Samuel Davis, Jr. v. United States , 404 F. App'x 336 ( 2010 )


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  •                                                                [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________           FILED
    U.S. COURT OF APPEALS
    No. 10-10811         ELEVENTH CIRCUIT
    Non-Argument Calendar     OCTOBER 19, 2010
    ________________________        JOHN LEY
    CLERK
    D.C. Docket Nos. 8:07-cv-01961-SCB-TGW, 8:04-cr-00546-SCB-TGW-1
    SAMUEL DAVIS, JR.,
    Petitioner-Appellant,
    versus
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    ________________________
    (October 19, 2010)
    Before BLACK, WILSON and FAY, Circuit Judges.
    PER CURIAM:
    Samuel Davis, Jr., a federal prisoner proceeding through counsel, appeals
    the denial of his motion to vacate, 
    28 U.S.C. § 2255
    , in which he alleged, inter
    alia, ineffective assistance of trial counsel. Davis contends his trial counsel’s
    advice fell below the norms of “professionally competent assistance” when she
    assured him he would not jeopardize his eligibility for an acceptance-of-
    responsibility reduction if he maintained his not guilty plea and proceeded to a
    largely stipulated bench trial. Davis further claims he suffered prejudice because
    he would have pled guilty, but for trial counsel’s constitutionally deficient advice.
    The district court granted a certificate of appealability on the following issues:
    (1)     Whether trial counsel’s actions and advice fell below the norms
    of “professionally competent assistance” and therefore was
    constitutionally deficient under the Sixth Amendment; and
    (2)     Whether Petitioner showed a reasonable probability that
    Petitioner suffered prejudice because the results of the criminal
    proceeding would have been different, but for trial counsel’s
    constitutionally deficient errors.
    After review, we affirm the district court’s denial of the motion to vacate.1
    Criminal defendants have a right to effective assistance of counsel.
    Strickland v. Washington, 
    104 S. Ct. 2052
    , 2063 (1984). To prevail on a claim of
    ineffective assistance of counsel, the defendant must demonstrate (1) his counsel’s
    1
    “Whether a criminal defendant has received ineffective assistance of counsel is a mixed
    question of fact and law.” Mincey v. Head, 
    206 F.3d 1106
    , 1142 (11th Cir. 2000). We review for
    clear error questions of fact underlying the claim and review de novo the district court’s decision
    on the ultimate issue of “whether counsel’s performance passed constitutional muster.” 
    Id.
    2
    performance was deficient, i.e., the performance fell below an objective standard
    of reasonableness, and (2) he suffered prejudice as a result of that deficient
    performance. 
    Id. at 2064-65
    . The two-part Strickland test applies to
    ineffective-assistance claims concerning both the decision to accept a guilty plea
    offer and the decision to forgo a plea offer and stand trial. 
    Id.
     at 1504 n.7. The
    deficient performance requirement concerns “whether counsel’s advice was within
    the range of competence demanded of attorneys in criminal cases.” Hill v.
    Lockhart, 
    106 S. Ct. 366
    , 369 (1985) (quotation omitted). There is a strong
    presumption that counsel’s conduct fell within the range of reasonable
    professional assistance. Strickland, 
    104 S. Ct. at 2065
    .
    The offense level of a defendant who “clearly demonstrates acceptance of
    responsibility for his offense,” should be decreased by two levels. U.S.S.G.
    § 3E1.1(a) (2004). While the reduction is not intended to apply to a defendant
    who puts the government to its burden of proof by standing trial, conviction by
    trial “does not automatically preclude a defendant from” an acceptance-of-
    responsibility reduction. Id., comment. (n.2).
    In rare situations a defendant may clearly demonstrate an acceptance
    of responsibility for his criminal conduct even though he exercises his
    constitutional right to a trial. This may occur, for example, where a
    defendant goes to trial to assert and preserve issues that do not relate
    to factual guilt (e.g., to make a constitutional challenge to a statute or
    3
    a challenge to the applicability of a statute to his conduct). In each
    such instance, however, a determination that a defendant has accepted
    responsibility will be based primarily upon pre-trial statements and
    conduct.
    Id. In contrast, “[a] defendant who enters a guilty plea is not entitled to an
    adjustment [for acceptance of responsibility] as a matter of right,” as his guilty
    plea and admission of guilt may be “outweighed by conduct . . . that is inconsistent
    with . . . acceptance of responsibility.” Id., comment. (n.3).
    The performance of Davis’s trial counsel was not constitutionally deficient.
    First, counsel testified during the evidentiary hearing, and the district court made a
    factual finding that counsel never guaranteed Davis he would receive an
    acceptance-of-responsibility reduction. This finding was not clearly erroneous as
    it is supported by the record, which shows counsel consistently assured Davis that
    he would not jeopardize his eligibility for the acceptance-of-responsibility
    reduction, but also indicated she was not certain the district court would award the
    reduction. Moreover, the district court specifically credited counsel’s testimony
    that she made no guarantee of the reduction over Davis’s testimony to the
    contrary. This credibility determination was within the district court’s province as
    fact finder. See Carr v. Schofield, 
    364 F.3d 1246
    , 1265 (11th Cir. 2004)
    (determining the credibility of a testifying attorney during an evidentiary hearing
    4
    on an ineffective assistance-of-counsel claim is “within the province of the district
    court, which has the opportunity to observe and study the witness.”).
    Further, counsel’s advice that Davis would not jeopardize his eligibility for
    a two-level, acceptance-of-responsibility reduction by proceeding to a bench trial,
    in which he did not contest his factual guilt was consistent with the commentary to
    § 3E1.1. See U.S.S.G. § 3E1.1, comment. (n.2) (2004). While counsel admittedly
    failed to take into account Davis’s pretrial conduct and its impact on Davis’s
    eligibility for the reduction, considerations which would have informed her
    assessment of Davis’s likelihood of receiving the reduction, this possible error did
    not render counsel’s performance constitutionally deficient. U.S.S.G. § 3E1.1,
    comment. (n.2) (2004); see also Lancaster v. Newsome, 
    880 F.2d 362
    , 375 (11th
    Cir. 1989) (noting a criminal defendant is “not entitled to error-free
    representation”). Davis’s pretrial conduct was relevant to the acceptance-of-
    responsibility inquiry whether he pled guilty or stood trial.
    Because trial counsel’s performance was not constitutionally deficient, we
    need not address whether Davis was prejudiced by his counsel’s alleged errors.
    See Strickland, 
    104 S. Ct. at 2069
     (stating there is no reason for a court deciding
    an ineffective-assistance-of-counsel claim to approach the inquiry in the same
    order, or even to address both components of the inquiry, if the prisoner makes an
    5
    insufficient showing on one). Accordingly, we affirm the district court’s order
    denying Davis’s § 2255 motion.
    AFFIRMED.
    6
    

Document Info

Docket Number: 10-10811

Citation Numbers: 404 F. App'x 336

Judges: Black, Fay, Per Curiam, Wilson

Filed Date: 10/19/2010

Precedential Status: Non-Precedential

Modified Date: 8/3/2023