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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13692
Non-Argument Calendar
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D.C. Docket Nos. 1:10-cv-21070-MGC,
1:06-cr-20457-MGC-1
JOSE PEDRON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 11, 2013)
Before DUBINA, Chief Judge, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
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Appellant Jose Pedron appeals the district court’s denial of his motion to
vacate sentence that he filed pursuant to 28 U.S.C. § 2255 and after his trial and
conviction in 2006 of various drug-related crimes. At trial, the government
submitted evidence and testimony establishing that Pedron’s neighbor had
provided amphetamines, which the neighbor allegedly obtained from Pedron, to
agents with the Drug Enforcement Administration (“DEA”), and that those
amphetamines had the same purity level, unusual color, and markings as
amphetamines found in Pedron’s vehicle at the time of Pedron’s arrest.
In defense, Pedron argued that he was set up by his neighbor, who was
attempting to force Pedron and Pedron’s family to vacate their home, which had
been purchased in the neighbor’s name but with Pedron’s money. Pedron claimed
that his neighbor had attempted to interfere with Pedron’s enjoyment of his home
by rerouting his mail. As part of that defense, Pedron’s counsel subpoenaed two
postal employees, but allegedly failed to comply with various federal regulations
required to subpoena federal employees. The postal employees purportedly would
have testified that Pedron’s wife had filed complaints about their mail being
diverted to the neighbor’s home. At trial, Pedron’s wife testified about the
problems with the mail.
Pedron also testified in his own defense. In his § 2255 motion, Pedron
asserts that his counsel did not inform him of his rights regarding his decision to
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testify, including that he had the right to choose not to testify in his own defense,
that he alone had the right to decide whether or not to testify, and that the jury was
not allowed to consider his failure to testify. The government submitted a
declaration in which Pedro’s counsel stated that he did not remember the
conversation exactly, but that he was sure that he had discussed Pedron’s rights
about the decision to testify with him and that they had come to a mutual
agreement on the issue.
The district court denied Pedron’s § 2255 motion, finding that his counsel
was not ineffective as to the postal witnesses because Pedron did not cite the
specific regulations counsel failed to follow, and because Pedron did not establish
that there was a reasonable probability that, if the postal witnesses had testified, the
outcome of the trial would have been different. The district court also concluded
that Pedron did not establish that there was a reasonable probability that the
outcome of the trial would have been different if he had not testified. The court,
however, granted a certificate of appealability (“COA”) as to whether Pedron’s
counsel was ineffective for either (1) failing to follow the federal regulations
required to subpoena the postal employees, or (2) failing to advise Pedron about
his right to testify.
I.
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In a § 2255 proceeding, “we review a district court’s legal conclusions de
novo and factual findings for clear error.” Devine v. United States, 520 F.3d 1286,
1287 (11th Cir. 2008). We accord “substantial deference to the fact finder . . . in
reaching credibility determinations with respect to witness testimony.” Id.
(internal quotation marks omitted) (ellipses in original).
To make a successful claim of ineffective assistance of counsel, the
defendant must show that (1) counsel’s performance was deficient, and (2) the
deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Courts need not
“address both components of the inquiry if the defendant makes an insufficient
showing on one.” Id. at 697, 104 S. Ct. at 2069.
Under the first prong, the defendant must establish that counsel’s
performance was deficient by demonstrating that counsel’s performance was
unreasonable under prevailing professional norms. Id. at 688, 104 S. Ct. at 2065.
The defendant bears the burden to prove by a preponderance of the evidence that
counsel’s performance was unreasonable by establishing “that particular and
identified acts or omissions of counsel were outside the wide range of
professionally competent assistance.” Chandler v. United States, 218 F.3d 1305,
1313-14 (11th Cir. 2000) (internal quotation marks omitted). Our review of a
counsel’s performance is highly deferential, and we apply a “strong presumption”
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that counsel’s performance was reasonable and that counsel made all significant
decisions in the exercise of reasonable professional judgment.” Id. at 1314
(internal quotation marks omitted). We conduct an objective inquiry into the
reasonableness of counsel’s performance, such that “a petitioner must establish that
no competent counsel would have taken the action that his counsel did take.” Id. at
1315. We evaluate counsel’s effectiveness based on counsel’s perspective at the
time. Id. at 1316.
Under the second prong of the Strickland test, the defendant must establish
prejudice by showing a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A “reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. The defendant
must affirmatively prove prejudice because attorney errors are as likely to be
“utterly harmless” as they are to be prejudicial. Gilreath v. Head, 234 F.3d 547,
551 (11th Cir. 2000) (quoting Strickland, 466 U.S. at 693, 104 S. Ct. at 2067).
Here, we conclude from the record that the district court did not err by
determining that Pedron’s trial counsel was not ineffective for failing to comply
with federal regulations in order to subpoena the postal employees, as those
witnesses’ purported testimony would have been duplicative of by Pedron’s wife’s
testimony. Moreover, Pedron cannot show prejudice to the outcome of the
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proceedings because there was ample evidence for the jury to convict Pedron on all
counts. The government showed that the DEA agents found amphetamine pills
and cocaine both on Pedron’s person and in his vehicle at the time of the arrest,
and that those amphetamine pills matched the pills Pedron’s neighbor provided to
the DEA agents.
II.
A defendant can bring an ineffective-assistance-of-counsel claim based on
his attorney’s failure to inform him fully about his right to testify. See Gallego v.
United States, 174 F.3d 1196, 1197 (11th Cir. 1999). When counsel does not
inform the defendant of his right to testify and that the final decision belongs to the
defendant alone, the defendant has not received reasonably effective assistance of
counsel. Id.
Here, we conclude from the record that that the district court did not err by
determining that Pedron had not received ineffective assistance of counsel as to his
right to testify. Although there was a factual dispute as to whether Pedron was
informed of those rights, Pedron did not establish that he was prejudiced by the
alleged failure because he did not state that he would have chosen not to testify,
and there was sufficient evidence to convict him, regardless of whether he testified.
For the above-stated reasons, we affirm the district court’s order denying
Pedron’s motion to vacate sentence.
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AFFIRMED.
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