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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12813
Non-Argument Calendar
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D.C. Docket Nos. 1:10-cv-21372-JAL; 1:06-cr-20149-JAL-2
JIMMY FELICIANO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 12, 2012)
Before TJOFLAT, CARNES, and PRYOR, Circuit Judges.
PER CURIAM:
Jimmy Feliciano, a federal prisoner serving a 188-month sentence for drug
and robbery-related offenses, appeals the denial of his pro se motion to vacate
sentence, filed under 28 U.S.C. § 2255. The district court granted a certificate of
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appealability on the sole issue of whether it erred in failing to hold an evidentiary
hearing to determine whether Feliciano’s trial counsel was ineffective in allegedly
preventing him from testifying at trial.
I.
Feliciano, along with five codefendants including Omar Ortega and Joel
Goenaga, was indicted for (1) conspiring to possess with intent to distribute
cocaine, in violation of 21 U.S.C. §§ 841 and 846; (2) attempting to possess with
intent to distribute cocaine, in violation of 21 U.S.C. §§ 841 and 846, and 18
U.S.C. § 2; (3) conspiring to interfere with commerce by robbery, in violation of
18 U.S.C. § 1951; (4) attempting to interfere with commerce by robbery, in
violation of 18 U.S.C. §§ 1951 and 2; and (5) conspiring to use a firearm in
relation to a drug trafficking crime or crime of violence, in violation of 18 U.S.C. §
924. Feliciano’s initial trial ended in a mistrial due to a hung jury, and the district
court granted his motion for a judgment of acquittal on the firearm charge.
Following his retrial, which lasted six days and featured the testimony of six
government witnesses, Feliciano was found guilty by a jury of all remaining counts
except for the attempted robbery charge. The district court sentenced Feliciano to
188 months imprisonment.
We affirmed Feliciano’s convictions and sentence on direct appeal. United
States v. Feliciano, F. App’x 795 (11th Cir. 2008). In rejecting his various
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challenges, we repeatedly emphasized that there was “ample evidence” offered at
trial to show that he participated in the conspiracy to rob a cocaine stash house,
including the testimony of Ortega, Goenaga, and the arresting officer, as well as
cell phone records introduced by the government. Id. at 799–800, 803.
Feliciano then filed a pro se motion to vacate sentence under § 2255. As
relevant to this appeal, Feliciano claimed that defense counsel was ineffective in
preventing him from testifying on his own behalf at trial. Feliciano maintained
that counsel should have permitted him to take the stand to “tell the jury his side of
the story” and refute the testimony of “two admitted li[a]rs,” namely Ortega and
Goenaga, “whose concocted statements were solely for the purpose of lowering
their prison sentences.” Feliciano further argued that, had he testified, there was a
reasonable probability that he would have been acquitted of all charges given the
“minimal” evidence against him, which was mainly comprised of the testimony of
the two cooperating co-conspirators.
A magistrate judge issued a report recommending that Feliciano’s § 2255
motion be denied without an evidentiary hearing. The magistrate judge
alternatively found that defense counsel did not prevent Feliciano from testifying at
trial and, even assuming that counsel’s performance was deficient, Feliciano could
not demonstrate the requisite prejudice because overwhelming evidence of his guilt
was presented at trial. The magistrate judge further explained that Feliciano’s
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proposed testimony would have been cumulative, as defense counsel impeached
Ortega and Goenaga by showing that they were untrustworthy and agreed to
cooperate with the government in order to receive reduced sentences.
Feliciano objected to the magistrate judge’s report and recommendation,
arguing that he was entitled to an evidentiary hearing because the record was silent
as to whether trial counsel properly consulted with him about his right to testify.
Feliciano also challenged the magistrate judge’s finding that the evidence against
him was overwhelming, arguing that, other than the testimony of Ortega and
Goenaga, there was little evidence of his guilt. Feliciano maintained that, had he
been allowed to take the stand at trial, he would have professed his innocence and
rebutted the incriminating testimony of the cooperating co-conspirators. Although
Feliciano acknowledged that defense counsel was able to show that Ortega and
Goenaga had been untruthful and agreed to testify against him in the hope of
receiving reduced sentences, he maintained that there was a reasonable probability
that the jury would have acquitted him if it “learned the facts in his own words.”
The district court adopted the magistrate judge’s finding that Feliciano failed
to establish that he was prejudiced by trial counsel’s alleged deficient performance
and, thus, was not entitled to an evidentiary hearing.1 The court explained that
1
The district court expressly rejected the magistrate judge’s finding that counsel did not prevent
Feliciano from testifying at trial, noting that the record from Feliciano’s second trial was silent as
to whether counsel consulted with him about his right to testify.
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Feliciano’s proposed testimony did not give rise to a reasonable probability of a
different trial outcome because there was ample evidence of his participation in the
conspiracy and the jury chose to believe Ortega and Goenaga despite defense
counsel’s impeachment of them. Nevertheless, the court later granted Feliciano a
COA on the issue of whether it should have held an evidentiary hearing before
rejecting his claim of ineffective assistance of counsel.2
II.
On appeal, Feliciano contends that the district court erred in declining to
hold an evidentiary hearing because the record was silent as to whether trial
counsel consulted with him about his right to testify, and the court could not
predict whether his proposed testimony would have affected the jury’s verdict.
Feliciano further argues that there is a reasonable probability that his proposed
testimony would have altered the outcome of the trial given the “minimal”
evidence implicating him in the conspiracy and the impeached testimony of the
cooperating co-conspirators.
We review the denial of an evidentiary hearing on a § 2255 motion for an
abuse of discretion. Aron v. United States, 291 F.3d 708, 714 n.5 (11th Cir. 2002).
2
The district court specifically granted a COA “on the issue of whether [it] should have held an
evidentiary hearing to determine whether trial counsel prevented Feliciano from testifying at
trial.” Nonetheless, given the district court’s findings, it is evident that the real issue on appeal is
whether it erred in declining to hold an evidentiary hearing to determine whether Feliciano was
prejudiced by trial counsel’s performance.
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A district court is required to hold an evidentiary hearing on a motion to vacate a
sentence “[u]nless 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(b). Accordingly,
if a prisoner “alleges facts that, if true, would entitle him to relief, then the district
court should order an evidentiary hearing.” Aron, 291 F.3d at 714–15 (quotation
marks omitted).
A defendant has a fundamental constitutional right to testify on his own
behalf, and that right cannot be waived by defense counsel. United States v.
Teague, 953 F.2d 1525, 1532 (11th Cir. 1992) (en banc). The appropriate vehicle
for challenging defense counsel’s alleged violation of this right is a claim of
ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052 (1984). Id. at 1534. In order to satisfy the standard articulated in
Strickland, a prisoner must show both that counsel’s performance was deficient,
and the deficient performance prejudiced his defense. 466 U.S. at 687, 104 S.Ct. at
2064. Because the failure to establish either deficient performance or prejudice is
dispositive, a court ruling on an ineffective-assistance claim need not address both
prongs if the movant makes an insufficient showing as to either one. Windom v.
Sec’y, Dep’t of Corr., 578 F.3d 1227, 1248 (11th Cir. 2009).
To prove prejudice, a prisoner must demonstrate that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
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proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. Prejudice
requires a “substantial”, not merely “conceivable,” likelihood of a different result.
Harrington v. Richter, — U.S. —, 131 S.Ct. 770, 792 (2011). In making this
determination, courts “must consider the totality of the evidence before the judge
or jury.” Strickland, 466 U.S. at 695, 104 S.Ct. at 2069. “[A] verdict or
conclusion only weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record support.” Id. at 696, 104
S.Ct. at 2069.
The district court did not abuse its discretion in resolving Feliciano’s
ineffective-assistance claim without conducting an evidentiary hearing. The
district court assumed that counsel rendered deficient performance by preventing
Feliciano from testifying at trial, and thus was left with the purely legal question of
whether Feliciano’s proposed testimony, when assessed in light of the evidence
adduced at trial, created a reasonable probability of a different outcome. Given its
assumptions, the district court was not required to hold an evidentiary hearing to
determine whether trial counsel did, in fact, prevent Feliciano from testifying. And
contrary to Feliciano’s suggestion that the district court could not conclusively rule
on the issue of prejudice without an evidentiary hearing, the prejudice inquiry
necessarily requires a court to speculate as to the effect of omitted evidence on the
entire evidentiary picture before a judge or jury. See Sears v. Upton, — U.S. —,
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130 S.Ct. 3259, 3266 (2010) (emphasizing that the prejudice inquiry necessarily
requires “a court to ‘speculate’ as to the effect of the new evidence”).
Moreover, the district court properly concluded that Feliciano failed to
demonstrate a reasonable probability that his proposed testimony would have
altered the outcome of the trial. As we noted on his direct appeal, ample evidence
was presented to show that Feliciano participated in the charged conspiracy. See
Feliciano, 300 F. App’x at 799–800, 803. Ortega and Goenaga directly implicated
Feliciano in the planned robbery of a cocaine stash house, testifying that he agreed
to serve as a lookout in exchange for a kilogram of cocaine. Their testimony was
corroborated by cell phone records introduced by the government, which showed
that, on the morning of the planned robbery, seven calls were made between
Ortega’s and Feliciano’s phones, two were made between Ortega’s and Goenaga’s
phones, and two were made between Feliciano’s and Goenaga’s phones. Feliciano
was also arrested along with the other co-conspirators while en route to a pre-
arranged meeting location on the day of the planned robbery. At the time of his
arrest, Feliciano was driving a car with Goenaga as his passenger.
When weighed against the strong evidence of his guilt, Feliciano’s proposed
testimony does not create a substantial likelihood of a different outcome. To the
extent Feliciano wished to personally impeach the credibility of Ortega and
Goenaga, his proposed testimony was largely cumulative of the information
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elicited by defense counsel on cross-examination. See Sochor v. Sec’y, Dep’t of
Corr., 685 F.3d 1016, 1032 (11th Cir. 2012) (noting that a movant cannot
demonstrate prejudice with evidence that is largely cumulative of that already
presented at trial). At trial both Ortega and Goenaga openly admitted to being
lifelong criminals, previously lying about various details of the planned robbery,
and hoping to receive reduced sentences in exchange for testifying against
Feliciano. Nevertheless, despite defense counsel’s vigorous cross-examination, the
jury still elected to believe their testimony about Feliciano’s role in the conspiracy.
Furthermore, to the extent Feliciano intended to profess his innocence, there is
little to suggest that the jury would have believed his testimony over that of his co-
conspirators, particularly given the other evidence of his guilt. As we have long
emphasized, a defendant who testifies runs the risk that a jury will both disbelieve
his testimony and “conclude that the opposite of his testimony is true.” Atkins v.
Singletary, 965 F.2d 952, 961 n.7 (11th Cir. 1992)
Because the record conclusively showed that Feliciano could not
demonstrate that he was prejudiced by trial counsel’s performance, the district
court did not abuse its discretion in declining to hold an evidentiary hearing. We
therefore affirm the denial of Feliciano’s § 2255 motion to vacate sentence.
AFFIRMED.
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