David Chiddo v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14263
Non-Argument Calendar
____________________
DAVID CHIDDO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:20-cv-80012-RLR
____________________
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2 Opinion of the Court 21-14263
Before LAGOA , BRASHER , and TJOFLAT, Circuit Judges.
PER CURIAM:
David Chiddo, a counseled federal prisoner, appeals the Dis-
trict Court’s denial of his motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. We granted a certificate of ap-
pealability (“COA”) on the single issue of “[w]hether the magistrate
judge erred in concluding that the factual proffer was sufficient to
support Chiddo’s conviction for conspiracy to possess with intent
to distribute cocaine because it showed that Chiddo engaged in re-
peated transactions for the sale of cocaine.” Chiddo argues that the
factual basis for his guilty plea to conspiracy to possess with intent
to distribute cocaine was insufficient and, thus, his trial counsel was
ineffective for not objecting to the factual basis, his guilty plea was
not knowing and voluntary, and he was actually innocent of the
conspiracy offense. He argues that the factual proffer showed
merely a buyer-seller relationship, not a conspiracy, because it con-
tained only a few phone calls between himself and a known drug
dealer, Marvin Lester, discussing the possible sale of only a small
amount of cocaine. Because we are not convinced that Chiddo’s
counsel was constitutionally ineffective, we deny Chiddo’s peti-
tion.
I.
On May 19, 2015, a federal grand jury in the Southern Dis-
trict of Florida indicted Chiddo on one count of conspiracy to
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21-14263 Opinion of the Court 3
possess with intent to distribute cocaine (Count 12), one count of
possession with intent to distribute cocaine (Count 13), and one
count of distribution of oxycodone and cocaine (Count 14).1 On
September 11, 2015, Chiddo pled guilty to Count 12, pursuant to a
written plea agreement and a stipulated statement of facts. As part
of the plea agreement, the government agreed to drop the other
counts against Chiddo. After the indictment but before Chiddo en-
tered his guilty plea, Chiddo’s wife, Elizabeth Flores, and their
daughter were murdered by Flores’s mother.
Chiddo agreed to the following facts in the factual proffer
accompanying the plea agreement. In May 2012, law enforcement
recorded several phone conversations between Chiddo and his
codefendant Lester. In one of the phone calls, Lester said he
needed “some” and asked Chiddo for “a ball,”2 which Chiddo
agreed to hold for Lester. The following month, law enforcement
recorded more phone calls between the Chiddo and Lester, during
which they negotiated the terms of further cocaine sales from
Chiddo to Lester. After recording the phone calls between Chiddo
and Lester, law enforcement officers began to surveil Chiddo and
eventually witnessed him drive to a Kentucky Fried Chicken and
“conduct a hand-to-hand transaction” with someone in a blue
Chevrolet car. After the transaction was completed, the officers
stopped the car and searched it, finding 3.6 grams of cocaine and 14
1 Chiddo was not involved in any of the events giving rise to Counts 1–11.
2 A “ball” refers to an eighth of an ounce of cocaine.
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40-milligram Oxycodone pills. One of the individuals in the car
subsequently admitted that they got the drugs from “D-Money”—
a known alias for Chiddo.
On December 21, 2015, Chiddo was sentenced to 151
months’ imprisonment, followed by 3 years of supervised release.
One week later, Chiddo filed a Notice of Appeal and raised two
issues: (1) the magistrate judge lacked authority to conduct the plea
hearing and adjudicate Chiddo guilty, and (2) there was no factual
basis for a conspiracy conviction and evidence only of “an incipient
buyer-seller relationship.” On July 9, 2018, this Court affirmed
Chiddo’s judgment and conviction. This Court held that Chiddo
invited the magistrate judge’s alleged error by signing statements
indicating that he read the plea statement and factual proffer and
by failing to object to the factual proffer at the plea hearing and at
sentencing. Chiddo’s conviction became final when the Supreme
Court denied his petition for certiorari on January 8, 2019.
Chiddo timely filed a § 2255 motion on January 6, 2020. In
support of his § 2255 motion, Chiddo raised two arguments: (1) his
counsel was ineffective because he advised him to accept the plea
on the basis of facts that did not prove a conspiracy; and (2) he did
not enter into the plea voluntarily, due to both his lack of aware-
ness of the elements of the charged conspiracy offense and his frag-
ile emotional state following the murder of his wife and daughter.
On July 21, 2021, the magistrate judge issued a Report and
Recommendation (“R&R”) recommending that Chiddo’s motion
be denied, an evidentiary hearing be denied, and the District Court
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21-14263 Opinion of the Court 5
not issue a COA. The magistrate judge first addressed whether
there was a sufficient factual basis for Chiddo’s guilty plea, explain-
ing that Chiddo’s other arguments depended on that determina-
tion. Based on the number of transactions between Chiddo and
Lester and the number of drug types involved in the transaction,
the magistrate judge concluded that there was a sufficient factual
basis for Chiddo’s guilty plea. The magistrate judge also concluded
that Chiddo’s counsel was not constitutionally ineffective by allow-
ing him to proceed with the guilty plea, and that Chiddo did not
meet his burden under
Strickland of showing that his counsel’s ac-
tions prejudiced him. The magistrate judge also rejected Chiddo’s
argument that he did not enter into the plea voluntarily for two
reasons. First, the stipulated facts in the plea listed the elements of
conspiracy, and Chiddo swore that he had reviewed the stipulated
facts and understood them. Second, the District Court knew about
the events concerning his wife and daughter’s murder that Chiddo
had gone through in the previous months, but the Court nonethe-
less concluded that Chiddo was competent to accept the plea.
On October 7, 2021, the District Court issued an order
adopting the R&R, denying Chiddo’s § 2255 motion, and stating
that a COA shall not issue. Chiddo filed a motion for a COA before
this Court on January 20, 2022. On April 15, 2022, this Court
granted Chiddo’s motion for a COA with respect to the following
issue: “Whether the magistrate judge erred in concluding that the
factual proffer was sufficient to support Chiddo’s conviction for
conspiracy to possess with intent to distribute cocaine because it
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showed that Chiddo engaged in repeated transactions for the sale
of cocaine.”
II.
In reviewing a district court’s denial of a § 2255 motion, we
review findings of fact for clear error and questions of law
de
novo.
McKay v. United States, 657 F.3d 1190, 1195 (11th Cir.
2011). We only review issues within the scope of the COA.
Spen-
cer v. Sec’y, Dep’t of Corr., 609 F.3d 1170, 1180 (11th Cir.
2010). We may affirm the denial of a § 2255 motion on any ground
supported by the record.
Beeman v. United States, 871 F.3d 1215,
1221 (11th Cir. 2017).
This Court has recognized that § 2255 motions cannot be
used as “surrogate[s] for . . . direct appeal[s].”
Lynn v. United
States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citing
United States v.
Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593 (1982)). Non-consti-
tutional errors that could have been raised on direct appeal thus
cannot be the basis for a collateral attack.
See Lynn, 365 F.3d at
1232. The language of the COA presents the issue as whether the
magistrate judge erred in concluding that the factual proffer in the
plea agreement supported a conviction for conspiracy. This issue,
however, is one that could have been raised on direct appeal be-
cause it can be resolved using the evidence available in the record.
See Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994) (“A
ground of error is usually “available” on direct appeal when its mer-
its can be reviewed without further factual development.”). Be-
cause we can only consider issues within the scope of the COA, the
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21-14263 Opinion of the Court 7
COA should be framed in a way that centers on the issues cogniza-
ble in a § 2255 motion. Chiddo has raised an ineffective assistance
of counsel claim pursuant to
Strickland—namely, Chiddo argues
that his counsel was constitutionally ineffective by encouraging
him to plead guilty to conspiracy because the facts in the proffer
accompanying the plea agreement did not support a conviction for
conspiracy. We thus reframe the COA as follows: Did Chiddo’s
counsel perform his duties in a constitutionally ineffective manner
under
Strickland by encouraging Chiddo to plead guilty to an of-
fense for which no factual support existed?
To raise a successful claim of ineffective assistance of coun-
sel, a defendant must demonstrate both that (1) counsel’s perfor-
mance was deficient, meaning that it fell below an objective stand-
ard of reasonableness; and (2) the defendant was prejudiced by the
deficient performance—that is, there was a reasonable probability
that the result of the proceeding would have been different but for
counsel’s errors.
Strickland v. Washington, 466 U.S. 668, 687–88,
694, 104 S. Ct. 2052, 2064, 2068 (1984). As to the first prong, the
defendant must show that the advice given to him by counsel fell
below the minimum standards of competency under the profes-
sional norms, not merely that it varied from best practices.
Id. at
690, 104 S. Ct. at 2066. Our evaluation of counsel’s performance is
highly deferential, and there is a strong presumption that counsel
acted within the professional norms set for competent assistance.
Id. at 689, 104 S. Ct. at 2065. As to the second prong, it is not
enough for the defendant to show that the error had some
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8 Opinion of the Court 21-14263
conceivable effect on the outcome of the proceeding.
Id. at 693,
104 S. Ct. at 2067. To satisfy the second
Strickland prong, the de-
fendant must show that “there is a
reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding
would have been different.”
Id. at 694, 104 S. Ct. at 2068 (emphasis
added). Both parts of the
Strickland test must be satisfied, so if a
defendant cannot satisfy one of the prongs, then a reviewing court
need not address the other.
Holladay v. Haley, 209 F.3d 1243, 1248
(11th Cir. 2000).
During the plea-bargaining process, the defendant has a
right to effective and competent assistance of counsel.
Lafler v.
Cooper, 566 U.S. 156, 162–63, 132 S. Ct. 1376, 1384 (2012). A de-
fendant can overcome the otherwise voluntary and intelligent
character of his guilty plea only if he can establish that the advice
that he received from counsel in relation to the plea was not within
the range of competence demanded of attorneys in criminal cases,
in violation of
Strickland.
See Premo v. Moore, 562 U.S. 115, 121,
126, 131 S. Ct. 733, 739, 742 (2011) (assessing an ineffective-assis-
tance claim regarding counsel’s advice to plead guilty). When rais-
ing a claim of ineffective assistance of counsel as to a guilty plea,
the defendant must show not only that the advice of counsel fell
below the level of competence demanded of attorneys, but also
that but for counsel’s advice, he would have gone to trial.
See Hill
v. Lockhart, 474 U.S. 52, 56–59, 106 S. Ct. 366, 369–71 (1985).
“Before entering judgment on a guilty plea, the court must
determine that there is a factual basis for the plea.” Fed. R. Crim.
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21-14263 Opinion of the Court 9
P. 11(b)(3). A “factual basis for the plea” simply means that “there
must be evidence from which a court could reasonably find that
the defendant was guilty.”
United States v. Owen, 858 F.2d 1514,
1517 (11th Cir. 1988). “[U]ncontroverted evidence of guilt” is not
required.
Id. at 1516–17. A district court must ensure that the de-
fendant’s admissions satisfy the elements of the offense to which
he pled guilty.
United States v. Lopez, 907 F.2d at 1096, 1100 (11th
Cir. 1990).
To prove that a defendant participated in a conspiracy, the
government must show that: (1) a conspiracy existed; (2) the de-
fendant knew of it; and (3) the defendant, with knowledge, volun-
tarily joined it.
United States v. Lopez-Ramirez, 68 F.3d 438, 440
(11th Cir. 1995). The existence of a buyer-seller relationship is not,
on its own, sufficient to establish a conspiratorial agreement.
United States v. Thompson, 422 F.3d 1285, 1292 (11th Cir. 2005).
When the charge is conspiracy to distribute drugs, there
must be a showing that the drugs were not merely to support the
buyer’s personal drug habit.
United States v. Dekle, 165 F.3d 826,
829–30 (11th Cir. 1999). “Where the buyer’s purpose is merely to
buy, and the seller’s purpose is merely to sell, and no prior or con-
temporaneous understanding exists between the two beyond the
sales agreement, no conspiracy has been shown.”
United States v.
Beasley, 2 F.3d 1551, 1560 (11th Cir. 1993) (quotation marks omit-
ted). A conspiracy may be inferred, however, when the evidence
shows a continuing relationship, resulting in the repeated transfer
of illegal drugs to the purchaser.
Id.
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III.
We agree with the District Court’s conclusion that Chiddo’s
counsel was not constitutionally ineffective in encouraging Chiddo
to take the plea because the proffer was sufficient to support
Chiddo’s conviction for conspiracy to distribute cocaine.
While the evidence presented in the factual proffer did not
contain enough detail to establish conspiracy with complete cer-
tainty, we conclude that the proffer was not so bereft of factual sup-
port for conspiracy that it was inadequate or rendered Chiddo’s
counsel’s performance deficient.
See Strickland, 466 U.S. at 689–
90, 104 S. Ct. at 2065–66. The factual proffer explicitly listed the
details of four phone calls between Lester and Chiddo, during
which they discussed several different drug transactions. These
conversations about multiple drug transactions indicated that
Chiddo and Lester had a continuing relationship, which supported
an inference that they were involved in a conspiracy.
See Beasley,
2 F.3d at 1560. In another set of phone calls, Chiddo and Lester
discussed the quality of the cocaine and indicated that they had
re-ups.3 Lester also requested that Chiddo set his narcotics to the
side to ensure that Chiddo would not sell it to someone else, and
Chiddo agreed to Lester’s request. Based on the content of these
discussions, “a court could reasonably find” that the drugs were not
3 The slang term “re-up” here refers to a new supply of illegal drugs that some-
one can sell.
Re-up, Macmillan Dictionary, https://www.macmillandiction-
ary.com/us/dictionary/american/re-up_2 (last visited Jan. 19, 2023).
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21-14263 Opinion of the Court 11
for personal use but to support an ongoing distribution conspiracy.
See Owen, 858 F.2d at 1517. Finally, at the change-of-plea hearing,
Chiddo stated that he had reviewed the factual proffer, had dis-
cussed it with counsel, and agreed that it was accurate. Chiddo at
no point indicated that he misunderstood the factual proffer, failed
to discuss the factual proffer with counsel, or was dissatisfied with
the factual proffer. Because the factual proffer contained details
indicating a conspiracy between Lester and Chiddo, we conclude
that it was sufficient to support Chiddo’s guilty plea.
Chiddo thus has not satisfied the first prong of
Strickland by
proving that his counsel’s performance fell below an objectively
reasonable standard. Chiddo’s counsel’s recommendation that
Chiddo accept the guilty plea and the proffer was reasonable be-
cause it limited Chiddo’s criminal liability, increased the likelihood
that the remaining two counts would be dismissed, and saved
Chiddo from going to trial. As the District Court noted, if Chiddo
had not pled guilty to conspiracy, he certainly would have been
found guilty of Count 13 because the police witnessed the
hand-to-hand sale of cocaine and oxycodone. Chiddo would have
also had a much higher guideline sentence range if he had not taken
the guilty plea. In order to satisfy the first
Strickland prong, Chiddo
had to overcome this Court’s strong presumption in favor of coun-
sel being competent and show that his counsel’s performance fell
below professional norms.
See Strickland, 466 U.S. at 689–90, 104
S. Ct. at 2065–66. The stipulated facts in the plea formed a suffi-
cient basis to charge Chiddo with conspiracy, and if Chiddo had not
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pled guilty, he would have faced both greater criminal liability on
other charges and greater sentencing exposure. Chiddo’s counsel
thus did not fall below professional norms by advising Chiddo to
accept the plea deal.
Because Chiddo failed to show that his counsel’s perfor-
mance fell below an objective level of reasonableness, we affirm
the District Court’s denial of Chiddo’s § 2255 motion.4
AFFIRMED.
4 Because Chiddo failed to satisfy the first
Strickland prong, we need not ad-
dress the second
Strickland prong. The second prong is whether counsel’s
performance prejudiced the defense.
See Holladay v. Haley, 209 F.3d 1243,
1248 (11th Cir. 2000).
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