          Case: 14-14399   Date Filed: 01/25/2016   Page: 1 of 4


                                                       [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-14399
                       Non-Argument Calendar
                     ________________________

              D.C. Docket Nos. 8:13-cv-01342-VMC-AEP,
                       8:10-cr-00305-T-33-AEP

ROBERT MARTIN,


                                                         Petitioner-Appellant,


                                 versus


UNITED STATES OF AMERICA,


                                                        Respondent-Appellee.

                     ________________________

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

                           (January 25, 2016)
                Case: 14-14399        Date Filed: 01/25/2016       Page: 2 of 4


Before TJOFLAT, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:

       Robert Martin, proceeding pro se,1 challenges the district court’s denial of

his 28 U.S.C. § 2255 motion to vacate his convictions for distribution of

methamphetamine and possession of a firearm by a convicted felon. Martin was

granted a certificate of appealability (COA) on the following issue: Whether the

district court erred in denying Martin’s claim of ineffective assistance of counsel

without holding an evidentiary hearing to determine the nature of the advice given

to Martin by counsel with regard to whether to withdraw his first guilty plea. After

review, 2 we affirm the district court.

       A movant under § 2255 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). A district court

does not need to hold an evidentiary hearing where the movant’s allegations “are

affirmatively contradicted by the record, or the claims are patently frivolous . . . .”

Aron v. United States, 291 F.3d 708, 715 (11th Cir. 2002).


       1
          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).
       2
          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. Whether counsel was ineffective is a mixed question of
law and fact and is reviewed de novo. Thompson v. United States, 504 F.3d 1203, 1206 n.4 (11th
Cir. 2007).


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      To make a successful claim of ineffective assistance of counsel, a defendant

must show that: (1) his counsel’s performance was deficient; and (2) the deficient

performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687

(1984). Review of counsel’s conduct is highly deferential, and there is a strong

presumption that counsel’s performance falls within the wide range of professional

competence. Id. at 689. In Missouri v. Frye, 132 S. Ct. 1399 (2012), and Lafler v.

Cooper, 132 S. Ct. 1376 (2012), the Supreme Court held the Sixth Amendment

right to effective assistance of counsel extends to plea negotiations. Frye, 132 S.

Ct. at 1404-08; Lafler, 132 S. Ct. at 1384. Thus, criminal defendants are “entitled

to the effective assistance of competent counsel” during plea negotiations. Lafler,

132 S. Ct. at 1384.

      The district court did not abuse its discretion in declining to hold an

evidentiary hearing because Martin’s claim of ineffective assistance is

affirmatively contradicted by the record. The record shows that Martin knew that

he was taking a risk by rejecting the Government’s first plea offer and litigating his

motion to suppress. The transcript from the change of plea hearing on January 4,

2011, shows that Martin knew the Government would withdraw the first plea offer

if he litigated his motion to suppress, that his motion to suppress might not

succeed, and that, if the motion was unsuccessful, he faced conviction for more

offenses and a longer sentence. The prosecutor, the magistrate judge, and Martin’s


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counsel each communicated with Martin such that Martin was aware he was taking

a risk by pursuing his motion to suppress. Martin has not shown his counsel’s

allegedly deficient performance led him to reject the initial plea agreement.

         Further, even if Martin’s decision to reject the first plea offer was at his

counsel’s insistence, Martin has still failed to show deficient performance.

Pursuing a motion to suppress evidence based on the absence of the signature of

the judge approving the search warrant is the type of strategic choice that is

“virtually unchallengeable.” See Strickland, 104 S. Ct. at 2066. Martin cannot

show that “no competent counsel would have taken the action that his counsel did

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

banc).

         AFFIRMED.




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