                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-13056                ELEVENTH CIRCUIT
                                   Non-Argument Calendar            FEBRUARY 28, 2011
                                 ________________________               JOHN LEY
                                                                         CLERK
                            D.C. Docket Nos. 1:08-cv-20332-MGC,

                                    1:09-cr-20972-MGC-3



FREDERICK THOMAS HARRINGTON,

lllllllllllllllllllll                                          Petitioner-Appellant,

                                            versus



UNITED STATES OF AMERICA,

lllllllllllllllllllll                                          Respondent-Appellee.

                                ________________________

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

                                     (February 28, 2011)

Before CARNES, HULL and MARTIN, Circuit Judges.
PER CURIAM:

      Frederick Thomas Harrington, a federal prisoner, appeals the district court’s

denial of his 28 U.S.C. § 2255 motion to vacate his sentence. Harrington contends

that his counsel was ineffective for (1) failing to fully inform him about the

government’s plea offer before he proceeded to trial, and (2) failing to file a

pretrial motion to suppress some of the statements that he made to law

enforcement officers.

                                          I.

      In April 2003 law enforcement officers launched an investigation of

Harrington and his suspected drug smuggling activities. As part of the

investigation, officers had placed wiretaps on Harrington’s home and cellular

telephone, which recorded conversations between Harrington and his

coconspirators about plans for a drug smuggling trip to Jamaica. In November

2003 Harrington and a coconspirator were sailing back to Florida from Jamaica

when their boat was stopped and boarded by law enforcement officers.

Immediately after boarding the boat, without weapons drawn, the officers asked

Harrington his name, where he had been, and where he was heading—all standard

questions asked as a part of routine boarding protocol. Harrington gave the

officers his name, but he lied about the location of his last port of call. The

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officers escorted Harrington’s boat back to Key West, Florida for a border search.

      During the border search, officers found about 509 kilograms of marijuana

hidden under the wooden floor of the sailboat and nautical charts with markings

mapping out a trip from Florida to Jamaica. Officers later found 260 more

kilograms of marijuana at Harrington’s residence, more than $95,000 in cash in

Harrington’s safe deposit box, and numerous documents at a coconspirator’s

residence corroborating Harrington’s involvement in the planning and execution

of the smuggling operation.

      Harrington was indicted on one count of conspiracy to possess with intent to

distribute 1,000 kilograms or more of marijuana, one count of conspiracy to

import 1,000 kilograms or more of marijuana into the United States, and one count

of possessing with intent to distribute 100 kilograms or more of marijuana. At that

time, Harrington was also the subject of another indictment for conspiracy, which

involved different evidence of other drug smuggling events. The government

made a plea offer to Harrington in this case, which required him to plead guilty to

conspiracy to possess and to import at least 700 kilograms of marijuana but less

than 1,000 kilograms. The plea agreement also included a stipulation of guilt to

the charges in the other indictment and a recommendation by the government that

any sentence resulting from that indictment be served concurrent with the sentence

                                         3
on the charges contained in the indictment in this case.

      The government sent a letter to Harrington’s counsel describing the

proposed plea agreement in detail, explaining among other things that the

“proposed plea would include a recommendation that the defendant’s other

outstanding case be resolved with a plea to [the conspiracy count in this case] and

concurrent time.” Harrington’s counsel met with Harrington for several hours on

the following day to discuss, among other things, the proposed plea agreement.

      Two days later, Harrington’s counsel sent him a letter, which enclosed the

government’s letter and proposed plea agreement and also referred to their

discussion the day before. While those documents informed Harrington of the

recommendation for a concurrent sentence for the two indictments, none of them

specifically disclosed the relevant conduct (in terms of the exact amount of drugs)

covered by the other indictment. Before trial, the two Assistant United States

Attorneys involved in the case met with Harrington and his counsel. At no time

before trial did Harrington admit guilt for any of the charges covered in either

indictment or express interest in accepting the plea offer. In fact, Harrington

ultimately rejected the government’s plea offer and proceeded to trial on the

indictment in this case.

      At trial, just before the jury was sworn, Harrington’s counsel orally moved

                                          4
on Miranda grounds to suppress Harrington’s statements to the officers who

initially boarded his boat. After listening to both parties’ arguments, the district

court denied that motion and allowed the government to put on evidence of those

statements at trial. Harrington’s counsel had not filed a written pretrial motion to

suppress the statements. In addition to introducing the evidence seized from

Harrington and his coconspirators, the government put two of the coconspirators

on the stand. Both of them testified about Harrington’s involvement in the

conspiracy. The jury returned a verdict finding Harrington guilty on all counts,

and the district court sentenced him to concurrent terms of 151 months for each

count. Harrington's conviction and sentence was affirmed by this Court on direct

appeal. United States v. Harrington, 2004 Fed. Appx. 784 (11th Cir. 2006), cert.

denied Harrington v. United States, 549 U.S. 1244, 127 S.Ct. 1349 (2007).

Shortly after Harrington was sentenced in this case, the other indictment was

dismissed at the request of the government.

      Harrington later filed in the district court a 28 U.S.C. § 2255 motion to

vacate his sentence. He raised two claims that he had received ineffective

assistance of counsel. A magistrate judge held an evidentiary hearing on his claim

about his counsel’s failure to fully inform him about government’s plea offer. At

the hearing, Harrington, his trial counsel, and the two Assistant United States

                                           5
Attorneys who had prosecuted the case testified. While Harrington and his

counsel could not remember the specifics of any pretrial discussions with counsel

for the government, the lead prosecutor testified that he told Harrington and his

counsel that the other indictment “was going to be subsumed into” the indictment

in this case.

       Harrington’s own testimony was the only evidence he offered to show his

counsel’s deficient performance and its effect on his decision of whether to accept

the proposed plea agreement. The magistrate judge found Harrington’s testimony

to be “disingenuous” and not credible because it was “equivocal and

contradictory” and was “not responsive to the questions posed.” The magistrate

judge concluded that Harrington failed to meet his burden of proof for both of his

ineffective assistance of counsel claims. The district court adopted the magistrate

judge’s report and recommendation and denied Harrington’s motion to vacate his

sentence but granted a certificate of appealability.

                                         II.

       In a § 2255 proceeding, we review de novo legal conclusions and review

factual findings only for clear error. Lynn v. United States, 365 F.3d 1225, 1232

(11th Cir. 2004). “[W]hether counsel is ineffective is a mixed question of law and

fact that we review de novo.” Gomez-Diaz v. United States, 433 F.3d 788, 790

                                           6
(11th Cir. 2005).

      The Sixth Amendment gives criminal defendants the right to the effective

assistance of counsel. U.S. Const. Amend. VI; Strickland v. Washington, 466 U.S.

668, 686, 104 S.Ct. 2052, 2063 (1984). To prevail on a claim of ineffective

assistance of counsel, the defendant must show that (1) his counsel’s performance

was deficient, falling below an objective standard of reasonableness, and (2) he

suffered prejudice as a result of that deficient performance. See Strickland, 466

U.S. at 687–88, 104 S.Ct. at 2064–65. For the first prong, we must be “highly

deferential” when scrutinizing counsel’s performance. Id. at 689, 104 S.Ct. at

2065. To prove prejudice, a defendant “must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. And in

making that determination, “a court . . . must consider the totality of the evidence

before the judge or jury.” Id. at 695, 104 S.Ct. at 2069.

                                          III.

      Harrington first contends that his counsel was ineffective for failing to fully

inform him about the government’s plea offer before he proceeded to trial.

Harrington argues that his counsel did not adequately explain the relevant conduct

and the sentence exposure that would apply to the other indictment. He asserts

                                           7
that without that critical information he could not knowingly and intelligently

decide whether to accept the plea offer or proceed to trial.

      To establish prejudice based on a rejected plea offer, a defendant must

“establish a reasonable probability that, absent counsel’s alleged ineffective

assistance, he would have accepted the plea agreement.” See Diaz v. United

States, 930 F.2d 832, 835 (11th Cir. 1991); see also Coulter v. Herring, 60 F.3d

1499, 1504 (11th Cir. 1995) (“[A defendant who rejects a plea offer] must show

that there is a reasonable probability that, but for counsel’s errors, he would have

pleaded guilty and would not have insisted on going to trial.” (quotation marks

and alterations omitted) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366,

370 (1985))).

      The record supports the magistrate judge’s determination that Harrington’s

testimony about whether he would have accepted the plea offer was disingenuous

and not credible. See United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th

Cir. 2002) ([W]e must accept [a credibility determination] unless it is contrary to

the laws of nature, or is so inconsistent or improbable on its face that no

reasonable factfinder could accept it.” (alterations omitted)). Harrington discussed

the plea offer at length with his counsel and never admitted guilt nor indicated any

interest in accepting the plea offer and giving up his right to a jury trial and any

                                           8
later appeals. Harrington’s testimony was the only evidence that he offered

concerning whether he would have accepted the offer if he had been more fully

informed, and the magistrate judge’s determination that his testimony was not

credible is supported by the record. Harrington thus failed to meet his burden of

proving that he was prejudiced by his counsel’s performance.

                                          IV.

      Harrington also contends that his counsel was ineffective for failing to file a

pretrial motion to suppress the statements, including the false statement about his

last port of call, that he made to the law enforcement officers who initially boarded

his boat. He argues that the officers were required to give him Miranda warnings.

Because they did not, he asserts that his statements to them were not admissible

and but for his counsel’s failure to file a written pretrial motion to suppress, the

statements would have been excluded. He further argues that the use of those

statements at trial was “prejudicial per se” because it was an “assassination of

character” that “showed consciousness of guilt.”

      Even assuming the statements would have been excluded if Harrington’s

counsel had filed a written instead of oral motion to suppress—which is

doubtful—there was more than enough evidence without Harrington’s statements

to support the jury’s verdict. The government introduced evidence of the 509

                                           9
kilograms of marijuana found on the sailboat, the nautical charts found on the

sailboat that mapped out Harrington’s trip to Jamaica, the 260 kilograms of

marijuana found at Harrington’s residence, over $95,000 in cash found in

Harrington’s safe deposit box, the documents found at a coconspirator’s residence

evincing Harrington’s involvement in the drug smuggling scheme, recordings of

phone conversations between Harrington and his coconspirators about the

smuggling operation, and the testimony of two of those coconspirators about

Harrington’s involvement in the smuggling operation. Because there was

substantial evidence of his guilt apart from his statements to the officers who

boarded his boat, Harrington has not met his burden of proving that he was

prejudiced by the introduction of that evidence.

      AFFIRMED.




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