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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13201
Non-Argument Calendar
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D.C. Docket Nos. 0:13-cv-60846-JAG
0:07-cr-60259-JAG-1
JEAN RICHARD G. PAUL,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 25, 2015)
Before MARCUS, WILSON, and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
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The issue presented is whether Appellant Jean Richard G. Paul’s Sixth
Amendment right to effective counsel was denied at trial. Specifically, Paul argues
that his conviction below must be vacated because his counsel violated his right to
testify and acted incompetently in not proffering his testimony. Paul filed a 28
U.S.C. § 2255 motion to vacate based on these grounds. The district court denied
the motion without holding an evidentiary hearing but granted Paul a Certificate of
Appealability (COA). On appeal, Paul seeks to reverse the district court’s
decision. Alternatively, he requests an order requiring an evidentiary hearing.
Because the record shows that his counsel’s performance was not deficient, Paul’s
Sixth Amendment right to effective counsel was not violated, and the district court
properly forwent an evidentiary hearing. Accordingly, we affirm.
I. BACKGROUND
In October 2007, law enforcement found approximately 14 kilograms of
cocaine and 65 grams of crack cocaine in a storage unit Paul owned. Law
enforcement also discovered $189,000 of United States currency in the unit, as
well as an additional $40,691 in Paul’s residence. Paul was indicted for possession
with intent to distribute more than five kilograms of cocaine then released on
conditional bond, requiring him to remain within the Southern District of Florida.
Shortly thereafter, Paul fled the United States. Eventually, authorities arrested him
for violating conditions of his pretrial release.
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At trial, the district court informed Paul he had a right to testify and the
decision to testify rested with him. Paul communicated to the court that he
understood this right. Following this exchange, Paul testified. His testimony
revealed that: he was aware he was not authorized to leave the country while on
conditional bond; he used more than one name and had a prior conviction for
giving a false name; he possessed multiple Social Security numbers and driver’s
licenses; and he used two different dates of birth. Paul also testified that he fled
the country because he was being threatened by a Haitian gang. However, Paul did
not know the names of the people threatening him and never informed law
enforcement or his attorney of the threats. During closing argument, the
prosecution relied on Paul’s testimony to attack his credibility.
The trial resulted in a mistrial, and a second trial commenced on March 30,
2009. At the second trial, Paul did not testify. Prior to resting, the defense
informed the district court that Paul would testify, but after a recess, the defense
decided not to move forward with Paul’s testimony. The district court and Paul
then engaged in a colloquy regarding his right to testify. The court explained
Paul’s right to testify, and Paul again communicated that he understood this right.
Paul also told the court that he discussed whether to testify with his counsel, and he
wished to follow his counsel’s advice to forego testifying. After a short conference
with his counsel, Paul reiterated his desire to remain silent.
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Ultimately, the jury found Paul guilty of two counts of possession with
intent to distribute. After a failed motion for a new trial, Paul filed his § 2255
motion to vacate. The district court did not afford Paul an evidentiary hearing and
denied the motion. This appeal followed.
The district court granted a COA on Paul’s claim for ineffective assistance
of counsel regarding the decision to testify at trial. Paul raises three issues related
to this claim: (1) whether his counsel violated his right to testify; (2) whether the
decision to forego his testimony was unreasonable; and (3) whether the district
court properly denied him an evidentiary hearing.
II. STANDARD OF REVIEW
In considering an ineffective assistance of counsel claim, “we review legal
conclusions de novo and factual findings for clear error.” Osley v. United States,
751 F.3d 1214, 1222 (11th Cir. 2014). “Ineffective assistance of counsel claims
are mixed questions of law and fact that are reviewed de novo.” Id. We only
review issues specified in the COA. Murray v. United States, 145 F.3d 1249,
1250–51 (11th Cir. 1998) (per curiam).
III. DISCUSSION
The Sixth Amendment guarantees a criminal defendant the right to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.
2052, 2063 (1984). The “benchmark” for judging a claim of ineffective assistance
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of counsel is whether counsel’s performance “so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.” Id., 104 S. Ct. at 2064. To make such a showing, a
defendant must prove that “counsel’s performance was deficient” and the
“deficient performance prejudiced the defense.” Id. at 687, 104 S. Ct. at 2064.
“[A] court need not address both prongs if the defendant has made an insufficient
showing on one.” Osley, 751 F.3d at 1222.
A. Paul’s Right to Testify Was Not Violated.
Paul asserts that his counsel violated his right to testify. This claim is
analyzed under Strickland. See United States v. Teague, 953 F.2d 1525, 1534
(11th Cir. 1992) (en banc). In this context, performance is deficient if counsel: (1)
does not inform the defendant of his right to testify or that the ultimate decision
belongs to him; (2) does not advise defendant of the strategic implications of each
choice; or (3) refuses to accept the defendant’s decision to testify and does not call
him to the stand. See id. at 1533–34; McGriff v. Dep’t of Corr., 338 F.3d 1231,
1237 (11th Cir. 2003). Paul argues that each of these deficiencies is present.
However, we are unconvinced.
First, at both trials, the district court informed Paul of his right to testify and
that the final decision to testify rested with him.
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Second, Paul stated to the district court that he discussed with his counsel
whether he should testify and decided to follow his counsel’s strategic advice.
Following this exchange, Paul again conferred with his counsel before formally
concluding he would remain silent. Furthermore, Paul had the benefit of having
already testified in the first trial and witnessing the strategic implications of his
decision to testify.
Finally, Paul explicitly told the district court that he believed it was in his
best interest not to testify and he wished to remain silent. Paul has made no claims
suggesting he arrived at this conclusion because of coercion by his counsel. See
Lambrix v. Singletary, 72 F.3d 1500, 1508 (11th Cir. 1996) (“Without evidence
that [the defendant] was subject to continued coercion, we cannot assume that [the
defendant’s] apparent acquiescence to a trial strategy in which he did not testify
was anything but voluntary.”). Thus, Paul was not overborne by his counsel. See
Teague, 953 F.2d at 1535 (affirming that defendant’s right to testify was not
violated where “[d]efendant was advised of his right to testify, was advised that he
should not exercise that right, and did not protest” (internal quotation marks
omitted)).
Paul has not demonstrated that his counsel acted deficiently with respect to
his right to testify. Therefore, this right was not violated.
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B. The Decision to Not Proffer Paul’s Testimony Was Reasonable.
Paul also claims that his counsel’s decision to forego his testimony
amounted to deficient performance under Strickland. “For performance to be
deficient, it must be established that, in light of all the circumstances, counsel’s
performance was outside the wide range of professional competence.” Putman v.
Head, 268 F.3d 1223, 1243 (11th Cir. 2001) (citing Strickland, 466 U.S. at 690,
104 S. Ct. at 2066). Courts must be highly deferential in reviewing counsel’s
performance, utilizing the strong presumption that the performance was
reasonable. Id. For conduct to be unreasonable, the defendant “must establish that
no competent counsel would have taken the action that his counsel did take.” Id. at
1244 (internal quotation marks omitted). Thus, counsel is competent so long as the
particular approach taken “‘might be considered sound trial strategy.’” Id. at 1243
(quoting Darden v. Wainwright, 477 U.S. 168, 186, 106 S. Ct. 2464, 2474 (1986)).
Paul asserts that his counsel’s decision not to offer his testimony was
deficient because, in the first trial, his testimony provided an explanation for his
decision to flee the country. Paul believes this explanation was critical to rebutting
the prosecution’s claims that Paul’s decision to leave the country signaled his guilt.
But, inconsistencies undermined Paul’s stated justification for fleeing the country.
Moreover, Paul’s testimony informed the jury of his prior conviction and of
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behavior suggesting he was evading authorities. Hence, the first trial demonstrated
that Paul’s testimony presented legitimate risks, yet offered uncertain benefits.
In light of these circumstances, we do not accept “that no competent counsel
would have taken the action that his counsel did take.” See id. at 1244 (internal
quotation marks omitted). As a result, Paul has failed to show his counsel’s
strategic decision was deficient, and he has not proven ineffective assistance of
counsel.
C. The District Court Properly Denied Paul an Evidentiary Hearing.
When presented with a motion for habeas relief, a federal court must
consider whether an evidentiary hearing “could enable the defendant to prove the
motion’s factual allegations, which, if true, would entitle the defendant to relief.”
Schriro v. Landrigan, 550 U.S. 465, 474, 127 S. Ct. 1933, 1940 (2007). “[I]f the
record refutes the [defendant’s] factual allegations or otherwise precludes habeas
relief, a district court is not required to hold an evidentiary hearing.” Id. As
discussed above, the record shows that Paul’s right to testify was not violated, and
the decision to forego testimony was reasonable in light of the circumstances.
Therefore, the record precludes habeas relief, and the district court’s decision to
not hold an evidentiary hearing was proper.
IV. CONCLUSION
For these reasons, we hold that Paul’s Sixth Amendment right to effective
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counsel was not denied and the district court properly forwent an evidentiary
hearing.
AFFIRMED.
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