John W. Goff v. United States ( 2017 )

Case: 16-13362 Date Filed: 07/13/2017 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-13362
Non-Argument Calendar
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D.C. Docket Nos. 2:12-cv-00053-MHT-WC; 2:07-cr-00322-MHT-WC-1
JOHN W. GOFF,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(July 13, 2017)
Before MARCUS, WILSON and BLACK, Circuit Judges.
PER CURIAM:
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John Goff, a federal prisoner, appeals the district court’s denial of his 28
U.S.C. § 2255 motion to vacate his total 144-month sentence, which was imposed
after a jury convicted him of embezzlement of insurance company funds, making a
false material statement to an insurance regulatory agency, and multiple counts of
mail fraud. The district court granted a certificate of appealability on two issues:
(1) whether Goff lacked effective assistance of counsel; and (2) whether Goff was
improperly denied an evidentiary hearing on the § 2255 motion. After review,1 we
affirm the district court.
I. DISCUSSION
A. Ineffective Assistance of Counsel
To establish an ineffective assistance of counsel claim, a defendant must
show that (1) counsel’s representation fell below an objective standard of
reasonableness and (2) such failure prejudiced him in that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
687-88, 694, (1984). Which witnesses, if any, to call, and when to call them, is the
epitome of a strategic decision that will seldom, if ever, serve as grounds to find
counsel constitutionally ineffective. Conklin v. Schofield, 366 F.3d 1191, 1204
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When reviewing the district court’s denial of a motion to vacate, we review legal issues
de novo and findings of fact for clear error. Lynn v. United States, 365 F.3d 1225, 1232 (11th
Cir. 2004). We review the district court’s denial of an evidentiary hearing in a § 2255
proceeding for an abuse of discretion. Rosin v. United States, 786 F.3d 873, 877 (11th Cir.
2015).
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(11th Cir. 2004). Even if in retrospect a strategy taken by counsel “appears to have
been wrong, the decision will be held ineffective only if it was so patently
unreasonable that no competent attorney would have chosen it.” Adams v.
Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983).
The record reflects that counsel’s decision not to present advice-of-counsel
evidence was a strategic decision, which does not fall below an objective standard
of reasonableness. See Strickland, 466 U.S. at 687-88, 694; Conklin, 366 F.3d at
1204. Jeremy Walker’s memorandum, the pre-trial and trial transcripts, and
affidavits by Walker, Milton Davis, and Donald Jones all support the contention
the defense team decided not to present the advice-of-counsel defense as a trial
strategy because it would do more harm than good. Counsel was unsure what
Jamie Johnston would say on the witness stand, and they thought Thomas Gallion
might invoke his Fifth Amendment privilege, which could have reflected poorly on
Goff in front of the jury. The choice not to call either of them as witnesses was not
so patently unreasonable that no competent lawyer would have chosen it, and was
the epitome of a strategic decision. See Adams, 709 F.2d at 1445; Conklin, 366
F.3d at 1204. Because Goff is unable to meet Strickland’s first prong, he is unable
to show his counsel was ineffective.
As to conflict of interest, a defendant must demonstrate that an actual
conflict existed and that the conflict affected his representation. Cuyler v. Sullivan,
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446 U.S. 335, 348-49 (1980). “A mere possibility of conflict does not rise to the
level of a Sixth Amendment violation.” Buenoano v. Singletary, 74 F.3d 1078,
1086 (11th Cir. 1996).
Goff did not establish an actual conflict, only a possible conflict, because
trial counsel worked in the same firm as attorney Gallion, who may have had a
conflict of interest in protecting himself from criminal prosecution. Even if there
had been a conflict, however, Goff did not show the conflict affected his
representation, as the affidavits from Goff’s trial counsel show the decision not to
call advice-of-counsel witnesses was a strategic trial decision, not a decision made
to protect the firm or other attorneys. See Cuyler, 446 U.S. at 348-49.
B. Evidentiary Hearing
Under 28 U.S.C. § 2255(b), unless the motion, the files, and the records of
the case conclusively show the prisoner is entitled to no relief, the court shall grant
an evidentiary hearing. 28 U.S.C. § 2255(b). A district court need not hold an
evidentiary hearing if the allegations are affirmatively contradicted by the record.
Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015).
The record, including the attorney affidavits, the pre-trial and trial
transcripts, and Walker’s memorandum, were sufficient to show that Goff was not
entitled to relief on a theory of ineffective assistance of counsel, as discussed
above, so a hearing was not warranted. See 28 U.S.C. § 2255(b).
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II. CONCLUSION
The district court did not err in denying Goff’s § 2255 motion, or abuse its
discretion in denying his motions for an evidentiary hearing. We affirm.
AFFIRMED.
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