             Case: 13-14605   Date Filed: 02/03/2016   Page: 1 of 10


                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-14605
                           Non-Argument Calendar
                         ________________________

                    D.C. Docket No. 5:10-cv-00155-RS-CJK
                                    5:08-cr-00022-RS-CJK-2


ELIJAH JAMES CHISOLM,

                                                            Petitioner-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                           Respondent-Appellee.

                         ________________________

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

                               (February 3, 2016)

Before TJOFLAT, HULL and JULIE CARNES, Circuit Judges.

PER CURIAM:

      On June 3, 2008, Elijah James Chisolm, Jonathan Cellen Bolware and Floyd

Kimball were charged in a multi-count superseding indictment with conspiring to
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distribute and possess with intent to distribute more than fifty grams of crack

cocaine, in violation of 21 U.S.C. § 846. Chisolm was also charged in three counts

of distributing crack cocaine and one count of distributing cocaine, in violation of

21 U.S.C. § 841(a)(1). On June 30, 2008, Bolware and Kimball each pled guilty to

the conspiracy count pursuant to a “Plea and Cooperation Agreement,” in which

they agreed to cooperate with the government.1 They were sentenced on October

1, 2008. Bolware received the mandatory life sentence called for by his plea

agreement.2 Kimball was imprisoned for a term of 120 months. 3 Chisolm,

maintaining that he was not guilty, stood trial on January 9, 2009.4


       1
         United States v. Bolware, Case No. 5:08-00022 (N.D. Fla.) Docs. 59 (Kimball
 agreement) and 63 (Bolware agreement). The agreements provided that “[the defendant’s]
 cooperation shall include but is not limited to providing complete and truthful debriefings and
 testimony at grand jury, trial, and as otherwise requested, involving any matter under
 investigation.” Kimball agreed to cooperate with the government shortly after his arrest. His
 cooperation influenced Bolware to cooperate as well. Id. Doc. 211 at 1 (Motion Concerning
 Substantial Assistance, filed by the government on behalf of Bolware under Fed. R. Crim. P.
 35).


       2
          Bolware’s Plea and Cooperation Agreement called for a mandatory life sentence, with
the proviso that if the government was satisfied with the assistance Bolware provided, it would to
move the District Court for a sentence reduction pursuant to Fed. R. Crim. P. 35(b). On August
27, 2013, the government moved the District Court pursuant to Rule 35 to reduce Bolware’s
sentence due to his cooperation. On November 21, 2013, the court granted the motion and
reduced Bolware’s sentence to 240 months. See United States v. Bolware, Case No. 5:08-00022
(N.D. Fla.) Docs. 211, 228.

       3
         Kimball’s Plea and Cooperation Agreement was similar to Bolware’s, except that it
called for a statutory minimum sentence of 240 months’ imprisonment. At sentencing, the
government moved the District Court pursuant to 18 U.S.C. § 3553(e) to sentence Kimball to a
sentence below the statutory minimum,. The court granted its motion and sentenced Kimball to
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       Chisolm was convicted on all counts and sentenced to concurrent terms of

life imprisonment on four counts, under 21 U.S.C. §§ 841(b), 851, and 360 months

on one count. He appealed his convictions and sentences. 5 We affirmed. United

States v. Chisolm, 367 Fed.Appx 43 (11th Cir. 2010).

       After his convictions and sentences were affirmed, Chisolm moved the

District Court for relief under 28 U.S.C. § 2255, challenging his convictions on

nine grounds and his sentences on four. The District Court denied his motion

without an evidentiary hearing. He appeals the decision. We entertain his appeal

on the two issues cited in the certificate of appealability we issued: whether

Chisolm’s trial counsel was ineffective for failing to communicate the

Government’s plea offer to the Chisolm and whether the District Court erred in

denying this claim.

       A prisoner is not entitled to an evidentiary hearing on a motion for § 2255

relief unless the allegations of his motion are “affirmatively contradicted by the

record, or the claims are patently frivolous.” Aron v. United States, 291 F.3d 708,

715 (11th Cir. 2002). Chisolm stated the ineffective assistance claim at issue here


prison for 120 months. See United States v. Bolware, Case No. 5:08-00022 (N.D. Fla.) Docs. 59
and 87.
       4
         Bolware testified for the prosecution at Chisolm’s trial.
       5
         Chisolm challenged his life sentences on the ground that “the district court erred in
sentencing him to a term of life imprisonment based upon a sentencing enhancement under 21
U.S.C. § 851(a).” United States v. Chisolm, 367 Fed.Appx 43, *44 (11th Cir. 2010).


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in the Memorandum in Support of 28 U.S.C. § 2255 Motion for Relief he

submitted to the District Court. The memorandum described the claim thusly:

          [T]trial counsel failed to inform Movant of the government plea
       offer before he went to trial. Had counsel informed Movant of this
       plea offer Movant would not have proceed[ed] to trial. Movant was
       unaware of the government offer until after trial when counsel
       inform[ed] movant that the government had offer[ed] a plea bargain.
       Had Movant kn[own] of the government plea [offer] Movant would
       have accepted the plea offer for a lesser sentence than life in prison.
          Had Movant accepted the plea offer, the government would not
       have filed enhanced penalty and if the government had tried to seek
       enhanced penalties after the offer had been accepted it would have
       been precluded from doing to under the plea agreement. Without
       subjection to a mandatory penalty based on narcotics convictions he
       sustained in 1992 and 1997 Movant[‘s] sentence would have been far
       less than Four life sentence[s]. 6

Doc 182 at 30 (emphasis added). According to this memorandum, the

government’s plea offer was that if Chisolm plead guilty to the conspiracy charge, 7

the government would not seek a sentencing enhancement by filing a Notice of

Intent to Seek Enhanced Sentences under 21 U.S.C. § 851(a).


       6
          Chisolm’s reference to “enhanced penalty” is a reference to 21 U.S.C. § 851, see
Chisolm, 367 Fed.Appx. *44, which states:
       (a) Information filed by United States Attorney
       (1) No person who stands convicted of an offense under this part shall be
       sentenced to increased punishment by reason of one or more prior convictions,
       unless before trial, or before entry of a plea of guilty, the United States attorney
       files an information with the court (and serves a copy of such information on the
       person or counsel for the person) stating in writing the previous convictions to be
       relied upon.

21 U.S.C. § 851. Proceedings to establish prior convictions.
       7
         Chisolm’s motion does not indicate the terms of the plea offer other than it contained a
promise that he would receive a sentence of less than life imprisonment.
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       The government opposed Chisolm’s motion. Its Opposition to Motion to

Vacate, stated:

          Defendant argues that his counsel failed to communicate a plea
       offer under which he would have faced less than life in prison. The
       only plea offer the government made was the same that co-defendant
       Bolware accept: plead to a mandatory life sentence and try to work for
       substantial subsistence. Having watched his good friend and co-
       defendant accept this offer and testify under it, defendant knew the
       terms of the government’s offer.
          Defendant somehow conceives that he could have avoided the
       filing of a sentencing enhancement by a quick plea of guilty.
       Defendant was added [to the indictment] by the Superseding
       Indictment returned June 3, 2008. The government’s information and
       Notice of Intend to Seek Enhanced Sentences was filed on June 10,
       2008, six days before defendant’s arraignment. There was never an
       opportunity for defendant to plead without the enhancement being
       filed. . . . Moreover, in this case, any plea had to be delayed until
       potential issues concerning defendant’s mental condition were
       resolved. 8

Doc. 191 at 19-20.

       Chisolm’s Reply Memorandum said:

       The Government states the only plea offer the government made was
       the same the co-defendant Bolware accepted: plead to a mandatory
       life sentence and try to work for substantial assistance. Had trial
       counsel inform[ed] Movant of this deal Movant surely would have
       accepted this deal and would have surely work[ed] the time off and
       do[ne] whatever the Government wanted him to do to see the street
       again. . . . Had trial counsel inform[ed] Movant of this plea offer
       Movant would not have proceed[ed] to trial.

Doc. 194 at 24-25.

       8
         Following Chisolm’s arraignment, the government moved the District Court to have
Chisolm examined for competency to stand trial. The motion was granted, he was examined,
and the court subsequently found him competent.
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      Chisolm’s memorandum supporting his motion alleges that his attorney

never informed him of the plea offer the memorandum describes. A defendant’s

Sixth Amendment right to the effective assistance of counsel extends to counsel’s

obligation to communicate the terms of a plea offer to his client. Padilla v.

Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed.2d 284 (2010). All the record

contains about counsel’s performance is the statement in the memorandum

Chisolm filed in support of his motion: “trial counsel failed to inform Movant of

the government plea offer before he went to trial.” And that in exchange for a plea

of guilty, he would receive “a lesser sentence than life in prison.”

      A claim such as Chislom’s is judged under the two-part Strickland test.9

Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Missouri

v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1405, 182 L. Ed. 2d 379 (2012).

Since, other than Chisolm’s allegation, the record is silent as to defense counsel’s

performance, we assume for sake of argument that Chisolm has established the

first prong of Strickland’s test, deficient performance, see Strickland v.

Washington, 466 U.S. 668, 688-89, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674

(1984); counsel failed to inform him of the government’s offer. The question thus

becomes whether Chisolm satisfied Strickland’s prejudice prong. In the context


      9
          Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
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the instant case presents, Missouri v. Frye instructs that a prisoner must show that

(1) but for his counsel’s ineffective assistance there was a “reasonable probability”

he would have pled guilty, (2) the court would have accepted the plea, and (3) “a

reasonable probability that the end result of the criminal process would have been

more favorable.” Id. at ___, 132 S. Ct. at 1409.

       Chisolm’s reply to the government’s response to his motion is that he would

have accepted a mandatory life sentence in exchange for a plea of guilty and a

promise to cooperate---the same deal Bolware got. He represents that he “would

have done whatever the Government wanted him to do.” That, of course, would

involve identifying his cocaine suppliers and the scores of individuals with whom

he trafficked cocaine and crack during the more than ten years before he got into

business with Bolware, 10 appearing before the grand jury, and then testifying at the

trials of any who were indicted.


       10
         In rejecting Chisolm’s appellate argument that the evidence was insufficient to convict
him of conspiracy to traffick in crack cocaine, this court said this:

       The evidence presented at trial . . . was sufficient to sustain Chisolm's convictions.
       Dewayne Lamar Johnson, who was cooperating with law enforcement, set up
       three controlled buys of cocaine base with Chisolm. On April 10, 2008, Johnson
       made a controlled buy, which was recorded on audio and video, of 19.6 grams of
       37.2% pure cocaine base for $900 from Chisolm. On April 11, 2008, Johnson
       made another controlled buy, which was recorded on video, of 20.5 grams of
       41.3% pure cocaine base for $1,350 from Chisolm. Deputy Ramie, who had seen
       Chisolm on 20 to 25 other occasions, identified Chisolm as the individual in the
       video of the incidents on April 10 and 11 with “100 percent” certainty. On April
       27, 2008, Johnson made his third controlled buy of 12.1 grams of 60.8% pure
       cocaine base from Chisolm. Though this third buy was not recorded, Officer
       Retherford testified that he was surveilling Johnson during the buy and saw
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       Bolware and Kimball entered into a Plea and Cooperation Agreement with

the government on June 30, 2008, six months before Chisolm stood trial. The

agreements were a matter of public record.11 Chisolm surely anticipated that they

would provide the government with voluminous information about his drug

trafficking enterprise and then testify against him at his trial.

       Bolware and Kimball were sentenced on October 1, 2008, three months

before Chisolm’s trial began. Bolware received a mandatory life sentence.

Chisolm knew that the cooperation Bolware had provided the government prior to

that date was insufficient to prompt the government to move the District Court

pursuant to 18 U.S.C. § 3553(e) to impose a sentence below the statutorily

mandated life sentence. Bolware would have to do more, including testifying at

Chisolm’s trial, before the government would move the District Court to reduce his

sentence.

       Chisolm and his lawyer surely discussed Bolware’s situation and the

substantial assistance he would have to provide the government if he entered into a


       Chisolm following Johnson to Johnson's house in their respective vehicles and
       Deputy Ramie saw Chisolm arrive at Johnson's house, and enter Johnson's car for
       a short while before returning to his car.

Chisolm, 367 Fed.Appx at *45. Bolware testified that after he got out of prison in the Spring of
2006, Chisolm proposed that they enter the drug business together. Presentence Report at ¶ 13.
Over the next two years, they purchase over 50 kilograms of cocaine powder. Bolware testified
that Chisolm had been trafficking drugs for over 10 years. Id. at ¶ 15.

       11
            See supra note 1.
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Plea and Cooperation Agreement like Bolwoare’s and Kimball’s. Noticeably

absent from the Reply Memorandum Chisolm filed in response to the

government’s Opposition to Motion to Vacate is a statement that Chisolm told his

lawyer that he wanted the same deal Bolware received, but his lawyer ignored his

demand. What the record does contain is Chisolm’s “after the fact testimony” 12---

his initial statement, that he wanted to plead in exchange for a lesser than life

sentence, and his second statement (given that the government never agreed to a

lesser than life arrangement), that he wanted to plead in exchange for a mandatory

life sentence and the government’s promise to seek at some time in the future a

Rule 35(b) reduction of sentence for all the substantial assistance he would

provide.

       In sum, Chisolm’s memoranda in support of his motion and in reply to the

government’s opposition do not, considered in the light of the record in this case,

establish Strickland’s prejudice prong, as expressed in Missouri v. Frye, that but

for his counsel’s ineffective assistance there is a “reasonable probability” that he

would have agreed to a mandatory life sentence in exchange for the government’s

promise to seek a sentence reduction based on his substantial cooperation.13 If his

convictions were vacated and, like Bolware, he pled guilty to the conspiracy

       12
            Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991).
       13
           In theory, beginning the moment after his conviction, Chisolm could have begun
cooperating with the government in the hope of a sentence reduction. A Rule 35(b) motion does
not require as a condition precedent that the cooperation be provided under a plea agreement.
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charge, he would be sentenced to a mandatory term of life imprisonment---in

effect, the sentence that is now in place. After he saw the sentence Bolware

received notwithstanding his cooperation---mandatory life---any thoughts Chisolm

may have had about pleading guilty ceased.

      AFFIRMED.




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