Kent Frank v. United States , 522 F. App'x 779 ( 2013 )


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  •             Case: 12-13930   Date Filed: 07/01/2013   Page: 1 of 7
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 12-13930
    Non-Argument Calendar
    ________________________
    D.C. Docket Nos. 1:11-cv-20507-FAM,
    1:04-cr-20778-AJ-1
    KENT FRANK,
    Petitioner-Appellant,
    versus
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (July 1, 2013)
    Before DUBINA, Chief Judge, CARNES and BARKETT, Circuit Judges.
    PER CURIAM:
    Case: 12-13930     Date Filed: 07/01/2013    Page: 2 of 7
    Appellant Kent Frank appeals the district court’s denial of his 
    28 U.S.C. § 2255
     motion to vacate. After denying Frank’s § 2255 motion, the district court
    granted him a certificate of appealability on the issue of whether he was denied
    effective assistance of counsel during plea negotiations when he followed the
    advice of his attorney to reject a five-year plea offer from the government and
    proceed to trial. On appeal, Frank argues that his counsel rendered ineffective
    assistance by advising him to reject the government’s five-year plea offer, and that
    subsequently, he suffered prejudice when he was convicted and sentenced to a total
    of 40 years’ imprisonment.
    With regard to a district court’s denial of a motion to vacate under 
    28 U.S.C. § 2255
    , we review legal conclusions de novo and findings of fact for clear error.
    Lynn v. United States, 
    365 F.3d 1225
    , 1232 (11th Cir. 2004). A claim of
    ineffective assistance of counsel is a mixed question of law and fact that is subject
    to de novo review. Caderno v. United States, 
    256 F.3d 1213
    , 1216-1217 (11th Cir.
    2001).
    We accord considerable deference to the district court’s credibility findings.
    United States v. Ramirez-Chilel, 
    289 F.3d 744
    , 749 (11th Cir. 2002). “Credibility
    determinations are typically the province of the fact finder because the fact finder
    personally observes the testimony and is thus in a better position than a reviewing
    court to assess the credibility of witnesses.” 
    Id.
     Specifically in a 
    28 U.S.C. § 2255
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    proceeding, we “allot substantial deference to the factfinder in reaching credibility
    determinations with respect to witness testimony.” Devine v. United States, 
    520 F.3d 1286
    , 1287 (11th Cir. 2008) (internal quotation marks omitted).
    The Sixth Amendment gives criminal defendants the right to effective
    assistance of counsel. U.S. Const., amend. VI; Strickland v. Washington, 
    466 U.S. 668
    , 684-86, 
    104 S. Ct. 2052
    , 2063, 
    80 L. Ed. 2d 674
     (1984). To prevail on a
    claim of ineffective assistance of counsel, the defendant must demonstrate: (1) that
    his counsel’s performance was deficient, i.e., the performance fell below an
    objective standard of reasonableness; and (2) that he suffered prejudice as a result
    of that deficient performance. Strickland, 
    466 U.S. at 687-88
    , 
    104 S. Ct. at
    2064-
    65. A habeas petitioner claiming ineffective assistance of counsel must succeed on
    both prongs of the Strickland test. Johnson v. Alabama, 
    256 F.3d 1156
    , 1176 (11th
    Cir. 2001). Further, we need not “address both components of the inquiry if the
    defendant makes an insufficient showing on one.” Strickland, 
    466 U.S. at 697
    , 
    104 S. Ct. at 2069
    .
    To meet the deficient performance prong of Strickland, the defendant must
    show that counsel made errors so serious that he was not functioning as the counsel
    guaranteed by the Sixth Amendment. 
    Id. at 687
    , 
    104 S. Ct. at 2064
    . There is a
    strong presumption that counsel’s conduct fell within the range of reasonable
    professional assistance. 
    Id. at 689
    , 
    104 S. Ct. at 2065
    . Counsel’s performance is
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    deficient only if it falls below the wide range of competence demanded of
    attorneys in criminal cases. 
    Id.
    Under Strickland, a petitioner pursuing a claim of ineffective assistance of
    counsel must also demonstrate prejudice. Purvis v. Crosby, 
    451 F.3d 734
    , 743
    (11th Cir. 2006). Prejudice is a “reasonable probability that, but for counsel’s
    unprofessional errors, the result of the proceeding would have been different.”
    Strickland, 
    466 U.S. at 694
    , 
    104 S. Ct. at 2068
    . A reasonable probability is one
    sufficient to undermine confidence in the outcome. 
    Id.
     It is not enough for the
    defendant to show that the error had some conceivable effect on the outcome of the
    proceeding. 
    Id. at 693
    , 
    104 S. Ct. at 2067
    . Rather, he must show that the result
    would have been different. 
    Id.
    In Missouri v. Frye, 566 U.S. ___, 
    132 S. Ct. 1399
     (2012), and Lafler v.
    Cooper, 566 U.S. ___, 
    132 S. Ct. 1376
     (2012), the Supreme Court held that the
    Sixth Amendment right to effective assistance of counsel extends to plea
    negotiations. Frye, 566 U.S. ___, 132 S. Ct. at 1404-08; Lafler, 566 U.S. at ___,
    132 S. Ct. at 1384. Thus, criminal defendants are “entitled to the effective
    assistance of competent counsel” during plea negotiations. Lafler, 566 U.S. at ___,
    132 S. Ct. at 1384 (internal quotation marks omitted). The Court also considered
    how to apply the prejudice prong of the ineffective-assistance-of-counsel test set
    forth in Strickland and concluded that, in order to show prejudice, a defendant
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    must demonstrate a reasonable probability that: (1) he would have accepted a plea
    offer but for counsel’s ineffective assistance; (2) the plea would have been entered
    without the prosecution canceling it or the trial court refusing to accept it; and
    (3) the plea would have resulted in a lesser charge or a lower sentence. Frye, 566
    U.S. at ___, 132 S. Ct. at 1409; Lafler, 566 U.S. at ___, 132 S. Ct. at 1384-85.
    Moreover, we have also held that the Strickland two-part test applies to challenges
    to guilty pleas based on ineffective assistance of counsel. United States v. Pease,
    
    240 F.3d 938
    , 941 (11th Cir. 2001).
    We conclude from the record here that the district court did not err in finding
    that Frank failed to establish ineffective assistance of counsel. First, with regard to
    the deficient-performance prong of Strickland, Frank did not show that his attorney
    made errors so serious that he was no longer functioning as the counsel guaranteed
    by the Sixth Amendment. See Strickland, 
    466 U.S. at 687
    , 
    104 S. Ct. at 2064
    . The
    record shows that Frank’s attorney apprised him of the relevant maximum
    penalties that could apply if he rejected the government’s plea offer and was
    convicted at trial. Additionally, Frank himself acknowledged that he had read the
    indictment and, therefore, knew of the potential maximum penalties he faced if
    convicted. Therefore, giving substantial deference to the factfinder below, the
    magistrate judge did not clearly err by finding that Frank knew of the potential
    sentencing exposure he faced if convicted at trial, or by finding any of Frank’s
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    contrary testimony not credible. See Devine, 
    520 F.3d at 1287
    . Accordingly,
    counsel’s performance did not fall below an objective standard of reasonableness,
    and Frank has not demonstrated that said performance was constitutionally
    deficient. See Strickland, 
    466 U.S. at 687-88
    , 
    104 S. Ct. at 2064-65
    .
    Moreover, even assuming that counsel’s representation was constitutionally
    deficient, Frank still does not succeed on his claim of ineffective assistance of
    counsel because he did not suffer any prejudice. The record shows that Frank
    would not accept any plea offer from the government that required him to register
    as a sex offender—as the government’s plea offer did, in fact, require. Therefore,
    he has not shown that he would have accepted the plea offer even if counsel had
    advocated doing so. Further, even if Frank had accepted the government’s five-
    year plea offer, he still would not have suffered prejudice under Strickland because
    the district court stated, unequivocally, that no judge in the Southern District of
    Florida “ever accepts” Rule 11(c)(1)(C) plea agreements such as the government’s
    offer here. Therefore, even if Frank had accepted the plea offer, he has not shown
    that the outcome of his case would have been any different. Thus, he has not
    demonstrated prejudice under Strickland. See Strickland, 
    466 U.S. at 694
    , 
    104 S. Ct. at 2068
    .
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    Accordingly, as Frank has demonstrated neither deficient performance nor
    prejudice under Strickland, we hold that the district court did not err in denying his
    § 2255 motion to vacate.
    AFFIRMED.
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