Case: 13-10439      Date Filed: 06/30/2014     Page: 1 of 8


                                                                  [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 13-10439
                             ________________________

                    D.C. Docket Nos. 8:12-cv-00723-JDW-TGW,
                           8:08-cr-00318-JDW-TGW-1


CHARLES JACKSON FRIEDLANDER,

                                                      Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

                                                      Respondent - Appellee.

                             ________________________

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

                                    (June 30, 2014)

Before JORDAN, Circuit Judge, and BARTLE, * and BERMAN, ** District Judges.


*
  Honorable Harvey Bartle III, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
**
 Honorable Richard M. Berman, United States District Judge for the Southern District of New
York, sitting by designation.
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PER CURIAM:

      Dr. Charles Jackson Friedlander appeals the district court’s denial, without

an evidentiary hearing, of his motion to vacate his conviction and 30-year sentence

for child enticement. See 18 U.S.C. § 2422(b). Following oral argument and a

review of the record, we affirm. We presume the parties’ familiarity with the facts

and the record, and set out only what is necessary to explain our decision.

                                          I

      To prevail on his claims of ineffective assistance of counsel, Dr. Friedlander

must establish two things: (1) that “counsel’s performance was deficient,” meaning

it “fell below an objective standard of reasonableness,” and (2) that “the deficient

performance prejudiced the defense.” Strickland v. Washington, 

,

687-88 (1984). To satisfy the deficient performance prong, Dr. Friedlander must

show that counsel made errors so serious that he was not functioning as the counsel

guaranteed by the Sixth Amendment. See 

And he must rebut the strong

presumption that his counsel’s conduct fell within the range of reasonable

professional assistance. See 

He may satisfy the prejudice prong by

showing a “reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” 

“The




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likelihood of a different result must be substantial, not just conceivable.”

Harrington v. Richter,          U.S.        , 

, 792 (2011).

      A claim of ineffective assistance of counsel presents a mixed question of law

and fact that we review de novo. See Gordon v. United States, 

,

1296 (11th Cir. 2008). We review the district court’s legal conclusions de novo,

but our review of the district court’s subsidiary factual findings is only for clear

error. See Lynn v. United States, 

, 1232 (11th Cir. 2004).

                                               II

      We granted Dr. Friedlander a certificate of appealability on three issues:

               (1) Whether the district court erred in finding that [Dr.]
               Friedlander’s trial counsel were not ineffective in their
               preparation of Dr. Frederick Berlin for a Daubert1
               hearing?

               (2) Whether the district court erred in finding that [Dr.]
               Friedlander’s trial counsel were not ineffective for failing
               to call Dr. Berlin as a witness at sentencing?

               (3) Whether the district court erred in finding that [Dr.]
               Friedlander’s appellate counsel were not ineffective for
               failing to challenge the use of uncharged conduct as
               “relevant conduct” for purposes of U.S.S.G. § 1.B1.3?

We conclude that the district court did not err in its rulings.




      1
          Daubert v. Merrill Dow Pharm., Inc., 

(1993).
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                                            A

      We agree with the district court that, even if trial counsel rendered deficient

performance in improperly preparing Dr. Berlin for the Daubert hearing, Dr.

Friedlander has not shown a reasonable probability that the jury would have

acquitted him at the second trial. The first ineffectiveness claim therefore fails

under the prejudice prong of Strickland.

      After the Daubert hearing, the district court ruled that Dr. Berlin could not

testify about the topic of Internet fantasy, but could testify that in his opinion Dr.

Friedlander was not a pedophile or sexual sadist. Dr. Berlin testified at the first

trial, which resulted in a mistrial, but did not testify at the second trial, in which the

jury found Dr. Friedlander guilty.         Assuming that Dr. Berlin, with proper

preparation for the Daubert hearing, would have been allowed to testify about

Internet fantasy, and assuming that he would have been called as a witness at the

second trial, he would only have been able to tell the jury that (a) sometimes

people act out sexual fantasies and take on fictional personas on the Internet, (b)

that there are certain factors that he would look at to determine whether someone

was simply engaged in fantasies, and (c) that those who engage in fantasies do not

do harm to others (including children). Under Rule 704(b), he would not have

been able to testify about Dr. Friedlander’s actual mental state, which was an

element of the child enticement offense. See Dr. Berlin’s Expert Report [D.E. 6-


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8] at 4-5, 7-8; Dr. Berlin’s Affidavit [D.E. 12-1] at 4-5; Dr. Berlin’s Testimony at

the Daubert Hearing [D.E. 280 in Case No. 8:08-CR-318-T-27TGW (M.D. Fla.

2008)] at 16-26, 56-60.

      Dr. Friedlander did not testify at the second trial and he cannot show that Dr.

Berlin’s testimony would have created a reasonable probability of an acquittal.

The evidence at trial showed that Dr. Friedlander traveled to meet with the person

who turned out to be the undercover officer, and in his car he had some of the

devices or instruments he had mentioned in the chats. That strongly suggests a

desire to carry out what had been discussed during the online chats. See Purvis v.

Crosby, 

, 738 (11th Cir. 2006) (“When we are considering defective

performance at the guilt stage, the question is whether there is a reasonable

probability that, absent the errors, the factfinder would have had a reasonable

doubt respecting guilt.”) (internal quotation marks omitted).            We therefore

conclude that Dr. Friedlander has failed to satisfy the prejudice prong of

Strickland.

                                         B

      Dr. Friedlander also has not shown Strickland prejudice from his trial

counsel’s failure to call Dr. Berlin as a witness at sentencing or from his appellate

counsel’s failure to challenge the use of purported relevant conduct at sentencing.

Assuming that trial counsel’s decision not to use Dr. Berlin at sentencing was not a


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reasonable strategic decision, and that appellate counsel rendered deficient

performance in not raising the relevant conduct argument, Dr. Friedlander has not

demonstrated a reasonable probability of a lesser sentence or a reversal on direct

appeal.

      Looking at the sentencing hearing first, we conclude that there is no

reasonable probability that the district court would have sentenced Dr. Friedlander

to less time in prison had Dr. Berlin presented his opinions on future

dangerousness and treatment.        We come to this conclusion for a number of

reasons: (1) trial counsel provided the district court with a letter written by Dr.

Berlin at sentencing, and the district court, referencing that letter and the testimony

at the Daubert hearing, disagreed with Dr. Berlin’s opinion that Dr. Friedlander’s

conduct was fantasy role playing, see Sentencing Transcript [Case No. 8:08-CR-

318-T-27TGW (M.D. Fla. 2008), D.E. 304] at 79; (2) the district court found that

“[t]his wasn’t just fantasy,” see 

(3) the district court found that Dr.

Friedlander had testified falsely at his first trial, see 

(4) the district court

imposed a 30-year sentence despite recognizing that at Dr. Friedlander’s advanced

age “any sentence [was] . . . likely to be a death sentence,” see 

(5) the

district court found that Dr. Friedlander had an interest in children and posed a risk

to them, see 

and (6) the district court thought that the sentence

imposed had to provide for general deterrence, see 

Indeed, in denying


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§ 2255 relief, the district court ruled that Dr. Berlin’s testimony about future

dangerousness and treatment options would not have led to a different sentence.

See Order Denying Motion to Vacate [D.E. 14] at 28.

      With respect to the ineffectiveness claim relating to appellate counsel, the

relevant proceeding for evaluating prejudice is Dr. Friedlander’s direct appeal. See

Dell v. United States, 

, 1274 (11th Cir. 2013); Heath v. Jones, 

, 1132 (11th Cir. 1991). But errors in calculating the advisory sentencing

guidelines can be harmless, see United States v. Barner, 

, 1247 (11th

Cir. 2009), and we conclude that any error as to relevant conduct would have been

deemed harmless on direct appeal because the district court’s findings and

comments indicate that the same sentence would have been imposed.

      The relevant conduct that Dr. Friedlander now says his appellate counsel

should have challenged added one level to the offense level, placing Dr.

Friedlander at level 41 (with a range of 324 - 405 months). Without that conduct

being considered under the advisory guidelines, Dr. Friedlander would have been

at level 40 (with a range of 292 - 365 months). Not only were these ranges

overlapping, the district court indicated that the guideline ruling would not likely

impact the ultimate sentence. “I don’t think as a practical matter [the relevant

conduct finding] i[s] going to make any difference. It does impact the guidelines,

but overall under [§] 3553(a), I certainly can consider it.” Sentencing Transcript


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[D.E. 304 in Case No. 8:08-CR-318-T-27TGW (M.D. Fla. 2008)] at 49-50. As we

read the record, any error in determining relevant conduct was harmless, and thus

Dr. Friedlander was not prejudiced by appellate counsel’s purportedly deficient

performance.

                                                III

      Because we conclude that Dr. Friedlander has failed to satisfy the prejudice

prong of Strickland with respect to the ineffective assistance of counsel claims

contained in the certificate of appealability, we affirm the denial of his motion to

vacate.2

      AFFIRMED.




      2
          We decline Dr. Friedlander’s request to expand the certificate of appealability.
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