[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 23, 2007
No. 05-15569 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 05-20881-CV-UUB
01-00543-CR-UUB
RODRIGUE JEAN,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 23, 2007)
Before DUBINA, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Rodrigue Jean, a counseled federal prisoner, appeals the district court’s
denial of his motion to vacate his 148-month sentence for drug trafficking crimes,
which was brought pursuant to 28 U.S.C. § 2255. In his § 2255 motion, Jean
argued that his attorney was ineffective because, inter alia, counsel failed to advise
him of his right to testify, or to call him to testify on his own behalf.
At the hearing on whether counsel was ineffective, trial counsel, David
Joffe, testified that he: (1) had 16 years experience; (2) met with Jean at least 8
times before the start of the trial; (3) advised Jean that a negotiated plea would be
in his best interest; (4) would have advised Jean, while discussing the possibility of
entering a plea, of all of his constitutional rights, including the right to testify; (5)
thought that Jean would make a good witness; (6) gave Jean a pad of paper during
trial to take notes or ask questions; and (7) had never, and could not, prevent a
client from testifying. Joffe stated that Jean advised him that he did not want to
testify.
Rodrique Jean contradicted his attorney’s version, testifying that: Joffe
never explained to him that he had the choice to testify at trial, and Joffe never told
him that he would make a good witness or judged his credibility. Jean asserted that
he did not know that he was the one who ultimately decided whether he would
testify, as Joffe had made all of the decisions in the trial, and Joffe disregarded his
request to testify. He conceded that it had been his decision to go to trial, rather
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than take a plea. The magistrate judge issued a report, which credited trial
counsel’s assertion that he informed Jean of his right to testify and that it was
Jean’s decision to make.
“Credibility determinations are typically the province of the fact finder
because the fact finder personally observes the testimony and is thus in a better
position than a reviewing court to assess the credibility of witnesses.” United
States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). In a case where the
witnesses’ versions of events are in direct conflict with one another, we will affirm
the fact finder unless “the judge credits exceedingly improbable testimony,” or the
“facts are unbelievable.” Id. Here, we find no reversible error in the fact finder’s
determination of credibility in this case.
AFFIRMED.
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