PUBLISH

               IN THE UNITED STATES COURT OF APPEALS
                      FOR THE ELEVENTH CIRCUIT

                           -------------------------------------------
                                                                               FILED
                                        No. 96-2421                    U.S. COURT OF APPEALS
                          -------------------------------------------- ELEVENTH CIRCUIT
                                                            03/25/99
                      D. C. Docket No. 95-387-CIV-ORL-22 THOMAS K. KAHN
                                                             CLERK


TYRONE SMITH,

                                                            Petitioner-Appellant,

     versus


HARRY K. SINGLETARY, JR.,
ROBERT BUTTERWORTH,

                                                            Respondents-Appellees.


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

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                                     (March 25, 1999)


Before EDMONDSON and BLACK, Circuit Judges, and RESTANI*, Judge.


_______________

*    Honorable Jane A. Restani, Judge, U.S. Court of International Trade, sitting
     by designation.

EDMONDSON, Circuit Judge:
      Tyrone Smith, a prisoner of the state of Florida, appeals

the district court's denial of his petition for a writ of habeas

corpus under 28 U.S.C. § 2254 on grounds of ineffective

assistance of counsel. We affirm the district court's denial of

Smith's petition.



                            Background



      In 1989, defendant Tyrone Smith was charged by

information with one count of robbery and one count of

obstructing or opposing an officer with violence. Before his

arrest on these charges, Smith had at least one out-of-state

felony conviction.1

      Before trial, the state prosecution offered Smith a plea

bargain: ”State would offer bottom half of whichever guideline

cell that [Smith] falls within and no filing of the notice for

  Smith was convicted of first-degree robbery in 1979 in New
  1

York.
habitual offender.” After discussing the state’s offer with his

counsel, Smith declined the offer and decided to proceed to

trial.

         A jury later convicted Smith on both counts of the

information, and the state filed its notice of intent to seek a

habitual-violent-felony-offender enhancement under Florida

law, Fla. Stat. § 775.084(1)(b). The Florida court determined

that Smith was a habitual violent felony offender (based on his

out-of-state conviction) and therefore subjected him to an

enhanced sentence. He was sentenced to thirty-years’

imprisonment, with a mandatory minimum of ten years, for the

robbery count and a consecutive term of five years’ supervised

probation for the opposing or obstructing count.

         After exhausting his state remedies, Smith brought this

habeas corpus petition pro se. He contends that he is entitled

to relief because he received ineffective assistance of counsel.

Smith contends that he rejected the state’s plea offer -- which
                                    3
would have resulted in a sentence between nine and twelve

years -- because his trial counsel told him that if he were found

guilty at trial he would not be subject to enhanced sentencing.

Smith alleges that his counsel assured him that an out-of-state

conviction could not serve as a predicate offense under

Florida’s habitual-offender law and advised Smith that the

maximum sentence he faced if convicted at trial was seventeen

years.

      We accept that, while an out-of-state conviction cannot be

used to establish habitual-felony-offender status under Fla.

Stat. § 775.084(1)(a) (Supp. 1988),2 it can be used to enhance

a defendant’s sentence as a habitual violent felony offender

under Fla. Stat. § 775.084(1)(b) (Supp. 1988).3 See Canales v.

  2
   A habitual felony offender is a defendant who “has
previously been convicted of two or more felonies in this
state.” Fla. Stat. § 775.08(1)(a) (Supp. 1988) (emphasis
added).
  A“habitual violent felony offender” is a defendant who “has
  3

previously been convicted of a felony or an attempt or
                                4
State, 

, 88 (Fla. Dist. Ct. App. 1990). Smith

contends that he would have accepted the state’s plea offer if

his counsel had properly advised him that the court could

sentence him as a habitual violent felony offender.

      The district court granted the state summary judgment.

Smith appeals the district court’s denial of his ineffective-

assistance claim and seeks an evidentiary hearing.4 No

evidentiary hearing on Smith’s claim has been held in either

federal or state court.




conspiracy to commit a felony and one or more of such
convictions was for” one (or more) of a list of enumerated
violent felonies. Fla. Stat. § 775.08(1)(b) (Supp. 1988).
  4
   Smith’s petition to the district court also included a claim
challenging the state court’s use of his out-of-state conviction
to enhance his sentence. Smith does not appeal the district
court’s denial of that claim.
                                 5
                            Discussion



      Smith contends that his counsel was ineffective for

advising him that his out-of-state conviction could not be used

to enhance his sentence. Even though we accept that Smith’s

counsel gave him incorrect advice about Florida law, his claim

still fails.

      To prevail on an ineffective-assistance-of-counsel claim, a

habeas corpus petitioner must show that: (1) his lawyer’s

performance was deficient, and (2) “‘a reasonable probability

that, but for counsel’s errors, he would . . . have pleaded guilty

and would [not] have insisted on going to trial.’” Coulter v.

Herring, 

, 1504 (11th Cir. 1995) (quoting Hill v.

Lockhart, 

, 59 (1985)). When analyzing ineffective-

assistance claims, reviewing courts must indulge a strong

presumption that counsel’s conduct fell within the wide range of

reasonably professional assistance. Strickland v. Washington,
                                 6


, 689 (1984); Harich v. Dugger, 

,

1469 (11th Cir. 1988). Because ineffective-assistance claims

present mixed questions of law and fact, we exercise plenary

review. Rogers v. Zant, 

, 386 (11th Cir. 1994).

     A habeas corpus petitioner is entitled to an evidentiary

hearing on his claim “if he alleges facts which, if proven, would

entitle him to relief.” Futch v. Dugger, 

, 1485

(11th Cir. 1989). A district court, however, need not conduct an

evidentiary hearing if it can be conclusively determined from the

record that the petitioner was not denied effective assistance of

counsel. See Dickson v. Wainwright, 

, 351 (11th

Cir. 1982).

     A lawyer’s affirmative misrepresentation about the

consequences of a guilty plea may, in some cases, fall below

the wide range of professional competence. But ultimately, “[i]n

any case presenting an ineffectiveness claim, the performance



                                7
inquiry must be whether counsel’s assistance was reasonable

considering all the circumstances.” 

.

      The clarity or lack of clarity of Florida law about the use of

an out-of-state conviction to enhance a defendant’s sentence

under the habitual-violent-felony-offender provision, Fla. Stat. §

775.084(1)(b), is important in determining whether the advice

given by Smith’s counsel was reasonable when it was given.

Ignorance of well-defined legal principles is nearly inexcusable.

See Cooks v. United States, 

, 532 (5th Cir. 1972)

(holding counsel ineffective where controlling Supreme Court

precedents, decided more than a decade before counsel

rendered his advice, demonstrated unequivocally that counsel’s

advice was erroneous); 2 Ronald E. Mallen & Jeffrey M. Smith,

Legal Malpractice § 17.4, at 502 (4th ed. 1996).5 But, as an


  Because a lawyer’s performance must be evaluated under
  5

prevailing professional norms, see 

, cases involving allegations of attorney negligence -- also
evaluated based on an objective standard of reasonableness -
                                  8
acknowledgment that law is no exact science, “the rule that an

attorney is not liable for an error of judgment on an unsettled

proposition of law is universally recognized . . . .” 

at

497 (citing cases); Pitts v. Cook, 

, 1573-74 (11th

Cir. 1991) (concluding that counsel’s failure to raise Batson-

type claim before Batson had been decided was not

constitutionally ineffective assistance of counsel).

     The giving of legal advice that later is proven to be

incorrect, therefore, does not necessarily fall below the

objective standard of reasonableness. See generally 

(“[C]ounsel’s inability to foresee future



- can be useful to our analysis. We do not even hint,
however, that every act of legal malpractice amounts to
ineffective assistance of counsel under the Constitution. We
are certain that the civil liability standard and the constitutional
standard do not exactly coincide. When we cite to
malpractice treatises or precedents, this is our reasoning:
ordinarily, at least, lawyers’ acts or omissions that do not rise
to the level of professional malpractice, a fortiori, cannot
amount to a constitutional violation.
                                  9
pronouncements [by the courts] . . . does not render counsel’s

representation ineffective . . . . Clairvoyance is not a required

attribute of effective representation.”) (citations omitted); see

also Cianbro Corp. v. Jeffcoat & Martin, 

, 790

(D.S.C. 1992) (“[A]n attorney cannot be held liable for following

the plain terms of a statute when there are not compelling

circumstances to suggest [otherwise,]” even when a court later

decides that interpretation is erroneous.).

     In the instant case, Smith was sentenced under section

775.084(1)(b), Fla. Stat. (Supp. 1988), which was effective 1

October 1988. Section 775.084(1)(b) does not specifically say

whether out-of-state convictions may serve as predicate

offenses for an enhanced sentence.

     The state made its plea offer in January 1990, and Smith

rejected it the same day it was made. The earliest appellate

decision to hold that the habitual-violent-felony-offender

provision authorizes an enhanced sentence on the basis of an
                                 10
out-of-state conviction, Canales v. Florida, 

(Fla.

Dist. Ct. App. 1990), was not decided until 13 December 1990.

     The defendant in Canales argued that, because the

habitual-violent-felony-offender provision does not specifically

permit the enumerated offenses to have been committed

outside Florida, the court should apply a rule of lenity and

construe the provision in his favor, to exclude his out-of-state

conviction. 

The Canales court rejected that argument

after determining that it was contrary to the intent of the Florida

legislature, writing, “a careful reading of the entire statute

shows that the legislature intended to treat habitual felons and

habitual violent felons differently and elected not to require both

felonies to be committed in Florida when dealing with violent

felons.” 

     The reasonableness of Smith’s lawyer’s advice must be

assessed in the light of the uncertainty in Florida law at the time

the advice was given, that is, pre-Canales. Under the
                                 11
circumstances presented in this case, the alleged advice of

Smith’s counsel was not unreasonable. The version of the

habitual-violent-felony-offender provision under which Smith

was sentenced became effective less than a year and a half

before Smith’s counsel had to evaluate the state’s plea offer.

When the advice was given, there were no appellate decisions

providing guidance to Smith’s counsel. The later Canales

decision evidences, that at the time pertinent to this case, the

applicable law was not settled against Smith: it was a live issue

in Florida law. See Mallen & Smith, supra, § 17.7, at 511-12 (“A

commonly quoted view is that there is no [malpractice] liability for

a judgmental error regarding a proposition of law ‘which has not

been settled by the court of last resort in the State and on which

reasonable doubt may be entertained by well-informed lawyers.’”

(quoting Hodges v. Carter, 

, 146 (N.C. 1954)).

Smith has not pointed to case law that existed when his



                                 12
counsel rendered his advice that was contrary to his counsel’s

conclusion.

     Smith instead argues that the habitual-offender provisions

are inherently clear. He says that a comparison of sections

775.084(1)(a) and 775.084(1)(b) shows the obvious error in his

counsel’s advice: the phrase “in this state” modifying the

qualifying convictions is conspicuously absent from the

habitual- violent-felony-offender provision, though it appears in

the habitual-felony-offender provision. This comparison can

give rise to an inference, one which Canales seems to accept.

But, even if many reasonable lawyers, at the pertinent time,

would not have interpreted the habitual-violent-felony-offender

provision as Smith’s counsel did, no relief can be granted

unless it is shown that no reasonable lawyer, in the same

circumstances, would have interpreted it as Smith’s counsel

did. See 

; see also Waters v. Thomas,

, 1512 (11th Cir. 1995) (en banc) (“‘The
                                13
[ineffective-assistance] test has nothing to do with what the

best lawyers would have done. Nor is the test even what most

good lawyers would have done. We ask only whether some

reasonable lawyer . . . could have acted, in the circumstances,

as defense counsel acted . . . .’”) (quoting White v. Singletary,

, 1220 (11th Cir. 1992)).

     The statute is not so unmistakably plain that no

reasonable lawyer could have misconstrued it. See Kimel v.

State of Florida Bd. of Regents, 

, 1431 (11th Cir.

1998) (“Although we make no definite rule about it, the need to

construe one section [of a statute] with another, by its very

nature, hints that no unmistakable or unequivocal declaration is

present.”), cert. granted, 

(1999). The defendant

in Canales asserted the same view that Smith’s counsel

allegedly held: that out-of-state convictions could not be used to

enhance a defendant’s sentence under section 775.084(1)(b).

The Canales court never indicated that the defendant’s
                                14
contentions were frivolous or otherwise unreasonable, though it

ultimately discounted them. And the Canales court does not

use words like “plain meaning” or “unambiguous” in its opinion

construing the pivotal statute.

     Also, section 775.084(1)(b) designates specific offenses

that will trigger an enhancement. Each of these offenses is

defined by Florida law. See, e.g., Fla. Stat. § 806.01 (defining

arson); Fla. Stat. § 794.011 (defining sexual battery); Fla. Stat.

§ 812.13 (defining robbery). It was not unreasonable for

Smith’s counsel to think, in the context of Florida’s criminal law,

that section 775.084(1)(b) referred to those offenses as they

are designated by Florida law, in other words, that the Florida

statute contemplated convictions under Florida law for the listed

offenses. At the pertinent time, Smith’s counsel (or more

accurately, every reasonable lawyer) did not have to conclude

that Florida intended to give some kind of extraterritorial effect

to the criminal law of other jurisdictions.
                                  15
     Under the conditions existing in this case, Smith cannot

show that the advice his counsel gave could not result from the

proper exercise of skill and professional judgment. Because

the record conclusively establishes that his counsel’s

performance was not deficient, we AFFIRM the district court’s

decision on that ground.

     The district court’s denial of Smith’s petition is AFFIRMED.




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