[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-12096

Non-Argument Calendar

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D.C. Docket Nos. 2:17-cv-14343-JEM,

2:14-cr-14008-JEM-1

WILLIAM A. TENDRICH,

Petitioner-Appellant,

vs.

UNITED STATES OF AMERICA,

Respondent-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

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(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 

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Supreme Court to include a reference to Mathis v. United 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 offense 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. Ct. 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 asserts, 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 constitutional right to counsel for the purpose of filing a certiorari 

petition in the Supreme Court. See e.g., Steele 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.

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441 (11th Cir. 1985) (refusing to consider the good-faith exception to the 

exclusionary rule because the government did not assert 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 Court would have 

granted the petition and (b) that he would have prevailed on remand).

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