[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12623 ELEVENTH CIRCUIT
Non-Argument Calendar JULY 20, 2011
________________________ JOHN LEY
CLERK
D.C. Docket Nos. 1:08-cv-01497-ODE,
1:03-cr-00493-ODE-AJB-26
LUIS EDUARDO PEREZ,
lllllllllllllllllllll Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
lllllllllllllllllllll Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 20, 2011)
Before HULL, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Luis Perez, a federal prisoner proceeding pro se, appeals the district court’s
denial of his 28 U.S.C. § 2255 motion to vacate sentence. We granted a certificate
of appealability on one issue: “Whether the district court erred in finding that
counsel was not ineffective for failing to call weigh station officials to testify in
Perez’s defense?” For the reasons stated below, we affirm.
I.
Perez, a federal prisoner serving a 135-month sentence for conspiracy to
distribute marijuana, filed a pro se § 2255 motion to vacate his sentence. In his
motion, Perez asserted that he had received ineffective assistance from his defense
counsel. Among other things, he argued that his counsel was ineffective for
failing to interview and subpoena officials from two weigh stations who had
searched his truck with drug-sniffing dogs and had not found any marijuana
inside.
At Perez’s trial, the government presented evidence that he had transported
marijuana for a drug trafficking organization headed by Ramon Alvarez-Sanchez
(“Ramon”). A co-conspirator, Nicholas Garcia, testified that Perez worked as a
truck driver for Ramon. On one occasion, Ramon instructed Garcia to pick up
Perez at an airport in Texas so that Perez could drive a load of marijuana from
Texas to Atlanta. According to Garcia, Ramon never flew in truck drivers for
legitimate loads. After Perez left in the truck, Ramon called Garcia and informed
him that Perez had been stopped by the Department of Transportation due to a
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problem with the truck’s paperwork. Later, Perez called Garcia and explained that
the problem had been cleared up and that he was just going to have to pay a fine.
The load of marijuana was delivered to Ramon in Atlanta.
Special Agent Robert Murphy of the Drug Enforcement Administration
testified that law enforcement intercepted a series of telephone calls between
Ramon and Perez. On June 17, 2003, Perez called Ramon and stated that he had
been stopped at a weigh station because of a discrepancy in his paperwork. Perez
exclaimed, “these people here at the scale caught me . . . .” Twenty minutes later,
Perez told Ramon that he would just have to pay a $500 fine. Ramon emphasized
that the important thing was for Perez to get out of there.
Special Agent Murphy explained that an individual known as “Primo-2”
was following Perez’s truck in a trail car. On the evening of June 17, 2003, law
enforcement intercepted a telephone call between Primo-2 and Ramon. During
that call, Primo-2 informed Ramon that Perez’s truck had been stopped at a second
weigh station. Primo-2 explained that the first weigh station had faxed
information about Perez’s truck to the next station. When Perez arrived at the
second weigh station, there were officers with dogs standing by. The officers
searched Perez’s truck, but they did not find anything and Perez was allowed to
leave. Special Agent Murphy interpreted Primo-2’s statements about the dogs to
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mean that there were drug-sniffing dogs at the weigh station but that they had not
been used in the search of Perez’s truck. He acknowledged, however, that this was
just his own interpretation of the call. Law enforcement never seized the June 17
load of marijuana.
Perez testified in his own defense. He asserted that he was a legitimate
truck driver for Logistics Express, a company owned by Ramon, and had no
knowledge of any drug-trafficking activities. On June 17, 2003, shortly after he
started working for Ramon, he was told to drive a load of cabbages from Texas to
New York. The truck was already loaded by the time that Perez arrived. Perez
testified that he was stopped at a weigh station in Louisiana because the ICC
number on his paperwork did not match the ICC number on his truck. The
officers searched his truck but did not find any contraband, and he was allowed to
leave after paying a $500 fine. When he reached the next weigh station, there
were officers with dogs standing by. The officers searched his truck with the aid
of the dogs, but did not find anything. After two hours, Perez was permitted to
leave the second weigh station.
During closing arguments, defense counsel questioned why none of the
investigators went to the second weigh station to find out what happened during the
search of Perez’s truck. Counsel observed that the government had not called any of
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the weigh station personnel to testify. In rebuttal, the prosecutor observed that Perez
also had the power of subpoena, and could have presented additional witnesses if he
believed that their testimony would have been helpful to his defense. The jury
returned a verdict of guilty.
The district court denied Perez’s § 2255 motion without holding an evidentiary
hearing. The district court concluded that counsel was not ineffective for failing to
present testimony from the weigh station officials. The court observed that the
officials “obviously did not discover marijuana in Perez’s truck, so their testimony
would have added nothing in that regard.” Although testimony that drug-sniffing
dogs were used in the search would have helped Perez’s defense, the court observed
that Perez had failed to come forward with a proffer that any such search occurred.
The court explained that it was not unreasonable for counsel to avoid calling the
officials because they might well have testified that the drug dogs were not used
during the search, as Agent Murphy had suggested in his testimony. The court also
observed that counsel was able to suggest during closing arguments that the
government did not call the weigh station officials because it had something to hide.
The district court concluded that counsel’s trial strategy was not so unreasonable as
to be constitutionally deficient.
II.
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An ineffective-assistance-of-counsel claim presents a mixed question of law
and fact that we review de novo. Payne v. United States, 566 F.3d 1276, 1277
(11th Cir. 2009). To prevail on an ineffective-assistance claim, a defendant must
show both that his counsel’s performance was deficient, and that this deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To establish deficient
performance, a defendant must show that counsel acted unreasonably in light of
prevailing professional norms. Id. at 688, 104 S.Ct. at 2065. There is a “strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance,” and a reviewing court must make every effort “to
eliminate the distorting effects of hindsight.” Id. at 689, 104 S.Ct. at 2065. To
establish prejudice, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id.
In reviewing whether counsel’s performance was deficient, we give
particular deference to counsel’s decisions on matters of trial strategy. Rogers v.
Zant, 13 F.3d 384, 386 (11th Cir. 1994); see also Strickland, 466 U.S. at 690, 104
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S.Ct. at 2066 (“[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengable.”). “Which
witnesses, if any, to call, and when to call them, is the epitome of a strategic
decision, and it is one that we will seldom, if ever, second guess.” Waters v.
Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc). “‘The mere fact that
other witnesses might have been available or that other testimony might have been
elicited from those who testified is not a sufficient ground to prove ineffectiveness
of counsel.’” Id. at 1514 (quoting Foster v. Dugger, 823 F.2d 402, 406 (11th Cir.
1987)).
Counsel’s decisions are entitled to less deference if they are not the result of
informed investigation. “[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Strickland, 466 U.S. at
690-91, 104 S.Ct. at 2066. “In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Id. at 691, 104 S.Ct. at 2066. The reasonable
investigation standard “reflects the reality that lawyers do not enjoy the benefit of
endless time, energy or financial resources.” Rogers, 13 F.3d at 387.
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After review of the record and the parties’ briefs, we affirm. Because the
district court did not hold an evidentiary hearing, we view the factual allegations
in the light most favorable to Perez, and assume that counsel did not investigate
what the weigh station officials’ testimony would be. See Downs v. McNeil, 520
F.3d 1311, 1313 n.3 (11th Cir. 2008). Even if counsel did not investigate the
weigh station officials, his failure to do so did not amount to deficient
performance. Counsel knew that the intercepted telephone calls and the testimony
of Garcia and Special Agent Murphy would show that Perez’s truck had been
searched and that no marijuana had been found. Therefore, there was no need to
call the weigh station officials to corroborate that fact. Moreover, there were other
sources of evidence showing that the officials used drug-sniffing dogs to search
Perez’s truck. During one of the intercepted calls, Primo-2 stated that he had seen
dogs at the weigh station, and Perez himself testified that the weigh station
officials had used dogs to search his truck. In addition, counsel was able to
suggest during his closing argument that the government had not called the weigh
station officials to testify because their testimony would have been favorable to
Perez’s case.
Looking at this case with the benefit of hindsight, it might have been a good
idea for counsel to call the weigh station officials to corroborate Perez’s testimony
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about the drug-sniffing dogs, as it appears that the jury had doubts about Perez’s
credibility. Prior to the trial, however, counsel could reasonably have concluded
that there was no need to interview the weigh station officials because there
already was plenty of evidence about what happened at the weigh station. See
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (“A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.”).
Perez has not overcome the “strong presumption” that his counsel’s conduct
fell “within the wide range of reasonable professional assistance,” and, therefore,
he has failed to establish deficient performance. See Strickkland, 466 U.S. at 689,
104 S.Ct. at 2065. In light of the foregoing, it is unnecessary for us to address
whether Perez can establish prejudice. See id. at 697, 104 S.Ct. at 2069
(explaining that a court need not address the prejudice prong if the defendant has
not established deficient performance, and vice versa).
Finally, the district court did not abuse its discretion by not holding an
evidentiary hearing in this case. See McNair v. Campbell, 416 F.3d 1291, 1297
(11th Cir. 2005) (“A district court’s decision to grant or deny an evidentiary
hearing is reviewed for an abuse of discretion.”). An evidentiary hearing is not
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required if “the motion and the files and records of the case conclusively show that
the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Here, even when the
facts are viewed in the light most favorable to Perez, he has not established that
his counsel’s performance was deficient. Thus, there was no need for the district
court to hold an evidentiary hearing. We affirm the denial of Perez’s § 2255
motion.
AFFIRMED.
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