[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

_____________________ No. 19

- 12096 Non

- Argument Calendar

_____________________ D.C. Docket No s . 2:17

- cv - 14343

- JEM , 2:14

- cr - 14008

- JEM

- 1

WILLIAM A. TENDRICH, Petitioner

- Appellant,

vs. UNITED STATES OF AMERICA, Respondent

- Appellee.

_____________________ Appeal from the United States District Court for the Southern District of Florida

_____________________ ( October 27, 2020 ) Before, JORDAN, BRANCH , and FAY, Circuit Judges.
PER CURIAM: The sole issue in this appeal is whether William Tendrich’s counsel rendered ineffective assistance by failing to amend a petition for writ of certiorari in the

USCA11 Case: 19-12096 Date Filed: 10/27/2020 Page: 1 of 32 Supreme Court to include a reference to Mathis v. Unite d States , 136 S. Ct . 2243 (2016). We agree with the magistrate judge and the district court that counsel did not render deficient performance, and affirm the denial of Mr. Tendrich’s motion to vacate under 28 U.S.C. § 2255. 1
Mathis held that when an off ense lists alternative means of committing a single element, the modified categorical approach cannot be used to determine whether a conviction is a predicate offense under the Armed Career Criminal Act,
18 U.S.C. § 924( e ). See Mathis , 136 S

. C t. at 2253

- 54. Mr. Tendrich argues that, had his counsel cited Mathis to the Supreme Court, it would have granted his certiorari petition and granted him relief (presumably by striking or invalidating his
ACCA

- enhanced sentence). This is because, Mr. Tendrich asser ts , the Massachusetts burglary statute that gave rise to his prior convictions

— M.G.L. Chapter 266, § 18

— is not divisible. See Appellant’s Br. At 16

- 18. The government argues that Mr. Tendrich’s ineffectiveness claim fails because there is no constitution al right to counsel for the purpose of filing a certiorari petition in the Supreme Court. See e.g., S teele v. United States , 518 F.3d 986, 988 (8th Cir. 2008). We decline to address this argument because the government failed to present it in the district court. See, e.g., United States v. Ladson , 774 F.2d 436,

1 Because we write for the parties, and assume their familiarity with the record, we set out only what is necessary to explain our decision

.

USCA11 Case: 19-12096 Date Filed: 10/27/2020 Page: 2 of 33 441 (11th Cir. 1985) (refusing to consider the good

- faith exception to the exclusionary rule because the government did not asse rt it in the district court). We conclude that Mr. Tendrich’s counsel did not render deficient performance. The “proper standard for attorney performance is that of reasonably effective assistance , ” Strickland v. Washington , 466 U.S. 668, 687 (1984), and there were a couple of reasons why counsel could have reasonably chosen not to cite Mathis in a supplemental filing. First, in 2005 the Supreme Court had suggested in an ACCA case that a burglary statute like M. G. L

. Chapter 266, § 18

— the statute under which Mr. Tendrich was previously convicted

— is divisible and subject to the modified categorical test. See Shepard v. United States , 544 U.S. 13, 17 (2005). Second, at sentencing Mr. Tendrich (through counsel) acknowledged that the Massachusetts statute was divisible. 2
AFFIRMED.

2 Alternatively, we agree with the magistrate judge and the district court that Mathis does not apply in Mr. Tendrich’s case. See, e.g., D. E. 13 at 10

- 11 (magistrate judge’s report and recommendation). As a result, Mr. Tendrich cannot show prejudice under Strickland

. See Steele , 588 F.3d at 988

- 89 ( a petitioner who alleges that counsel was ineffective in failing to file a certiorari petition must show a reasonable probability (a) that the Supreme Cour t would have granted the petition and (b) that he would have prevailed on remand).

USCA11 Case: 19-12096 Date Filed: 10/27/2020 Page: 3 of 3