Masoniek Stinfort v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10843
Non-Argument Calendar
____________________
MASONIEK STINFORT,
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 Nos. 9:19-cv-81691-RLR
9:17-cr-80108-RLR-1
____________________
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2 Opinion of the Court 21-10843
Before WILSON, NEWSOM , and ANDERSON, Circuit Judges.
PER CURIAM:
Masoniek Stinfort, a federal prisoner proceeding
pro se, ap-
peals the district court’s denial of his 28 U.S.C. § 2255 motion to
vacate. We granted a certificate of appealability on the question
whether Stinfort’s trial and appellate counsel were constitutionally
ineffective for failing to object to and appeal his 120-month sen-
tence for conspiracy to commit wire fraud under 18 U.S.C. § 371
because it exceeded the 60-month statutory maximum for that of-
fense. Because Stinfort can’t establish prejudice from his trial coun-
sel’s failure to object to this sentence and can’t establish deficient
performance with respect to his appellate counsel’s failure to ap-
peal on this ground, we affirm the district court’s denial of relief.1
To succeed on a claim of ineffective assistance of counsel, a
defendant must show that (1) his counsel’s performance was defi-
cient and (2) the deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient
1 “When reviewing the district court’s denial of a § 2255 motion, we review
findings of fact for clear error and questions of law
de novo.”
Rhode v. United
States, 583 F.3d 1289, 1290 (11th Cir. 2009) (per curiam). A claim of ineffective
assistance of counsel is a mixed question of law and fact that we review
de
novo.
United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). The scope
of our review is limited to the issues specified in the COA.
Rhode, 583 F.3d at
1290–91. We therefore decline to address the issues that Stinfort raises on ap-
peal that are outside the scope of the COA.
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21-10843 Opinion of the Court 3
performance “requires showing that counsel made errors so seri-
ous that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.”
Id. To make such a
showing, a defendant must demonstrate that “no competent coun-
sel would have taken the action that his counsel did take.”
United
States v. Freixas, 332 F.3d 1314, 1320 (11th Cir. 2003) (quotation
omitted). There is a strong presumption that counsel “rendered
adequate assistance and made all significant decisions in the exer-
cise of reasonable professional judgment.”
Strickland, 466 U.S. at
690. As to the prejudice prong, the petitioner 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. “A reasonable probability” is one “sufficient to undermine
confidence in the outcome.”
Id. “The likelihood of a different re-
sult must be substantial, not just conceivable.”
Harrington v. Rich-
ter, 562 U.S. 86, 112 (2011). Failure to establish either prong makes
it unnecessary to consider the other.
Strickland, 466 U.S. at 697.
“Claims of ineffective assistance of appellate counsel are
governed by the same standards applied to trial counsel under
Strickland.”
Philmore v. McNeil, 575 F.3d 1251, 1264 (11th Cir.
2009) (per curiam). “In assessing an appellate attorney’s perfor-
mance . . . the Sixth Amendment does not require appellate advo-
cates to raise every non-frivolous issue” because effective advo-
cates “weed out weaker arguments, even though they may have
merit.”
Id. (quotation omitted). Appellate “[c]ounsel’s perfor-
mance will be deemed prejudicial if we find that the neglected
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4 Opinion of the Court 21-10843
claim would have a reasonable probability of success on appeal.”
Id. at 1265 (quotation omitted).
As relevant to the ineffective assistance of counsel claim that
Stinfort raises, “[t]he concurrent sentence doctrine provides that, if
a defendant is given concurrent sentences on several counts and
the conviction on one count is found to be valid, an appellate court
need not consider the validity of the convictions on the other
counts.”
United States v. Bradley, 644 F.3d 1213, 1293 (11th Cir.
2011) (quotation omitted). “Only when the defendant would suffer
adverse collateral consequences from the unreviewed conviction
does the doctrine not apply.”
Id. (quotation omitted).
Starting with Stinfort’s trial counsel’s failure to object to the
120-month sentence for conspiracy to commit wire fraud, Stinfort’s
ineffective-assistance claim fails because he cannot show prejudice.
Even if Stinfort’s counsel had successfully objected and caused Stin-
fort’s sentence on this count to be reduced, Stinfort’s total sentence
still would be 144 months’ imprisonment: The 120-month sen-
tence for the conspiracy count runs concurrently with five
other
concurrent 120-month sentences for Stinfort’s five substantive
counts of wire fraud, and this Court already has affirmed the valid-
ity of the sentences for those substantive counts.
See Doc. 14-5 at
68;
United States v. Stinfort, 749 F. App’x 860, 865 (11th Cir. 2018)
(per curiam). And Stinfort hasn’t challenged the 24-month consec-
utive prison sentence that he received for his aggravated-identity-
theft convictions.
See Stinfort, 749 F. App’x at 864 n.1. Therefore,
even if Stinfort’s trial counsel had successfully objected to his 120-
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21-10843 Opinion of the Court 5
month sentence for conspiracy, he would have received the same
144-month total prison sentence.
Moreover, there is not a “reasonable probability” that the
court would have ordered less restitution, even if it did reduce the
prison sentence for conspiracy, because Stinfort agreed to pay the
$409,968 restitution amount when he agreed to plead guilty to the
charges.
See Strickland, 466 U.S. at 694; Doc. 14-2 at 2. Because
the restitution amount would remain the same even if the conspir-
acy sentence were reduced, Stinfort cannot establish adverse col-
lateral consequences resulting from his conspiracy sentence.
See
Bradley, 644 F.3d at 1293. So, given that Stinfort would have re-
ceived the same total prison sentence and been ordered to pay the
same restitution regardless of whether his trial counsel had ob-
jected to his sentence on the conspiracy count, there is no “reason-
able probability” that the “outcome” of his trial would have been
different but for his counsel’s allegedly deficient performance.
Strickland, 466 U.S. at 694.
Turning to Stinfort’s
appellate counsel’s failure to appeal his
120-month conspiracy sentence, we conclude that Stinfort can’t
show that this failure constituted deficient performance. Although
a non-frivolous issue existed with regard to whether the district
court erred in imposing a sentence above the statutory maximum
for this count, Stinfort’s counsel didn’t perform deficiently when
he focused his appeal on stronger arguments instead.
See Phil-
more, 575 F.3d at 1264;
Stinfort, 749 F. App’x at 861–63 (focusing
on the district court’s alleged errors in applying sentencing
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6 Opinion of the Court 21-10843
enhancements and weighing the sentencing factors). Given the
likelihood that this Court would have denied Stinfort relief under
the concurrent-sentence doctrine, “competent counsel [may] have
taken the action that [Stinfort’s] counsel did take,”
Freixas, 332 F.3d
at 1319–20 (quotation omitted), by “weed[ing] out” this issue alto-
gether,
Philmore, 575 F.3d at 1264. Stinfort thus can’t overcome
the “strong[] presum[ption]” that his appellate counsel used “rea-
sonable professional judgment” in deciding not to appeal his sen-
tence for conspiracy on the basis that it exceeded the statutory max-
imum.
Strickland, 466 U.S. at 690.
Because Stinfort, at the very least, can’t establish prejudice
from his trial counsel’s failure to object and can’t establish deficient
performance with respect to his appellate counsel’s failure to ap-
peal, his ineffective-assistance-of-counsel claims fail.
AFFIRMED.
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