           Case: 12-13831    Date Filed: 12/24/2013   Page: 1 of 7




                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-13831
                        Non-Argument Calendar
                      ________________________

        D.C. Docket Nos. 1:07-cv-21313-PAS; 1:03-cr-20272-PAS-1



JUAN CARLOS ELSO,

                                                           Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (December 24, 2013)

Before WILSON, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:
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       A jury convicted Juan Carlos Elso on three counts, including one count of

conspiring to launder money in violation of 18 U.S.C. § 1956(h). Several

unsuccessful appeals followed. Although represented at trial by counsel, Elso now

proceeds pro se to appeal the denial of his 28 U.S.C. § 2255 motion to vacate

without an evidentiary hearing. The issue before us is whether Elso was entitled to

an evidentiary hearing on his claim that his counsel failed to present alibi evidence

regarding the transaction that was a basis for his conspiracy conviction. After

careful consideration, we affirm.

       In reviewing the denial of a § 2255 motion, we review de novo the district

court’s conclusions of law and its findings of fact for clear error. Thompson v.

United States, 504 F.3d 1203, 1206 n.4 (11th Cir. 2007). Whether counsel was

ineffective is a mixed question of law and fact and is reviewed de novo. Id. A

habeas petition filed by a pro se litigant should be construed more liberally than

one filed by an attorney. Aron v. United States, 291 F.3d 708, 715 (11th Cir.

2002). Nonetheless, our review is limited to the issue raised in the certificate of

appealability (COA) unless we elect to expand it.1 See Dell v. United States, 710

F.3d 1267, 1272 (11th Cir. 2013).



1
 Elso filed a motion in the district court to expand the COA, which was denied. In this Court,
Elso moved to expand the COA, and was denied. Elso moved for reconsideration of that
decision, which this Court denied. After moving to vacate the denial of reconsideration, this
Court directed the Clerk “to return the motion, unfiled, and the Clerk’s Office will no longer
accept any motion or document seeking to further expand the certificate of appealability.”
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      We review the denial of an evidentiary hearing in a § 2255 proceeding for an

abuse of discretion. Aron, 291 F.3d at 714 n.5. Under abuse of discretion review,

we generally do not disturb a district court’s ruling unless it falls outside the range

of reasonable choices or was influenced by a mistake of law. Zocaras v. Castro,

465 F.3d 479, 483 (11th Cir. 2006). A § 2255 movant is entitled to an evidentiary

hearing in the district court “[u]nless the motion and the files and records of the

case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C.

§ 2255(b). Therefore, if the petitioner alleges facts that, if true, would entitle him

to relief, the district court should order an evidentiary hearing. Aron, 291 F.3d at

714–15. To be entitled to an evidentiary hearing, a petitioner must allege

reasonably specific, non-conclusory facts, but is not required to prove his

allegations until the evidentiary hearing. Id. at 715 n.6. A district court need not

hold an evidentiary hearing where the allegations made “are affirmatively

contradicted by the record, or the claims are patently frivolous.” Id. at 715.

      To prove ineffective assistance of counsel, a petitioner must show that: (1)

counsel performed deficiently; and (2) the deficient performance prejudiced the

defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064

(1984). An attorney’s performance is judged by reasonableness under prevailing

professional norms. Id. at 688, 104 S. Ct. at 2065. Counsel’s performance cannot

be deemed deficient if he took an approach that “might be considered sound trial


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strategy.” Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en

banc) (internal quotation marks omitted). Counsel’s performance is entitled to a

strong presumption of effectiveness, and the court is required to affirmatively

entertain the range of possible reasons counsel proceeded as he did. Cullen v.

Pinholster, 563 U.S. ___, ___, 131 S. Ct. 1388, 1407 (2011). To show that

counsel’s conduct was unreasonable, the petitioner must show that no competent

counsel would have taken the same action that counsel took. Chandler, 218 F.3d at

1315. Strickland noted that counsel generally has a duty to make reasonable

investigations and to make reasonable decisions based on those investigations.

Strickland, 466 U.S. at 691, 104 S. Ct. at 2066.

       We have held that, if relying solely on an alibi defense, counsel is ineffective

for failing to investigate potential alibi witnesses. Code v. Montgomery, 799 F.2d

1481, 1483–84 (11th Cir. 1986). On the other hand, we have also said that

complaints about uncalled witnesses are not favored, because the presentation of

testimony involves trial strategy and “allegations of what a witness would have

testified are largely speculative.” Buckelew v. United States, 575 F.2d 515, 521

(5th Cir. 1978);2 see also Rhode v. Hall, 582 F.3d 1273, 1284 (11th Cir. 2009).




2
 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as binding
precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. Id. at
1209.
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      To show prejudice under Strickland, a party must demonstrate that there is a

reasonable probability that, but for counsel’s 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 a probability sufficient to undermine confidence in the

outcome of the trial. Code, 799 F.2d at 1483. Therefore, the movant must show

more than the possibility that counsel’s deficiency had some conceivable effect on

the outcome of the proceedings, but does not need to show that counsel’s deficient

conduct more likely than not altered the outcome of the case. Strickland, 466 U.S.

at 693, 104 S. Ct. at 2067–68.

      A defendant is guilty of a conspiracy if he agrees with at least one other

person to pursue a joint criminal objective. See United States v. Dekle, 165 F.3d

826, 829 (11th Cir. 1999). The government need only prove that a defendant knew

of the essential nature of the conspiracy and agreed to join the conspiracy in order

to obtain a conviction. United States v. Garcia, 405 F.3d 1260, 1269–70 (11th Cir.

2005). It is a crime for anyone to transact in the proceeds of unlawful activity with

the knowledge that the transaction is designed, in whole or in part, to avoid a

transaction reporting requirement under state or federal law. 18 U.S.C.

§ 1956(a)(1)(B)(ii).

      We need not decide whether Elso’s counsel’s performance was deficient

because Elso cannot meet his burden to establish that he was prejudiced by the


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alleged error. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069 (“If it is easier to

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,

which we expect will often be so, that course should be followed.”). Elso’s

proffered evidence in his § 2255 motion, taken as true, does not demonstrate a

reasonable probability that the result of his trial would have been different had the

evidence not been introduced. See id. at 694, 104 S. Ct. at 2068. Elso asserts that

his evidence demonstrated that he was not in the country when Elizabeth Garcia, a

witness at trial, testified that she gave him $10,000. Even accepting that allegation

as true, it does not demonstrate prejudice for at least two reasons.

      First, Garcia never testified that she gave money to Elso on a particular date.

Therefore, evidence that Elso was out of the country on a particular date would not

demonstrate that he was not present for that exchange. Elso argues that it did not

matter that the evidence did not pinpoint the date on which Garcia gave him the

money, because his counsel was aware of when the money was deposited and wire

transferred and therefore could have established an alibi based on that information.

However, there was no evidence establishing when Elso deposited the money in

relation to when he received it, and Garcia testified that Elso could not transfer the

money until she later called him to tell him which account to put it in. Therefore,

at best, Elso’s purported evidence could have called into question whether he

personally deposited or transferred the money in question. But, the government


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was not required to prove that Elso personally deposited or transferred the money.

Rather it was only necessary to show that he agreed to participate in the money

laundering conspiracy. Nothing about Elso’s proffered evidence significantly calls

into question his agreement to launder money. See Aron, 291 F.3d at 715 n.6.

      The second reason that Elso cannot show prejudice is that the record

contained other evidence, beyond Garcia’s testimony, that Elso conspired to

launder money with the purpose of evading reporting requirements. “At trial, the

Government put on multiple witnesses who testified that [Elso] was engaged in a

conspiracy to launder money and did so to avoid a transaction reporting

requirement.” Elso v. United States, No. 07-21313, Doc. 73 at 27–28 (S.D. Fla.

May 24, 2012). The government also introduced evidence at trial of transactions

“separate and apart from the singular transfer by Elizabeth Garcia which is the sole

focus of [Elso]’s claim.” Id. at 28. In sum, “the charged . . . conspiracy was much

farther reaching than one financial transaction.” Id. at 27. Therefore, despite

Elso’s argument to the contrary, Garcia’s testimony was not the only evidence

supporting his conspiracy conviction.

      On this record, the district court did not abuse its discretion in declining to

hold an evidentiary hearing on Elso’s ineffectiveness claim, and we affirm. See 28

U.S.C. § 2255(b); Aron, 291 F.3d at 714–15.

      AFFIRMED.


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