USCA11 Case: 20-11844 Date Filed: 12/14/2021 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11844
Non-Argument Calendar
____________________
IGOR POLSHYN,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cv-00963-SCB-JSS
____________________
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2 Opinion of the Court 20-11844
Before LUCK, ANDERSON, and EDMONDSON, Circuit Judges.
PER CURIAM:
Igor Polshyn, a federal prisoner proceeding pro se, 1 appeals
the district court’s denial of his
28 U.S.C. § 2255 motion to vacate.
We granted Polshyn a certificate of appealability on two issues: (1)
whether Polshyn’s trial lawyer rendered ineffective assistance by
failing to communicate a December 2015 plea offer to Polshyn; and
(2) whether the district court abused its discretion when it denied
that ineffective-assistance-of-counsel claim without holding an evi-
dentiary hearing.2 No reversible error has been shown; we affirm.
We review the district court’s denial of an evidentiary hear-
ing in a section 2255 proceeding for abuse of discretion. See Griffith
v. United States,
871 F.3d 1321, 1329 (11th Cir. 2017). “A district
court abuses its discretion if it applies an incorrect legal standard,
applies the law in an unreasonable or incorrect manner, follows
1 We read liberally briefs filed by pro se litigants. See Timson v. Sampson,
518
F.3d 870, 874 (11th Cir. 2008).
2 To the extent Polshyn seeks to adopt arguments made by his co-defendant
in a separate
28 U.S.C. § 2255 proceeding or asserts arguments on behalf of his
co-defendant, those arguments are outside the scope of the certificate of ap-
pealability. The arguments are not properly before us in this appeal. See
McKay v. United States,
657 F.3d 1190, 1195 (11th Cir. 2011).
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20-11844 Opinion of the Court 3
improper procedures in making a determination, or makes findings
of fact that are clearly erroneous.”
Id.
Generally speaking, a district court should hold an eviden-
tiary hearing on a section 2255 motion to vacate “[u]nless the mo-
tion and the files and records of the case conclusively show that the
prisoner is entitled to no relief.” See
28 U.S.C. § 2255(b); Griffith,
871 F.3d at 1329. A petitioner is entitled to an evidentiary hearing
if he alleges “reasonably specific, non-conclusory facts that, if true,
would entitle him to relief.” Griffith, 871 F.3d at 1329. A hearing
is unnecessary, however, when the petitioner’s “allegations are pa-
tently frivolous, based upon unsupported generalizations, or af-
firmatively contradicted by the record.” Winthrop-Redin v. United
States,
767 F.3d 1210, 1216 (11th Cir. 2014) (quotations omitted).
In the context of an ineffective-assistance-of-counsel claim, a
petitioner is entitled to an evidentiary hearing if he alleges facts that
show both (1) that his lawyer’s performance was deficient and (2)
that the deficient performance prejudiced his defense. Griffith, 871
F.3d at 1329 (citing Strickland v. Washington,
466 U.S. 668 (1984)).
To show deficient performance, “a petitioner must establish that
no competent counsel would have taken the action that his counsel
did take.” United States v. Freixas,
332 F.3d 1314, 1319-20 (11th Cir.
2003). To establish prejudice, a petitioner “must show that there is
a reasonable probability that, but for counsel’s unprofessional er-
rors, the result of the proceeding would have been different.”
Strickland,
466 U.S. at 694. “A reasonable probability is a probabil-
ity sufficient to undermine confidence in the outcome.”
Id.
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4 Opinion of the Court 20-11844
In his pro se section 2255 motion,3 Polshyn alleged that his
lawyer never notified him about a plea offer made by the prosecu-
tion in December 2015. Polshyn says he first learned of the plea
offer after trial and sentencing when reviewing his lawyer’s files. 4
Had his lawyer conveyed properly the plea offer, Polshyn says a
reasonable probability exists that he would have pleaded guilty. 5
A criminal defense lawyer “has the duty to communicate
formal offers from the prosecution to accept a plea on terms and
conditions that may be favorable to the accused.” Missouri v. Frye,
566 U.S. 134, 145 (2012). A lawyer’s failure to convey a plea agree-
ment thus constitutes deficient performance under Strickland.
Id.
3 We construe liberally pro se pleadings. See Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998).
4 As an exhibit to his section 2255 motion, Polshyn submitted a letter (dated
14 December 2015) sent by the prosecutor to Polshyn’s lawyer and to the law-
yer for Polshyn’s co-defendant. In pertinent part, the letter references “plea
agreements” and “proffer agreements” purportedly enclosed with the letter.
The letter also directs each lawyer to review the agreements with his client.
The record contains no copy of the referenced plea agreements and no evi-
dence about the proposed terms (for example, years to be served) of those
agreements.
5 In his section 2255 motion, Polshyn says there was a “reasonable probability”
and a “high probability” that he would have accepted a plea agreement that
allowed him to avoid a 25-year sentence. In a later-filed affidavit, Polshyn said
he would have pleaded guilty had the government presented a “reasonable”
offer, which he says could have been an offer for “anything from 8 to 10, 12
years.” On appeal, Polshyn makes no argument that he would have accepted
a plea offer had it been conveyed to him.
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20-11844 Opinion of the Court 5
at 145, 147. Accepting Polshyn’s factual allegations as true, 6 Pol-
shyn has alleged facts sufficient to show that his lawyer’s perfor-
mance was deficient.
Even if Polshyn can satisfy the first element under Strick-
land, Polshyn has failed to satisfy his burden of showing prejudice.
To establish his entitlement to an evidentiary hearing, Polshyn had
to make a credible allegation that -- but for his lawyer’s alleged fail-
ure to convey the government’s plea offer -- Polshyn would have
accepted the plea offer and pleaded guilty. See Rosin v. United
States,
786 F.3d 873, 878 (11th Cir. 2015). Although not dispositive,
we have said that a defendant’s denial of guilt is a pertinent factor
to consider in determining whether a defendant would have ac-
cepted a plea offer. See Osley, 751 F.3d at 1224-25 (concluding that
petitioner established no prejudice in part because petitioner’s “in-
sistence on his innocence, both before and after trial, makes it more
difficult to accept his claim that he would have taken a fifteen-year
plea deal.”).
In Rosin, we concluded that the district court abused no dis-
cretion in denying -- without an evidentiary hearing -- Rosin’s sec-
tion 2255 motion. 786 F.3d at 879. We determined that Rosin’s
“conclusory after-the-fact assertion” that he would have accepted a
guilty plea but for his trial lawyer’s alleged errors was “affirma-
tively contradict[ed]” by the record. Id. at 878-79. In making that
6 For purposes of this appeal, we accept as true Polshyn’s assertion that a plea
offer existed and that his lawyer failed to convey that plea offer.
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6 Opinion of the Court 20-11844
determination, we considered this record evidence: (1) affidavits
from Rosin’s lawyers describing Rosin’s insistence on going to trial
and on maintaining his innocence; (2) Rosin’s trial testimony blam-
ing others for his situation and claiming he was the victim of a “set
up”: testimony we said “reflected an infinite resolve to proclaim his
innocence” and manifested no intention to accept responsibility;
and (3) Rosin’s refusal at the sentencing hearing to accept personal
responsibility for the alleged conduct. Id.
As in Rosin, the record in this case contradicts affirmatively
Polshyn’s assertion that he would have pleaded guilty and accepted
a plea offer had one been conveyed to him. Throughout the ex-
tended criminal proceedings -- proceedings that included two dif-
ferent full jury trials 7 -- Polshyn asserted consistently that he was
innocent of the drug-trafficking offenses and wanted to proceed to
trial. Affidavits filed by both of Polshyn’s trial lawyers describe Pol-
shyn’s insistence on going to trial and on maintaining his inno-
cence. According to one of Polshyn’s lawyers, Polshyn also refused
to debrief with the government in exchange for a possible down-
ward departure under U.S.S.G. § 5K1.1.
At both his first and second jury trials, Polshyn testified in
his own defense and under oath maintained his innocence. Accord-
ing to Polshyn’s trial testimony, he and his co-defendant -- while
sailing at night in the open sea -- discovered by accident the illegal
7 The first trial resulted in a mistrial after the jury was unable to reach a ver-
dict.
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20-11844 Opinion of the Court 7
drugs when their rented sailboat became ensnared in ropes at-
tached to wrapped packages of cocaine.
Polshyn also continued to assert his innocence after the jury
found him guilty. Polshyn filed objections to the Presentence In-
vestigation Report, in which he objected both to the factual de-
scription of the offense conduct and to the application of an ob-
struction-of-justice sentencing enhancement for committing per-
jury at trial. Polshyn maintained that he testified truthfully at trial
and that he was innocent of the charged offense. During his com-
ments at the sentencing hearing, Polshyn indicated that he was the
victim of injustice; Polshyn took no responsibility for his conduct.
This record evidence is enough to refute Polshyn’s “conclu-
sory after-the-fact assertion” that he would have accepted the pro-
posed plea offer. See Rosin, 786 F.3d at 878-79 (concluding that the
record “patently contradict[ed]” petitioner’s claim that he would
have accepted a plea when the evidence showed that petitioner
“persistently refused to accept responsibility and adamantly pro-
fessed his innocence during all stages of his criminal proceedings”).
On this record, Polshyn has made no credible allegation that he
was prejudiced by his lawyer’s alleged failure to convey the plea
offer.
Because Polshyn has failed to allege facts sufficient to show
that he is entitled to relief, the district court abused no discretion in
denying Polshyn’s ineffective-assistance-of-counsel claim without
holding an evidentiary hearing.
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8 Opinion of the Court 20-11844
AFFIRMED.
