Case: 10-15702 Date Filed: 10/23/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-15702
Non-Argument Calendar
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D.C. Docket Nos. 2:08-cv-00418-WHA-SRW, 2:06-cr-00012-UWC-SRW-4
DEMETRIUS J. HAWKINS,
lllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Alabama
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(October 23, 2012)
Before BARKETT, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Case: 10-15702 Date Filed: 10/23/2012 Page: 2 of 4
Demetrius J. Hawkins, a federal prisoner, appeals the denial of his motion to
vacate his sentence, pursuant to 28 U.S.C. § 2255, and his request for an
evidentiary hearing. We granted a certificate of appealability to determine
whether the district court erred when it denied Hawkins’ claim that counsel
provided ineffective assistance for failing to move to exclude the testimony of
Toby Boutwell, a records custodian for a cellular telephone company. Hawkins
contends his counsel was ineffective for failing to move to exclude this testimony
because the records were unfairly prejudicial under Federal Rule of Evidence 403.1
The cell phone records introduced through Boutwell’s testimony supported
Hawkins’ participation in the drug conspiracy of which he was convicted. After
review, we affirm the district court.
In a § 2255 proceeding, we review a district court’s legal conclusions de
novo and its factual findings for clear error. Devine v. United States, 520 F.3d
1286, 1287 (11th Cir. 2008). Whether counsel was ineffective is a mixed question
of law and fact that we review de novo. Id. In order to prevail on an ineffective
assistance of counsel claim, Hawkins must establish: (1) his counsel’s
1
Hawkins also argues the cell phone records lacked proper foundation and were not
authenticated. However, because these arguments were not raised below, we decline to address
them on appeal. See Johnson v. United States, 340 F.3d 1219, 1228 n.8 (11th Cir. 2003) (stating
that arguments not raised in the district court are waived on appeal).
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performance was deficient; and (2) he suffered prejudice as a result of the
deficient performance. Strickland v. Washington, 104 S. Ct. 2052, 2064 (1984).
As to deficient performance, Hawkins is unable to show his counsel’s
representation fell below an objective standard of reasonableness under prevailing
professional norms. Green v. Nelson, 595 F.3d 1245, 1249 (11th Cir. 2010).
Counsel’s decision not to move to exclude the testimony of the records custodian
was a reasonable strategic choice, since there was little evidentiary basis on which
to exclude the evidence. Strickland, 104 S. Ct. at 2066. Therefore, Hawkins has
not overcome the strong presumption that his counsel provided professionally
reasonable assistance. Dingle v. Sec’y for Dept. of Corr., 480 F.3d 1092, 1099
(11th Cir. 2007).
As to prejudice, Hawkins has not established “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 2068. First, Hawkins cannot show
that, if his counsel had objected to the admissibility of the evidence, the district
court should have excluded it under Federal Rule of Evidence 403. In light of the
undisputed fact that Rapp testified he found a cell phone with the number 404-
660-6042 on Hawkins after he was arrested, the cell phone record evidence was
highly probative and Hawkins was unable to show he was unfairly prejudiced by
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its admissibility. See Fed. R. Evid. 403. Second, Hawkins cannot establish the
exclusion of this evidence would have changed the result of the proceeding. Other
evidence introduced at trial, including the testimony of Rapp and Canady, directly
linked Hawkins to the marijuana conspiracy. Moreover, the fact that the cell
phone evidence was not introduced at the first trial, which resulted in a mistrial,
does not conclusively establish Hawkins was prejudiced by introduction of the cell
phone records at the second trial, which resulted in Hawkins’ conviction.
We conclude the district court did not err when it denied Hawkins’ claim
that counsel provided ineffective assistance for failing to move to exclude
Boutwell’s testimony. Moreover, we find an evidentiary hearing is not required
since the motion, files, and records of the case conclusively establish Hawkins is
not entitled to relief. See Aron v. United States, 291 F.3d 708, 714 n.5 (11th Cir.
2002). Accordingly, we affirm the decision of the district court.
AFFIRMED.
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