[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-10353

Non-Argument Calendar

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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.

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Appeal from the United States District Court

for the Middle District of Georgia

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(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, 387 F.3d 1344, 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, 510 F.3d 1307, 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, 466 U.S. 668, 687−88, 104 S. Ct. 

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

“reasonableness under prevailing professional norms.” Id. at 688, 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, 306 F.3d 1043, 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, 218 F.3d 1305, 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, 273 F.3d 991, 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, 923 F.2d 1568, 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, 621 F.3d 1343 (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, 132 S. Ct. 2321 (2012), does not support Giddens’s 

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claim of ineffective assistance. See Ardley, 273 F.3d at 993. And because counsel 

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

futile. See Cockrell, 510 F.3d at 1310. The district court did not abuse its discretion 

by denying Giddens’s request to amend his motion. 

AFFIRMED.

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