[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 04, 2007
No. 06-10677 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 04-20895-CV-KMM
01-00456 CR-KMM
THOMAS REYNOLDS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 4, 2007)
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
In his motion to the district court, Petitioner sought relief from his
conviction and sentence under 28 U.S.C. § 2255 on the ground that his counsel was
ineffective in failing to inform and advise him of his right to testify. The court
denied his motion. He now appeals.
In reviewing claims of ineffective assistance of counsel, we review factual
findings and credibility determinations for clear error and application of these facts
de novo. McGriff v. Dep’t of Corr., 338 F.3d 1231, 1238 (11th Cir. 2003); United
States. v. Teague, 953 F.2d 1525, 1534-35 (11th Cir. 1992). A criminal defendant
has a fundamental constitutional right to testify on his own behalf at trial that
cannot be waived by defense counsel. Teague, 953 F.2d at 1532. To determine if
counsel’s conduct led to the denial of this right, we apply an ineffective-assistance-
of-counsel analysis. Id. at 1534. To prove ineffective assistance of counsel, a
defendant must show (1) that counsel’s performance was constitutionally deficient,
and (2) that he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). For counsel to be effective in
the context presented here, counsel “must advise the defendant (1) of his right to
testify or not testify; (2) of the strategic implications of each choice; and (3) that it
is ultimately for the defendant himself to decide whether to testify.” McGriff, 338
F.3d at 1237. There is a “strong presumption in favor of competence, and the
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petitioner’s burden of persuasion – though the presumption is not insurmountable –
is a heavy one.” Chandler v. United States, 218 F.3d 1305, 1314-16 (11th
Cir. 2000). When the trial counsel is experienced, the presumption of competence
is even higher. Id.
Here, the district court did not err in finding that Petitioner failed to show
that his counsel’s performance was constitutionally deficient. First, the court did
not clearly err in finding that his attorney provided credible testimony that she was
an experienced trial attorney whose “general practice” was to appraise defendants
of their right to testify, to advise them whether to testify, and to allow them to
make the ultimate decision. Furthermore, the court did not clearly err in finding
that counsel “probably” appraised Petitioner of his rights and did so at a break in
the proceedings before his counsel rested his case. Based on these findings of fact,
we conclude that the court did not err in finding that Petitioner failed to meet his
heavy burden of showing that his counsel’s performance was constitutionally
deficient. See Chandler, 218 F.3d at 1316 (discussing burden of proof); Teague,
953 F.2d at 1527-28, 1535 (holding that when counsel testified that it was her
“normal practice” to discuss the right to testify and that she “probably” had
explained this right to the defendant, the district court did not err in finding that
defendant failed to show ineffectiveness of counsel); McGriff, 338 F.3d at 1237-38
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(holding that when counsel states it was her “ordinary practice” to advise clients of
the right to testify, the court does not clearly err in finding it “more likely that not”
that counsel had advised the defendant). Because he failed to satisfy his burden of
proof for the first prong of Strickland, we need not address the second prong,
prejudice. See Teague, 953 F.2d at 1535; McGriff, 338 F.3d at 1237-38.
AFFIRMED.
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