IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20853
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BILAL TROY FARAHKHAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC Nos. H-99-CV-1653 &
H-96-CR-24-1
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April 25, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Bilal Troy Farahkhan, federal prisoner # 72541-079, appeals
the district court’s denial of his 28 U.S.C. § 2255 motion. A
certificate of appealability was granted on the issue of whether
Farahkhan’s constitutional rights were violated by his attorney’s
alleged refusal to allow him to testify on his own behalf at
trial.
Farahkhan contends that he did not knowingly waive his right
to testify because he never knew of the right. He alleges that
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-20853
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his attorney failed to advise him of the right and prevented him
from testifying. His argument is reviewed under the framework
for reviewing ineffective-assistance claims established by
Strickland v. Washington, 466 U.S. 668 (1984). See United States
v. Brown, 217 F.3d 247, 258 (5th Cir.), cert. denied, 121 S. Ct.
415 (2000). Thus, to prevail on his claim, Farahkhan must show:
(1) that his counsel’s performance was deficient in that it fell
below an objective standard of reasonableness; and (2) that the
deficient performance prejudiced his defense. See Strickland,
466 U.S. at 689-94. His claim fails under both prongs of the
Strickland test.
Farahkhan has not demonstrated that his counsel's
performance was deficient. See Strickland, 466 U.S. at 689-94,
697. The district court found that Farahkhan was aware of his
right to testify but acceded to counsel’s advice not to testify
based on an agreed-upon trial strategy of discrediting the
Government’s primary witness and avoiding the admission of
Farahkhan’s three prior felony drug convictions. Counsel’s
advice not to testify was sound trial strategy, and Farahkhan
makes no argument to the contrary. See Bridge v. Lynaugh, 838
F.2d 770, 773 (5th Cir. 1988).
Assuming arguendo that counsel performed deficiently by
failing to advise Farahkhan of his right to testify and in
failing to permit him to testify, we discern no prejudice.
Farahkhan contends that his trial testimony would have provided
an explanation for his presence at the crime scene that was
consistent with innocence. The district court found that
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although Farahkhan’s testimony would have attempted to establish
his innocence, it was uncorroborated, was controverted by the
Government’s strong evidence against him, and would have been
subject to considerable attack on cross-examination. The court
further noted that the Government would have been able to
introduce evidence of Farahkhan's three prior—and substantially
similar—felony drug convictions involving cocaine, poisoning him
in the eyes of the jury. Farahkhan does not directly challenge
these findings. Accordingly, he has failed to establish
Strickland prejudice.
The district court did not err in dismissing Farahkhan’s
§ 2255 motion, and its judgment is hereby AFFIRMED.