              Case: 10-13124   Date Filed: 11/02/2012   Page: 1 of 5

                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                      _____________________________

                               No. 10-13124
                           Non-Argument Calendar
                      _____________________________

     D. C. Docket Nos. 1:08-cv-03532-CAP ; 1:04-cr-00571-CAP-CCH-1


JUAN CARLOS ACUNA,

                                                             Petitioner-Appellant,

     versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.

               _________________________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
               _________________________________________
                             (November 2, 2012)

Before HULL, EDMONDSON, and BLACK, Circuit Judges.


PER CURIAM:
                Case: 10-13124    Date Filed: 11/02/2012    Page: 2 of 5

      Juan Carlos Acuna, a federal prisoner proceeding pro se, appeals the denial

of his 28 U.S.C. § 2255 motion to vacate. Acuna challenges his counsel’s failure

to call as witnesses the co-defendants who pleaded guilty. But Acuna knowingly

waived his right to contest his counsel’s effectiveness as to this matter. Upon the

district court’s inquiries, Acuna specifically agreed with his counsel’s decision not

to call the potential witnesses, acknowledging that it was based on his own -- apart

from counsel’s advice -- request. Acuna thus gave up his opportunity to have

them testify.

      This Court has stated that ineffective assistance does not exist under

Strickland where the defendant ultimately concurred in his counsel’s tactical

decision or strategy. See Hammond v. Hall, 586 F.3d 1289, 1327-28 (11th Cir.

2009). In Ross v. Wainwright, 738 F.2d 1217 (11th Cir. 1984), defense counsel

largely elected not to contest guilt or present a defense. This Court said that,

based on “the repeated statements by counsel in discussing his strategy and the full

acquiescence of the defendant, . . . the district court did not err in concluding that

[the defendant] had waived his right to attack the effectiveness of counsel on

appeal.” Id. at 1222. Besides counsel’s statements, we noted that the petitioner’s

acquiescence in the discussions with respect to the nature of his counsel’s conduct

made the case one in which “mere assent in response to a series of questions from

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the bench constitute[s] an adequate waiver” of ineffective assistance of counsel

claims. Id. at 1221 (quotations omitted).

      Acuna was not prejudiced by his counsel’s decision not to call as witnesses

the co-defendants because Acuna essentially waived his right to contest his

counsel’s ineffectiveness on that decision by agreeing with that choice at trial. See

Hammond, 586 F.3d at 1327-28; Wainwright, 738 F.2d at 1221-22. After Acuna’s

counsel informed the district court that he would not call the co-defendants and

other witnesses, who were available in the courthouse, the district court

specifically informed Acuna that he (not his counsel) had the right to present

evidence and witnesses. Acuna acknowledged that he understood his rights and

his counsel’s decision; and, upon the district court’s further inquiry after a single

witness testified, Acuna confirmed that it was his decision to call no more

witnesses. When both parties rested, Acuna again indicated that he had decided to

present no more evidence. Moreover, following the closing arguments, Acuna

verified that his counsel decided not to call the co-defendants as witnesses after

consulting with Acuna and that he had requested that they not testify. Because

Acuna fully participated in the decision not to have the witnesses testify -- while

knowing of the potential exculpatory nature of their testimonies -- and given his




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responses to the district court’s questions concerning that decision, he waived his

right to attack his counsel’s effectiveness on this point.

      Besides, the record affirmatively contradicts Acuna’s allegation that he

suffered from -- was prejudiced by -- reliance on his counsel’s advice, as

ultimately Acuna himself decided not to call the co-defendants based on the risk to

his father’s defense. Acuna confirmed that his counsel had not unduly influenced

that decision. Therefore, the district court correctly concluded that it was not

reasonably probable that Acuna would have called the co-defendants to testify,

and that, indeed, Acuna himself finally decided that they would not testify.

      In addition, the record does not support Acuna’s allegations that his counsel

relied on another person’s counsel’s advice and failed to investigate reasonably the

co-defendants’ prospective testimonies. Acuna’s counsel was aware of the

potential exculpatory nature of the co-defendants’ testimonies for Acuna and their

potential incriminating impact on Acuna’s father. Counsel expressed in open

court that, despite advising Acuna of the possibly exonerating testimonies, Acuna

did not want to call the co-defendants as witnesses because they could harm his

father’s defense. Given that Acuna did not object to these statements by counsel

(but agreed with them) the record shows that counsel’s actions were properly




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based on informed choices made and information supplied by Acuna.

Accordingly, Acuna’s ineffective assistance of counsel claim is without merit.

      AFFIRMED.




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