USCA11 Case: 21-13575 Document: 43-1 Date Filed: 02/02/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13575
Non-Argument Calendar
____________________
DONATUS O. MBANEFO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket Nos. 7:20-cv-00108-HL-TQL,
7:16-cr-00002-HL-TQL-6
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2 Opinion of the Court 21-13575
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Before JORDAN, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
Dr. Donatus Mbanefo claims that his trial counsel was
ineffective, forcing him not to testify at his criminal trial and failing
to introduce certain evidence. Because he has not satisfied the
Strickland standard for ineffective assistance of counsel, we affirm.
I.
This is Dr. Donatus Mbanefo’s third appeal stemming from
his conviction. After a jury trial, he was convicted of conspiracy to
distribute controlled substances in violation of
21 U.S.C. § 846 and
two substantive counts of unlawful dispensation of a controlled
substance under
21 U.S.C. § 841(a)(1), (b)(1)(C), and (b)(2). When
Dr. Mbanefo challenged the sufficiency of the evidence, the jury
instructions, and the court’s drug quantity findings, this Court
affirmed his conviction and sentence. United States v. Bacon, 809
F. App’x. 757 (11th Cir. 2020). We also affirmed the district court’s
denial of his motion for a new trial. United States v. Mbanefo, No.
21-13693,
2022 WL 2983856 (11th Cir. July 28, 2022). Against the
backdrop of those two decisions, we give limited additional
background.
In this appeal, we review the court’s denial of Dr. Mbanefo’s
28 U.S.C. § 2255 motion. In the motion, he describes ten grounds
for ineffective assistance of counsel, all of which the magistrate
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21-13575 Opinion of the Court 3
judge below rejected without holding an evidentiary hearing. The
court then adopted the magistrate judge’s recommendation that
the motion be denied. When Dr. Mbanefo appealed, we granted a
certificate of appealability as to two of his grounds for relief.
For the first ground, Dr. Mbanefo alleges that his attorney
forced him into not testifying. He claims that in the lead-up to trial,
he and his attorney planned for him to testify and met in person
twice to discuss trial strategy. On the morning of his planned
testimony, Dr. Mbanefo says he met his attorney at the courthouse
to prepare for the examination. To his surprise, his attorney had
organized no questions for the examination and told Dr. Mbanefo
not to take the stand. After a “heated, ugly argument,” Dr.
Mbanefo claims, his counsel threatened to withdraw if he decided
to testify and told him he would have to proceed pro se.
This is why, Dr. Mbanefo says, he told the court he did not
wish to testify. In support of this story, he produced an email
exchange with his counsel dated two days before the government
rested its case. In the messages, Dr. Mbanefo’s counsel advised him
that he needed “to be prepared to explain, both on direct and on
cross” how his medical treatment complied with the pain
medication regulations. Dr. Mbanefo argues that this shows an
abrupt shift in trial strategy and supports that a threat was made.
The court was unconvinced. The magistrate judge decided
that Dr. Mbanefo had provided only “unsupported allegations” to
support his claims, allegations that “directly contradict his
statements” at trial. Moreover, Dr. Mbanefo had not shown, the
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court reasoned, that the result of the proceeding would have been
different if he had testified, so his counsel’s actions could not have
caused any harm.
For the second ground, Dr. Mbanefo claims that his attorney
withheld exculpatory evidence. He lists six documents that he said
should have been presented at trial. This evidence includes emails
that Dr. Mbanefo says show that he was deceived and pressured by
the owners of the pain clinic where he worked; an airline
reservation showing that he extended his trip to Africa to the
detriment of the clinic; and an email from the Georgia Composite
Medical Board requesting that he attend a voluntary interview as
part of an investigation into his prescribing practices. For this
ground, the magistrate judge concluded that counsel’s choice not
to introduce this evidence could be considered “sound trial
strategy” and therefore could not be ineffective assistance.
II.
In considering a district court’s denial of a § 2255 motion, we
review findings of fact for clear error and questions of law de novo.
McKay v. United States,
657 F.3d 1190, 1195 (11th Cir. 2011). We
review the decision not to grant an evidentiary hearing in a § 2255
proceeding for abuse of discretion. Winthrop-Redin v. United
States,
767 F.3d 1210, 1215 (11th Cir. 2014). Because Dr. Mbanefo
proceeds pro se, we will liberally construe his filings.
Id.
III.
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Under
28 U.S.C. § 2255, a federal prisoner may move to
vacate his sentence on the ground that it “was imposed in violation
of the Constitution or laws of the United States.”
28 U.S.C.
§ 2255(a). When evaluating such a motion, the court should hold
a hearing unless “the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief.”
Id.
§ 2255(b). This means that a prisoner is entitled to a hearing if he
“alleges facts that, if true, would entitle him to relief.” Winthrop-
Redin,
767 F.3d at 1216 (quotation omitted). But the court “need
not hold a hearing if the allegations are patently frivolous, based
upon unsupported generalizations, or affirmatively contradicted
by the record.”
Id. (quotation omitted).
Both of Dr. Mbanefo’s grounds for relief require a Strickland
test for ineffective assistance of counsel. See Strickland v.
Washington,
466 U.S. 668 (1984). For the first ground, Dr.
Mbanefo alleges that his attorney coerced him not to testify; thus,
Strickland is the proper framework. Nichols v. Butler,
953 F.2d
1550, 1552 (11th Cir. 1992) (en banc). The same is true for the
second ground, which involves an attorney’s alleged failure to
introduce evidence. See Kelley v. Sec’y for the Dep’t of Corr.,
377
F.3d 1317, 1351 (11th Cir. 2004).
A Strickland claim has two components: deficiency and
prejudice.
466 U.S. at 687. An attorney is deficient if his
representation “fell below an objective standard of
reasonableness.”
Id. at 688. Prejudice results when “there is a
reasonable probability that, but for counsel’s unprofessional errors,
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the result of the proceeding would have been different.”
Id. at 694.
To succeed on an ineffective assistance claim, a claimant must
show both deficiency and prejudice. See
id. at 687.
Neither of Dr. Mbanefo’s claims pass muster under
Strickland.
A.
For his first ground—that he was allegedly forced not to
testify—counsel’s performance was not deficient. Of course, the
“testimony of a criminal defendant at his own trial is unique and
inherently significant.” Nichols,
953 F.2d at 1553. As a result, an
attorney’s performance can be deficient if he threatens withdrawal
to force a client not to testify.
Id. But although Dr. Mbanefo has
presented a detailed story to that effect, his allegations are
contradicted by the record, and so we agree with the district court
that no evidentiary hearing was required. See Winthrop-Redin,
767 F.3d at 1216.
The record reveals a rigorous inquiry into whether Dr.
Mbanefo wished to testify. The court first explained in detail a
defendant’s testimony rights and confirmed that Dr. Mbanefo
understood. Then it asked whether he had discussed his rights with
his attorney, which he affirmed. The court emphasized that only
Dr. Mbanefo could make the decision whether to testify and that
his lawyer “can’t make it for you.” In addition, Dr. Mbanefo’s
counsel had already—on the record—told the court that he had
explained these rights to Dr. Mbanefo, including that the decision
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is “his alone to make” and that “he has decided that he is not going
to testify.” (emphasis added). This contradicts Dr. Mbanefo’s
claims.
Even if counsel were deficient, however, Dr. Mbanefo has
not shown the required prejudice. None of his proposed
testimony, even if true, creates a “reasonable probability” that the
outcome of the trial would have been different. He says that he
would have testified that he had been deceived and threatened by
the owners of the clinic and had expressed concerns to a Drug
Enforcement Administration investigator. But the jury had already
heard the same or substantially similar evidence. He also describes
how he extended his trip to Africa, which caused havoc at the
understaffed clinic. But this allegation does not negate any of the
elements of his crimes as charged to the jury.
Finally, he says he would have testified that he had “acted
responsibly within the bounds of medically accepted procedure”
while consulting at the clinic. This allegation, if true, would strike
at the heart of the convictions. Yet it is no more than an
unsupported generalization, and as such required no further
development through an evidentiary hearing. See Winthrop-
Redin,
767 F.3d at 1216. Dr. Mbanefo never explained to the
district court why his prescribing practices were medically
legitimate. 1 Even if he had, he could not show prejudice: any
1On appeal, Dr. Mbanefo included an explanation, but because it was not
before the district court, we cannot consider it. See Access Now, Inc. v. Sw.
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proposed testimony about medical legitimacy inspires no
reasonable probability of a different outcome in the face of the
overwhelming evidence underpinning Dr. Mbanefo’s convictions.
Cf. Bacon, 809 F. App’x. at 758 n.1, 759.
In sum, the district court did not abuse its discretion in
declining to hold an evidentiary hearing about Dr. Mbanefo’s
decision not to testify, and because he cannot show deficiency or
prejudice, this claim of ineffective assistance of counsel fails.
B.
Dr. Mbanefo also claims that his attorney failed to introduce
exculpatory evidence, but he has not shown that his attorney’s
performance was deficient in this regard. “Judicial scrutiny of
counsel’s performance must be highly deferential” and a “strong
presumption” exists that counsel’s conduct is professionally
reasonable. Strickland,
466 U.S. at 689. A court cannot judge an
attorney deficient if his approach “might be considered sound trial
strategy.” Chandler v. United States,
218 F.3d 1305, 1314 (11th Cir.
2000) (quotation omitted).
Just so here. Dr. Mbanefo again points to documents that
he says show he was deceived and pressured by the owners of the
clinic, expressed concerns about the clinic, and extended his trip to
Africa. It is not clear from the record whether Dr. Mbanefo’s
Airlines Co.,
385 F.3d 1324, 1331 (11th Cir. 2004). The same goes for some of
the evidence that Dr. Mbanefo claims, for the first time on appeal, should have
been introduced by his attorney.
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counsel knew about this evidence. But even assuming that he did,
and chose not to introduce it, this choice could be sound trial
strategy. An attorney could reasonably determine that duplicative
arguments and evidence were unnecessary or would be confusing
to the jury. After all, counsel “must be permitted to weed out some
arguments to stress others and advocate effectively.” Haliburton
v. Sec’y for the Dep’t of Corr.,
342 F.3d 1233, 1244 (11th Cir. 2003).
The same holds for the email from the Georgia Composite
Medical Board. The email describes an investigation into a
complaint or malpractice action against Dr. Mbanefo. On its face,
the email is not exculpatory—quite the opposite. The existence of
an independent investigation by a state agency could raise a red flag
for a jury. Dr. Mbanefo claims that the Board did not find him
“wanting or sanction him.” Even if true, an attorney could
reasonably believe that without documentary evidence to support
this exoneration, it was sound trial strategy to avoid the Board
investigation altogether.
* * *
For these reasons, the district court did not err in denying
Dr. Mbanefo’s § 2255 motion without an evidentiary hearing. We
AFFIRM.
