Joseph R. Dickey v. United States , 437 F. App'x 851 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 15, 2011
No. 10-14655
JOHN LEY
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 7:07-cv-08006-CLS-PWG
JOSEPH R. DICKEY,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(August 15, 2011)
Before HULL, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Joseph R. Dickey, through counsel, appeals the district court’s denial of his
28 U.S.C. § 2255 motion attacking his 135 year sentence for child pornography
convictions. Dickey now claims he “did not receive constitutionally adequate
counsel prior to entering his guilty plea.”1 After review, we affirm the district
court’s denial of Dickey’s § 2255 motion.2
To establish an ineffective assistance of counsel claim, a petitioner must
show (1) “counsel’s performance was deficient” and (2) “the deficient
performance prejudiced the defense.” Strickland v. Washington, 104 S. Ct. 2052,
2064 (1984). We “need not address the performance prong if the defendant
cannot meet the prejudice prong.” Holladay v. Haley, 209 F.3d 1243, 1248 (11th
Cir. 2000). To show prejudice in the context of a guilty plea, a petitioner must
show “there is a reasonable probability that, but for counsel’s errors, he would not
1
Dickey received an evidentiary hearing on this claim before the magistrate judge. In his
brief on appeal, Dickey contends the magistrate judge erred by not allowing expert testimony as
to whether counsel’s performance was constitutionally deficient and prejudicial. See Freund v.
Butterworth, 165 F.3d 839, 863 n.34 (11th Cir. 1999) (“Permitting ‘expert’ testimony to establish
ineffective assistance is inconsistent with our recognition that the issue involved is a mixed
question of law and fact that the court decides.”).
2
In a § 2255 proceeding, we review legal issues de novo and factual findings for clear
error. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004). We review an ineffective
assistance of counsel claim de novo. United States v. Gordon, 518 F.3d 1291, 1296 (11th Cir.
2008).
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have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart,
106 S. Ct. 366, 370 (1985).
Dickey’s primary contention is that his counsel erroneously advised him
that his guidelines sentencing range could be anywhere from 10 to 135 years,
when in fact his guidelines range was life. Even assuming counsel’s performance
was deficient, Dickey cannot show prejudice. At Dickey’s plea hearing, the
district court advised him of the minimum and maximum penalty for each count,
and explained that the sentences could run consecutively. Dickey stated that he
understood and was thus fully apprised of his potential sentence. Moreover, the
evidence against Dickey was both overwhelming and inflammatory, such that
there was no realistic chance of acquittal at a trial. Dickey has failed to establish
that but for any errors by counsel, he would not have pleaded guilty and would
have insisted on going to trial. Hill, 106 S. Ct. at 370.
AFFIRMED.
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