Opinion
No. 19-12096
10-27-2020
WILLIAM A. TENDRICH, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
[DO NOT PUBLISH] Non-Argument Calendar D.C. Docket Nos. 2:17-cv-14343-JEM, 2:14-cr-14008-JEM-1 Appeal from the United States District Court for the Southern District of Florida Before, JORDAN, BRANCH, and FAY, Circuit Judges. PER CURIAM:
The sole issue in this appeal is whether William Tendrich's counsel rendered ineffective assistance by failing to amend a petition for writ of certiorari in the Supreme Court to include a reference to Mathis v. United States, 136 S. Ct. 2243 (2016). We agree with the magistrate judge and the district court that counsel did not render deficient performance, and affirm the denial of Mr. Tendrich's motion to vacate under 28 U.S.C. § 2255.
Because we write for the parties, and assume their familiarity with the record, we set out only what is necessary to explain our decision.
Mathis held that when an offense lists alternative means of committing a single element, the modified categorical approach cannot be used to determine whether a conviction is a predicate offense under the Armed Career Criminal Act, 18 U.S.C. § 924(e). See Mathis, 136 S. Ct. at 2253-54. Mr. Tendrich argues that, had his counsel cited Mathis to the Supreme Court, it would have granted his certiorari petition and granted him relief (presumably by striking or invalidating his ACCA-enhanced sentence). This is because, Mr. Tendrich asserts, the Massachusetts burglary statute that gave rise to his prior convictions—M.G.L. Chapter 266, § 18—is not divisible. See Appellant's Br. At 16-18.
The government argues that Mr. Tendrich's ineffectiveness claim fails because there is no constitutional right to counsel for the purpose of filing a certiorari petition in the Supreme Court. See e.g., Steele v. United States, 518 F.3d 986, 988 (8th Cir. 2008). We decline to address this argument because the government failed to present it in the district court. See, e.g., United States v. Ladson, 774 F.2d 436, 441 (11th Cir. 1985) (refusing to consider the good-faith exception to the exclusionary rule because the government did not assert it in the district court).
We conclude that Mr. Tendrich's counsel did not render deficient performance. The "proper standard for attorney performance is that of reasonably effective assistance," Strickland v. Washington, 466 U.S. 668, 687 (1984), and there were a couple of reasons why counsel could have reasonably chosen not to cite Mathis in a supplemental filing. First, in 2005 the Supreme Court had suggested in an ACCA case that a burglary statute like M. G. L. Chapter 266, § 18—the statute under which Mr. Tendrich was previously convicted—is divisible and subject to the modified categorical test. See Shepard v. United States, 544 U.S. 13, 17 (2005). Second, at sentencing Mr. Tendrich (through counsel) acknowledged that the Massachusetts statute was divisible.
Alternatively, we agree with the magistrate judge and the district court that Mathis does not apply in Mr. Tendrich's case. See, e.g., D. E. 13 at 10-11 (magistrate judge's report and recommendation). As a result, Mr. Tendrich cannot show prejudice under Strickland. See Steele, 588 F.3d at 988-89 (a petitioner who alleges that counsel was ineffective in failing to file a certiorari petition must show a reasonable probability (a) that the Supreme Court would have granted the petition and (b) that he would have prevailed on remand).
AFFIRMED.