           Case: 14-14477   Date Filed: 08/04/2015   Page: 1 of 5


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-14477
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket Nos. 1:09-cv-01717-JEC,
                         1:06-cr-00406-JEC-3


ADAM HARRY DENNEY,

                                                          Petitioner-Appellant,


                                  versus


UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.

                      ________________________

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

                            (August 4, 2015)



Before HULL, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:
                Case: 14-14477        Date Filed: 08/04/2015       Page: 2 of 5


       Adam Denney, a federal prisoner represented by counsel, appeals the district

court’s denial of his motion to vacate, 28 U.S.C. § 2255. Denney received a 30-

month sentence after a jury convicted him of one count of conspiracy to commit

bank fraud, 18 U.S.C. § 371, and one count of loan application fraud, 18 U.S.C.

§ 1014. After review, 1 we affirm the district court.

       The district court concluded trial counsel’s performance was deficient under

Strickland v. Washington, 466 U.S. 668 (1984), because he failed to discuss with

Denney the sentencing benefits of pleading guilty “straight up”—pleading guilty as

charged in the indictment and without a plea agreement from the Government.

However, the court denied habeas relief because Denney was not prejudiced by

counsel’s performance. The court determined there was not a reasonable

probability Denney would have pleaded guilty had he received constitutionally

competent advice. The court based this prejudice determination on the following

findings: (1) Denney was not actually relying on trial counsel’s advice in making

strategic decisions regarding his case; and (2) a competent attorney would have

advised the potential benefit Denney could expect to receive by pleading guilty

would have been a sentence only 13 months shorter than one imposed after a trial.

       1
         With regard to a district court’s denial of a motion to vacate under 28 U.S.C. § 2255,
we review legal conclusions de novo and findings of fact for clear error. Lynn v. United States,
365 F.3d 1225, 1232 (11th Cir. 2004). A claim of ineffective assistance of counsel is a mixed
question of law and fact subject to de novo review. Caderno v. United States, 256 F.3d 1213,
1216-17 (11th Cir. 2001).


                                                2
              Case: 14-14477     Date Filed: 08/04/2015    Page: 3 of 5


      On appeal, Denney challenges this prejudice determination, arguing trial

counsel’s deficient performance was based on the fact he was not familiar with the

federal Sentencing Guidelines and if he had been he would have been able to

persuade Denney to plead guilty. Thus, but for counsel’s deficient performance,

the outcome of the proceeding would have been different because Denney would

have pleaded guilty and received a lesser sentence.

      The Sixth Amendment gives criminal defendants the right to effective

assistance of counsel. U.S. Const. amend. VI; Strickland, 466 U.S. at 684-86. To

prevail on a claim of ineffective assistance of counsel, the defendant must

demonstrate: (1) his counsel’s performance was deficient, i.e., the performance fell

below an objective standard of reasonableness; and (2) he suffered prejudice as a

result of that deficient performance. Strickland, 466 U.S. at 687-88. Prejudice is a

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

the proceeding would have been different.” Id. at 694. A reasonable probability is

one sufficient to undermine confidence in the outcome. Id. It is not enough for the

defendant to show the error had some conceivable effect on the outcome of the

proceeding. Id. at 693.

      Where a defendant challenges a not-guilty plea based on ineffective

assistance of counsel, he “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


                                          3
              Case: 14-14477     Date Filed: 08/04/2015    Page: 4 of 5


going to trial.” Coulter v. Herring, 60 F.3d 1499, 1504 (11th Cir. 1995)

(quotations and alterations omitted). In Coulter, we held the petitioner failed to

establish prejudice where, although a counteroffer indicated a willingness to enter

into a plea agreement, there was no further proof the defendant would have entered

into the plea that was actually offered. Id.

      Further, in Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991), we

held the defendant, who rejected the government’s plea offer, failed to establish

prejudice where he had cited “no evidence to indicate that prior to his conviction

he expressed any desire to plead guilty.” This Court concluded the defendant’s

“after the fact testimony concerning his desire to plead, without more, [was]

insufficient to establish that but for counsel’s alleged advice or inaction, he would

have accepted the plea offer.” Id.

      The district court did not err in determining Denney was not prejudiced by

trial counsel’s performance. First, it was not clear error to determine a prudent

defense attorney would have (1) projected a sentence after a jury conviction of

between 46 and 57 months; (2) projected a sentence based on a guilty plea of

between 33 and 41 months; and (3) thus counseled the sentencing benefit of

pleading guilty versus going to trial would only be 13 months.

      Second, it was not clear error to discredit Denney’s post-conviction assertion

he was a passive participant in the decision to proceed to trial. Denney maintained


                                          4
               Case: 14-14477     Date Filed: 08/04/2015   Page: 5 of 5


his innocence throughout trial, perjured himself at trial by presenting a false alibi

and bank statements that purportedly corroborated the false alibi, and had his wife

give the same false alibi testimony. These actions do not reflect passivity. Thus,

the district court did not err in concluding Denney was not actually relying on trial

counsel’s advice. Based on those two findings—that (1) a prudent defense

attorney would have counseled Denney a guilty plea would give him a sentence 13

months shorter than proceeding to trial and (2) Denney was not actually relying on

counsel’s advice—the court did not err in concluding there was not a reasonable

probability that, but for trial counsel’s deficient performance, Denney would have

pleaded guilty.

      AFFIRMED.




                                           5
