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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-14475
Non-Argument Calendar
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D.C. Docket No. 5:11-cr-00069-MTT-CHW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN F. WILLIAMS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(January 6, 2020)
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Before JORDAN, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
John Williams, a former Warner Robins City Councilman, was indicted in
2011 on three counts relating to his ultimately unsuccessful attempt to sell a truck
to the City of Warner Robins and earn a commission in the process. The counts
included unlawfully obtaining a commission for the sale of a vehicle in violation of
18 U.S.C. § 1951(a); making a materially false statement to the Federal Bureau of
Investigation in violation of 18 U.S.C. § 1001; and attempting to tamper with a
witness in violation of 18 U.S.C. § 1512(b)(3). Williams was convicted of all three
counts in 2012. He appealed his conviction on several grounds, including whether
he was entrapped to commit the offenses, whether the district court incorrectly
decided a discovery issue, and whether the evidence was sufficient to convict him
of the latter two offenses. We affirmed on all grounds. See generally United
States v. Williams, 571 F. App’x 887 (11th Cir. 2014).
Subsequently, Williams filed a petition for writ of error coram nobis to set
aside his convictions. He alleged that his trial counsel, Christina Hunt, provided
him ineffective assistance of counsel and raised three issues under the Fifth, Sixth,
and Fourteenth Amendments. The magistrate judge in this case held an evidentiary
hearing on Williams’s ineffective assistance of counsel claim, at which Williams,
Hunt, and Williams’s son testified. The magistrate judge recommended that
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Williams’s petition be denied. Williams objected to the magistrate’s conclusions,
but the district court overruled those objections, adopted the magistrate’s
recommendation, and denied Williams’s petition. Williams timely appealed to us.
He ostensibly raises two issues on appeal: (1) that his trial counsel rendered
him deficient performance and that (2) this deficient performance prejudiced him.
But because those two “issues” are the two prongs of the Supreme Court’s test for
ineffective assistance of counsel as articulated in Strickland v. Washington,
466
U.S. 668 (1984), we conceptualize these two “issues” as just one—whether
Williams received ineffective assistance of counsel. Because we determine that
Williams fails to establish deficiency, the first prong of Strickland, we need not
reach the issue of prejudice and therefore affirm the district court’s denial of the
writ of error coram nobis.
We review for an abuse of discretion a district court’s denial of a petition for
a writ of error coram nobis. Alikhani v. United States,
200 F.3d 732, 734 (11th
Cir. 2000). We review the district court’s legal conclusions de novo; an error of
law constitutes per se abuse of discretion. See
id. A district court’s findings of
fact in a coram nobis proceeding must be upheld unless clearly erroneous. See
AEY, Inc. v. United States,
803 F.3d 1258, 1262 (11th Cir. 2015); see also United
States v. Johnson,
237 F.3d 751, 755 (6th Cir. 2001) (“A district court’s
determination of legal issues in coram nobis proceedings is reviewed de novo. The
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district court’s findings of fact, however, must be upheld unless clearly
erroneous.”).
As a usual matter, federal courts have the authority to issue a writ of error
coram nobis under 28 U.S.C. § 1651(a) only when a “petitioner is no longer in
federal custody.”1 United States v. Mills,
221 F.3d 1201, 1203 (11th Cir. 2000);
Correa-Negron v. United States,
473 F.2d 684, 685 (5th Cir. 1973). We note as an
initial matter that “[t]he bar for coram nobis relief is high.”
Alikhani, 200 F.3d at
734. The Supreme Court has noted that “it is difficult to conceive of a situation in
a federal criminal case today where a writ of coram nobis would be necessary or
appropriate.” Carlisle v. United States,
517 U.S. 416, 429 (1996) (quoting United
States v. Smith,
331 U.S. 469, 475 n.4 (1947) (alteration omitted)). We have held
that the writ may issue only when (1) “there is and was no other available avenue
of relief” and (2) “the error involves a matter of fact of the most fundamental
character which has not been put in issue or passed upon and which renders the
proceeding itself irregular and invalid.”
Alikhani, 200 F.3d at 734 (quotation
omitted).
Though we have not frequently had occasion to develop our caselaw on
when a writ of coram nobis is properly issued, we have noted in the past that an
1
Williams’ petition pursuant to 28 U.S.C. § 2255 was dismissed because he had already
been released from custody.
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appropriate writ usually encompasses issues other than those that could be raised
in pretrial motions, direct appeals, or habeas petitions. See, e.g.,
id. at 734; Mills,
221 F.3d at 1203–06; Lowery v. United States,
956 F.2d 227, 228–29 (11th Cir.
1992). In other words, coram nobis relief is only available where “no statutory
remedy is available or adequate.” United States v. Russell,
776 F.2d 955, 957 n.1
(11th Cir. 1985).
We held in Moody v. United States that a writ of error coram nobis may be
issued “to remedy certain violations” of the Sixth Amendment, like where the
petitioner “was not advised of his constitutional rights” or where trial counsel was
ineffective.
874 F.2d 1575, 1577–78 (11th Cir. 1989) (citing United States v.
Mayer,
346 U.S. 502, 511–12 (1954)). However, the petitioner must make a
showing that sound reasons exist for failing to seek appropriate earlier relief.
Id. at
1577–78.
To succeed on a claim of ineffective assistance of counsel, a defendant must
show that (1) his counsel’s performance was deficient; and (2) the deficient
performance prejudiced him.
Strickland, 466 U.S. at 687. Failure to establish
either prong is fatal and makes it unnecessary to consider the other.
Id. at 697.
Deficient performance “requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.”
Id. at 687. There is a strong presumption that counsel “rendered
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adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.”
Id. at 690.
It is well-established, of course, that a criminal defendant has a
constitutional right to testify in his defense at trial. United States v. Teague,
953
F.2d 1525, 1532 (11th Cir. 1992) (en banc). This cannot be waived by defense
counsel and, although counsel must advise the defendant of this right to testify or
not testify, the choice of whether to testify is ultimately his to make. McGriff v.
Dep’t of Corr.,
338 F.3d 1231, 1237 (11th Cir. 2003).
“A claim of ineffective assistance of counsel is the proper framework to
analyze defendant’s allegation that his attorney has violated his right to testify.”
Gallego v. United States,
174 F.3d 1196, 1197 (11th Cir. 1999). In this context,
ineffective assistance occurs when “counsel refused to accept the defendant’s
decision to testify and refused to call him to the stand, or where defense counsel
never informed the defendant of the right to testify.”
Id.
In his attempt to swim upstream against powerful currents—the “high” bar
for issuing a writ of coram nobis in the first place and our deferential standard of
review—Williams fails to assert a viable claim. Under Strickland’s two-prong test,
he fails at the first stop because he has failed to prove that Williams’s counsel was
deficient. In the court below, the magistrate judge held an evidentiary hearing and
found that Christina Hunt, Williams’s trial counsel, had informed Williams of his
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right to testify and had not prevented him from testifying. The district court
adopted that finding. We cannot conclude that doing so was clearly erroneous.
After reviewing partially conflicting testimony, and crediting Hunt’s
testimony over Williams’s, the magistrate judge concluded that Williams “was
informed of his right to testify.” Hunt testified that she had repeatedly informed
Williams of his right to testify, as was her “ordinary practice,” and at no point did
she prevent him from testifying—though she did strongly advise him not to do so
out of a reasonable fear that the prosecution would use it to their advantage. The
magistrate cited Hunt’s decades of experience as a criminal defense lawyer, as well
as her testimony that it was her “ordinary practice” to advise clients of their right to
testify, in crediting her testimony over Williams’s and arriving at its conclusion.
As we have held repeatedly, the credibility of witnesses, like Hunt, “is in the
province of the factfinder and [we] will not ordinarily review the factfinder’s
determination of credibility.” United States v. Copeland,
20 F.3d 412, 413 (11th
Cir. 1994). Here, we find our opinion in United States v. Teague instructive. In
Teague, the defendant’s trial counsel testified that it was her “normal practice to
discuss with her clients whether they would testify and that she probably explained
to Teague at this time” his right to testify.
953 F.2d 1525, 1527–28 (11th Cir.
1992) (emphasis added). After crediting this testimony, the district court
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concluded that the defendant was “advised of his right to testify.”
Id. at 1535. We
found no clear error in that determination.
Id.
Here, the facts are even less friendly to Williams than the defendant in
Teague. Hunt testified that not only was it her “ordinary practice” to advise her
clients of their right to testify, but that she actually did so on numerous occasions.
We cannot conclude that the district court’s decision to credit Hunt’s testimony
over Williams’s—which included the incredible claim that Hunt physically kept
Williams from standing at one point—was clearly erroneous.
Ultimately, because we conclude that Hunt did not render Williams
ineffective counsel, we need not reach the second prong of the Strickland analysis,
that is, whether Williams was prejudiced. We affirm as to this issue and therefore
do not reach the second prong of Strickland. The district court’s decision is
AFFIRMED.
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