[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 12, 2010
JOHN P. LEY
No. 09-13242 ACTING CLERK
Non-Argument Calendar
________________________
D. C. Docket Nos. 08-22867-CV-JEM, 05-20776-CR-JEM
ARKEEM ATEBA WILTSHIRE,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 12, 2010)
Before TJOFLAT, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
In United States v. Wiltshire, 238 Fed.Appx. 557 (11th Cir. 2007), we
affirmed petitioner’s convictions and sentences for conspiracy to import and to
possess cocaine and for the substantive importation and possession offenses.
Petitioner thereafter moved the district court to set aside his convictions and
sentences pursuant to 28 U.S.C. § 2255 on the ground, among others, that his trial
attorney had rendered ineffective assistance of counsel by erroneously advising
him that, if found guilty of any of the charges contained in the indictment, he
would be sentenced as a career offender.1 Had counsel told him that he would not
have been sentenced as a career offender, petitioner asserted, he would not have
proceeded to trial; instead, he would have entered a plea of guilty.
The district court referred the motion to a magistrate judge, who held an
evidentiary hearing at which petitioner and his two court-appointed attorneys
testified. Petitioner testified that, in discussing with the second attorney appointed
to represent him the possibility of entering a guilty plea, counsel showed him the
Sentencing Guidelines and told him that he “scored out to 360 to life” and that he
would be sentenced as a “career offender because [he] had two priors.” Given this
advice, petitioner said, he chose to stand trial. His attorney testified and denied
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Successive attorneys were appointed to represent petitioner. The
erroneous advice was allegedly provided by the second attorney.
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giving petitioner such advice. He said that he told petitioner that the charges
lodged against him carried a mandatory minimum sentence of ten years and that,
due to his criminal history, he would not qualify for safety-valve relief from that
minimum. According to the attorney, petitioner elected to go to trial because he
“couldn’t fathom taking that [ten-year mandatory minimum] sentence.”
The magistrate judge, relying on the attorney’s testimony and rejecting
petitioner’s as not credible, recommended that the district court deny relief. The
district court adopted the magistrate judge’s recommendation and denied
petitioner’s § 2255 motion in full. Petitioner filed a notice of appeal, and the
district court granted a certificate of appealability on one issue: whether
petitioner’s attorney rendered ineffective assistance of counsel by incorrectly
advising petitioner that he would be sentenced as a career offender if he pled
guilty.
A defendant is entitled to effective assistance of counsel under the Sixth
Amendment. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S.Ct. 2052,
2063, 80 L.Ed.2d 674 (1984). The two-part Strickland test for ineffective
assistance of counsel applies in determining whether counsel was ineffective
during the plea process. Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S.Ct. 366, 369-
70, 88 L.Ed.2d 203 (1985); see Coulter v. Herring, 60 F.3d 1499, 1504 n.7 (11th
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Cir. 1995) (noting that Hill applies when a defendant decided not to accept a plea
offer and proceeds to trial). First, to prevail on an ineffective assistance claim,
“the defendant must show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466
U.S. at 687, 104 S.Ct. at 2064. Second, the defendant must establish that he
suffered prejudice as a result of that deficient performance. Id.; see Coulter, 60
F.3d at 1504. In the case at hand, petitioner must show that “there is a reasonable
probability that, but for counsel’s errors, he would . . . have pleaded guilty and
would [not] have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. at 370;
see Coulter, 60 F.3d at 1504.
As noted above, this appeal turns on whether the magistrate judge, and thus
the district court, committed clear error in rejecting petitioner’s testimony and
accepting his attorney’s. In reviewing such a claim, we defer to their credibility
determinations. Devine v. United States, 520 F.3d 1286, 1287 (11th Cir. 2008)
(citing United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003)). We do so
“even if we would have decided the case differently.” McPhee, 336 F.3d at 1275
(quotation omitted).
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We find no basis in the record for rejecting the credibility determinations
made following the evidentiary hearing in this case. We acordingly affirm the
district court’s judgment.
AFFIRMED.
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