[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14133

Non-Argument Calendar

____________________

MICHAEL EDWIN HARDING, 

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA, 

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket Nos. 2:18-cv-14359-RLR,

2:15-cr-14057-RLR-1

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____________________

Before JORDAN, LAGOA, and HULL, Circuit Judges.

PER CURIAM:

Michael Harding is a federal prisoner serving a life sentence 

after pleading guilty to distributing and possessing child 

pornography (Counts 1-4) and nolo contendere to attempting to 

coerce a minor to engage in sexual activity (Count 5) and 

producing child pornography (Count 6). Harding appeals the 

district court’s denial of his 28 U.S.C. § 2255 motion to vacate his 

convictions on Counts 5 and 6 on grounds that his plea-stage 

attorney rendered ineffective assistance.1 

This Court granted a certificate of appealability (“COA”) on 

two issues: (1) “[w]hether the district court violated Clisby v. Jones, 

960 F.2d 925 (11th Cir. 1992), by failing to address specifically 

Harding’s claim that his plea was involuntary because his attorney 

did not advise him that he could be subject to post-incarceration 

civil commitment”; and (2) “[r]egardless of any potential Clisby 

error, whether Harding’s attorney rendered ineffective assistance 

by failing to advise him that his nolo contendere plea could result in 

post-incarceration civil confinement, and, if so, whether that 

ineffective assistance prejudiced him.” After careful review of the 

record and briefs, we find no Clisby error and affirm the district 

1 In the district court, Harding withdrew his § 2255 motion as to Counts 1 

through 4 and clarified that he sought to vacate only his nolo contendere plea 

as to Counts 5 and 6. 

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court’s denial of Harding’s ineffective assistance claim as to Counts 

5 and 6.

I. BACKGROUND

A. Offenses and Indictment

In 2015, federal agents investigated Harding, a police officer 

in Port St. Lucie, Florida, for posting images of child pornography 

to a Kik Messenger chatroom. A subsequent search of Harding’s 

residence revealed a thumb drive containing hundreds of still 

images and videos of minors engaged in sexually explicit conduct 

with other minors and adults. 

Pertinent to Counts 5 and 6, agents also searched a cell 

phone taken from Harding’s nightstand and found, among other 

things, messages with other individuals about engaging in sexual 

activity with minors. Between August and September 2015, 

Harding had conversations with an individual, identified as 

“daddydearaimee,” in which Harding claimed to have engaged in 

sexual activity with his nine-year-old stepdaughter. Harding and 

daddydearaimee discussed exchanging their minor children for the 

purposes of engaging in sexual acts with them. In interviews, 

Harding’s two stepdaughters, aged nine and five, both said Harding 

had engaged in sexual activity with them. 

Additional forensic examination of Harding’s cell phone 

uncovered a thumbnail image, created in November 2014, when a 

video was recorded on the phone. The thumbnail image depicted 

Harding’s then eight-year-old stepdaughter performing oral sex on 

Harding. In his chats, Harding had discussed the video and said he 

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had deleted it because he feared getting caught. A sex toy found 

with the thumb drive at Harding’s residence was determined to 

contain the stepdaughter’s DNA. 

In a second superseding indictment, a federal grand jury 

charged Harding in Counts 1 through 3 with distribution of child 

pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1); in 

Count 4 with possession of child pornography, in violation of 18 

U.S.C. § 2252(a)(4)(B) and (b)(2); in Count 5 with attempting to 

entice a minor to engage in sexual activity, in violation of 18 U.S.C. 

§ 2422(b); and in Count 6 with production of child pornography, in 

violation of 18 U.S.C. § 2251(a) and (e). 

B. Plea 

At a pretrial status conference, the parties advised the district 

court that Harding planned to enter an open plea of guilty to

Counts 1 through 4. Defense counsel explained that Harding 

wanted to plead nolo contendere to the remaining two counts 

because the state of Florida was preparing to charge him with 

multiple counts of capital sexual battery based on Harding’s 

conduct with his stepdaughters, and Harding did not want to admit 

facts that could be used against him in his state criminal 

proceedings. 

The district court expressed confusion about why Harding 

wanted to enter a nolo contendere plea when his advisory 

guidelines sentence would likely be life imprisonment. Defense 

counsel explained that the state charges carried mandatory life 

sentences, and, in defense counsel’s view, a nolo contendere plea 

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to Counts 5 and 6 gave Harding a better chance of defending 

himself against those charges. 

At a February 2016 plea hearing, Harding entered an open 

plea of guilty to Counts 1 through 4 and of nolo contendere to 

Counts 5 and 6. The factual basis for Count 5 was Harding’s 

conversations with daddydearaimee about exchanging their minor 

children for the purposes of engaging in sexual activity. The factual 

basis for Count 6 was the deleted video recording of Harding 

engaging in sexual activity with his minor stepdaughter. 

Before accepting Harding’s pleas, the district court 

reviewed, among other things, the minimum and maximum 

penalties for each count, including a maximum of life 

imprisonment as to Count 5; that Harding’s guidelines sentence 

could be up to life imprisonment; and that because of the nature of 

Harding’s convictions, he would be subject to substantial 

restrictions on where he could live, work, and associate if he were 

released. Harding indicated that he understood all of these things. 

The district court did not discuss with Harding the 

possibility that he could face civil commitment upon release. 

C. Sentencing and Direct Appeal

At Harding’s May 2016 sentencing hearing, the district court

determined, without objection, that under the Sentencing 

Guidelines, Harding’s total offense level was 43 and his criminal 

history category was I, which yielded an advisory guidelines range 

of life imprisonment. Defense counsel asked the district court to 

vary downward from the advisory guidelines sentence of life and 

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impose a 360-month sentence. The district court imposed a total 

life sentence comprised of 240-month terms on Counts 1 though 4, 

a life term on Count 5, and a 360-month term on Count 6, all to be 

served concurrently. 

On direct appeal, Harding argued, inter alia, that his plea was 

involuntary because the district court did not mention during the 

plea colloquy that he would be required to register as a sex offender 

and subject to other restrictions under state and federal sexoffender registration laws. United States v. Harding, 696 F. App’x 

955, 957 (11th Cir. 2017). This Court reviewed Harding’s challenge 

to the plea colloquy for plain error, found none, and affirmed his 

convictions and sentences. Id. at 957-59.

D. Current § 2255 Motion

On September 4, 2018, Harding, pro se, docketed the present 

§ 2255 motion raising eight claims for relief, including several 

claims of ineffective assistance of his defense counsel in the district 

court. Relevant to this appeal, in Ground Two Harding alleged, 

under penalty of perjury, that his counsel: (1) failed to properly 

advise him as to the application of the Sentencing Guidelines, 

which resulted in an advisory guidelines range of life imprisonment 

and misadvised him that he would receive no more than a thirtyyear sentence;2 and (2) failed to advise him that his guilty and nolo 

2 The ineffective assistance claims raised in the first part of Ground Two are 

outside the scope of the COA and are discussed only for context. See Murray 

v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998) (explaining that “appellate 

review is limited to the issues specified in the COA”).

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contendere pleas “would subject him to mandatory registration as 

a sex offender and possible indefinite civil commitment.”3 Harding 

also stated under penalty of perjury that had his defense counsel 

advised him that he would be subject to possible indefinite civil 

commitment, he would not have entered his pleas and would have 

insisted on going to trial. 

E. Evidentiary Hearing

A magistrate judge appointed Harding new counsel and held 

a two-day evidentiary hearing on Ground Two, as it pertained to 

Counts 5 and 6. The majority of the hearing centered on the first 

part of Ground Two, which challenged counsel’s pre-plea advice 

about the possible length of Harding’s sentence.

Both Harding and his former defense counsel testified at the 

hearing. Harding testified that his trial counsel discussed the 

Sentencing Guidelines with him, told him he was looking at a 

sentence in the thirty-year range, and advised him there was no 

way he would receive a life sentence. Harding said he would have 

insisted on going to trial if he had known his advisory guidelines 

sentence would be life imprisonment even with a three-level 

reduction in his offense level for acceptance of responsibility. 

Defense counsel, on the other hand, testified that a few 

months before the plea hearing, he had advised Harding that his 

3 The federal civil-commitment statute authorizes the Attorney General to 

detain a person released from the custody of the Bureau of Prisons if, after a 

hearing, the person is found to be “sexually dangerous.” 18 U.S.C. § 4248. 

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guidelines sentence would be life but that he did not believe the 

judge would impose a life term. Defense counsel described 

Harding’s case as “very difficult” and not “a good trial case” given 

the government’s evidence and said that if the jury believed the 

thumbnail image on Harding’s phone was of Harding having sex 

with his stepdaughter, “it would be a very short verdict in this 

case.” 

Defense counsel explained that “one of the major driving 

considerations” in Harding’s case was the imminent state charges. 

Defense counsel advised Harding that pleading guilty to Counts 5 

and 6 would be an admission that could be used against him in his 

state case, which was something Harding “wanted to avoid at all 

costs.” Defense counsel’s strategy was to put Harding “in the best 

light possible” at sentencing by pleading nolo contendere to 

Counts 5 and 6 and seeking a downward variance from the 

advisory guidelines sentence of life based on “some very good 

mitigation.” Defense counsel testified that he explained this 

strategy to Harding, who understood it and agreed that “the better 

choice was to enter a plea” of nolo contendere to Counts 5 and 6 

rather than go to trial. 

At the hearing, Harding testified that, based on his 

experience as a police officer, he knew convicted sex offenders are 

required to register and have mandatory reporting requirements. 

However, at the hearing, no evidence was presented about what 

Harding knew, or what advice defense counsel gave or did not give 

him, about the possibility of post-incarceration civil commitment. 

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Nor did Harding testify that he would have insisted on going to 

trial had he been advised of the possibility of civil commitment. 

F. Denial of Harding’s § 2255 Motion

The magistrate judge issued a report and recommendation

(“R&R”), recommending that Harding’s § 2255 motion be denied 

in full. 

The R&R described Harding’s Ground Two as whether 

“counsel failed to advise him that a plea would subject him to a 

possible life sentence and to mandatory registration as a sex 

offender and possible indefinite civil commitment.” With regard 

to civil commitment, the R&R noted that Harding relied on this 

Court’s decision in Bauder v. Department of Corrections, 619 F.3d 1272 

(11th Cir. 2010). In Bauder, this Court held that defense counsel’s 

affirmative misadvice—that a state defendant’s conviction would 

not subject him to Florida’s civil commitment statute—was 

deficient performance under Strickland v. Washington, 466 U.S. 668 

(1984). 619 F.3d at 1274-75. 

In recommending that “this portion of Claim 2 should be 

denied,” the R&R noted, inter alia, that Harding, as the movant, 

had the burden to prove his ineffective assistance claim, but had 

“not put on any testimony that he received any misadvice 

regarding any indefinite civil commitment or registration as a sex 

offender.” As to the life sentence portion of Claim 2, the R&R 

discredited Harding’s testimony and credited trial counsel’s 

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testimony that he advised Harding of the potential life sentence 

and thus “did not misadvise [Harding].”4 

Over Harding’s objections, the district court adopted the 

R&R and denied his § 2255 motion. 

II. DISCUSSION

A. Clisby Error

As already noted, this Court granted a COA on whether the 

district court committed Clisby error by failing to address Harding’s 

claim that his attorney did not advise him that he could be subject 

to post-incarceration civil commitment. 

Under Clisby v. Jones, district courts must resolve all claims 

for relief raised in a habeas petition prior to granting or denying 

relief. 960 F.2d 925, 936 (11th Cir 1992) (en banc); see also Long v. 

United States, 626 F.3d 1167, 1169 (11th Cir. 2010) (explaining that 

under Clisby, “any and all cognizable claims” should be included 

when conducting a merits review). A claim for relief “is any 

allegation of a constitutional violation,” and “an allegation of one 

constitutional violation and an allegation of another . . . constitute 

two distinct claims for relief, even if both allegations arise from the 

same alleged set of operative facts.” Clisby, 960 F.2d at 936. If the 

district court fails to address all claims prior to issuing judgment, 

4 The R&R also determined that even if Harding had been misadvised that he 

faced only a thirty-year sentence, Harding had not shown any prejudice 

because, during his plea colloquy, the district court advised him of the 

potential life sentence, and Harding “acknowledged that possibility.” 

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we “will vacate the district court’s judgment without prejudice and 

remand the case for consideration of all remaining claims.” Id. at 

938. 

Consistent with Clisby, the district court must “facilitate 

meaningful appellate review by developing adequate factual 

records and making sufficiently clear findings as to the key issues.” 

Long, 626 F.3d at 1170. “[R]eformulat[ing]” or “reframing” a 

movant’s claim is permissible, so long as the district court “get[s] 

to the root of the problem.” Senter v. United States, 983 F.3d 1289, 

1294 (11th Cir. 2020). We review de novo the legal question of 

whether the district court violated the rule in Clisby. Dupree v. 

Warden, 715 F.3d 1295, 1299-1300 (11th Cir. 2013).

Here, the district court did not commit Clisby error. The 

R&R, adopted by the district court, addressed each alleged failure 

by defense counsel asserted in Ground Two, including Harding’s 

claim that his defense counsel failed to advise him of the possibility 

of civil commitment upon his release from prison. The district 

court correctly identified this claim and specifically addressed 

Bauder, the precedent Harding relied on for his civil commitment 

claim. By analyzing the civil commitment claim under Bauder, the 

district court reached “the root of the problem.” See Senter, 983 

F.3d at 1294.

While the district court discussed Harding’s claims about 

sex-offender registration and civil commitment together in the 

same subsection, it concluded as to both claims that Harding failed 

to carry his evidentiary burden as the § 2255 movant because he 

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did not testify about defense counsel’s “misadvice” as to either 

mandatory sex-offender registration or the possibility of civil 

commitment. This finding is sufficiently clear to permit 

meaningful appellate review. See Long, 626 F.3d at 1170. 

In sum, the district court’s resolution of Harding’s civilcommitment ineffective assistance claim, while brief, was sufficient 

to comply with Clisby. We therefore turn to the merits of 

Harding’s claim that his defense counsel was ineffective by failing 

to advise Harding of the risk of civil confinement.

B. Ineffective Assistance General Principles

A movant under § 2255 bears the burden to prove he is 

entitled to relief. Beeman v. United States, 871 F.3d 1215, 1222 (11th 

Cir. 2017). To show ineffective assistance of counsel, a defendant 

must show both that: (1) his counsel’s performance was deficient, 

meaning it fell below an objective standard of reasonableness; and 

(2) the deficient performance prejudiced his defense, that is, there 

was a reasonable probability that the results of the proceeding 

would have been different absent counsel’s errors. Strickland, 466 

U.S. at 687-88, 694. 

In reviewing a denial of a § 2255 motion, we review the 

district court’s legal conclusions de novo and its factual findings for 

clear error. Tribue v. United States, 929 F.3d 1326, 1328 n.2 (11th Cir. 

2019). Likewise, whether a movant’s counsel is ineffective is “a 

mixed question of law and fact” subject to de novo review. See 

Holladay v. Haley, 209 F.3d 1243, 1247 (11th Cir. 2000). We may 

affirm the denial of a § 2255 motion on any ground supported by 

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the record, regardless of the ground stated in the district court’s 

order or judgment. Beeman, 871 F.3d at 1221. 

Strickland’s familiar two-pronged test applies to whether 

counsel provided ineffective assistance in connection with the 

defendant’s plea. Riolo v. United States, 38 F.4th 956, 967 (11th Cir. 

2022). As to the first prong, the defendant must show his attorney’s 

representation in the guilty plea context fell below an objective 

standard of reasonableness. Id. This Court has held that defense 

counsel’s affirmative misrepresentation during plea negotiations 

that the defendant’s no contest plea would not subject him to postincarceration civil commitment constituted constitutionally 

deficient performance. Bauder, 619 F.3d at 1274-75 (relying on 

Padilla v. Kentucky, 559 U.S. 356 (2010), which held that attorneys 

must advise clients when their guilty pleas are likely to result in 

removal from the United States). 

As for the prejudice prong, the movant “must show that 

there is a reasonable probability that, but for counsel’s errors, he 

would not have pleaded guilty and would have insisted on going 

to trial.” Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); see also Diveroli 

v. United States, 803 F.3d 1258, 1263 (11th Cir. 2015). “Moreover, 

to obtain relief on this type of claim, a [movant] must convince the 

court that a decision to reject the plea bargain would have been 

rational under the circumstances.” Diveroli, 803 F.3d at 1263

(quotation marks omitted). 

However, the Supreme Court has admonished courts to 

“not upset a plea solely because of post hoc assertions from a defendant 

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about how he would have pleaded but for his attorney’s 

deficiencies. Judges should instead look to contemporaneous

evidence to substantiate a defendant’s expressed preferences.” Lee 

v. United States, 582 U.S. 357, 369 (2017) (emphases added). Thus, 

“[t]he defendant’s own conclusory after-the-fact assertion that he 

would have accepted a guilty plea, without more, is insufficient to 

satisfy the first prong of the prejudice test.” United States v. Smith, 

983 F.3d 1213, 1222 (11th Cir. 2020) (emphasis added) (quotation 

marks omitted); see also Diaz v. United States, 930 F.2d 832, 835 (11th 

Cir. 1991) (concluding petitioner failed to establish prejudice where 

he offered only “after the fact testimony concerning his desire to 

plead”).

Because the Supreme Court’s Lee decision is particularly 

instructive as to contemporaneous versus post hoc assertions, we 

briefly summarize it. In Lee, the defendant, a lawful permanent 

resident of 35 years, was primarily concerned with whether a 

criminal conviction would affect his immigration status. 582 U.S. 

at 360-61. Lee’s attorney assured him, incorrectly, that his guilty 

plea to possession of ecstasy with intent to distribute would not 

result in his deportation. Id. at 361-62. Because Lee “had no real 

defense to the charge,” going to trial would have been very risky. 

Id. at 360-61. Based on his attorney’s assurances that he would not 

be deported, Lee decided to accept a plea deal to obtain a lighter 

sentence than he would have faced had he gone to trial. Id. at 360-

61.

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After learning he faced mandatory deportation at the end of 

his sentence, Lee filed a § 2255 motion alleging ineffective 

assistance of counsel. Id. at 361-62. At an evidentiary hearing, both 

Lee and his plea-stage attorney testified that avoiding “deportation 

was the determinative issue” in deciding whether to plead guilty or 

go to trial. Id. at 362 (quotation marks omitted). Lee testified that 

he questioned his defense counsel so often about his immigration 

status that defense counsel became upset and admonished him for 

always worrying about something he did not need to worry about. 

Id. Defense counsel testified that, although Lee’s case was weak, 

he would have advised Lee to go to trial had he known Lee would 

be deported upon pleading guilty. Id.

The Supreme Court concluded that Lee had shown he was 

prejudiced by his counsel’s erroneous advice under the “unusual 

circumstances” of his case. Id. at 369. As noted earlier, the 

Supreme Court distinguished between “post hoc assertions” from 

a defendant and “contemporaneous evidence” from discussions at 

the time of the plea. See id. The Supreme Court emphasized the 

undisputed testimony from Lee and his defense counsel that at the 

time of the plea, “deportation was the determinative issue in Lee’s 

decision whether to accept the plea deal” and that “Lee would have 

gone to trial if he had known about the deportation consequences.” 

Id. Because Lee’s claim that had he known he would be deported, 

he would not have accepted a plea was “backed by substantial and 

uncontroverted evidence,” the Supreme Court concluded that Lee 

had demonstrated “that, but for [his] counsel’s errors, he would not 

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have pleaded guilty and would have insisted on going to trial.” Id.

at 371 (alteration in original) (quoting Hill, 474 U.S. at 59).

C. Harding’s Ineffective Assistance Claim 

In Ground Two of his § 2255 motion, Harding averred, 

under penalty of perjury, that his defense counsel failed to advise 

him that his plea would subject him to possible indefinite civil 

commitment. While there was no testimony on this point at the 

evidentiary hearing, the government does not dispute Harding’s 

sworn statement. 

Instead, the parties vigorously dispute whether defense 

counsel’s silence—rather than the affirmative misadvice in

Bauder—regarding exposure to civil commitment can constitute 

deficient performance. We need not, and do not, resolve that

performance issue because, even assuming arguendo that defense 

counsel’s failure to advise Harding of the potential risk of civil 

commitment after his life sentence was objectively unreasonable 

performance, Harding has not shown he was prejudiced as a result. 

See Holladay, 209 F.3d at 1248 (explaining that because both prongs 

of Strickland must be met, the reviewing court “need not address 

the performance prong if the defendant cannot meet the prejudice 

prong”). 

Harding did not carry his burden to prove there was a 

reasonable probability that, but for his trial counsel’s failure to 

advise him of the possibility of post-incarceration civil 

commitment, he would have insisted on going to trial. See Diveroli, 

803 F.3d at 1263. According to former trial counsel’s statements at 

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the pretrial status conference in Harding’s criminal proceedings 

and his credited testimony at the § 2255 evidentiary hearing, the 

most significant factors in Harding’s decision to enter a plea of nolo 

contendere to Counts 5 and 6 was (1) to prevent harm to Harding’s 

defense to impending state charges for which Harding faced a 

mandatory life sentence; and (2) to avoid a possible life sentence in 

federal court (by improving his chances of a downward variance 

from the advisory guidelines sentence of life). These factors 

suggest, if anything, that the mere possibility of civil commitment 

after Harding served his federal sentence would not have caused 

him to insist on going to trial on those two counts and risk harming 

his state court defense. 

Moreover, neither Harding nor his former defense counsel 

even mentioned civil commitment during their hearing testimony. 

In other words, unlike in Lee, here Harding did not offer any, much 

less substantial, contemporaneous evidence suggesting that had he 

known of the possibility of post-incarceration civil commitment, 

he would have rejected his defense counsel’s strategy to enter a 

nolo contendere plea and instead gone to trial on Counts 5 and 6. 

See Lee, 582 U.S. at 362, 369. And absent any such 

contemporaneous substantiating evidence, Harding’s bald, post 

hoc assertion in his § 2255 motion that he would have insisted on 

going to trial, cannot satisfy Strickland’s prejudice prong. See id. at 

369; Smith, 983 F.3d at 1222; Diaz, 930 F.2d at 835. 

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III. CONCLUSION

The district court addressed Harding’s civil-commitment 

ineffective assistance claim in Ground Two as required by Clisby

and properly denied that claim because Harding failed to satisfy his 

burden to show he suffered prejudice as a result of his defense 

counsel’s alleged deficient performance. For these reasons, we 

affirm the district court’s denial of Harding’s § 2255 motion.

AFFIRMED.

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