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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15474
Non-Argument Calendar
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D.C. Docket Nos. 1:16-cv-00206-JRH-BKE; 1:12-cr-00204-JRH-BKE-1
REGINA M. PREETORIUS,
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 Georgia
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(February 15, 2019)
Before MARTIN, BRANCH, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Regina M. Preetorius, a federal prisoner serving a 280-month total sentence,
appeals the denial of her motion to vacate her sentence under 28 U.S.C. § 2255.
The sole issue is whether Preetorius’s counsel rendered ineffective assistance by
failing to “explore the government’s good-faith efforts to resolve the proceedings
with a plea of guilty.” After careful review, we affirm.
“In a section 2255 proceeding, we review legal conclusions de novo and
factual findings for clear error. Ineffective assistance of counsel claims are mixed
questions of law and fact that we review de novo.” Osley v. United States, 751
F.3d 1214, 1222 (11th Cir. 2014) (citation omitted).
“Before deciding whether to plead guilty, a defendant is entitled to the
effective assistance of competent counsel.” Padilla v. Kentucky, 559 U.S. 356,
364, 130 S. Ct. 1473, 1480–81 (2010) (quotation marks omitted). To prevail on an
ineffective assistance claim, the defendant must “show that counsel’s performance
was deficient” and that she “suffered prejudice as a result of that performance.”
Osley, 751 F.3d at 1222. As a general rule, “defense counsel has the duty to
communicate formal offers from the prosecution to accept a plea on terms and
conditions that may be favorable to the accused.” Missouri v. Frye, 566 U.S. 134,
145, 132 S. Ct. 1399, 1408 (2012). But “an erroneous strategic prediction about
the outcome of a trial is not necessarily deficient performance.” Lafler v. Cooper,
566 U.S. 156, 174, 132 S. Ct. 1376, 1391 (2012). To show prejudice in this
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context, a defendant must show a reasonable probability that but for counsel’s
ineffectiveness: (1) the defendant would have accepted the plea; (2) the court
would have accepted its terms; and (3) the conviction or sentence, or both, would
have been less severe than under the judgment and sentence that were imposed.
Osley, 751 F.3d at 1222.
Preetorius’s counsel did not render ineffective assistance. Her counsel
advised her about the government’s plea offer of five years, as she concedes. She
argues her counsel ought to have persuaded her to plead despite her claim of
innocence given the high conviction rate in the Southern District Court of Georgia.
But she does not suggest her counsel advised her not to accept the plea or hinted
she would be acquitted at trial. She has shown nothing to indicate her counsel’s
performance fell “outside the wide range of professionally competent assistance.”
Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066 (1984).
Nor can we say Preetorius suffered prejudice, even assuming she received
ineffective assistance. Preetorius was aware of her potential sentence if convicted.
The government gave her a penalty certification, and a Magistrate Judge advised
her of the possible penalties at her arraignment. She proceeded to trial knowing
her potential sentencing exposure. She also maintained her innocence during and
after trial. This undermines her claim that she would have pled guilty if properly
advised about the plea deal. See Osley, 751 F.3d at 1224 (“Osley’s claim that he
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would have pled guilty had he been properly informed is also undermined by his
repeated claims of innocence.”).
The district court’s denial of Preetorius’s § 2255 motion is AFFIRMED.
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