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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11766
Non-Argument Calendar
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D.C. Docket Nos. 8:13-cv-00518-JDW-MAP,
8:08-cr-00404-JDW-MAP-2
CHUN HEI LAM,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 14, 2017)
Before HULL, MARCUS and FAY, Circuit Judges.
PER CURIAM:
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Chun Lam, proceeding pro se, appeals the district court’s denial of his 28
U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. After careful
review, we affirm.
I. BACKGROUND
In 2009, Lam was convicted of possession, and conspiracy to possess, with
intent to distribute five kilograms or more of cocaine while on board a vessel
subject to the jurisdiction of the United States, in violation of 46 U.S.C.
§§ 70503(a), 70506(a), (b), 18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii), and
was sentenced to 300 months’ imprisonment. Lam was the captain of a fishing
vessel that the U.S. Coast Guard interdicted in the Eastern Pacific Ocean with 2900
kilograms of cocaine (worth approximately $58 million) hidden inside a
compartment.
Lam, his brother-in-law who was the owner of the vessel, and the five other
members of Lam’s crew were indicted and tried together. At trial, Lam testified
that he thought he was transporting rhino skins, and that he and the rest of the crew
did not know the packages contained cocaine. After an eleven-day trial, the jury
convicted Lam and his brother-in-law, but acquitted the five other members of
Lam’s crew. Lam’s convictions and 300-month sentence were affirmed on direct
appeal. United States v. Lam, 430 F. App’x 794 (11th Cir. 2011).
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In his § 2255 motion, Lam claimed, inter alia, that his trial counsel provided
ineffective assistance by advising him to reject a ten-year plea deal because his
counsel believed there was a good chance Lam would be found not guilty at trial.
The district court denied Lam’s § 2255 motion without holding an evidentiary
hearing. As to Lam’s ineffective assistance claim relating to the plea advice, the
district court concluded that Lam had not shown either that his trial counsel’s
advice was deficient or that Lam was prejudiced by it.
This Court granted Lam a certificate of appealability on the following issue:
“Whether the district court erred in denying, without first ordering an evidentiary
hearing, Lam’s claim that he would have accepted a ten-year plea agreement
absent ineffective assistance of counsel.” We review a district court’s denial of an
evidentiary hearing in a 28 U.S.C. § 2255 proceeding for an abuse of discretion.
Rosin v. United States,
786 F.3d 873, 877 (11th Cir. 2015).
II. GENERAL LEGAL PRINCIPLES
A prisoner is entitled to an evidentiary hearing on a motion to vacate “unless
the motion and files and records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b); see Anderson v. United States,
948
F.2d 704, 706 (11th Cir. 1991). Thus, if a movant “alleges facts that, if true, would
entitle him to relief, then the district court should order an evidentiary hearing and
rule on the merits of his claim.” Aron v. United States,
291 F.3d 708, 715 (11th
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Cir. 2002) (quotation marks omitted). However, the district court is not required to
hold a hearing of the “if the allegations are patently frivolous, based upon
unsupported generalizations, or affirmatively contradicted by the record.”
Winthrop-Redin v. United States,
767 F.3d 1210, 1216 (11th Cir. 2014) (quotation
marks omitted).
To make a successful claim of ineffective assistance of counsel, a § 2255
movant must show that: (1) his counsel’s performance was deficient; and (2) the
movant suffered prejudice as a result of the deficient performance. Strickland v.
Washington,
466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984). Counsel’s
performance is deficient only if it falls below the wide range of competence
demanded of attorneys in criminal cases.
Id. at 687-88, 104 S. Ct. at 2064.
Prejudice requires showing “that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.”
Id. at 694, 104 S. Ct. at 2068. There is no need to address both prongs
if the movant fails to make an insufficient showing as to one or the other.
Id. at
697, 104 S. Ct. at 2069.
The Strickland standard applies to ineffective assistance of counsel claims
arising out of the plea process, including to the negotiation and consideration of
pleas that are rejected or lapse. Osley v. United States,
751 F.3d 1214, 1222 (11th
Cir. 2014). “Counsel has an obligation to consult with his client on important
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decisions and to keep him informed of important developments in the course of the
prosecution.” Diaz v. United States,
930 F.2d 832, 834 (11th Cir. 1991). This
obligation includes informing a client about formal plea offers presented by the
government, and the failure to advise a client about such an offer is ineffective
assistance of counsel. See Missouri v. Frye,
566 U.S. 134, 144-45,
132 S. Ct.
1399, 1408 (2012); Lafler v. Cooper,
566 U.S. 156,
132 S. Ct. 1376 (2012).
In the context of a rejected plea offer, the prejudice prong requires the
movant to show “a reasonable probability that but for counsel’s ineffectiveness: (1)
‘the plea offer would have been presented to the court (i.e., that the defendant
would have accepted the plea and the prosecution would not have withdrawn it in
light of intervening circumstances)’; (2) ‘the court would have accepted its terms’;
and (3) ‘the conviction or sentence, or both, under the offer’s terms would have
been less severe than under the judgment and sentence that in fact were imposed.’”
Osley, 751 F.3d at 1222 (quoting
Lafler, 566 U.S. at 164, 132 S. Ct. at 1385).
However, “after the fact testimony concerning [the movant’s] desire to plead,
without more, is insufficient to establish that but for counsel’s alleged advice or
inaction, he would have accepted the plea offer.”
Diaz, 930 F.2d at 835.
III. LAM’S INEFFECTIVE ASSISTANCE CLAIM
A. Existence of Plea Offer
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Here, the district court did not abuse its discretion when it denied, without an
evidentiary hearing, Lam’s claim that his trial counsel was ineffective for advising
him to reject the alleged ten-year plea deal and to proceed to trial. At the outset,
we note that it is questionable whether such a plea deal existed at all. The
government represented that it never offered Lam a plea agreement. In the district
court, Lam’s trial counsel filed an affidavit swearing that the government never
made a plea offer to Lam. In that affidavit, Lam’s trial counsel further disputes
Lam’s allegation that she conveyed a plea deal to Lam and advised him not to
accept it. In fact, Lam’s trial counsel avers that she discussed the option of
pleading guilty without or without a plea agreement with Lam, but he maintained
his innocence and asserted his desire to proceed to trial regardless of whether his
codefendants did so. According to trial counsel, Lam never requested a plea
agreement, never expressed a desire to cooperate with the government or enter an
open guilty plea, and admitted his guilt only after he received a copy of the
presentence investigation report, at which time he said he wanted to express his
remorse at sentencing.
B. No Prejudice Shown
Even if we assume, as the district court did, that a plea offer existed and also
assume that Lam’s trial counsel was constitutionally deficient in advising him to
reject it, Lam still has not shown that he was prejudiced under Strickland.
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Specifically, Lam has not demonstrated that there is a reasonable probability that,
but for his counsel’s advice to continue to trial, he would have accepted the ten-
year plea deal. The only evidence Lam offered supporting his claim that he would
have accepted the deal was his own self-serving statement, which this Court has
held is not sufficient by itself. See
Diaz, 930 F.2d at 835.
Lam and his trial counsel agree that a Cantonese interpreter was present each
time they met to discuss his case, but they disagree about what the interpreter
would say about a plea offer. Lam claims the interpreter supports his recollection
of events, and stated in his declaration filed in the district court that the interpreter
would testify on his behalf at an evidentiary hearing. But Lam never provided a
declaration or affidavit from the interpreter or explained why he was unable to
obtain one. This is so even though Lam was informed by the district court that he
needed to submit sworn declarations to avoid dismissal of his § 2255 motion. In
any event, Lam says only that the interpreter would testify that trial counsel
conveyed a plea deal and told him to go to trial. Lam does not say that the
interpreter would testify that Lam wanted to accept, or would have accepted, the
plea deal.
Moreover, the record as a whole does not support Lam’s claim that he would
have accepted a plea deal from the government. Lam’s trial counsel averred that
Lam maintained he was innocent up to and through trial and that he never
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expressed any interest in pleading guilty. Notably, Lam’s declaration does not
dispute these points. And, consistent with trial counsel’s averments, Lam testified
under oath at trial that he did not know the packages on the fishing vessel
contained drugs and that he thought he had been hired to smuggle rhino skins into
Hong Kong. See
Osley, 751 F.3d at 1224 (explaining that the movant’s repeated
claims of innocence, while not dispositive, are a relevant consideration in
determining whether he would have accepted a plea bargain). Lam also does not
dispute trial counsel’s statement that he did not admit his guilt until after he was
found guilty and said he wanted to express remorse at his sentencing.
In addition, Lam has not shown that the sentencing court would have
accepted a proposed plea agreement of ten years’ imprisonment, the statutory
mandatory minimum sentence. Lam’s advisory guidelines sentence was life
imprisonment. While the sentencing court ultimately varied downward to 300
months’ imprisonment, Lam has identified no factors that would have justified the
district court in accepting a plea agreement offering a sentence fifteen years below
the 300-month sentence the sentencing court deemed appropriate. In fact, the PSI
suggested that an upward departure might be appropriate given the enormous
amount of drugs involved, 2900 kilograms of cocaine, “more than 20 times the
quantity necessary to achieve the maximum statutory and guideline provisions.”
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For the first time on appeal, Lam claims that his trial counsel was
ineffective—and also violated his Fifth and Sixth Amendment rights—by deciding
for Lam to refuse the government’s plea offer and proceed to trial. Specifically,
Lam states that his trial counsel communicated the ten-year plea offer to him, but
then two days later informed him that she had already made the decision to
proceed to trial on the belief that Lam would be acquitted.
This is not the ineffective assistance claim Lam brought in his § 2255
motion in the district court. Indeed, this new claim contradicts Lam’s ineffective
assistance claim in the district court that he made the decision to go to trial based
on bad advice from his counsel about his chances at trial. We have “repeatedly
held that an issue not raised in the district court and raised for the first time in an
appeal will not be considered by this court.” See Walker v. Jones,
10 F.3d 1569,
1572 (11th Cir. 1994) (quotation marks omitted) (refusing to consider a claim that
was not raised in the 28 U.S.C. § 2254 petition). Accordingly, we do not consider
Lam’s newly raised claim.
IV. CONCLUSION
Given that the record affirmatively contradicts Lam’s claim that he would
have accepted the plea deal, he could not establish prejudice under Strickland, and
the district court was not required to hold an evidentiary hearing. See Winthrop-
Redin, 767 F.3d at 1216;
Osley, 751 F.3d at 1222.
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For these reasons, we affirm the district court’s denial of Lam’s § 2255
motion.
AFFIRMED.
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