[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 18, 2005
No. 05-10570
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket Nos. 03-00092-CV-HL-3 & 02-00001 CR-HL
DIMITRI GOOLSBY,
a.k.a. Demetrious Goolsby
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(August 18, 2005)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Dimitri Goolsby appeals the district court’s denial of his 28 U.S.C. § 2255
motion to vacate, set aside, or correct his sentence. Goolsby pled guilty, pursuant
to a plea agreement, to possession of more than 5 grams of crack cocaine with
intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) (Count
One) and possession of a gun in furtherance of a drug trafficking offense in
violation of 18 U.S.C. § 924(c) (Count Two).
On appeal, Goolsby raises an ineffective assistance of counsel claim arguing
that the conduct of his trial counsel, James Smith, was ineffective because he
entered into an oral agreement with the government stating that the government
would not seek a firearm enhancement and Smith failed to reduce the agreement to
writing.1 Thus, but for the deficiency of his attorney, Goolsby claims that the
firearm enhancement would not have been applied to his sentence.
In a § 2255 proceeding, we review a district court’s legal determinations de
1
The second issue raised by Goolsby on appeal is that his plea was not knowing and
voluntary as he was not advised that the firearm could be used to enhance his sentence.
However, in this section of his brief Goolsby argues that he was denied effective assistance
counsel because his lawyer advised him to reject the government’s offer to plead guilty to Count
Two and to plead guilty to Count One. Goolsby contends that had he pled guilty to Count One,
his sentence would have been shorter. As Goolsby has not requested that the Certificate of
Appealability (COA) be expanded to include this ineffective assistance of counsel claim, we
decline to address this issue because it is outside the narrow scope of the COA. Murray v. United
States, 145 F.3d 1249, 1251 (11th Cir. 1998) (holding that “appellate review is limited to the
issues specified in the COA”).
2
novo, and its findings of fact for clear error. Williams v. United States, 396 F.3d
1340, 1341 (11th Cir. 2005). To establish an ineffective assistance of counsel
claim, “the defendant must [first] show that counsel’s performance was deficient.”
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). “This
requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id. Second, the defendant must prove that the deficiency in counsel prejudiced the
defense by “depriv[ing] [him] of a fair trial.” Id. Further, it is well established
that attorney assistance must meet the objective standard of reasonable
effectiveness. Id. at 688, 104 S. Ct. at 2064.
Goolsby’s ineffective assistance of counsel claim necessarily fails because
he has not met his burden of establishing the deficient performance of his attorney.
In the instant case, the district court adopted the magistrate’s recommendation to
deny Goolsby’s claim of ineffective assistance of counsel based on his counsel’s
failure to put the oral agreement regarding the sentencing enhancement in writing.
The magistrate made a factual finding that there was no oral agreement. After
reviewing the record, we conclude that this factual finding was not clearly
erroneous.
Smith testified to the existence of an oral agreement. However, the
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government testified that there was no such agreement, but instead that Smith was
informed of the possibility of a firearm enhancement and that he could oppose the
enhancement. The record supports the district court’s conclusion that there was no
agreement between Smith and the government. Because the district court correctly
concluded that there was no agreement between Smith and the government
regarding the firearm sentence enhancement, Smith’s failure to put the agreement
in writing is of no consequence.2
Goolsby failed to establish the first prong of the Strickland v. Washington
test. 466 U.S. at 687, 104 S. Ct. at 2064. Thus, we conclude that the district court
did not err in finding that Goolsby was not denied effective assistance of counsel.
Accordingly, we affirm the district court’s denial of Goolsby’s § 2255 motion.
AFFIRMED.
2
Goolsby alternatively claims that if in fact there was no agreement regarding the
firearm enhancement, then Smith would have advised him to plead guilty to Count Two,
allowing for a shorter sentence. However, it is unclear whether the sentence imposed for Count
One was necessarily longer than the sentence possible for Count Two. Thus, Goolsby has not
demonstrated that Smith’s assistance was not reasonably effective.
4