Frank C. Baird, II v. United States , 445 F. App'x 252 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-15506 OCTOBER 26, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket Nos. 2:07-cv-08020-LSC-PWG,
2:05-cr-00523-LSC-PWG-1
FRANK C. BAIRD, II,
llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(October 26, 2011)
Before CARNES, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Federal prisoner Frank C. Baird, II, is serving a 1,190-month sentence after
pleading guilty to possession, production, and transportation of child pornography
and to traveling in interstate commerce for the purpose of engaging in illicit sexual
conduct with a minor. Proceeding pro se and claiming that his counsel provided
ineffective assistance in violation of his Sixth Amendment right, Baird appeals the
district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or
correct his sentences. Specifically, Baird argues that counsel failed to adequately
explain a clause in Baird’s plea agreement because counsel was unfamiliar with
parts of the relevant law. As a result, Baird says he was not in a position to
knowingly, intelligently, and voluntarily accept the plea agreement in which he
waived his right to ask the court to impose a sentence below the advisory
guideline range.1 Counsel’s failure, Baird asserts, not only met the standard for
deficient performance. But it also prejudiced him by precluding him from
challenging an unreasonably lengthy and severe sentence. After a thorough
review of the record and the parties’ briefs, we affirm Baird’s convictions.
In a 28 U.S.C. § 2255 proceeding, we review a district court’s legal
conclusions de novo and its factual findings for clear error. Rhode v. United
States, 583 F.3d 1289, 1290 (11th Cir. 2008). We review claims for ineffective
1
While the Certificate of Appealability (“COA”) refers to “waivers” in the plural, the only
waiver Baird discusses in his brief is the waiver of the right to argue for a below-guideline total
sentence under § 3553. Therefore, even though Baird is a pro se litigant on appeal, the issue of
any other waiver in the plea agreement as to which counsel may have been ineffective has been
abandoned. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003); see also
Irwin v. Hawk, 40 F.3d 347, 347 n.1 (11th Cir. 1994).
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assistance of counsel de novo as a mixed question of law and fact. Michael v.
Crosby, 430 F.3d 1310, 1318 (11th Cir. 2005).
Generally, when a conviction is based on a guilty plea, the defendant waives
all nonjurisdictional challenges, including those of a constitutional nature. Wilson
v. United States, 962 F.2d 996, 997 (11th Cir. 1992). This rule applies equally to
direct appeal and collateral attack: a § 2255 movant who entered a valid guilty
plea waives any pre-plea ineffective assistance claims that do not concern his
decision to enter the plea. See id. However, insofar as the movant challenges the
knowing and voluntary nature of the plea, as Baird does here, collateral attack is
permitted. See id.
To make a successful claim of ineffective assistance of counsel, a defendant
must meet a two-pronged test. He must show that: (1) counsel’s performance was
deficient; and (2) the deficient performance prejudiced his defense. Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Both parts of the
test must be met. If a defendant cannot satisfy the performance prong, a court
does not need to address the prejudice prong, and vice versa. Michael, 430 F.3d at
1319.
Baird argues that he satisfies the deficient performance prong because his
attorney, Jonathan Wesson, failed to adequately explain the following clause of his
plea agreement: “Should the defendant ask the court to impose a sentence below
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the advisory guideline range on any basis, including but not limited to factors in
18 U.S.C. § 3553, the government will consider this agreement null and void.”
The record reveals that Wesson’s failure to explain this clause properly prior to
Baird’s acceptance of the plea agreement stemmed from Wesson’s unfamiliarity
with 18 U.S.C. § 3553, which mandates that a court not impose a sentence “greater
than necessary” to achieve a number of important purposes, such as, inter alia,
promoting respect for the law, providing just punishment for the offense, and
protecting the public from further crimes by the defendant. See 18 U.S.C. §
3553(a). As a result of Wesson’s explanatory failure, Baird asserts, Baird
“unknowing[ly]” waived his right to ask the court for a sentence below what the
sentencing guidelines advised, essentially giving both the court and the
government free rein to “do as they wish[ed] with” him, “with no possibility of
objection.” For this reason, insists Baird, Wesson’s performance was
constitutionally deficient.
An evidentiary hearing was held to ascertain the validity of Baird’s § 2255
claims. This evidentiary hearing resulted in the district court finding that, while
Wesson failed to explain the § 3553 factors to Baird, Wesson did tell Baird
repeatedly at every stage of the proceeding that he would likely receive a life
sentence if he accepted the plea agreement. Beyond this, nothing prohibited
Baird’s sentencing court from imposing a below-guideline sentence on its own. In
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addition, the district court adopted the magistrate judge’s conclusion both
disputing Baird’s claims regarding what Wesson told him about sentencing and
designating Baird “an astoundingly unbelievable witness.”
We refrain from determining here whether Wesson’s failure to explain the
law underlying federal sentencing policy thoroughly to Baird constituted deficient
performance falling outside the “wide range” of professionally competent
assistance. Payne v. Allen, 539 F.3d 1297, 1317 (11th Cir. 2008) (quotation
marks omitted). Determining that issue is unnecessary because, regardless of
whether there was deficient performance on the part of his counsel, Baird has
failed to satisfy the second prong of the Strickland test. That is, he has not shown
that counsel’s failure to explain § 3553 in the context of the plea agreement
prejudiced his defense. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
Consequently, we hold that Baird is not entitled to relief.
Baird contends that had counsel informed him of his ability to challenge a
particularly severe sentence using the § 3553 factors, he would have never entered
into the plea agreement that waived his right to ask for a below-guideline sentence
based on those factors. For this reason, Baird claims, counsel’s failure to explain
the § 3553 factors in the context of the plea agreement caused him to suffer
prejudice.
However, the district court, whose factual findings we adopt in the absence
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of clear error, see United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003)
(“Under the clearly erroneous standard, we must affirm the district court unless
review of the entire record leaves us with the definite and firm conviction that a
mistake has been committed.” (quotation marks omitted)), determined that the
factual premises of this argument were invalid. First, it found that, contrary to
Baird’s assertions, Baird understood that “he was almost certain to receive a life
sentence” when he pleaded guilty. Second, the district court found that, with both
a conviction and life sentence likely, Baird’s primary concern in negotiating a plea
agreement was limiting the government’s ability to forfeit his property. This aim
was achieved through the final plea agreement, which left Baird’s home and farm
untouched. Accepting these factual findings, particularly that Baird’s decision to
plead guilty was driven by a desire to protect his home and farm and was
undertaken with the knowledge that a life sentence was likely, we conclude that
there is no reasonable probability that counsel’s provision of full and correct
information regarding § 3553 would have altered Baird’s decision to plead guilty.
Under the circumstances, Baird had ample motivation to accept the plea and save
his property. And by failing to show a “reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial,” Gordon v. United States, 518 F.3d 1291, 1297 (11th Cir. 2008)
(quotation marks omitted), we hold that Baird has failed to meet his burden under
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the prejudice prong of the Strickland test.
This conclusion draws further support from the sweeping language of the
waiver provision in the plea agreement at issue here. Specifically, that provision
precludes Baird from “ask[ing] the court to impose a sentence below the advisory
guideline range on any basis, including but not limited to factors in 18 U.S.C. §
3553.” (Emphasis added.) While he may not have understood § 3553, Baird does
not dispute that he knew that he was waiving his right to argue for a below-
guideline sentence “on any basis” when he entered the plea. Thus, the plain
language of this waiver buttresses our conclusion that a specific explanation
regarding the § 3553 factors would not have made a difference here.
Because he was not prejudiced by any deficiencies in his representation, we
hold that Baird entered his plea of guilty knowingly and voluntarily. Accordingly,
we affirm.
AFFIRMED.
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