United States Court of Appeals,
Eleventh Circuit.
No. 95-9344.
Eric JOINER, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.
Jan. 22, 1997.
Appeal from the United States District Court for the Northern
District of Georgia. (Nos. 1:90-CR-209-1, 1:94-CV-1735-JTC), Jack
T. Camp, Judge.
Before COX and BLACK, Circuit Judges, and FAY, Senior Circuit
Judge.
PER CURIAM:
Eric Joiner appeals the district court's denial of his
28
U.S.C. § 2255 petition for habeas relief. In the petition, he
alleges that he was denied effective assistance of appellate
counsel. We affirm.
I. BACKGROUND
Joiner was charged with one count of conspiracy to distribute
cocaine base and five counts of distribution of cocaine base. He
pleaded not guilty to all counts and asserted an entrapment defense
at trial. The jury found him guilty of conspiracy and of three of
the distribution counts.
At sentencing, Joiner objected to the quantity of drugs used
to calculate his base offense level, arguing that the quantity
should be reduced since the amount of drugs he distributed was
determined by government agents who monitored his drug transactions
("sentencing entrapment"). He also objected to the Presentence
Investigation Report's failure to recommend an adjustment for
acceptance of responsibility under U.S.S.G. § 3E1.1. The district
court rejected these objections and sentenced Joiner to 152 months'
imprisonment on each count of conviction, to be served concurrently
and to be followed by five years' supervised release.
After reviewing only the trial transcript and not the
sentencing transcript, Joiner's attorney filed an appellate brief
that raised only one claim: that the district court erred in not
granting Joiner an acquittal on the conspiracy count because his
co-defendant was acquitted. We rejected that claim and affirmed.
Later, Joiner filed the § 2255 petition involved in this
appeal. In the petition, he requests that his sentence be vacated,
arguing, among other things, that he was denied effective
assistance of counsel on direct appeal. A magistrate judge held an
evidentiary hearing and concluded that although Joiner's appellate
attorney rendered deficient performance, his deficient performance
did not prejudice Joiner. Based on that conclusion, the magistrate
judge recommended that the district court deny relief. The
district court adopted the recommendation, and Joiner appeals.
II. DISCUSSION
We review an ineffective assistance of appellate counsel
claim de novo. Duest v. Singletary, 967 F.2d 472, 476, 477 n. 4
(11th Cir.1992).
To establish that his appellate counsel was ineffective,
Joiner must establish that his appellate counsel performed
deficiently and that the deficient performance resulted in
prejudice.
Id. Although Joiner has established that his appellate
counsel performed deficiently, we agree with the district court
that Joiner has not established that the deficient performance
resulted in prejudice.
To determine prejudice, we must review the merits of an
omitted claim. If we find that the omitted claim would have had a
reasonable probability of success on appeal, then counsel's
performance necessarily resulted in prejudice. Heath v. Jones,
941
F.2d 1126, 1132 (11th Cir.1991). Joiner argues that his counsel's
omission of two particular claims resulted in prejudice: that the
district court erred in not reducing Joiner's base level because of
sentence entrapment; and, that the district court erred in denying
him an adjustment for acceptance of responsibility.
Joiner would not have had a reasonable probability of success
on appeal had his appellate counsel raised the sentencing
entrapment claim. We have repeatedly rejected such claims in other
cases. See, e.g. United States v. Miller,
71 F.3d 813, 818 (11th
Cir.1996); United States v. Williams,
954 F.2d 668, 673 (11th
Cir.1992).
Reviewing the merits of the wrongful denial of adjustment for
acceptance of responsibility claim, we preliminarily note that
Joiner would not have been barred as a matter of law from receiving
an adjustment merely because he asserted an entrapment defense at
trial, even though some courts have viewed the assertion of an
entrapment defense as the virtual antithesis of acceptance of
responsibility. See e.g., United States v. Demes,
941 F.2d 220,
222 (3d Cir.1991). Rather, as with cases involving any other
defense, whether a defendant has accepted responsibility is a
fact-based question which requires the district court to carefully
review all of the evidence bearing on a particular defendant's
contrition. See United States v. Newson,
46 F.3d 730, 734 (8th
Cir.1995) (whether a defendant has demonstrated acceptance of
responsibility is a fact based question and assertion of an
entrapment defense does not automatically bar a defendant from
receiving an acceptance of responsibility reduction); United
States v. Ing,
70 F.3d 553, 555 (9th Cir.1995) ("The assertion of
an entrapment defense is not necessarily incompatible with
acceptance of responsibility.").
Nonetheless, Joiner would not have had a reasonable
probability of success on the wrongful denial claim. When
reviewing the merits of such a claim, we use the highly deferential
clearly erroneous standard, see United States v. Gonzalez, 70 F.3d
1236, 1239 (11th Cir.1995), and a defendant who, like Joiner,
forces the government to trial is rarely entitled to an adjustment
for responsibility. See id.; U.S.S.G. § 3E1.1 comment. (note 2).
Joiner asserts no facts which would have supported a conclusion
that the district court clearly erred in finding that Joiner did
not accept responsibility.
AFFIRMED.
