Orasama Andrews v. United States , 634 F. App'x 259 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11710
Non-Argument Calendar
________________________
D.C. Docket Nos. 5:12-cv-90122-MTT-CHW,
5:08-cr-00072-MTT-CHW-1
ORASAMA ANDREWS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(December 17, 2015)
Before MARTIN, ANDERSON, and EDMONDSON, Circuit Judges.
PER CURIAM:
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Orasama Andrews, through counsel, appeals the district court’s denial of his
28 U.S.C. § 2255 motion to vacate, in which Andrews challenged his life sentence
for distribution of crack cocaine. We granted Andrews a certificate of
appealability on whether Andrews’s trial lawyer was ineffective for “failing to
adequately inform [Andrews] of the sentencing consequences of the 21 U.S.C.
§ 841 enhancement, thereby causing [Andrews] to reject the government’s plea
offer.”* Andrews also challenges the district court’s denial of his pro se motion for
a new trial. No reversible error has been shown; we affirm.
I.
In reviewing a district court’s denial of a section 2255 motion, we review
legal conclusions de novo and fact determinations for clear error. Devine v. United
States, 520 F.3d 1286, 1287 (11th Cir. 2008). “A claim of ineffective assistance of
counsel is a mixed question of law and fact that we review de novo.” Id. We
accord “substantial deference to the factfinder in reaching credibility
*
Under the terms of the government’s plea offer, Andrews’s guideline range would have been
reduced to between 151 and 188 months’ imprisonment. Instead of accepting the plea offer,
Andrews proceeded to trial and was convicted of two counts of drug distribution. As a result of
the section 841 sentencing enhancement -- imposed based on Andrews’s two prior felony drug
convictions -- Andrews was subject to a mandatory life sentence.
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determinations with respect to witness testimony.” Id. (alteration omitted). We
will not disturb a credibility determination “unless it is contrary to the laws of
nature, or is so inconsistent or improbable on its face that no reasonable factfinder
could accept it.” United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir.
2002).
To prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate (1) that his lawyer’s “representation fell below an objective standard
of reasonableness,” and (2) “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Chandler v. United States, 218 F.3d 1305, 1312-13 (11th Cir. 2000) (en banc). If
the defendant makes an insufficient showing on one element, we need not address
the other. Strickland v. Washington, 104 S. Ct. 2052, 2069 (1984). We apply this
two-part test to ineffective-assistance-of-counsel claims about a lawyer’s
performance during the plea-bargaining process. Coulter v. Herring, 60 F.3d 1499,
1503-04 & n.7 (11th Cir. 1995).
The proper measure of a lawyer’s performance is “reasonableness under
prevailing professional norms”; and our review of a lawyer’s performance is
“highly deferential.” Chandler, 218 F.3d at 1313-14. A “strong presumption”
exists that counsel’s performance was reasonable. Id. at 1314. Thus, “where the
record is incomplete or unclear about counsel’s actions, we will presume that he
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did what he should have done, and that he exercised reasonable professional
judgment.” Id. at 1315 n.15 (alteration omitted).
To demonstrate prejudice, a defendant who rejected the government’s plea
offer must show “a reasonable probability that, but for counsel’s errors, he would
have pleaded guilty and would not have insisted on going to trial.” Coulter, 60
F.3d at 1504 (alterations omitted). A defendant cannot show prejudice if he offers
no evidence that he would have accepted a plea offer absent his lawyer’s errors.
Id.
After conducting an evidentiary hearing and observing the demeanor of both
Andrews and Andrews’s trial lawyer, the magistrate judge credited the trial
lawyer’s testimony (1) that he informed Andrews that the government had filed an
enhancement under which Andrews would face a mandatory life sentence if
convicted; and (2) that he never told Andrews that Andrews would be exposed to
the same sentence regardless of whether Andrews accepted the government’s plea
offer or was convicted at trial. We grant substantial deference to the magistrate
judge’s credibility findings. See Devine, 520 F.3d at 1287.
Moreover, the record contradicts Andrews’s contention that he was unaware
of the section 841 enhancement or that he faced a mandatory life sentence if
convicted. At the arraignment and detention hearing, the government explained
expressly that it had filed an enhancement that would subject Andrews to a
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mandatory life sentence. In response, the judge determined -- “because of the
enhancement” and because Andrews was “facing a possibility of life
imprisonment” -- that Andrews was a flight risk and, thus, ordered pretrial
detention. On this record, we accept the magistrate judge’s credibility
determination. Andrews has failed to show that his trial lawyer performed
deficiently.
Andrews has also offered no evidence that he would have accepted the
government’s plea offer absent his trial lawyer’s alleged error. Thus, Andrews has
also failed to demonstrate that he suffered prejudice. See Coulter, 60 F.3d at 1504.
We affirm the district court’s denial of Andrews’s section 2255 motion to vacate.
II.
Andrews also argues that the district court erred in denying his motion for a
new trial without conducting an evidentiary hearing. In support of his motion,
Andrews submitted four affidavits that he contends constitute newly discovered
evidence of three facts: (1) that the two confidential informants, Swint and Reid,
conspired to make fake controlled drug buys from Andrews; (2) that an officer
threatened Swint into testifying against Andrews; and (3) that Reid used drugs
before meeting officers to conduct the second controlled buy.
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We review for abuse of discretion the district court’s denial of a motion for a
new trial based on newly discovered evidence. United States v. Fernandez, 136
F.3d 1434, 1438 (11th Cir. 1998). We also review the denial of an evidentiary
hearing under an abuse-of-discretion standard. Id.
To warrant a new trial based on newly discovered evidence a defendant must
satisfy these five criteria:
(1) the evidence was discovered after trial, (2) [the defendant’s]
failure . . . to discover the evidence was not due to a lack of due
diligence, (3) the evidence is not merely cumulative or impeaching,
(4) the evidence is material to issues before the court, and (5) the
evidence is such that a new trial would probably produce a different
result.
United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003). “[M]otions for a
new trial are highly disfavored,” and district courts must exercise “great caution”
in awarding a new trial based on newly discovered evidence. Id.
The district court committed no abuse of discretion in denying Andrews’s
motion for a new trial. The affidavits relied upon by Andrews consist largely of
inadmissible hearsay, and the allegations in the affidavits are unsubstantiated by an
“objectively credible source.” See United States v. Calderon, 127 F.3d 1314, 1354
(11th Cir. 1997) (denying a motion for new trial based only on “self-serving
affidavits” that were “totally unsubstantiated by any objectively credible source.”)
Furthermore, because the testimony in the affidavits would be used mainly to
impeach the confidential informants’ trial testimony about the controlled drug buys
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from Andrews, the evidence fails to satisfy the third criteria. See United States v.
Garcia, 13 F.3d 1464, 1472 (11th Cir. 1994) (“Newly discovered impeaching
evidence is unworthy of a new trial.”).
The district court also abused no discretion in denying Andrews an
evidentiary hearing on his motion; the court had sufficient evidence to rule on the
motion. Unlike our decision in United States v. Gates, 10 F.3d 765 (11th Cir.
1993) -- in which we remanded for an evidentiary hearing to explore further an
exculpatory affidavit from a non-testifying co-defendant -- this case presents no
unique situation warranting an evidentiary hearing.
AFFIRMED.
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