Gordon v. United States

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 7, 2008
THOMAS K. KAHN
No. 05-16703
CLERK
________________________

D. C. Docket No. 01-08037-CV-1-IPJ-RRA

KIRLEW S. GORDON,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Alabama
_________________________

(March 7, 2008)

Before PRYOR, KRAVITCH and ALARCÓN,* Circuit Judges.

PRYOR, Circuit Judge:

*
Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
 We sua sponte vacate and reconsider our original opinion in this matter. We

substitute the following opinion for our original opinion.

This appeal requires us to decide two issues about the relation between the

standard that governs plain error review on direct appeal and the standard that

governs collateral review of ineffective assistance of counsel. The issues are

whether counsel for Kirlew Gordon rendered ineffective assistance by neglecting

to object to two alleged errors of the district court: (1) a failure to inform Gordon

of the nature of the charges to which he was pleading, and (2) a failure to address

Gordon personally concerning his right to allocute. Gordon pleaded guilty to one

count of engaging in a continuing criminal enterprise, 21 U.S.C. § 848, and one

count of conspiracy to import cocaine, 18 U.S.C. § 371. At Gordon’s plea

colloquy, the district court did not explain the nature of these charges to Gordon.

The court asked Gordon whether his counsel had explained to him the nature of the

charges and allowed the prosecutor to recite at length an earlier discussion in

which the prosecutor clarified for Gordon, in the presence of Gordon’s counsel, the

nature of the charges. Gordon stated that his attorney had explained the charges to

him, he understood them, and the prosecutor’s description of their earlier

conversation was accurate. Before it sentenced Gordon, the district court asked

counsel for both parties whether they had anything further to say, but the court did

2
not address Gordon personally to determine whether he wanted to speak. As to

both matters, we conclude that counsel for Gordon did not render ineffective

assistance and deny Gordon’s petition.

I. BACKGROUND

In November 1999, Gordon agreed to plead guilty to engaging in a

continuing criminal enterprise and conspiring to import cocaine, which were two

counts of a four-count indictment, and Gordon waived his right to “appeal from

any sentence, so long as it is within the guideline range.” In exchange, the

government agreed to recommend that Gordon be sentenced at the low end of the

Guidelines range and receive a three-level reduction for acceptance of

responsibility, and the government agreed to file a motion for downward departure

for providing substantial assistance. At his plea hearing, Gordon testified that he

read and understood English. He said his attorney had explained to him the

elements of the offenses and the potential penalties.

The prosecutor then stated to the court that, earlier that morning, Gordon had

expressed concern that he seemed to be pleading guilty to causing the death of

Michelle Goodwin, a drug courier who died after cocaine packages she was

carrying in her body burst and the cocaine entered her bloodstream. The

prosecutor stated that he explained to Gordon, in the presence of Gordon’s attorney

3
and a United States Marshal, that Gordon was not being charged with causing

Goodwin’s death, but that the continuing criminal enterprise count to which

Gordon was pleading guilty incorporated by reference the provisions and

punishments for another offense. See 21 U.S.C. § 846. A defendant who is found

guilty of conspiring to import drugs under section 846 is subject to a 20-year

mandatory minimum sentence if a person is seriously injured or dies as a result of

the “use” of the drugs.

The prosecutor stated that Gordon also expressed concern that the

government stated that the profits obtained from the drug activity totaled over $1

million. The prosecutor explained to Gordon that there was no documentary

evidence that Gordon received $1 million in profits, but that there were Western

Union receipts evidencing that over $1 million had been wired to his wife, Ann

Marie Gordon, and several aliases used by her.

The prosecutor stated that, after these matters had been explained to Gordon,

Gordon consulted with his attorney for a few minutes and then stated he was

satisfied with these answers. The district court then asked Gordon whether the

conference described by the prosecutor took place and whether the prosecutor’s

summary was an approximate description of what the prosecutor had said. Gordon

replied in the affirmative. The prosecutor then recited the facts that the

4
government was prepared to prove at trial.

The prosecutor stated that, in July 1993, Michelle Goodwin, the wife of a

U.S. Army sergeant, collapsed at Fort McClellan and soon afterward died in a

hospital. An autopsy revealed over 30 bindles of cocaine in her stomach and

colon, at least two of which had leaked cocaine into her bloodstream and caused

her death. Her death prompted an investigation by the U.S. Army, the Drug

Enforcement Administration, the U.S. Customs Service, the Federal Bureau of

Investigation, and a local drug task force into the source of the drugs. These

agencies investigated rumors that people with Jamaican connections were

smuggling drugs into the Anniston, Alabama, area, and their investigation

ultimately led them to Kirlew Gordon and his wife, Ann Marie.

The sworn statements of numerous cooperating individuals and substantial

documentary evidence—phone records, Western Union receipts, and Western

Union computer records evidencing over $1 million in profits sent to Ann Marie or

one of her known aliases—would establish that the Gordons had been running a

drug smuggling and distribution operation since 1993. Kirlew controlled the

operation from Anniston and Ann Marie assisted him in Jamaica and Palm Beach,

Florida. The Gordons recruited people to travel from Atlanta or Palm Beach to

Kingston, Jamaica, where they would secrete cocaine on or in their bodies at a

5
house identified and photographed by government agents. The recruits would then

travel to Atlanta where they either boarded a bus to Anniston or were met by

Kirlew and transported to Anniston. Several cooperating witnesses, including

some of Gordon’s distributors and other drug couriers, would testify consistent

with these details and would state that Kirlew and Ann Marie ran the organization.

The last known overt act of the conspiracy occurred on September 3, 1997,

when Kirlew and his sister, Leonie Grant, were arrested traveling west on Interstate

20 shortly after crossing into Alabama. An anonymous caller, suspected of being

Ann Marie, provided specific information about the individuals in the car,

including their names, the type of luggage they would be carrying, the airline they

would be flying from Palm Beach to Atlanta, and that Grant would be the one

transporting the cocaine. After being questioned by officers, Grant removed a

package of crack cocaine from her underwear and ultimately removed a second one

from her vagina. The net weight of cocaine base was almost half a kilogram.

Grant would testify that she brought cocaine to Anniston for the Gordons on

several earlier occasions. A DEA agent who had reviewed all of the witness

statements and documentary evidence would testify that the Gordons’ organization

had distributed between 10 and 24 kilograms of cocaine base.

After the factual basis of the plea agreement had been described, Gordon

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pleaded guilty as follows:

COURT: Mr. Gordon, you heard what the government expects to
prove . . . and you heard what Mr. McGregor said the
substance of your conversation and your lawyer’s
conversation with him were this morning where it was
explained . . . exactly what you are charged [with] in this
case.

GORDON: Yes, ma’am.

COURT: Do you understand now?

GORDON: Yes, ma’am.

COURT: Having heard this, how do you plead to the offense of a
continuing criminal enterprise in Count One?

GORDON: I plead guilty.

COURT: How do you plead to Count Four of the indictment–

GORDON: Guilty.

COURT: –the conspiracy?

GORDON: Guilty, Your Honor.

COURT: Are the statements basically correct?

GORDON: Yes, Your Honor.

The district court found Gordon guilty of counts 1 and 4 and dismissed counts 2

and 3 upon motion of the government.

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 At Gordon’s sentencing hearing, the court first addressed the motion of the

government for a downward departure based on substantial assistance. See United

States Sentencing Guidelines § 5K1.1 (Nov. 1999). Regarding that motion, the

prosecutor stated, “The government believes that to a fairly significant extent Mr.

Gordon was telling the truth. We are unsure, however, concerning his statements

about giving all of the money to his wife and codefendant, Ann Marie Gordon. He

may well have done that.” The prosecutor stated that “virtually all of the

information related to us was previously known to the government prior to his

cooperation,” but the prosecutor explained that Gordon “provided us with at least

two or three more good leads and good evidence” and the recommended 18-year

sentence reflected the amount of cooperation Gordon provided.

The district court overruled Gordon’s objections to the presentence

investigation report, heard from defense counsel regarding Gordon’s motion for

downward departure, and asked whether the defense had anything to say before the

sentence was imposed. The court did not address Gordon personally or ask him

whether he had anything to say. The court adopted the facts in the presentence

investigation report and calculated a Guidelines range of 262 to 327 months of

imprisonment. The court denied Gordon’s motion for downward departure without

comment and the motion of the government for the same because “telling the truth

8
to a fairly significant extent is actually another way of saying that it’s not

completely truthful.” The court sentenced Gordon to 262 months in prison for

count 1 and 60 months, to be served concurrently, for count 4. No other objections

were made. Gordon filed a direct appeal, but that appeal was dismissed in July

2000 on the ground that it was barred by Gordon’s sentence-appeal waiver.

In July 2001, Gordon filed a motion to vacate his conviction and sentence.

See 28 U.S.C. § 2255. Gordon argued four grounds of ineffective assistance of

counsel and that he was denied due process and a right to a fair trial because his

drug quantity was found based on a preponderance of the evidence. The district

court denied the motion, and found that Gordon knowingly and voluntarily pleaded

guilty and had an opportunity to allocute. We granted Gordon a certificate of

appealability as to the arguments that Gordon’s counsel was ineffective for failing

to object that Gordon was not informed of the nature of the charges against him

and for failing to object that Gordon was denied his right to allocute.

II. STANDARD OF REVIEW

A claim of ineffective assistance of counsel is a mixed question of law and

fact that we review de novo. Caderno v. United States, 256 F.3d 1213, 1216–17

(11th Cir. 2001).

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 III. DISCUSSION

Gordon presents two separate claims of ineffective assistance. First, Gordon

argues that his counsel was ineffective for failing to object that the district court

did not inform Gordon of the nature of the offenses to which he was pleading.

Second, Gordon argues that his counsel was ineffective for failing to object that the

district court did not address Gordon personally concerning his right to allocute

before sentencing. We examine each of these arguments in turn.

A. The Failure of Gordon’s Counsel to Object to the Alleged
Violation of Rule 11 Did Not Constitute Ineffective Assistance.

To prevail on a claim of ineffective assistance, a defendant must establish

two things: (1) “counsel’s performance was deficient,” meaning it “fell below an

objective standard of reasonableness”; and (2) “the deficient performance

prejudiced the defendant.” Strickland v. Washington, 466 U.S. 668, 687–88, 104

S. Ct. 2052, 2064 (1984). Gordon first argues that his counsel was ineffective for

failing to object that Gordon’s plea was not knowing or voluntary. To ensure that

a plea is voluntary and knowing, Federal Rule of Criminal Procedure 11(b)(1)(G)

states that “the court must address the defendant personally in open court” before

accepting the plea and “inform the defendant of, and determine that the defendant

understands . . . the nature of each charge to which the defendant is pleading.”

This rule “imposes upon a district court the obligation and responsibility to

10
conduct a searching inquiry into the voluntariness of a defendant’s guilty plea.”

United States v. Siegel, 102 F.3d 477, 481 (11th Cir. 1996). A defendant satisfies

the prejudice standard of Strickland by establishing “a reasonable probability that,

but for counsel’s errors, he would not have pleaded guilty and would have insisted

on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).

Gordon asserts that the district court did not adequately inform him of the nature of

the charges and, if it had, he would not have pleaded guilty.

Gordon was initially confused about the relevance of two facts to the crimes

with which he was charged: (1) the death of Michelle Goodwin and (2) the

obtainment of approximately $1 million in profits from the drug operations. These

events played a substantial role in the charges to which Gordon pleaded. The death

of Michelle Goodwin was the basis for an enhancement of Gordon’s sentence for

the conspiracy conviction, 21 U.S.C. § 841(b)(1)(A), and the receipt of “substantial

income” was necessary to support the conviction for a continuing criminal

enterprise, id. § 848(c)(2)(B). Gordon contends that the district court did not

conduct a searching inquiry into his knowledge of the charges; rather, the district

court “simply asked Gordon whether he understood the elements of the offenses,”

an examination that was “conclusory at best.”

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 Gordon does not deny that the prosecutor, in open court, recounted at length

both the factual basis of the charges and how Gordon’s initial confusion regarding

certain facts had been clarified to Gordon’s satisfaction in the presence of his

counsel. Nor does Gordon deny that, in response to a direct question from the

district court, Gordon stated that he understood the nature of the charges against

him. Gordon’s argument is based on the assumption that Rule 11 is satisfied only

when the district judge communicates to the defendant the nature of the charges.

We will assume, for the sake of argument, that a violation of Rule 11 occurs

when the district court does not communicate the nature of the charges to the

defendant through its own words. Even so, the failure of Gordon’s counsel to

object did not constitute ineffective assistance. Although it is possible for

commission of a single error to amount to ineffective assistance, this circumstance

“is clearly the exception and not the rule.” Chatom v. White, 858 F.2d 1479, 1485

(11th Cir. 1988). To ground a claim of ineffective assistance, a single error “‘must

be so substantial as to stamp [counsel’s] overall performance with a mark of

ineffectiveness.’” Id. (quoting Birt v. Montgomery, 725 F.2d 587, 597 (11th Cir.

1984) (en banc)).

When a claim of ineffective assistance is based on a failure to object to an

error committed by the district court, that underlying error must at least satisfy the

12
standard for prejudice that we employ in our review for plain error. Compare

United States v. Underwood, 446 F.3d 1340, 1343–44 (11th Cir. 2006) (third part

of plain error analysis required defendant to establish “a reasonable probability of a

different result” at sentencing), with Gilliam v. Sec’y, Dep’t of Corr., 480 F.3d

1027, 1033 (11th Cir. 2007) (prejudice standard of Strickland requires that there be

“a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different” (internal quotation marks omitted)); see

also United States v. Nash, 438 F.3d 1302, 1304 (11th Cir. 2006). The failure to

object to a single error that is either unobvious or nonprejudicial does not “stamp

[counsel’s] overall performance with a mark of ineffectiveness.” Chatom, 858 F.2d

at 1485. It would be nonsensical if a petitioner, on collateral review, could subject

his challenge of an unobjected-to error to a lesser burden by articulating it as a

claim of ineffective assistance. Cf. United States v. Caputo, 978 F.2d 972, 975

(7th Cir. 1992) (not every plain error rises to the level of an error that “leaps out at

the reader” or “condemns the lawyer who failed to bring it to the judge’s attention

of professional incompetence”).

The problem for Gordon is that the alleged error by the district court did not

substantially affect Gordon’s rights. “In evaluating whether a defendant has shown

that his rights were substantially affected or prejudiced” by a violation of Rule 11,

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“this Court has examined the three ‘core objectives’ of Rule 11.” United States v.

Monroe, 353 F.3d 1346, 1354 (11th Cir. 2003). Those objectives are: “(1)

ensuring that the guilty plea is free of coercion; (2) ensuring that the defendant

understands the nature of the charges against him; and (3) ensuring that the

defendant is aware of the direct consequences of the guilty plea.” Id. We have

held a violation of Rule 11 to prejudice a defendant only when it “resulted in a total

or almost total failure to address” one of these core objectives. Id. at 1355.

Gordon does not contend that his plea colloquy failed to address one of these

core objectives. He does not allege that his plea was coerced, he failed to

understand the nature of the charges, or he was unaware of the consequences of his

plea. Gordon’s argument rests on the fact that the district judge did not directly

communicate to Gordon the nature of the charges.

The district judge ensured that Gordon understood the nature of the charges.

Gordon stated at his plea hearing that his attorney had explained to him the nature

of the charges and that he understood them. The prosecutor then recounted how

Gordon had been initially confused about the relevance of Michelle Goodwin’s

death to his plea and had mistakenly believed that the government alleged that he

personally possessed $1 million in profits. The prosecutor stated that, after he

spoke with Gordon, Gordon was no longer confused. The district court then asked

14
Gordon whether the prosecutor’s account was true, and Gordon affirmed that it

was. After the prosecutor’s statement of the facts, the district court again asked

Gordon whether he understood the nature of the charges and whether the

prosecutor’s statements were correct.

Gordon’s rights were not substantially affected by the fact that the district

judge did not herself explain the nature of the charges to Gordon, and Gordon’s

counsel was not ineffective for failing to object. Failing to object to an error that

clearly has no effect on a defendant’s substantial rights does not constitute

ineffective assistance. We affirm the judgment of the district court that denied

habeas relief on this ground.

B. Gordon’s Counsel Was Not Ineffective For Failing to Object to the
Absence of Inquiry About Gordon’s Right to Allocute.

Gordon’s second claim of ineffective assistance rests on the failure of his

counsel to object at sentencing to the failure of the district court to address Gordon

personally concerning his right to allocute. Federal Rule of Criminal Procedure

32(c) requires that a district court “address the defendant personally and determine

if the defendant wishes to make a statement and to present any information in

mitigation of the sentence.” We have explicitly held that the requirement of Rule

32(c) is not satisfied when the court does not address the defendant personally

concerning the defendant’s desire to allocute but instead addresses defendant’s

15
counsel only. United States v. Phillips, 936 F.2d 1252, 1255–56 (11th Cir. 1991);

see also United States v. Taylor, 11 F.3d 149, 152 (11th Cir. 1994). Before it

pronounced the sentence, the district court asked whether Gordon’s counsel wanted

to say anything else, but the court did not ask Gordon personally whether he

wanted to make a statement.

Gordon raises two challenges to his counsel’s failure to object to the absence

of inquiry about Gordon’s right to allocute. He first argues that the failure to

object to the absence of inquiry amounts to ineffective assistance of counsel per se.

Alternatively, Gordon argues that we should remand the matter for an evidentiary

hearing to determine whether his counsel’s failure to object amounted to

ineffective assistance. We address each argument in turn.

1. Counsel’s Failure to Object to the Absence of Inquiry About
Allocution Does Not Amount to Ineffective Assistance Per Se.

Gordon first argues that counsel’s failure to object to the absence of inquiry

about the right to allocute amounts to ineffective assistance per se. In United

States v. Prouty, we stated that “a defendant cannot easily demonstrate prejudice in

the context of allocution” because the impact that an allocution is likely to have on

the judge’s sentencing discretion “is usually enormously difficult to ascertain.”

303 F.3d 1249, 1253 (11th Cir. 2002) (internal quotation mark omitted). For that

reason, we held that a failure to inquire about the right to allocute was to be

16
considered a plain error that required reversal when the defendant had not received

the lowest possible sentence under the Guidelines. Id. at 1252.

Gordon argues that the burdens of proof for plain error and ineffective

assistance “overlap significantly,” such that, when “the first three prongs of the

plain error standard” are satisfied, “counsel was incompetent for not having

objected.” United States v. Smith, 459 F.3d 1276, 1303 (2006) (Tjoflat, J.,

specially concurring). Gordon maintains that we should adopt a rule that, when a

defendant has not received the lowest possible sentence, a failure to object to an

absence of inquiry about the defendant’s right to allocute amounts to ineffective

assistance per se. Because the district court could have granted the motion by the

government for a downward departure, Gordon argues that he did not receive the

lowest possible sentence and his counsel’s failure to object to the absence of

inquiry about his right to allocute amounted to ineffective assistance.

For two reasons, we disagree that counsel’s failure to object to a plain error

amounts to ineffective assistance per se. First, the “deficient performance”

standard of an ineffective assistance claim will not always be satisfied by the

failure to object to an obvious error. See Caputo, 978 F.2d at 975 (not every plain

error “condemns the lawyer who failed to bring it to the judge’s attention of

professional incompetence”). Counsel may decide, for strategic reasons, not to

17
object to an obvious error. Cf. Michael v. Crosby, 430 F.3d 1310, 1320 (11th Cir.

2005) (courts give great deference to “choices dictated by reasonable trial strategy”

when evaluating claims of ineffective assistance). If counsel reasonably believes

that correcting the error will actually cause greater harm to his client, perhaps by

creating an unfavorable impression of counsel or the defendant in the eyes of the

judge or jury, counsel’s failure to object would not constitute deficient

performance. In the allocution context, counsel is likely to find himself in this

situation whenever his client has informed him that he does not intend to allocute

and the district judge then fails to ask the defendant whether he wants to allocute.

Counsel’s decision not to interrupt the proceedings with an objection, when he

knows that his client will only reject any later opportunity to allocute, does not

constitute deficient performance.

Second, a bare failure to inquire about the right to allocute does not satisfy

the “prejudice” standard of an ineffective assistance claim, despite our holding in

Prouty. It is true that the “substantial rights” standard of plain error review is

identical to the “prejudice” standard of an ineffective assistance claim. Compare

Underwood, 446 F.3d at 1343–44, with Gilliam, 480 F.3d at 1033. But this

correlation does not mean that we may presume, in a collateral proceeding, as we

18
do in a direct appeal, that a failure to inquire about the right to allocute establishes

prejudice.

The Supreme Court has held that the failure to inquire about the right to

allocute is not redressable in habeas absent proof that the denial prejudiced the

petitioner. In Hill v. United States, the Court held that “the failure to follow the

formal requirements of Rule 32(a) [now Rule 32(c)] is not of itself an error that can

be raised by collateral attack.” 368 U.S. 424, 426, 82 S. Ct. 468, 470 (1962). The

Court insisted, in strong terms, that the error is not a fundamental defect:

The failure of a trial court to ask a defendant represented by an
attorney whether he has anything to say before sentence is imposed is
not of itself an error of the character or magnitude cognizable under a
writ of habeas corpus. It is an error which is neither jurisdictional nor
constitutional. It is not a fundamental defect which inherently results
in a complete miscarriage of justice, nor an omission inconsistent with
the rudimentary demands of fair procedure.

Id. at 428, 82 S. Ct. at 471. More recently, the Supreme Court broadened the

application of this principle to “a general rule[] that a court’s failure to give a

defendant advice required by the Federal Rules is a sufficient basis for collateral

relief only when the defendant is prejudiced by the court’s error.” Peguero v.

United States, 526 U.S. 23, 27, 119 S. Ct. 961, 964 (1999). If we held that

counsel’s failure to object to an absence of inquiry about the right to allocute

19
amounts to ineffective assistance per se, we would run afoul of these holdings of

the Supreme Court.

Our holding in Prouty does not allow a defendant to bypass the holdings of

Hill and Peguero and collaterally challenge a violation of the formal requirements

of Rule 32 by articulating the claim as one of ineffective assistance. Although we

presume, in a direct appeal, when the court could have imposed a more lenient

sentence, that the absence of inquiry about the right to allocute has prejudiced a

defendant, see Prouty, 303 F.3d at 1253, Supreme Court precedents bar us from

making that presumption in a collateral proceeding. When an ineffective

assistance claim rests entirely on counsel’s failure to object to an absence of

inquiry about the right to allocute, a defendant must establish actual prejudice

based on the denial. There can be no per se rule that counsel’s failure to object to a

denial of the right to allocute amounts to ineffective assistance.

2. Gordon Is Not Entitled to an Evidentiary Hearing Because the
Record Conclusively Establishes That Counsel’s Performance Was
Not Deficient.

Gordon maintains that, if we do not hold the failure to object to the absence

of inquiry about the right to allocute to constitute ineffective assistance per se, we

should remand this matter to the district court so that it can hold an evidentiary

hearing about whether Gordon’s counsel rendered ineffective assistance. Gordon

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maintains that the only evidence in the record supports the conclusion that there

were no strategic reasons behind the failure of his counsel to object to the absence

of inquiry about his right to allocute. In an affidavit attached to his habeas motion,

Gordon states that, had he been allowed to allocute, he would have told the court

he had been entirely truthful with the government. The opinion of the district court

that Gordon had not been entirely truthful with the government was the basis for its

denial of the motion by the government for a downward departure. Because the

district court made no findings as to the Strickland test, Gordon maintains that we

should remand the matter so that those findings can be made.

We reject Gordon’s argument. An evidentiary hearing is not required

whenever a petitioner asserts a claim of ineffective assistance under section 2255.

Vick v. United States, 730 F.2d 707, 708 (11th Cir. 1984). An evidentiary hearing

is not required when “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. It is clear from

the record that the performance of Gordon’s counsel was not deficient, and Gordon

is entitled to no relief.

To establish that counsel’s performance was deficient, a petitioner must

meet a high burden. “There is a strong presumption that counsel’s performance

was reasonable and adequate.” Michael, 430 F.3d at 1320. To overcome that

21
presumption, “a petitioner must establish that no competent counsel would have

taken the action that his counsel did take.” Chandler v. United States, 218 F.3d

1305, 1315 (11th Cir. 2000) (en banc). Because this standard is objective, id. at

1315 n.15, it matters not whether the challenged actions of counsel were the

product of a deliberate strategy or mere oversight. The relevant question is not

what actually motivated counsel, but what reasonably could have motivated

counsel. See Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S. Ct. 1029, 1037

(2000) (“The relevant question is not whether counsel’s choices were strategic, but

whether they were reasonable.”); Darden v. Wainwright, 477 U.S. 168, 186, 106 S.

Ct. 2464, 2474 (1986) (rejecting a claim of ineffective assistance because “there

are several reasons why counsel reasonably could have chosen to rely on a simple

plea for mercy from petitioner himself”). “Even if many reasonable lawyers would

not have done as defense counsel did at trial, no relief can be granted on

ineffectiveness grounds unless it is shown that no reasonable lawyer, in the

circumstances, would have done so.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.

1994).

When we can conceive of a reasonable motivation for counsel’s actions, we

will deny a claim of ineffective assistance without an evidentiary hearing. In

Harich v. Dugger, 813 F.2d 1082 (11th Cir. 1987), a panel of this Court remanded

22
petitioner’s claim to the district court for an evidentiary hearing on whether

counsel’s decision to pursue an actual innocence defense was an informed strategic

decision. This Court, sitting en banc, reversed the panel and

“conclud[ed]—without [an] evidentiary hearing on whether counsel’s strategy

arose from his ignorance of [the] law—that trial counsel’s performance was

competent because hypothetical competent counsel reasonably could have taken

[the] action at trial identical to [the action of] actual trial counsel.” Chandler, 218

F.3d at 1315 n.16 (summarizing Harich v. Dugger, 844 F.2d 1464, 1470–71 (11th

Cir. 1988) (en banc)); see also id. at 1315 (citing favorably United States v.

Fortson, 194 F.3d 730, 736 (6th Cir. 1999), which concluded “without district

court findings or even [an] evidentiary hearing” that defendant was not entitled to

relief because the court could conceive of numerous reasonable motives for

counsel’s actions).

We can conceive of strategic reasons that Gordon’s counsel could have

decided not to object to the absence of inquiry about Gordon’s right to allocute.

Counsel could have been worried, for example, that the manner in which Gordon

would make his remarks might lead the court to consider Gordon even less honest

than it already considered him. Counsel also could have been concerned that there

would be inconsistencies between Gordon’s account of his cooperation and

23
previous accounts of that cooperation as described by the government, which

might cast further doubt upon Gordon’s truthfulness. Anything that might have

caused the district court to believe Gordon to be less truthful than it already

considered him to be could have led the court to impose a sentence closer to the

upper end of the Guidelines range, instead of the lower end where Gordon was

sentenced. The existence of a reasonable ground on which Gordon’s counsel could

have based his failure to object conclusively establishes that Gordon is not entitled

to relief, and he was not entitled to an evidentiary hearing.

IV. CONCLUSION

Gordon’s petition is

DENIED.

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