FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 June 16, 2004 

 THOMAS K. KAHN 

 CLERK

 Honorable J. Owen Forrester, United States District Judge for the Northern District of *

Georgia, sitting by designation

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 03-11338

________________________

D. C. Docket Nos. 00-00007-CV-WCO-2

and 96-00020 CR-1-2

RANDY LAMAR BLACK,

Petitioner-Appellee,

versus

UNITED STATES OF AMERICA,

Respondent-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(June 16, 2004)

Before BARKETT and KRAVITCH, Circuit Judges, and FORRESTER , District *

Judge.
2

Randy Lamar Black, currently serving four life sentences for drug-related

offenses, filed the instant 28 U.S.C. § 2255 petition to vacate his life sentence for

conspiracy to possess marijuana and methamphetamine based on a claim of

ineffective assistance of counsel. 

The conspiracy in this case involved two drugs, marijuana and

methamphetamine, which carried different statutory maximum sentences. A

conviction for conspiracy to distribute marijuana carried with it a statutory

maximum sentence of ten years for a person in Black’s position . See 21 U.S.C.

§ 841(b)(1)(D). A conviction for a conspiracy involving methamphetamine,

however, was subject to a statutory maximum sentence of life imprisonment. 21

U.S.C. § 841(b)(1)(A)(viii). At the heart of Black’s claim is his contention that he

was wrongly sentenced to life imprisonment under his conspiracy conviction

because the general verdict did not show that the jury found him guilty of a

conspiracy that had the objective of distributing the drug with the higher sentence.

After Black’s trial, the jury returned a general verdict of guilty as to

conspiracy to possess with intent to distribute marijuana and methamphetamine in

violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846; four counts of knowingly

and intentionally possessing with intent to distribute methamphetamine in

violation of 21 U.S.C. § 841(a)(1); and knowingly threatening to cause bodily
At sentencing and on direct appeal, Black contended that the court erred in attributing to 1

him 100 grams of methamphetamine. The Presentence Investigation Report calculated that 70.2

grams were involved in Black’s actual conduct under the possession counts. The trial judge

found other evidence attributing a greater quantity of the drug to be reliable and sentenced Black

for possession of more than 100 grams of methamphetamine. At no point during the sentencing

hearing or on appeal did counsel object to the attribution of any methamphetamine to Black for

the purposes of calculating his sentence under the first count of conspiracy. Black’s contention

regarding attribution of drug quantities for the possession sentences was resolved on direct

appeal.

3

injury to, and damage to the tangible property of, a witness in retaliation for

communicating information to law enforcement in violation of 18 U.S.C. §

1513(b)(2). Black was sentenced to four life sentences, 360 months’

imprisonment, and 120 months’ imprisonment, all to run concurrently. Black’s

trial counsel neither requested a special verdict at trial nor objected to the

imposition of Black’s conspiracy sentence based upon a calculation of the

quantities of methamphetamine as well as marijuana attributed to him. Black,

represented by the same counsel, appealed to this court, contending that the trial

court erred in its calculation of the drug quantities attributable to Black under his

possession counts, among other issues. None of the issues raised on direct 1

appeal, however, related to the use of a general verdict form, nor did appellate

counsel draw to the court’s attention the cases of Edwards v. United States, 523

U.S. 511 (1998), and United States v. Riley, 142 F.3d 1254 (11th Cir. 1998),

which were decided while the appeal was pending.
A procedural default created by a failure to appeal can also be overcome if a defendant 2

can show a fundamental miscarriage of justice, such as actual innocence. Mills, 36 F.3d at 1055

(citing Murray v. Carrier, 477 U.S. 478, 496 (1986)). Black, however, has made no such

showing.

4

Generally, if a challenge to a conviction or sentence is not made on direct

appeal, it will be procedurally barred in a 28 U.S.C. § 2255 challenge. Mills v.

United States, 36 F.3d 1052, 1055 (11th Cir. 1994). A defendant may overcome

this procedural default by showing both cause for his default as well as

demonstrating actual prejudice suffered as a result of the alleged error. Id. In the

2

instant matter, Black essentially contends that his counsel was ineffective in

failing to point out two cases, Edwards and Riley, decided after the appeal was

filed, but before the appeal was decided that would limit the maximum sentence

on the conspiracy count to ten years. In order to prevail on this claim, Black must

show that counsel’s performance was so deficient that it fell below an objective

standard of reasonableness as well as demonstrate that but for the deficient

performance, the outcome of the appeal would have been different. Chateloin v.

Singletary, 89 F.3d 749, 752 (11th Cir. 1996) (citing Strickland v. Washington,

466 U.S. 668, 687 (1984); Matire v. Wainwright, 811 F.2d 1430, 1435 (11th Cir.

1987)). 
5

In this collateral attack, the district court held that trial counsel’s failure to

ask for a special verdict on the dual-object conspiracy count, or object to the

inclusion of methamphetamine quantities for calculation of his conspiracy

sentence, did not render his assistance to Black ineffective. Further, the district

court found that Black did not suffer from ineffective assistance of appellate

counsel when counsel did not bring to the attention of the court of appeal two

cases decided while Black’s direct appeal was still pending. After review, we

affirm.

In order to evaluate whether appellate counsel’s performance was

objectively reasonable , it is important to understand the context in which Black’s

counsel would have received and understood Edwards and Riley. For Black’s

counsel, United States v. Dennis, 786 F.2d 1029 (11th Cir. 1986), was the law of

the circuit both at the time of trial and as of the date the direct appeal was filed. In

Dennis, four defendants were found guilty of a conspiracy “to knowingly, willfully

and intentionally distribute and possess with intent to distribute quantities of

controlled substances, including heroin, cocaine, marijuana, and talwin,” in

violation of 21 U.S.C. § 846. Id. at 1032. Each defendant was also convicted of at

least one substantive drug offense. Id. Two defendants had asked at trial that the

jury return a special verdict specifying the object drugs in the conspiracy, but this
6

request was denied by the district court judge. Id. at 1037-38. Under the

applicable law, the maximum conspiracy sentence for marijuana was five years,

while up to fifteen years imprisonment could be imposed for a conspiracy

involving heroin or cocaine. Id. at 1038. Defendants received sentences ranging

between four and ten years on the conspiracy count. Id. 

On appeal, the Dennis defendants contended that the trial court erred in

sentencing these defendants as to the conspiracy count in the absence of a special

verdict indicating which drugs were found by the jury to have been the object of

the conspiracy. Id. at 1033. While we agreed that a trial judge should require a

jury to indicate which of the charged drugs were objects of the conspiracy, we held

that a failure to do so was not necessarily reversible error. Id. at 1038-39.

Appellants may not prevail on their claim simply by showing that

they were convicted under conspiracy instructions which, on their

face, might permit the jury to return a guilty verdict if the conspiracy

found did not involve [the higher-penalized drug]. It must also

appear that the evidence would support such a construction of the

verdict actually obtained.

Id. at 1039. The court found that the evidence showed beyond a reasonable doubt

that the conspiracy involved cocaine and heroin and therefore affirmed. Id. at

1040, 1050. Accordingly, under the law of the circuit at the time of trial, and as of

the filing of Black’s direct appeal, Black’s counsel would have understood that the
7

lack of a special verdict was not of itself sufficient to create a successful appellate

argument. Instead, Black’s counsel would have known that he would be required

under Dennis to show not only that the jury instructions could be read to allow

jurors to convict Black of a marijuana-only conspiracy, but also that the evidence

would support a construction that the jury intended to convict Black of only a

marijuana conspiracy, to the exclusion of a construction that would show juror

intent to convict Black of a marijuana and methamphetamine conspiracy. The

government’s evidence here begins with a marijuana transaction with Black, but

thereafter all of the evidence dealt with methamphetamine and, therefore, counsel

had no serious argument to advance under Dennis. It was with such an

understanding of the law of the circuit that Black’s counsel would have read and

interpreted Edwards and Riley.

Both Edwards and Riley consider the sentencing of a defendant convicted

by general verdict of a dual-object drug conspiracy when the sentence imposed

does not exceed the penalty for the drug with the lowest maximum sentence. 

Edwards, 523 U.S. at 515; Riley, 142 F.3d at 1256. In Edwards v. United States,

the petitioners were convicted by general verdict of conspiracy to possess cocaine

and cocaine base, or crack. 523 U.S. 511, 513 (1998). As a general verdict form

was used, the petitioners contended that the district court judge erred in
8

considering the quantity of both drugs, and not merely cocaine, when imposing a

sentence under the Sentencing Guidelines. Id. The Court held that “in the

circumstances of this case the judge was authorized to determine for sentencing

purposes whether crack, as well as cocaine, was involved in the offense-related

activities.” Id. The sentence imposed did not exceed the maximum sentence for a

cocaine-only conspiracy and the Supreme Court held that it did not matter whether

the judge assumed the jury convicted the petitioners of a conspiracy involving

only cocaine or both cocaine and crack, because the Sentencing Guidelines

instruct a judge to consider all “relevant conduct.” Id. at 514, U.S.S.G. § 1B1.3. 

After the Supreme Court handed down its decision in Edwards, this court

had occasion to consider a similar issue in United States v. Riley, 142 F.3d 1254

(11th Cir. 1998). In Riley, as in Edwards, the petitioners had been convicted by a

general verdict for a conspiracy to possess with intent to distribute two drugs,

cocaine powder and cocaine base. Id. at 1255. The Riley petitioners, too, were

sentenced under the Guidelines on the basis of both forms of cocaine and appealed

the district court judge’s decision to consider the quantities of both cocaine and

crack involved in the conspiracy. Id. at 1256. Citing Edwards, the Riley panel

held that “a sentencing judge is not limited to considering the offense of

conviction. Rather, the judge may sentence for both offense conduct and any
9

other ‘relevant conduct.’” Id. at 1256 (internal citations omitted) (emphasis in

original). 

In Smith v. Singletary, we held that counsel’s ignorance of a well-defined

legal principle could be inexcusable and demonstrate ineffective performance by

counsel. 170 F.3d 1051, 1054 (11th Cir. 1999). If the legal principle at issue is

unsettled, however, counsel will not have rendered deficient performance for an

error in judgment. Id.; Pitts v. Cook, 923 F.2d 1568, 1573 (11 Cir. 1991) (failing th

to raise a Batson claim before Batson had been decided did not render counsel’s

performance deficient). Thus, if a reasonable attorney in appellate counsel’s

position could have concluded that a given portion of an opinion was dictum

discussing an unsettled question of law and not binding authority for his case, that

attorney’s performance will not be deemed deficient for not raising that issue to

the court. See Smith v. Singletary, 170 F.3d at 1054. Dictum is a term that has

been variously defined as a statement that neither constitutes the holding of a case,

nor arises from a part of the opinion that is necessary to the holding of the case. 

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 66-67 (1996); see also U.S. v.

Hunter, 172 F.3d 1307, 1310 (11th Cir. 1999) (Carnes, J., concurring) (discussing

the difference between binding precedent and dicta and stating that, “[t]he

holdings of a prior decision can reach only as far as the facts and circumstances
10

presented to the Court in the case which produced the decision.”). While the

“relevant conduct” principle is a clear holding of both Edwards and Riley, both

cases also consider the hypothetical sentencing of a defendant convicted by

general verdict of a dual-object drug conspiracy when the objects of the

conspiracy carry differing maximum statutory sentences. Edwards, 523 U.S. at

515; Riley, 142 F.3d at 1256. Accordingly, we must determine if a reasonable

attorney in the position of Black’s appellate counsel in 1998, while direct appeal

was still pending, could have concluded that the hypothetical scenario considered

in the two cases was simply dicta and did not provide binding authority for

Black’s case.

In Edwards, after the court held that a sentencing judge may consider all

relevant conduct in imposing a sentence under the Guidelines, the Court went on

to discuss a factual situation which did not actually exist in Edwards:

Of course, petitioners’ statutory and constitutional claims would

make a difference if it were possible to argue, say, that the sentences

imposed exceeded the maximum that the statutes permit for a

cocaine-only conspiracy. That is because a maximum sentence set by

statute trumps a higher sentence set forth in the Guidelines. But, as

the Government points out, the sentences imposed here were within

the statutory limits applicable to a cocaine-only conspiracy, given the

quantities of that drug attributed to each petitioner.
11

523 U.S. at 515 (internal citations omitted). Black points to this hypothetical

discussion and argues that a reasonable attorney would have argued to the court of

appeals, based upon this passage, that Black’s sentence was in error as it exceeded

the statutory maximum for a marijuana conspiracy. Notably, however, the

language most useful to Black, this discussion of maximum sentences for a dualobject conspiracy, arose in the context of a hypothetical circumstance and not out

of the actual facts of the case before the Court. Further, a fair reading of Edwards

indicates that the Court’s discussion was not necessary to decide the issue

presented, as the court had already decided that a sentencing judge was authorized

to determine what controlled substances were at issue, and the quantities of those

substances, under the Sentencing Guidelines. Id. at 513-14. The subsequent Riley

opinion mentioned this same language in Edwards, noting that the Edwards rule

did not apply if the amount of one controlled substance would lead to a lower

statutory maximum sentence than would occur based upon the amount of the

second controlled substance. 142 F.3d at 1256. Here again, though, the language

in Riley that supports Black’s position did not apply to the facts in Riley and was

not necessary to resolve the actual question before the court: sentencing under the

Guidelines for two drugs carrying the same statutory maximum sentence. Id. 
12

Accordingly, the facts and circumstances of Edwards and Riley are distinct

from a situation in which different maximum sentences were in fact implicated. 

Moreover, the discussion of proper sentencing for multiple-object drug

conspiracies involving substances with different statutory maximum sentences was

not necessary to the resolution of either Edwards and Riley; removing the relevant

passages from the opinions does not change their central holding that judges are

free to consider not only offense conduct but also all relevant conduct when

sentencing criminals under the Guidelines. Edwards, 523 U.S. at 514; Riley, 142

F.3d at 1256. Further, our opinion in Riley did not mention United States v.

Dennis, still the law of this circuit in 1998. Certainly, the panel in Riley would not

be able to overturn the opinion of another panel of this court; only the Supreme

Court or this court sitting en banc could accomplish such a task. See Glazner v.

Glazner, 347 F.3d 1212, 1214 (11th Cir. 2003); see also Saxton v. ACF Industries,

Inc., 254 F.3d 959, 960 n.1 (11th Cir. 2001). As discussed above, however, a fair

reading of Edwards could lead an attorney to believe that the relevant language

requiring a special verdict was dictum, and the total silence in Riley regarding

Dennis certainly would not provide any additional guidance to Black’s counsel. 

Thus, a reasonable attorney could have concluded that Dennis was still the law of

the circuit. For all these reasons, Black’s appellate counsel, reading these cases in
A careful reading of this footnote, however, could lend its support to a different 3

conclusion. It is quite possible that the “holding” in Edwards to which the Apprendi footnote

refers is not a holding that sentences cannot exceed the statutory maximum sentence for the

lower-sentenced drug, but rather a holding that a maximum sentence set by a statute will trump

any contrary provisions provided in the Sentencing Guidelines. Whether the Edwards statements

became a holding by virtue of Apprendi is irrelevant, however, to the matter at hand. As an

initial matter, the question before us is not whether or not Edwards was binding law, but whether

a failure to refer to Edwards in 1998 would render counsel’s performance to fall below standards

of objective reasonableness. Further, the holding in Allen effectively made the dictum, or

holding, of Edwards the law of this circuit. United States v. Allen, 302 F.3d 1260 (11th Cir.

2002).

13

1998, would have very good reason to believe that Edwards and Riley were not

binding on the subject matter of Black’s appeal but rather consisted in dicta.

Subsequently, of course, the Supreme Court appears to have stated that the

Edwards discussion of differing statutory maximum sentences was in fact a

holding of the case in a footnote to Apprendi v. New Jersey. 530 U.S. 466, 497

n.21 (2000).

The principal dissent, in addition, treats us to a lengthy disquisition

on the benefits of determinate sentencing schemes, and the effect of

today’s decision on the federal Sentencing Guidelines. The

Guidelines are, of course, not before the Court. We therefore express

no view on the subject beyond what this Court has already held. See,

e.g., Edwards v. United States (noting that “[o]f course, petitioner’s

statutory and constitutional clams would make a difference if it were

possible to argue, say, that the sentences imposed exceeded the

maximum that the statutes permit for a cocaine-only conspiracy. That

is because a maximum sentence set by statute trumps a higher

sentence set forth in the Guidelines.”) (some internal citations

omitted).3
In fact, a footnote in Allen describes the factual issue in that case, similar to the facts 4

before us in the present case, to be an issue of first impression. 302 F.3d at 1274 n.42. It is not

at all clear, then, that this circuit regarded Edwards and Riley to be binding precedent when Allen

was decided in 2002.

14

Further, Apprendi now requires that, “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 

Id. at 490. Moreover, as this court made clear in Allen, the hypothetical position

laid out in Edwards and Riley was in fact the law of the circuit. United States v.

Allen, 302 F.3d 1260, 1274-75 (11th Cir. 2002). These clarifications and 4

holdings, however, were not handed down until several years after direct appeal

was concluded in 1998. The central inquiry, then, must be whether it is

objectively reasonable to require Black’s counsel to have predicted in 1998 that

the language inherent in Edwards and Riley later would be construed as a holding. 

Given the strong indications from the face of the opinions that the language

concerning differing statutory maximum sentences was dicta, we find that

appellate counsel’s performance was not deficient for failing to predict what was

not yet a certain holding. Accordingly, we find that Black did not suffer from such

deficient performance on the part of his appellate counsel as to fall below the

standards of objective reasonableness. As Black cannot show that his appellate
15

counsel’s performance was deficient, he cannot show that he received such

ineffective assistance of counsel as to overcome his procedural default for not

raising this issue initially on appeal. 

Even if we assume, however, that Black’s appellate counsel was ineffective

for not arguing that Edwards and Riley required a reduction in sentence, Black has

not shown that he was prejudiced by this failure. Black was convicted of four

substantive counts of possession with intent to distribute methamphetamine. 

Further, each of these distribution counts was alleged to be an overt act of the

conspiracy. Thus, while Black was convicted of conspiring to distribute drugs by

general verdict, the great weight of the evidence shows that the conspiracy

involved methamphetamine. Black’s jury was advised that it needed to find both

methamphetamine and marijuana to convict him of the conspiracy charge and was

given a copy of the indictment which explicitly mandated the presence of both

controlled substances. Moreover, under the law of the circuit at the time of trial

and appeal, in order to show the failure to use a special verdict was reversible

error, a defendant had to show not only that he was convicted of a dual-object

conspiracy by general verdict, but also that the evidence would only support a

conviction under the controlled substance with the lower statutory maximum
As noted above, Black also alleges that trial counsel was ineffective at trial for failing to 5

request a special verdict form. However, there is no question that neither Edwards nor Riley was

available at the time of trial. Further, the law of the circuit at the time of trial was United States

v. Dennis, 786 F.2d 1029, 1039 (11th Cir. 1986), which did instruct judges to employ special

verdict forms but explicitly noted that the failure to do so would only be considered prejudicial if

there was insufficient evidence to convict the defendant of the underlying substantive crime. 

Here, Black was convicted of possession with intent to distribute methamphetamine, the

underlying substantive crime, so the failure to request a special verdict form would not have

constituted reversible error. Additionally, the jury instructions and indictment provided

sufficient instruction to the jury that they were required to find a conspiracy based upon both

drugs.

16

sentence. United States v. Dennis, 786 F.2d 1029, 1039 (11th Cir. 1986). As 5

evidenced by the convictions for possession with intent to distribute

methamphetamine, Black would not be able to show that the evidence would not

support a conviction for conspiracy to distribute methamphetamine. Cf. id. at

1040. Accordingly, Black did not suffer prejudice from his attorney’s failure to

address Edwards and Riley on appeal.

For all the reasons set forth above, the judgment of the district court is

AFFIRMED.