Case: 13-10353    Date Filed: 09/18/2014   Page: 1 of 4


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-10353
                         Non-Argument Calendar
                       ________________________

     D.C. Docket Nos. 7:12-cv-90125-HL-TQL; 7:10-cr-00028-HL-TQL-1



RICKY GIDDENS,

                                                           Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                          Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________

                            (September 18, 2014)

Before HULL, MARCUS and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
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      Ricky Giddens, a federal prisoner, appeals the dismissal of his motion to

vacate his sentence. See 28 U.S.C. § 2255. Giddens moved to vacate his sentence

as unconstitutional because the district court failed to apply the Fair Sentencing

Act of 2010 at his sentencing. The district court dismissed Giddens’s motion as

procedurally barred because he failed to raise his arguments either at sentencing or

on direct appeal. The court also denied Giddens’s request to amend his motion

with a claim that his counsel provided ineffective assistance by not challenging his

sentence at sentencing or on direct appeal. We granted a certificate of appealability

to determine whether the district court erred in dismissing Giddens’s motion as

procedurally barred without addressing his claim of ineffective assistance of

counsel. We affirm.

      We review the denial of a motion to amend a pleading for an abuse of

discretion. See Brown v. Johnson, 

, 1347 (11th Cir. 2004). “Leave to

amend a [pleading] is futile when the [pleading] as amended would still be

properly dismissed or be immediately subject to summary judgment for the

defendant.” Cockrell v. Sparks, 

, 1310 (11th Cir. 2007).

      To prevail on a claim of ineffective assistance of counsel, a movant must

establish that counsel’s performance was deficient, falling below an objective

standard of reasonableness, and the movant suffered prejudice as a result of the

deficient performance. Strickland v. Washington, 

, 687−88, 

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2052, 2064−65 (1984). The standard governing counsel’s performance is

“reasonableness under prevailing professional norms.” 

104 S. Ct. at

2065. We have explained that “the deference afforded an attorney’s decision is

great and the bar for proving a Sixth Amendment violation is high.” Brownlee v.

Haley, 

, 1059 (11th Cir. 2002). In the light of the strong presumption

in favor of counsel’s competence, a movant who alleges ineffective assistance of

counsel must establish that “no competent counsel would have taken the action that

his counsel did take.” Chandler v. United States, 

, 1315 (11th Cir.

2000) (en banc). It is well settled that the failure to anticipate a change in the law

will not support a claim for ineffective assistance of counsel. United States v.

Ardley, 

, 993 (11th Cir. 2001). The rule applies even if the claim,

based upon anticipated changes in the law, was reasonably available when counsel

failed to raise it. See Pitts v. Cook, 

, 1572–74 (11th Cir. 1991).

      The district court did not abuse its discretion in denying Giddens’s request to

amend his motion to allege a claim of ineffective assistance of counsel. Under our

then-controlling precedent, United States v. Gomes, 

(11th Cir.

2010), at the time of Giddens’s sentencing and direct appeal, he was not entitled to

be sentenced under the lower mandatory minimums provided in the Fair

Sentencing Act. Any failure by counsel to anticipate the change in decisional law

in Dorsey v. United States, 

(2012), does not support Giddens’s


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claim of ineffective assistance. See 

. And because counsel

was not ineffective, granting Giddens leave to amend his motion would have been

futile. See 

. The district court did not abuse its discretion

by denying Giddens’s request to amend his motion.

      AFFIRMED.




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