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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-12899
Non-Argument Calendar
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D.C. Docket Nos. 1:13-cv-23640-JLK,
1:09-cr-20264-JLK-1
JUNIOR SYLVIN,
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
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(March 1, 2017)
Before MARTIN, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
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Junior Sylvin, a federal prisoner proceeding pro se, appeals the denial of his
28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. The district
court granted Sylvin a certificate of appealability (“COA”) on two issues:
1. Whether Petitioner is entitled to an evidentiary hearing to determine
whether or not the advice of his counsel during plea negotiations
constituted ineffective assistance of counsel.
2. Whether Petitioner is entitled to an evidentiary hearing to determine
whether his counsel’s failure to call codefendants as witnesses
constituted ineffective assistance of counsel.
I.
Sylvin first contends that his trial counsel, Barry Greff (“Greff”), was
ineffective with regard to the plea negotiations because he advised Sylvin to
decline the government’s offer of ten years’ imprisonment in exchange for
pleading guilty and to pursue suppression motions instead. Sylvin notes that the
suppression motions were denied, and he ultimately received a 216-month
sentence.
“We review the district court’s denial of an evidentiary hearing in a § 2255
proceeding for abuse of discretion.” Winthrop-Redin v. United States, 767 F.3d
1210, 1215 (11th Cir. 2014). “A district court abuses its discretion if it applies an
incorrect legal standard, applies the law in an unreasonable or incorrect manner,
follows improper procedures in making a determination, or makes findings of fact
that are clearly erroneous.” Id.
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A movant claiming ineffective assistance of counsel must show that (1) his
counsel’s representation fell below an objective standard of reasonableness, and
(2) there is a reasonable probability that the proceeding’s result would have been
different, but for his counsel’s ineffective assistance. Chandler v. United States,
218 F.3d 1305, 1312-13 (11th Cir. 2000) (en banc). We engage in a “highly
deferential” review of counsel’s performance. Id. at 1314.
An evidentiary hearing must be held on a motion to vacate “[u]nless 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)(2012); see also Anderson v. United
States, 948 F.2d 704, 706 (11th Cir. 1991) (holding that, unless the record is
adequate to conclusively show that the movant’s contentions are without merit, the
district court must conduct a hearing). The district court, however, should order an
evidentiary hearing and rule on the merits of a petitioner’s claim “if the petitioner
alleges facts that, if true, would entitle him to relief.” Rosin v. United States, 786
F.3d 873, 877 (11th Cir.), cert. denied, 136 S. Ct. 429 (2015)(quotations omitted).
“[A]n evidentiary hearing is unnecessary when the petitioner’s allegations are
affirmatively contradicted by the record.” Id.
Here, there is no evidence in the record supporting Sylvin’s allegation that a
ten-year offer was extended. See Winthrop-Redin, 767 F.3d at 1215. On the
contrary, Sylvin’s claim is affirmatively contradicted by the record. See Rosin, 786
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F.3d at 877. Accordingly, we conclude that the district court did not abuse its
discretion in denying Sylvin’s § 2255 motion without holding an evidentiary
hearing as to his counsel’s effectiveness during the plea negotiations.
II.
Sylvin also argues that he was entitled to an evidentiary hearing with regard
to his claim that his counsel was ineffective for failing to bring witnesses to testify
at his sentencing hearing that Sylvin was not an organizer or leader in the
alleged/charged offense. He asserts that affidavits show that the witnesses were
willing to testify on his behalf.
We have stated that counsel’s decision as to which witnesses to call at
sentencing, if any, “is the epitome of a strategic decision, and it is one that we will
seldom, if ever, second guess.” Conklin v. Schofield, 366 F.3d 1191, 1204 (11th
Cir. 2004) (quotations omitted). Therefore, “[e]ven if counsel’s decision appears
to have been unwise in retrospect, the decision will be held to have been
ineffective assistance only if it was so patently unreasonable that no competent
attorney would have chosen it.” Dingle v. Sec’y, Dep’t of Corrs., 480 F.3d 1092,
1099 (11th Cir. 2007) (quotations omitted).
Here, we conclude from the record that the district court did not abuse its
discretion in declining to hold an evidentiary hearing with regard to Greff’s failure
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to bring witnesses at sentencing. The affidavits show that two of the witnesses
were unavailable to testify. Moreover, even if the third witness was able to testify,
the decision not to call him was a strategic decision, which was not patently
unreasonable. See Dingle, 480 F.3d at 1099.
Accordingly, for the above stated reasons, we affirm the district court’s
denial of Sylvin’s § 2255 motion without holding an evidentiary hearing.
AFFIRMED.
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