Donyal Tarver v. United States , 344 F. App'x 581 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Sept. 18, 2009
No. 09-11039 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 08-90006-CV-CAR-5
05-00064-CR-001
DONYAL TARVER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(September 18, 2009)
Before DUBINA, Chief Judge, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Appellant Donyal Tarver, a federal prisoner, appeals through counsel the
district court’s dismissal of his 28 U.S.C. § 2255 motion to vacate, set aside, or
correct his sentence, alleging ineffective assistance of counsel based on his
counsel’s failure to challenge the district court’s use of his prior convictions to
calculate his criminal-history score at sentencing. On appeal, Tarver argues that,
pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, 28 U.S.C.
foll. § 2255 (“the § 2255 Rules”), the district court was required to order the
government to file a response to his § 2255 motion, and because the government’s
response did not contain a denial of his allegations, the government effectively
admitted that he received ineffective assistance of counsel, pursuant to
Fed.R.Civ.P. 8(b)(6). If this court does not accept his “procedural argument,”
Tarver argues that we should order the district court to conduct a second
evidentiary hearing for additional development of the factual record.
“In a 28 U.S.C. § 2255 proceeding, we review a district court’s legal
conclusions de novo and factual findings for clear error. A claim of ineffective
assistance of counsel is a mixed question of law and fact that we review de novo.”
Devine v. United States, 520 F.3d 1286, 1287 (11th Cir. 2008). “In a section 2255
motion, a petitioner has the burden of sustaining his contentions by a
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preponderance of the evidence.” Wright v. United States, 624 F.2d 557, 558 (5th
Cir. 1980).
In Strickland v. Washington, the Supreme Court set out a two-part inquiry
for ineffective assistance of counsel claims. 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed.2d 674 (1984).
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.
Id. To succeed on an ineffective-assistance-of-counsel claim, a habeas petitioner
must satisfy both prongs of the Strickland test. Butcher v. United States, 368 F.3d
1290, 1293 (11th Cir. 2004).
A. Procedural Argument
We review a district court’s interpretation of federal procedural rules de
novo. Vencor Hosps., Inc. v. Standard Life & Accident Ins. Co., 279 F.3d 1306,
1308 (11th Cir. 2002). We review de novo the applicability of a Federal Rule of
Civil Procedure in a habeas proceeding. See McBride v. Sharpe, 25 F.3d 962,
967-68 (11th Cir. 1994) (“The applicability of the ten-day notice provision of
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Fed.R.Civ.P. 56(c) in a Habeas Rule 8(a) disposition is a question of law . . .
subject to de novo review.”).
Rule 4(b) of the § 2255 Rules provides in full:
(b) Initial Consideration by the Judge. The judge who receives the
motion must promptly examine it. If it plainly appears from the
motion, any attached exhibits, and the record of prior proceedings that
the moving party is not entitled to relief, the judge must dismiss the
motion and direct the clerk to notify the moving party. If the motion
is not dismissed, the judge must order the United States attorney to
file an answer, motion, or other response within a fixed time, or to
take other action the judge may order.
28 U.S.C. foll. § 2255, Rule 4(b). Rule 5 of the § 2255 Rules addresses, inter alia,
answers to § 2255 motions, and provides that a “respondent is not required to
answer the motion unless a judge so orders.” 28 U.S.C. foll. § 2255, Rule 5(a).
Rule 8(b)(6) of the Federal Rules of Civil Procedure provides that, in
responding to a pleading, “[a]n allegation . . . is admitted if a responsive pleading
is required and the allegation is not denied. If a responsive pleading is not
required, an allegation is considered denied or avoided.” Fed.R.Civ.P. 8(b)(6); see
also 28 U.S.C. foll. § 2255, Rule 12 (“The Federal Rules of Civil Procedure . . . to
the extent that they are not inconsistent with any statutory provisions or these rules,
may be applied to a proceeding under these rules.”).
Because the plain language of Rule 4(b) of the § 2255 Rules did not require
the district court to order the government to file a response to Tarver’s § 2255
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motion, we hold that pursuant to Rule 8(b)(6), the government was not deemed to
have admitted Tarver’s allegation of ineffective assistance of counsel by failing to
deny the allegation specifically in its response to his motion.
B. Evidentiary Hearing
In Murray v. United States, we affirmed the denial of a § 2255 motion and
held that the movant was not entitled to a second evidentiary hearing when he
already had been given an opportunity to prove his allegations. 145 F.3d 1249,
1254 (11th Cir. 1998).
Because the record here demonstrates that Tarver had a full opportunity to
develop his ineffective-assistance claim at an evidentiary hearing and the district
court could determine that he failed to meet his burden, we hold that Tarver is not
entitled to a second evidentiary hearing.
For the aforementioned reasons, we affirm the district court’s judgment
dismissing Tarver’s § 2255 motion.
AFFIRMED.
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