[DO NOT PUBLISH]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

________________________ No. 11

- 14095 Non

- Argument Calendar

________________________ D.C. Docket No s . 7:08

- cv - 90033

- HL

- TQL ; 7:00

- cr - 00012

- HL

- MSH

- 6

KEITH V. HARNED,
llllllllllllllllllllllllllllllllllllllll Petitioner

- Appellant,

versus UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Respondent

- Appellee.

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

________________________ (December 31, 2012) Before PRYOR , MARTIN and JORDAN , Circuit Judges.
PER CURIAM: Keith Harned appeals pro se the denial of his motion to vacate his sentence of 210 months of imprisonment for consp iracy to launder monetary instruments

. 28 U.S.C. § 2255. Based on his involvement in a Ponzi scheme to sell promissory

Case: 11-14095 Date Filed: 12/31/2012 Page: 1 of 62 notes with no source of income other than the investors’ funds, a jury convicted Harned of numerous crimes including conspir ing to launder mone tary instruments that were derived from unlawful activity , 18 U.S.C. § 1956(a)(1)(A)(i), and that exceed ed $10,000, id. § 1957. T he jury returned a general verdict of guilty as to the conspiracy , and later t he district court found that the obj ect of the conspiracy was to launder monetary instruments that were derived from unlawful activity, id. § 1956(a)(1)(A)(i) , and sentenced Harned to 210 months of imprisonment

. Harned
argues that trial counsel was ineffective for failing to request that the jury return a special verdict identifying the object of the conspiracy. Because Harned cannot prove that his counsel acted deficiently given the law of this Circuit at the time of his trial or that he was prejudiced by counsel’s performance , we a ffirm. We review de novo the denial of a claim of ineffective assistance of counsel. Chandler v. United States , 218 F.3d 1305, 1312 (11th Cir. 2000) ( en banc ). To prevail on a claim of ineffective assistance of counsel, a d efendant must prove that his co unsel’s performance was deficient and that he was prejudiced as a result of that deficiency. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). To avoid the “distorting effects of hindsight,” we evaluate counsel’s performance base d on his “ perspective at the time,” id. at 689, 104 S. Ct. at 2065, to determine whether a reasonable attorney would have taken the same action, Chandler , 218 F.3d at 1315. Under that standard , c ounsel may be deemed deficient

Case: 11-14095 Date Filed: 12/31/2012 Page: 2 of 63 for failing to pursue issues involving well

- defined legal principles, but “ if a reasonable attorney in

. . . 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. ” Black v. United States , 373 F.3d 1140, 1144 ( 1 1 th Cir

. 2004)

. Ultimately, a defendant cannot prevail unless he also
can prove that “ there is a reasonable pr obab ility that, but for counsel’ s unprofessional errors, the result of [his trial] would have been different.” Strickland , 466 U.S at 694, 104 S. Ct. at 2068. Harned cannot prove that his trial counsel perform ed deficiently. This issue is controlled by our d ecision in Black v. United States , where we rejected the argument that appellate counsel should have predicted that his client had a right to a special verdict when the caselaw on the subject was unsettled

. 373 F.3d at 1142

– 4 6

. As in Black , the law at the time of Harned’s trial, United States v. Dennis , 786 F.2d 1029 (11th Cir. 1986), provided that the failure to use a special verdict form in a dual object drug conspiracy was reversible error only if the jury instructions and the evidence s upported solely a conviction for the drug with the lower penalty. Id. at 1039

– 40 ; see United States v. Shenberg , 89 F.3d 1461, 1472 (11 th Cir

. 1996) (hol d ing that “ the district court acted within its d iscretion in denying appellants’ request for a special verdict on the RICO conspiracy count ”) ; see also United

Case: 11-14095 Date Filed: 12/31/2012 Page: 3 of 64 States v. Hernandez , 141 F.3d 1042 , 1051 & n.2 ( 11 th Cir

. 1998 ) (rejecting Hernandez’s argument that the district court should have obtained a special verdict identifying t he ob ject of his conspiracy to commit conspiracy and arson )

. Harned’s counsel reasonably could have concluded that Dennis was unaffected by the decisions of the Supreme Court in Edwards v. United States , 523 U.S. 511, 118 S. Ct. 1475 (1998), and this Court in United States v. Riley , 142 F.3d 1254 (11th Cir.
1 998). Edwards and Riley held that , when a jury return s a general verdict of guilty as to a conspiracy to possess cocaine and cra ck, the district court is allow ed at sentencing to consider as relevant conduct the quantities of both drugs in imposing a sentence under the Sentencing Guidelines so long as the sentence d oes not exceed the penalty for the drug with the lowest maximum sentence. 523 U.S. at
513

– 14, 118 S. Ct. at 1477 ; 142 F.3d at 1256. Although the opinions in Edwards
and Riley speculat ed that the outcome might have differ ed had the defendants received a sentence above the maximum statutory penalty for the ir cocaine offenses , Edwards , 523 U.S. at 515, 118 S. Ct. at 1477; Riley , 142 F.3d at 1256, “ a fair reading of Edwards could [have] le [ d ] an attorney to believe that the relevant language requiring a special verdict was dictum .” Black , 373 F.3d at 1145. After reading Riley , which did not mention Dennis , Harned’s counsel reas onably could have concluded that Dennis remained the law in the Eleventh Circuit and that Harned was not entitled to a special verdict. Black , 373 F.3d at 1145.

Case: 11-14095 Date Filed: 12/31/2012 Page: 4 of 65 C ounsel also reasonably could have concluded that Dennis remained the law of the Circuit after the Supreme Court issued its decision in Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348 (2000) . A s we explained in Black , counsel could have read the “‘holding’ in Edwards to which the [Court in] Apprendi

. . . refer[red] [in footnote 21] [a s ] not a holding that sentences cannot exceed the statutory maximum sentence for the lower

- sentenced drug, but rather [as] a holding that a maximum sentence set by a statute will trump any contrary provisions provided in the Sentencing Guidelines. ” Black , 3 73 F.3d at 1146 n.3. Counsel reasonably could have concluded that there was no serious argument to advance in Harned’s favor until we issued United States v. Allen , 302 F.3d 1260 (11th Cir. 2002), which held , “as an issue of first impression in this Circu it , ” that if the objects in a dual drug conspiracy have different statutory maximum penalties, the jury must return a special verdict identifying the object of the conspiracy. Id. at 1275

– 76. W e did not issue Allen until approximately seven months after Harned’s conviction. Harned argues that appellate counsel should have sought relief bas ed on Allen , but we decline to r eview an argume nt raised for the first time in a reply brief to which the government has not had an opportunity to respond

. See United S tates v. Jernigan , 341 F.3d 1273, 1284 n.8 (11th Cir. 2003). We cannot say that
H arned’s trial counsel was ineffective for failing to forecast a change in the law.

Case: 11-14095 Date Filed: 12/31/2012 Page: 5 of 66 Even if we were to assume that Harned’s trial counsel was deficient for failing to request a special verdict, Harned could not establish a reasonable probability that the outcome of his trial would have been different had the jury used a special verdict form

. W e held on dir ect appeal that there was sufficient evidence to support Harned’s conviction for conspiring to launder monetary instruments under section 1956(a)(1)(A)(i) , United States v. Cawthon , No. 02

- 12360, slip op. at 12 (11th Cir. Aug. 6, 2003); United States v. Li ndsey , No. 04

- 10111, slip op. at 12 (11th Cir. Oct. 13, 2006), which has a higher statutory maximum sentence than section 1957

. Furthermore, we held that, although the district court erred by enhancing Harned’s sentence based on facts not found by a jury, that error was harmless because it did not affect Harned’s s ubstantial rights

. Lindsey , slip op. at 18. T he district court determined Harned’s sentence based on the statutory sentencing factors, 18 U.S.C. § 3553.
We AFFIRM the denial of Harned’s motion to vacate. Case: 11-14095 Date Filed: 12/31/2012 Page: 6 of 6