Kennedy Harris, Jr. v. United States

USCA11 Case: 21-10924 Document: 36-1 Date Filed: 05/08/2023 Page: 1 of 21
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10924
Non-Argument Calendar
____________________
KENNEDY HARRIS, JR.,
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. 6:19-cv-01040-RBD-GJK
____________________
USCA11 Case: 21-10924 Document: 36-1 Date Filed: 05/08/2023 Page: 2 of 21
2 Opinion of the Court 21-10924
Before JORDAN, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
Federal prisoner Kennedy Harris, Jr. appeals the district
court’s denial of his habeas petition without an evidentiary hearing.
We granted Harris a certificate of appealability on two grounds:
first, that Harris’s trial counsel provided ineffective assistance of
counsel by failing to introduce an expert report concluding Harris
was incompetent to stand trial, and second, that Harris’s appellate
counsel was ineffective for failing to appeal the admission of an in-
criminating 911 call. Because the record does not conclusively
show that Harris is entitled to no relief on this first claim, he is en-
titled to an evidentiary hearing. Because on this record Harris can-
not show he suffered prejudice as a result of appellate counsel’s fail-
ure to object to the admission of the 911 call on appeal, however,
he is not entitled to an evidentiary hearing on the second claim.
We vacate in part, affirm in part, and remand for an evidentiary
hearing as to Harris’s first claim.
I. Background
A federal jury convicted Harris of sex trafficking of a minor
child, in violation of 18 U.S.C. § 1591(a), b(1), and employing, us-
ing, persuading, inducing, enticing, or coercing a minor to engage
in sexually explicit conduct for the purposes of producing child por-
nography, in violation of 18 U.S.C. § 2251(a). The government al-
leged that Harris enticed a runaway 16-year-old girl into his care,
USCA11 Case: 21-10924 Document: 36-1 Date Filed: 05/08/2023 Page: 3 of 21
21-10924 Opinion of the Court 3
took sexually explicit photos of her, and used them to place adver-
tisements for commercial sex on a website called Backpage.com.
Before trial, Harris’s attorneys moved to file under seal a
motion to suppress statements Harris made to the police on the
grounds that he was incompetent to waive his Miranda rights. 1 See
Miller v. Dugger, 838 F.2d 1530, 1537–39 (11th Cir. 1988) (holding
that defendant must be competent to waive Miranda rights). In pre-
paring their motion to suppress, Harris’s attorneys evidently re-
tained an expert who prepared a report on Harris. But Harris’s trial
attorneys never filed their motion to suppress or presented their
expert’s analysis to the court. This was because the government
and Harris reached an agreement “that the Government will not
use Mr. Harris’s statement, and [defense counsel] will not call an
expert on Mr. Harris’s mental, mental infirmities, if you will, at
trial.” Crim Dkt. No. 49 at 16–17. 2
At trial, the United States introduced evidence of Harris’s ac-
tive role in a scheme to sex traffick the victim and coerce her into
engaging in prostitution. The government introduced a cell phone
1 See Miranda v. Arizona, 384 U.S. 436 (1966) (holding that statements ob-
tained by custodial interrogation of a criminal defendant without warning of
constitutional rights are inadmissible under the Fifth Amendment).
2 References to “Crim. Dkt.” in this opinion refer to the docket entries in the
district court in Harris’s underlying criminal case. United States v. Harris, no.
6:16-cr-00083 (M.D. Fla.). References to “Civ. Dkt.” refer to docket entries in
Harris’s habeas action in federal district court. Harris v. United States, no. 6:19-
cv-01040 (M.D. Fla.).
USCA11 Case: 21-10924 Document: 36-1 Date Filed: 05/08/2023 Page: 4 of 21
4 Opinion of the Court 21-10924
seized from Harris, as well as reports of the phone’s contents. Har-
ris’s phone contained web history showing repeated visits to Back-
page, emails regarding a Backpage listing, suggestive photographs
of the victim, and text messages soliciting sex. Harris’s phone also
contained a contact entry for “My $$$,” which corresponded to a
phone Harris gave to the victim.
Other evidence confirmed the existence of Harris’s scheme.
A confidential police informant testified that Harris left the victim
in the informant’s room, where the informant later heard Harris
call the victim and tell her to “get up, get dressed, and get ready
because she had a date to go to.” Crim. Dkt. No. 102 at 181. The
informant testified that the victim began to cry and that when she
objected to going, Harris told her “[y]ou’re going. That’s it.” Crim.
Dkt. No. 102 at 182. The informant also testified that Harris later
returned and collected the victim from the informant’s room. The
victim testified that, after that interaction, Harris took her to a ho-
tel room, where she had sex with a Backpage user—whom she later
identified in a lineup—in exchange for money. She gave the money
to Harris. She also testified that Harris took explicit photos of her
that later appeared on Backpage. Additional testimony showed that
the government recovered property belonging to the victim from
the same hotel where Harris brought her.
Other witnesses testified that Harris was in control of the
scheme. One specifically testified that Harris controlled the victim
by providing her with crack cocaine and another corroborated that
Harris gave the victim cocaine every day.
USCA11 Case: 21-10924 Document: 36-1 Date Filed: 05/08/2023 Page: 5 of 21
21-10924 Opinion of the Court 5
At trial, the government also sought to introduce an audio
recording of a 911 call. On the call, Chasitie Odom—an apparent
companion of Harris’s—told a local police department that she had
just left an apartment Harris was using. She reported that Harris
had a weapon and was holding the victim at the apartment. She
told the dispatcher that Harris was giving the victim drugs and
planned to put the victim on Backpage.com.
Harris’s counsel objected to the admission of the recording
arguing, among other things, that the recording contained hearsay.
The government responded that the call was a non-testimonial pre-
sent sense impression and thus admissible under the hearsay rules.
See Fed. R. Evid. 803(1). The government added that the call was
relevant to explain the response of police officers who went to the
apartment where Harris and the victim were located. After review-
ing the audio of the 911 call, the trial court agreed with the govern-
ment, and the jury heard the recorded call.
The government also introduced evidence about what hap-
pened after the phone call. In response to the call, police arrived at
the apartment, spoke with Harris and a companion, and located the
victim under a bathroom sink. A police officer and the victim each
independently described the nature of the 911 call, and the jury
watched body-camera footage of the police response. The victim
also described the incident that prompted the call, testifying that
Harris had a concealed gun and yelled at her not to leave the apart-
ment.
USCA11 Case: 21-10924 Document: 36-1 Date Filed: 05/08/2023 Page: 6 of 21
6 Opinion of the Court 21-10924
The jury found Harris guilty of all counts. Following the
trial, the district court appointed new counsel to represent Harris
at sentencing, due to ongoing disagreements between Harris and
trial counsel. Harris’s new counsel sought several continuances of
the sentencing hearing so that he had time to familiarize himself
with the record and to evaluate mitigation evidence. During this
period, sentencing counsel considered but did not pursue a compe-
tency evaluation of Harris, explaining at one point that he was no
longer “of the opinion that competency is an issue based on his in-
teraction with the Defendant.” United States v. Harris, 741
F.App’x. 663, 665 (11th Cir. 2018) (unpublished) (direct appeal).
On the day of Harris’s sentencing, Harris’s counsel changed
tack and sought a further continuance to complete a competency
evaluation. Counsel told the trial court that “he was not comforta-
ble going forward” with sentencing because:
I’m not sure that [Harris] understands—I’ve had
plenty of clients that don't agree with my advice. But
this just feels different. And it's not that he does not
just solely disagree. I don’t and I'm not convinced that
he understands what I’m telling him, Judge. I’ve pro-
vided objective documentation to show that he has a
very, very low ability to understand. He has a very
low functioning level. . . . And I don’t think it’s the
right thing for him to not at least be evaluated.
Harris, 741 F.App’x at 665.
USCA11 Case: 21-10924 Document: 36-1 Date Filed: 05/08/2023 Page: 7 of 21
21-10924 Opinion of the Court 7
Along with a sentencing memorandum, Harris’s counsel
provided the court with a 2011 Social Security-related evaluation
determining that Harris had an IQ of 55 and had been diagnosed
with ADHD and “Moderate Mental Retardation.” Crim. Dkt. Nos.
114-1, 114-2. At the hearing, counsel explained to the court that
during the prior weekend Harris met with a psychologist. Accord-
ing to Harris’s counsel, the psychologist concluded that Harris had
significant verbal deficits and could not “completely understand
the ideas, thoughts, directions he is told by others.” Crim. Dkt. No.
132 at 24–26. The psychologist reached no conclusion as to Harris’s
competency. Harris’s counsel also told the district court that Harris
could not read complex words and could not write apart from his
own name and simple words. And Harris’s counsel alerted the dis-
trict court to the existence of a competency evaluation performed
before trial, explaining that Harris had been evaluated roughly a
year earlier. Counsel did not produce the evaluation or describe its
conclusions. The evaluation is not in the record. Counsel did advise
the district court that trial counsel had reached an agreement with
the government not to call the doctor who performed that evalua-
tion at trial if the government agreed not to introduce Harris’s
statements to the doctor.
The government opposed Harris’s request for a continu-
ance. It argued that a continuance was unwarranted in light of prior
continuances and that the record contradicted Harris’s claim of in-
competency. To support its position, the government introduced
USCA11 Case: 21-10924 Document: 36-1 Date Filed: 05/08/2023 Page: 8 of 21
8 Opinion of the Court 21-10924
recordings of telephone calls Harris made while in jail, which pur-
portedly demonstrated his understanding of the proceedings.
The district court denied his motion for a continuance. It
reasoned that Harris had ample time to receive a competency eval-
uation and that the record contradicted his claim of incompetency.
The district court stated that it reviewed the docket and materials
submitted by Harris and relied on its observations of Harris at trial
and sentencing—including the phone calls submitted by the gov-
ernment—to support its ruling.
Harris appealed to this Court, arguing in relevant part that
the district court erred by not ordering a competency hearing un-
der 18 U.S.C. § 4241. We affirmed because the district court did not
“abuse[] its discretion in finding no bona fide doubt as to Harris’s
competency.” Harris, 741 F.App’x. at 667. We noted that Harris
had offered no evidence of irrational behavior and his demeanor
did not show he was incompetent. In addition, we noted that alt-
hough Harris submitted prior medical evaluations concluding that
he possessed limited intelligence, those reports did not show he
was incompetent to proceed. Id. at 667–68.
Following our affirmance, Harris filed a pro se motion to va-
cate or modify his sentence pursuant to 28 U.S.C. § 2255, raising 11
grounds for relief. As relevant here, Harris argued that his trial
counsel was ineffective for failing to move for a competency eval-
uation or hearing and failing to introduce a doctor’s report con-
cluding that Harris “was not smart enough to do what the govern-
ment charged him with.” Civ. Dkt. No. 1 at 13; see also id. at iii–iv.
USCA11 Case: 21-10924 Document: 36-1 Date Filed: 05/08/2023 Page: 9 of 21
21-10924 Opinion of the Court 9
According to Harris, a mental health specialist evaluated him for
roughly three hours in jail and concluded “that he was incompetent
to stand trial.” Civ. Dkt. No. 13 at 10. Harris also argued that that
his appellate counsel was ineffective for failing to appeal the district
court’s admission of the recorded 911 call. Harris requested an ev-
identiary hearing.
Without holding an evidentiary hearing, the district court
rejected each of Harris’s claims and dismissed his motion with prej-
udice. The district court concluded that, in light of our holding that
the district court did not abuse its discretion in refusing to order a
competency hearing on the eve of sentencing, Harris “failed to
show that his counsel was deficient” and made “no showing of prej-
udice” on his claim that trial counsel should have sought a compe-
tency hearing and evaluation. Civ. Dkt. No. 15 at 16. It also con-
cluded that “[t]here was no error in admitting the testimony on the
911 call” and thus no ineffective assistance by appellate counsel in
failing to appeal that ruling. Civ. Dkt. No. 15 at 17–19.
We granted a certificate of appealability as to these two
claims. We also appointed counsel to represent Harris.
II. Standard of Review
“We review the district court’s denial of an evidentiary hear-
ing in a § 2255 proceeding for abuse of discretion.” Winthrop-Re-
don v. United States, 767 F.3d 1210, 1215 (11th Cir. 2014). Under
§ 2255, a district court must hold an evidentiary hearing “[u]nless
the motion and files and records of the case conclusively show that
USCA11 Case: 21-10924 Document: 36-1 Date Filed: 05/08/2023 Page: 10 of 21
10 Opinion of the Court 21-10924
the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). When a
§ 2255 movant alleges facts that, if true, would entitle him to relief,
an evidentiary hearing is required, provided that “the district court
is not required to grant an evidentiary hearing when the defend-
ant’s claims are affirmatively contradicted by the record evidence,
nor is a hearing required if the claims are grounded upon generali-
zations that are unsupported by the record evidence.” Rosin v.
United States, 786 F.3d 873, 877–78 (11th Cir. 2015).
On appeal from a § 2255 proceeding, we review a district
court’s legal conclusions de novo and its factual findings for clear
error. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004).
“An ineffective assistance of counsel claim is a mixed question of
law and fact subject to de novo review.” Ward v. Hall, 592 F.3d
1144, 1155 (11th Cir. 2010) (internal quotation omitted).
“We may affirm on any ground supported by the record.”
Castillo v. United States, 816 F.3d 1300, 1303 (11th Cir. 2016) (in-
ternal quotation marks omitted).
We construe pro se pleadings “liberally.” Miller v. Donald,
541 F.3d 1091, 1100 (11th Cir. 2008) (internal quotation marks omit-
ted). We are mindful that a “pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal plead-
ings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(internal quotation marks omitted).
III. Discussion
USCA11 Case: 21-10924 Document: 36-1 Date Filed: 05/08/2023 Page: 11 of 21
21-10924 Opinion of the Court 11
Section 2255 permits a federal prisoner to bring a collateral
challenge by moving the sentencing court to vacate, set aside, or
correct his sentence. 28 U.S.C. § 2255(a). Once a prisoner files a
§ 2255 motion, “[u]nless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no relief, the
court shall . . . grant a prompt hearing thereon, determine the is-
sues and make findings of fact and conclusions of law with respect
thereto.” Id. § 2255(b). Harris argues that the district court erred by
denying his ineffective assistance claims without holding an eviden-
tiary hearing. To be entitled to an evidentiary hearing, a movant
must allege facts in his § 2555 motion that, if true, would be suffi-
cient to entitle him to relief on his claims. We have explained that
no evidentiary hearing is warranted, however, if these facts are af-
firmatively contradicted by the record. Castillo, 816 F.3d at 1303.
The Sixth Amendment guarantees criminal defendants the
right to effective assistance of counsel. U.S. Const. amend. VI; see
Strickland v. Washington, 466 U.S. 668, 684–86 (1984). To prevail
on an ineffective assistance of counsel claim, a movant “must show
(1) his counsel’s performance was deficient and (2) the deficient
performance prejudiced his defense.” Riolo v. United States, 38
F.4th 956, 967 (11th Cir. 2022) (internal quotation marks omitted).
Counsel’s performance is deficient if it falls “below an objective
standard of reasonableness.” Hesser v. United States, 40 F.4th 1221,
1224 (11th Cir. 2022) (quoting Strickland, 466 U.S. at 687–88). This
standard is deferential to counsel’s judgments: performance falls
below an objective standard of reasonableness only if “no
USCA11 Case: 21-10924 Document: 36-1 Date Filed: 05/08/2023 Page: 12 of 21
12 Opinion of the Court 21-10924
competent counsel would have taken the action in question.” Id.(internal quotation marks omitted). Counsel’s deficient perfor-
mance is prejudicial if “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Knowles v. Mirzayance, 556 U.S. 111,
127 (2009) (internal quotation marks omitted). We now apply this
framework to Harris’s two ineffective assistance claims to deter-
mine whether the district court erred when it denied these claims
without an evidentiary hearing.
A. Harris Was Entitled to an Evidentiary Hearing on His
Claim that Trial Counsel Was Ineffective in Failing to
Request a Competency Examination.
Harris claims that his trial counsel was ineffective for failing
to request a pretrial competency evaluation and hearing. Because
Harris alleges facts that, if true, would be sufficient to establish that
his trial counsel was deficient and the deficiency prejudiced Harris,
we conclude he was entitled to an evidentiary hearing.
We begin by explaining why Harris’s allegations were suffi-
cient to show that his trial counsel rendered deficient performance.
Harris alleged that trial counsel obtained an expert evaluation from
a “mental health specialist (Doctor).” Civ. Dkt. No. 1 at 18. Accord-
ing to Harris, the expert concluded that Harris “was not smart
enough to do what the Government” accused him of, id., and “was
incompetent to stand trial.” Civ. Dkt. No. 13 at 10. Because Harris
filed his motion pro se, we construe it “liberally,” holding it “to less
USCA11 Case: 21-10924 Document: 36-1 Date Filed: 05/08/2023 Page: 13 of 21
21-10924 Opinion of the Court 13
stringent standards than formal pleadings drafted by lawyers.” Er-
ickson, 551 U.S. at 94 (internal quotation marks omitted). Accord-
ingly, we treat the motion as alleging that Harris was evaluated by
a mental health expert who concluded that he was incompetent to
stand trial. 3
If true, Harris’s allegations—that trial counsel learned from
an expert that Harris was incompetent and failed to act on the ex-
pert’s conclusions—would show that his trial counsel rendered
3 Although Harris’s motion states that the expert concluded he “was not smart
enough to do what the Government” accused him of, Civ. Dkt. No. 1 at 18,
his reply in support of his motion clarifies that the expert concluded he “was
incompetent to stand trial.” Civ. Dkt. No. 13 at 10. Under the liberal pleading
standards afforded to pro se litigants, we construe Harris’ motion in light of
this clarification. Other circuits have held that where pro se litigants allege
new facts in their briefing that are consistent with a prior pleading, courts must
consider those facts as if they were alleged in the pleading itself. See Abdelfat-
tah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524, 529 (D.C. Cir. 2015); Walker
v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013). Our predecessor court took a
similar approach when the pro se litigant retained the ability to amend the
relevant pleading, by construing the later filing as a motion to amend and
granting it. McGruder v. Phelps, 608 F.2d 1023, 1025 (5th Cir. 1979); see also
Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)
(adopting all decisions of the Fifth Circuit handed down before the close of
business on September 30, 1981 as binding precedent in the Eleventh Circuit).
Here, Harris could have amended his § 2255 motion to assert that the expert
found him incompetent to stand trial because the amendment would relate
back to his original § 2255 motion. See Fed. R. Civ. P. 15(c)(1)(B). As we have
explained in the habeas context, relation back is appropriate to—among other
things——“expand the facts, and . . . further specify [the movant’s] original
claims.” Dean v. United States, 273 F.3d 1218, 1222 (11th Cir. 2002).
USCA11 Case: 21-10924 Document: 36-1 Date Filed: 05/08/2023 Page: 14 of 21
14 Opinion of the Court 21-10924
deficient performance that prejudiced him. See, e.g., Futch v. Dug-
ger, 874 F.2d 1483, 1487 (11th Cir. 1989); see also Jermyn v. Horn,
266 F.3d 257, 300 (3d Cir. 2001) (“Clearly, an attorney would render
ineffective assistance of counsel if he or she . . . failed to request a
competency hearing, despite indicia of incompetence.”).
The record does not affirmatively contradict Harris’s allega-
tions that an expert determined he was incompetent to stand trial.
The record shows that trial counsel did indeed have an expert eval-
uation of Harris performed before trial. Counsel obtained a report
that they planned to use to support a motion challenging the ad-
mission of a statement Harris made to the police on the ground
that Harris was not competent to knowingly waive his Miranda
rights. Trial counsel agreed not to seek to introduce the report or
expert testimony at trial, and in exchange the government agreed
not to introduce Mr. Harris’s statement to the police. Because of
the agreement, the report never became a part of the record, so the
record does not contradict Harris’s allegations about what the re-
port concluded. But there is evidence in the record to support the
possibility that an expert could have concluded Harris was not
competent to stand trial: a 2011 Social Security-related evaluation
determined that Harris had an IQ of 55 and diagnoses of ADHD
and “Moderate Mental Retardation,” Crim. Dkt. Nos. 114-1, 114-2,
and around the time of sentencing a psychiatrist visited Harris and
preliminarily observed that he had significant verbal deficits and
USCA11 Case: 21-10924 Document: 36-1 Date Filed: 05/08/2023 Page: 15 of 21
21-10924 Opinion of the Court 15
could not “completely understand the ideas, thoughts, directions
he is told by others,” Crim. Dkt. No. 132 at 24–26. 4
Because the record does not contain the expert’s evaluation,
we also lack a clear basis to evaluate the soundness of counsel’s de-
cision to barter away the competency issue in exchange for the
non-admission of Harris’s statement. To be sure, counsel’s trial
strategy is entitled to significant deference. See Hesser, 40 F.4th at
1224. And Harris may well fail to show on remand—where his ev-
identiary burden becomes substantial—that this decision was un-
reasonable. But given Harris’s allegations before us, we conclude
that he was entitled to an evidentiary hearing.
The district court determined that Harris’s claim failed
based on our decision on direct appeal that the district court did
not abuse its discretion in denying a competency hearing on the
eve of sentencing. But our decision did not address whether Harris
would have been entitled to a competency hearing if, before trial,
trial counsel had submitted an expert evaluation finding that Harris
was incompetent. Instead, our decision on direct appeal relied
largely on the district court’s observation of Harris and a recorded
phone call in which Harris showed an awareness of the fact that
4 For context, in Atkins, the Supreme Court explained that the term “‘[m]ild
mental retardation’ is typically used to describe people with an IQ level of 50–
55 to approximately 70.” Atkins v. Virginia, 536 U.S. 304, 308 n.9 (2002); see
also id. at 309 (explaining that expert’s conclusion that petitioner was “mildly
mentally retarded” was based in part on the “administration of a standard in-
telligence test which indicated that Atkins had a full-scale IQ of 59.”)
USCA11 Case: 21-10924 Document: 36-1 Date Filed: 05/08/2023 Page: 16 of 21
16 Opinion of the Court 21-10924
the United States sought to sentence him to life imprisonment.
Harris, 741 F.App’x at 667–68. We relied on the fact that “while
Harris’s attorney submitted some previous medical evaluations
speaking to Harris’s low intelligence, none of those records sug-
gested that Harris was incompetent to proceed.” Id. at 668. In con-
trast, in his § 2255 motion, Harris alleged that trial counsel failed to
act on an evaluation that concluded Harris was incompetent to
proceed. Our decision in Harris’s direct appeal thus does not im-
pact our conclusion here, that Harris’s allegations, if true, were suf-
ficient to establish that his trial counsel rendered deficient perfor-
mance.
We now turn to prejudice. The record also does not fore-
close the possibility that Harris can show he suffered prejudice as a
result of counsel’s deficient performance—that is, a reasonable
probability that the district court would have ordered a compe-
tency evaluation and found Harris incompetent but for trial coun-
sel’s actions. See Strickland, 466 U.S. at 694 (prejudice is “a reason-
able probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different”). At sentenc-
ing, even without any expert evaluation finding Harris incompe-
tent, the district court came close to ordering a competency evalu-
ation. In ultimately refusing a hearing, the district court relied in
part on its impression that Harris was behaving in a dilatory man-
ner. At a minimum, these circumstances suggest that a pre-trial re-
quest for a hearing supported by an expert opinion could have re-
sulted in a competency hearing. See e.g., United Sates v. Cometa,
USCA11 Case: 21-10924 Document: 36-1 Date Filed: 05/08/2023 Page: 17 of 21
21-10924 Opinion of the Court 17
966 F.3d 1285, 1287 (11th Cir. 2020) (competency evaluation held
by trial court in response to expert report); United States v. Wingo,
789 F.3d 1226, 1236 (11th Cir. 2015) (considering “prior medical
opinion regarding the defendant's competence to stand trial”
among factors to be applied in determining whether competency
hearing and evaluation were required). And where Harris has ade-
quately alleged that an uncontradicted expert evaluation found
him incompetent at the time of trial the record does not conclu-
sively show otherwise.
Because “the motion and files and records of the case do not
conclusively show that [Harris] is entitled to no relief,” he was en-
titled to an evidentiary hearing. 28 U.S.C. § 2255(b). We thus va-
cate and we remand for an evidentiary hearing on this claim.
B. Harris Was Not Entitled to an Evidentiary Hearing on
His Claim that Appellate Counsel Was Ineffective in Fail-
ing to Challenge the Admission of the 911 Call.
Harris also argues that the district court erred when it failed
to hold an evidentiary hearing on his claim that his appellate coun-
sel was ineffective in failing to challenge on appeal the admission
of the recording of the 911 call. Before the trial court, Harris chal-
lenged the admission of the 911 call as hearsay. 5 The district court
5 Harris also objected to the admission of the 911 call as irrelevant and con-
trary to the Confrontation Clause of the Sixth Amendment. In this appeal,
Harris does not argue any Confrontation Clause or relevancy-based ineffective
USCA11 Case: 21-10924 Document: 36-1 Date Filed: 05/08/2023 Page: 18 of 21
18 Opinion of the Court 21-10924
overruled Harris’s objections and admitted the recording of the call
on the ground that it constituted a present sense impression and
therefore was non-hearsay. See Fed. R. Evid. 802 (hearsay generally
prohibited); Fed. R. Evid. 803(1) (present sense impression ex-
cepted). Harris claims that his appellate counsel’s performance was
deficient because counsel failed to argue on appeal that the trial
court erred in admitting the recording. 6 The district court rejected
Harris’s claim without an evidentiary hearing because it found his
allegations insufficient to show prejudice. The district court rea-
soned that Harris could not show prejudice because the trial court
correctly ruled that the recording of the call was admissible. See
Brown v. United States, 720 F.3d 1316, 1335 (11th Cir. 2013) (there
can be no showing of actual prejudice from an appellate attorney’s
failure to raise a meritless claim.”)
On appeal, Harris says that the district court failed to ade-
quately review this claim. He argues that the district court could
not have determined that the trial court’s ruling admitting the
assistance claim, and thus we conclude he has abandoned these grounds. See
United States v. Campbell, 26 F.4th 860, (11th Cir. 2022) (en banc) (“Typically,
issues not raised in the initial brief on appeal are deemed abandoned.”).
6 Our analysis of this claim is unaffected by the fact that Harris alleges ineffec-
tive assistance of appellate counsel. “Claims of ineffective assistance of appel-
late counsel are governed by the same standards applied to trial counsel under
Strickland.” Brooks v. Comm’r, Ala. Dep’t of Corrs., 719 F.3d 1292, 1300 (11th
Cir. 2013) (internal quotation marks omitted).
USCA11 Case: 21-10924 Document: 36-1 Date Filed: 05/08/2023 Page: 19 of 21
21-10924 Opinion of the Court 19
recording was correct because the district court failed to review a
transcript or audio of the 911 call. The government disagrees with
Harris. It says that the district court’s review was adequate because
the same district court judge listened to the audio recording at least
twice three years earlier, when presiding over Harris’s trial—once
in ruling upon the 911 call’s admissibility and again when it was
published to the jury.
We need not resolve the parties’ dispute. Even if we assume
for purposes of this appeal that the district court was required to
listen to the call anew and failed to do so, we still may affirm on the
alternative ground that the allegations in Harris’s § 2255 motion
were insufficient to establish prejudice. Even if the phone call in
fact included inadmissible hearsay and should have been excluded,
Harris nevertheless cannot show that he was prejudiced by his
counsel’s failure to raise this evidentiary issue on appeal. And
where, as here, a movant cannot meet one of Strickland ’s prongs,
we need not address the other. Holladay v. Haley, 209 F.3d 1243,
1248 (11th Cir. 2000).
Harris cannot show prejudice because there was ample evi-
dence before the jury to support Harris’s conviction. At trial, the
jury heard testimony from the victim, a confidential informant, po-
lice officers, and companions of Harris, all establishing that Harris
directed an internet-based scheme in which an underaged victim
had sex for money and gave the money to Harris. The government
introduced testimony and exhibits showing that Harris communi-
cated with customers from his phone and arranged for them to
USCA11 Case: 21-10924 Document: 36-1 Date Filed: 05/08/2023 Page: 20 of 21
20 Opinion of the Court 21-10924
have sex with the underaged victim. The testimony and exhibits
also showed that Harris had been involved in taking sexually sug-
gestive photographs of the underaged victim to post on the inter-
net. And, crucially, the record shows that aspects of the 911 call
were replicated by evidence to which Harris did not object. For ex-
ample, police officers who responded to the 911 call described the
call in order to contextualize their response. The victim described
the facts underlying the call. And the jury saw body-camera video
of the police officers’ response to the call. Harris’s counsel did not
object to this evidence. So even taking away the audio recording of
the 911 call, much of what it contributed at trial remains.
In light of this evidence, Harris cannot show that “there is a
reasonable probability that, but for [appellate counsel’s failure to
challenge the admission of the 911 call], the result of the proceeding
would have been different,” i.e., prejudice. Knowles, 556 U.S. at
127; see also Bester v. Warden, 836 F.3d 1331, 1339 (11th Cir. 2016)
(concluding that “overwhelming” evidence of guilt precluded find-
ing prejudice); Clark v. Comm’r, Ala. Dep’t. of Corrs., 988 F.3d
1326, 1332–33. (11th Cir. 2021) (same).
Because Harris cannot show prejudice from appellate coun-
sel’s allegedly deficient failure to appeal the district court’s admis-
sion of the 911 call, the record shows “conclusively” that Harris is
not entitled to relief on this claim. 28 U.S.C. § 2255(b). The district
court did not abuse its discretion in denying an evidentiary hearing
on this claim.
IV. Conclusion
USCA11 Case: 21-10924 Document: 36-1 Date Filed: 05/08/2023 Page: 21 of 21
21-10924 Opinion of the Court 21
For the reasons set forth above, we vacate in part and affirm
in part. We remand to the district court for an evidentiary hearing
on Harris’s claim that his trial counsel was ineffective for failing to
move for a pretrial competency evaluation and hearing.
AFFIRMED IN PART, VACATED and REMANDED IN
PART.