S.C. § 2255. We granted Anderson a

certificate of appealability on two issues:

      1.     Whether Mr. Anderson’s trial counsel’s mishandling of
             argument and evidence regarding his HIV status and disclosure
             constituted ineffective assistance resulting in a higher sentence.

      2.     Whether Mr. Anderson’s counsel rendered ineffective
             assistance on direct appeal by failing to argue sufficiently the
             impact on sentencing of the HIV information.

                                              I.

      We review an ineffective-assistance-of-counsel claim de novo as a mixed

question of law and fact. Payne v. United States, 566 F.3d 1276, 1277 (11th Cir.

2009). We review the district court’s factual findings for clear error. Murphy v.

United States, 634 F.3d 1303, 1306 (11th Cir. 2011).

      To demonstrate ineffective assistance of counsel, the petitioner must show

that (1) his counsel’s representation fell below an objective standard of

reasonableness, and (2) there is a reasonable probability that the proceeding’s

result would have been different, but for his counsel’s ineffective assistance.

Chandler v. United States, 218 F.3d 1305, 1312-13 (11th Cir. 2000) (en banc). A

court is not required to consider the performance component of the

ineffective-assistance test before the prejudice component, nor is it required to

examine both components of the ineffective-assistance test if the defendant fails to


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show that he received objectively unreasonable representation or fails to show that

he suffered prejudice. Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct.

2052, 2069, 80 L. Ed. 2d. 674 (1984). We engage in a “highly deferential” review

of counsel’s performance. Chandler, 218 F.3d at 1314. We presume that a

petitioner’s counsel acted competently, and the petitioner must prove that his

attorney’s representation was unreasonable under prevailing professional norms.

Id at 1314 n.15. “[A] petitioner must establish that no competent counsel would

have taken the action that his counsel did take.” Id. at 1315.

      Counsel does not have an absolute duty to investigate particular facts or

certain defenses. Id. at 1317. Counsel is not required to present all of the

mitigating evidence in the defendant’s favor, because effective advocacy “requires

winnowing out some arguments, witnesses, [and] evidence . . . to stress others.”

Id. at 1319 (internal quotation omitted).

      At sentencing, the district court is permitted to consider any information

with sufficient indicia of reliability, so long as the court makes explicit findings of

credibility and the defendant is given an opportunity to rebut the evidence. United

States v. Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010). “A defendant has a due

process right, however, not to be sentenced based on false or unreliable

information.” Id. To prove a due process violation based on the court’s

consideration of false or unreliable information, a defendant must demonstrate that


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the evidence is “materially false or unreliable,” and that the district court actually

used that information as the basis for the sentence. Id. The defendant must show

that the court explicitly relied on the false or unreliable information. Id. In

United States v. Lebowitz, we determined that Lebowitz’s HIV status was relevant

to his offense of attempting to entice a child to engage in unlawful sexual activity

because “clandestine exposure of his minor victims to even a minimal risk of HIV

infection was a circumstance of his offense conduct.” 676 F.3d 1000, 1006, 1016

(11th Cir. 2012).

      Anderson has not shown that his sentencing counsel provided deficient

representation by failing to rebut the Government’s statement that he never

disclosed his HIV status to an undercover officer because the Government did not

provide false information to the court when it said that Anderson withheld his HIV

status from the undercover officer during their communications. Anderson never

claimed that he affirmatively communicated his HIV status to the undercover

officer, and the Government’s argument relied on a factual assertion that he

withheld his HIV status by not affirmatively communicating it. Because the

Government did not provide materially false or unreliable information, Anderson’s

sentencing counsel did not render ineffective assistance by failing to counter the

alleged due process violation, because a competent attorney could have chosen to

focus on other arguments for a lower sentence rather than questioning the


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Government’s interpretation of the conversations between Anderson and the

undercover officer. See Chandler, 218 F.3d at 1319 (acknowledging that

competent counsel can choose not to present all mitigating information in order to

emphasize particular information).

      Anderson also has not shown that he was prejudiced by his counsels’ failure

to object to the Government’s claim that he carried an “extremely communicable”

disease or their failure to present evidence to show the minimal risk of HIV

transmission. The district court enunciated several other aggravating factors that

justified Anderson’s within-guidelines imprisonment sentence. Furthermore, the

district court did not indicate clearly that it considered whether Anderson’s HIV

was highly communicable, because it only stated that Anderson was HIV-positive

and that any sexual act with the potential victims would have endangered them.

Finally, the district court still could have considered evidence that Anderson was

extremely unlikely to transmit HIV as evidence of an aggravating factor. See

Lebowitz, 676 F.3d at 1016. Therefore, we affirm the district court’s denials of

Anderson’s ineffective-assistance-of-sentencing-counsel claims.



                                         II.

      A petitioner raising an ineffective-assistance claim relating to the

performance of appellate counsel must show that (1) the counsel’s performance fell


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below an objective standard of reasonableness, and (2) the outcome of his appeal

would have been different, but for the unreasonably deficient performance. Black

v. United States, 373 F.3d 1140, 1142 (11th Cir. 2004). An attorney is not required

to raise all non-frivolous issues on appeal. Payne, 566 F.3d at 1277. An appellate

attorney may render objectively unreasonable performance by ignoring a

well-defined legal principle, but an error in judgment concerning an unsettled

principle generally will not be considered deficient performance. Black, 373 F.3d

at 1144.

      Anderson has not demonstrated that he received ineffective assistance from

his appellate counsel because there was not a reasonable probability that the

evidence presented during his § 2255 proceedings would have changed our

conclusion on direct appeal that the district court committed no error by

considering Anderson’s HIV status as an aggravating factor. Anderson’s claim on

direct appeal that the district court erred by considering his HIV status as an

aggravating factor was foreclosed by prior precedent. Moreover, Anderson’s brief

on direct appeal argued that the district court issued an unreasonable sentence

because it had no evidence to show that Anderson’s intended sexual activity would

have endangered the minors, and we rejected his claim on Eighth Amendment and

substantive reasonableness grounds. Anderson argues that his appellate counsel

could have distinguished his case from Lebowitz, but any error in judgment


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regarding an unsettled principle of law does not demonstrate that his appellate

counsel rendered deficient performance. Because Anderson has not shown that

there was a reasonable probability of a different result if his attorneys had

presented evidence about the unlikelihood of HIV transmission on direct appeal,

we affirm the district court’s denial of his claim based on ineffective assistance of

appellate counsel.

      Therefore, we affirm the district court’s denial of Anderson’s § 2255 motion

to vacate.

      AFFIRMED.




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