William A. Tendrich v. United States

          USCA11 Case: 19-12096      Date Filed: 10/27/2020   Page: 1 of 3

                                                         [DO NOT PUBLISH]


                        FOR THE ELEVENTH CIRCUIT

                                 No. 19-12096
                             Non-Argument Calendar

                     D.C. Docket Nos. 2:17-cv-14343-JEM,







                   Appeal from the United States District Court
                       for the Southern District of Florida

                                (October 27, 2020)

Before, JORDAN, BRANCH, and FAY, Circuit Judges.


      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
           USCA11 Case: 19-12096            Date Filed: 10/27/2020       Page: 2 of 3

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. § 2255.1

       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


 Because we write for the parties, and assume their familiarity with the record, we set out only
what is necessary to explain our decision.
            USCA11 Case: 19-12096            Date Filed: 10/27/2020       Page: 3 of 3

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.2


  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).
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