Harding v. United States

1

MICHAEL EDWIN HARDING, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.

No. 21-14133

United States Court of Appeals, Eleventh Circuit

February 8, 2024

DO NOT PUBLISH

Appeal from the United States District Court for the Southern District of Florida D.C. Docket Nos. 2:18-cv-14359-RLR 2:15-cr-14057-RLR-1 Before JORDAN, LAGOA, and HULL, Circuit Judges.

PER CURIAM

Michael Harding is a federal prisoner serving a life sentence after pleading guilty to distributing and possessing child pornography (Counts 1-4) and nolo contendere to attempting to coerce a minor to engage in sexual activity (Count 5) and producing child pornography (Count 6). Harding appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate his convictions on Counts 5 and 6 on grounds that his plea-stage attorney rendered ineffective assistance.^[1]

This Court granted a certificate of appealability ("COA") on two issues: (1) "[w]hether the district court violated Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992), by failing to address specifically Harding's claim that his plea was involuntary because his attorney did not advise him that he could be subject to post-incarceration civil commitment"; and (2) "[r]egardless of any potential Clisby error whether Harding's attorney rendered ineffective assistance by failing to advise him that his nolo contendere plea could result in post-incarceration civil confinement, and, if so, whether that ineffective assistance prejudiced him." After careful review of the record and briefs, we find no Clisby error and affirm the district court's denial of Harding's ineffective assistance claim as to Counts 5 and 6.

I. BACKGROUND

A. Offenses and Indictment

In 2015, federal agents investigated Harding, a police officer in Port St. Lucie, Florida, for posting images of child pornography to a Kik Messenger chatroom. A subsequent search of Harding's residence revealed a thumb drive containing hundreds of still images and videos of minors engaged in sexually explicit conduct with other minors and adults.

Pertinent to Counts 5 and 6, agents also searched a cell phone taken from Harding's nightstand and found, among other things, messages with other individuals about engaging in sexual activity with minors. Between August and September 2015, Harding had conversations with an individual, identified as "daddydearaimee," in which Harding claimed to have engaged in sexual activity with his nine-year-old stepdaughter. Harding and daddydearaimee discussed exchanging their minor children for the purposes of engaging in sexual acts with them. In interviews, Harding's two stepdaughters, aged nine and five, both said Harding had engaged in sexual activity with them.

Additional forensic examination of Harding's cell phone uncovered a thumbnail image, created in November 2014, when a video was recorded on the phone. The thumbnail image depicted Harding's then eight-year-old stepdaughter performing oral sex on Harding. In his chats, Harding had discussed the video and said he had deleted it because he feared getting caught. A sex toy found with the thumb drive at Harding's residence was determined to contain the stepdaughter's DNA.

In a second superseding indictment, a federal grand jury charged Harding in Counts 1 through 3 with distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1); in Count 4 with possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2); in Count 5 with attempting to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b); and in Count 6 with production of child pornography, in violation of 18 U.S.C. § 2251(a) and (e).

B. Plea

At a pretrial status conference, the parties advised the district court that Harding planned to enter an open plea of guilty to Counts 1 through 4. Defense counsel explained that Harding wanted to plead nolo contendere to the remaining two counts because the state of Florida was preparing to charge him with multiple counts of capital sexual battery based on Harding's conduct with his stepdaughters, and Harding did not want to admit facts that could be used against him in his state criminal proceedings.

The district court expressed confusion about why Harding wanted to enter a nolo contendere plea when his advisory guidelines sentence would likely be life imprisonment. Defense counsel explained that the state charges carried mandatory life sentences, and, in defense counsel's view, a nolo contendere plea to Counts 5 and 6 gave Harding a better chance of defending himself against those charges.

At a February 2016 plea hearing, Harding entered an open plea of guilty to Counts 1 through 4 and of nolo contendere to Counts 5 and 6. The factual basis for Count 5 was Harding's conversations with daddydearaimee about exchanging their minor children for the purposes of engaging in sexual activity. The factual basis for Count 6 was the deleted video recording of Harding engaging in sexual activity with his minor stepdaughter.

Before accepting Harding's pleas, the district court reviewed, among other things, the minimum and maximum penalties for each count, including a maximum of life imprisonment as to Count 5; that Harding's guidelines sentence could be up to life imprisonment; and that because of the nature of Harding's convictions, he would be subject to substantial restrictions on where he could live, work, and associate if he were released. Harding indicated that he understood all of these things.

The district court did not discuss with Harding the possibility that he could face civil commitment upon release.

C. Sentencing and Direct Appeal

At Harding's May 2016 sentencing hearing, the district court determined, without objection, that under the Sentencing Guidelines, Harding's total offense level was 43 and his criminal history category was I, which yielded an advisory guidelines range of life imprisonment. Defense counsel asked the district court to vary downward from the advisory guidelines sentence of life and impose a 360-month sentence. The district court imposed a total life sentence comprised of 240-month terms on Counts 1 though 4, a life term on Count 5, and a 360-month term on Count 6, all to be served concurrently.

On direct appeal, Harding argued, inter alia, that his plea was involuntary because the district court did not mention during the plea colloquy that he would be required to register as a sex offender and subject to other restrictions under state and federal sexoffender registration laws. United States v. Harding, 696 Fed.Appx. 955, 957 (11th Cir. 2017). This Court reviewed Harding's challenge to the plea colloquy for plain error, found none, and affirmed his convictions and sentences. Id. at 957-59.

D. Current § 2255 Motion

On September 4, 2018, Harding, pro se, docketed the present § 2255 motion raising eight claims for relief, including several claims of ineffective assistance of his defense counsel in the district court. Relevant to this appeal, in Ground Two Harding alleged, under penalty of perjury, that his counsel: (1) failed to properly advise him as to the application of the Sentencing Guidelines, which resulted in an advisory guidelines range of life imprisonment and misadvised him that he would receive no more than a thirtyyear sentence;^[2] and (2) failed to advise him that his guilty and nolo contendere pleas "would subject him to mandatory registration as a sex offender and possible indefinite civil commitment."^[3] Harding also stated under penalty of perjury that had his defense counsel advised him that he would be subject to possible indefinite civil commitment, he would not have entered his pleas and would have insisted on going to trial.

E. Evidentiary Hearing

A magistrate judge appointed Harding new counsel and held a two-day evidentiary hearing on Ground Two, as it pertained to Counts 5 and 6. The majority of the hearing centered on the first part of Ground Two, which challenged counsel's pre-plea advice about the possible length of Harding's sentence.

Both Harding and his former defense counsel testified at the hearing. Harding testified that his trial counsel discussed the Sentencing Guidelines with him, told him he was looking at a sentence in the thirty-year range, and advised him there was no way he would receive a life sentence. Harding said he would have insisted on going to trial if he had known his advisory guidelines sentence would be life imprisonment even with a three-level reduction in his offense level for acceptance of responsibility.

Defense counsel, on the other hand, testified that a few months before the plea hearing, he had advised Harding that his guidelines sentence would be life but that he did not believe the judge would impose a life term. Defense counsel described Harding's case as "very difficult" and not "a good trial case" given the government's evidence and said that if the jury believed the thumbnail image on Harding's phone was of Harding having sex with his stepdaughter, "it would be a very short verdict in this case."

Defense counsel explained that "one of the major driving considerations" in Harding's case was the imminent state charges. Defense counsel advised Harding that pleading guilty to Counts 5 and 6 would be an admission that could be used against him in his state case, which was something Harding "wanted to avoid at all costs." Defense counsel's strategy was to put Harding "in the best light possible" at sentencing by pleading nolo contendere to Counts 5 and 6 and seeking a downward variance from the advisory guidelines sentence of life based on "some very good mitigation." Defense counsel testified that he explained this strategy to Harding, who...