                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-1274
                         ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

    Antonio Frausto, also known as Juan Antonio Frausto-Diaz, also known as
                              Antonio F. Ocampo

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                      for the District of Nebraska - Omaha
                                 ____________

                             Submitted: March 25, 2014
                                Filed: June 13, 2014
                                  ____________

Before RILEY, Chief Judge, GRUENDER and SHEPHERD, Circuit Judges.
                              ____________

GRUENDER, Circuit Judge.

       Antonio Frausto pled guilty to conspiring to distribute and possess with the
intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)
and 846. The district court1 sentenced him to 240 months’ imprisonment. His
sentence was affirmed on direct appeal. Frausto petitioned for a writ of habeas corpus
pursuant to 28 U.S.C. § 2255, arguing that he was denied his Sixth Amendment right
to effective assistance of counsel. The district court denied Frausto’s petition without
an evidentiary hearing. We granted a certificate of appealability, and Frausto
appealed.

I. Background

      The facts underlying Frausto’s conviction are set forth in our prior opinion,
United States v. Frausto, 636 F.3d 992, 994-96 (8th Cir. 2011). We repeat those facts
here only as necessary to the instant appeal.

      During a series of meetings and secretly-taped telephone conversations between
a confidential source employed by the Drug Enforcement Administration (“DEA”)
and Frausto and his co-conspirators, Frausto arranged for the sale of one pound of
high-quality methamphetamine to the confidential source. This purchase took place
on January 8, 2009, in Omaha, Nebraska. Frausto also arranged for two co-
conspirators, one of whom was Frausto’s nephew, Jose Rigoberto Frausto-Diaz
(“Rigoberto”), to travel to Council Bluffs, Iowa to sell four additional pounds of
methamphetamine to the confidential source’s fictitious partner. On January 18,
Frausto and his co-conspirators met with the confidential source at a restaurant in
Omaha. Frausto and his co-conspirators arrived at the restaurant in a Ford Focus,
which contained a hidden compartment to store illegal narcotics. Frausto and the
confidential source remained at the restaurant while Frausto’s co-conspirators drove
the Ford Focus to an apartment complex in Council Bluffs. Frausto’s co-conspirators
were arrested at the apartment complex, and DEA agents seized the four pounds of


      1
      The Honorable Joseph F. Bataillon, United States District Judge for the District
of Nebraska.

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methamphetamine from the Ford Focus. Frausto was arrested soon thereafter in
Omaha. DEA agents also obtained a search warrant to search a home in Omaha
associated with the conspiracy and recovered a loaded handgun and approximately
$60,000 in cash, including $23,500 of prerecorded DEA funds used in the January 8
transaction.

       Frausto pled guilty to one count of conspiracy to distribute and possess with
intent to distribute fifty grams or more of methamphetamine. At Frausto’s sentencing
hearing, DEA Special Agent Dustin Wernli testified about Frausto’s role in the
conspiracy, see USSG § 3B1.1. Special Agent Wernli testified that the confidential
source and Frausto frequently spoke over the phone and that these conversations had
been recorded. Special Agent Wernli also authenticated the recordings. A search of
Frausto’s phone revealed that two phone numbers, which were used by Special Agent
Wernli and the confidential source, were programmed into the phone’s directory.
Rigoberto, Frausto’s co-conspirator and nephew, testified that Frausto did not know
about the methamphetamine but admitted that it was Frausto’s voice on the recorded
phone calls. After hearing the evidence, the district court sentenced Frausto to 240
months’ imprisonment. On appeal, we affirmed Frausto’s sentence. Frausto, 636
F.3d at 998.

       Frausto filed this § 2255 petition, alleging that he was denied his Sixth
Amendment right to effective assistance of counsel. The district court declined to
grant an evidentiary hearing and denied the petition. On appeal, Frausto argues that
he is entitled to an evidentiary hearing on three of his claims that his trial counsel was
ineffective. First, Frausto argues that his trial counsel was ineffective for incorrectly
advising him that Rigoberto would be unable to testify at Frausto’s trial. Frausto
asserts that if he had known that Rigoberto could have testified at trial, he would not
have pled guilty. Second, Frausto argues that his attorney was ineffective for telling
him that a jury would believe that he owned the Ford Focus when the DEA report
showed that he did not own the Ford Focus. Frausto claims that had he known about

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the DEA report he would not have pled guilty. Finally, Frausto argues his counsel
was ineffective for not informing him that an expert using spectrographic voice
analysis was available to analyze the voice in the phone calls. Frausto contends that
he would not have pled guilty if his counsel had informed him about this technology.

II. Discussion

       An evidentiary hearing on a § 2255 petition may be denied if “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). We review a district court’s decision to deny an
evidentiary hearing for abuse of discretion. Noe v. United States, 601 F.3d 784, 792
(8th Cir. 2010). However, when doing so, we must “look behind that discretionary
decision to the court’s rejection of the claim on the merits, which is a legal conclusion
that we review de novo.” Id. (quoting Saunders v. United States, 236 F.3d 950, 952
(8th Cir. 2001)). Thus, to determine whether Frausto is entitled to an evidentiary
hearing, we must review de novo the validity of his ineffective-assistance-of-counsel
claims. See id.

       To establish ineffective assistance of counsel, Frausto must demonstrate that his
counsel’s performance was both deficient and prejudicial. See id. at 789; Strickland
v. Washington, 466 U.S. 668, 693 (1984). “In determining whether counsel’s conduct
was objectively reasonable, there is a ‘strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.’” Nguyen v. United
States, 114 F.3d 699, 704 (8th Cir. 1997) (quoting Strickland, 466 U.S. at 689). In
order to demonstrate prejudice where, as here, a petitioner challenges the validity of
his guilty plea, the petitioner must show “that there is a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also Nguyen, 114 F.3d
at 704; Wilcox v. Hopkins, 249 F.3d 720, 722 (8th Cir. 2001). “‘A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’ That

                                          -4-
requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Cullen
v. Pinholster, --- U.S. ---, 131 S. Ct. 1388, 1403 (2011) (citations omitted). Failure
to demonstrate either deficient performance by counsel or prejudice therefrom is fatal
to a petitioner’s claim. United States v. Lee, 715 F.3d 215, 221 (8th Cir. 2013);
Worthington v. Roper, 631 F.3d 487, 498 (8th Cir. 2011).

        Assuming, without deciding, that Frausto has demonstrated that his counsel’s
performance was deficient, the record conclusively shows that Frausto is not entitled
to relief. Frausto has failed to demonstrate that, absent the three alleged errors, there
is a reasonable probability that he would not have pled guilty. In this case, “the
‘prejudice’ inquiry . . . closely resemble[s] the inquiry engaged in by courts reviewing
ineffective-assistance challenges to convictions obtained through a trial.” Hill, 474
U.S. at 59. Whether the alleged errors of Frausto’s counsel prejudiced Frausto “by
causing him to plead guilty rather than go to trial will depend . . . . in large part on a
prediction whether the evidence likely would have changed the outcome of a trial.”
Id.

       First, Frausto alleges that had his counsel informed him that Rigoberto, his
nephew and co-conspirator, could testify at Frausto’s trial, Frausto would not have
pled guilty. The record conclusively establishes that there is not a substantial
probability that knowledge of Rigoberto’s ability to testify at trial would have caused
Frausto to proceed to trial. Rigoberto testified at Frausto’s sentencing hearing. While
Rigoberto claimed that Frausto did not know about the methamphetamine and that
Rigoberto had received the methamphetamine from a different uncle, Rigoberto also
identified Frausto’s voice on the recorded calls. Because Frausto and the confidential
source arranged for and discussed the methamphetamine sales in the recorded
conversations, Rigoberto’s testimony actually would have implicated Frausto in the
conspiracy. Moreover, the evidence against Frausto was overwhelming and included:
recorded conversations between Frausto and the confidential source arranging two
methamphetamine sales; Special Agent Wernli’s testimony authenticating the

                                           -5-
recordings; the results of the search of Frausto’s phone, which revealed that two phone
numbers used by Special Agent Wernli and the confidential source were programmed
into the phone’s directory; and evidence that Frausto went to the restaurant with his
co-conspirators in the Ford Focus used to store the four pounds of methamphetamine
on January 18. Thus, Rigoberto’s testimony at trial would have been unlikely to
change the outcome of a trial. See Chandler v. Armontrout, 940 F.2d 363, 365 (8th
Cir. 1991) (holding that, in light of the substantial evidence against him, the petitioner
failed to demonstrate that his counsel’s failure “to investigate . . . and verify the
veracity” of a witness’s testimony was prejudicial because it “would not have changed
the end result of the petitioner’s plea”); see also Iron Wing v. United States, 34 F.3d
662, 665 (8th Cir. 1994) (holding that petitioner could not demonstrate prejudice from
counsel’s failure to file a motion to suppress evidence where a plea agreement was
prudent course for the petitioner because suppression of the evidence “would not have
reduced the strength of the government’s case”); Harvey v. United States, 850 F.2d
388, 402 (8th Cir. 1988) (holding petitioner’s counsel were not ineffective for failing
to develop defenses “in the face of overwhelming evidence of guilt”). Accordingly,
we conclude that the record conclusively demonstrates that Frausto is not entitled to
relief on his ineffective-assistance-of-counsel claim based on his counsel’s failure to
advise him that Rigoberto could testify at his trial.

       Second, Frausto claims that if his counsel had informed him that the DEA
report showed that Frausto did not own the Ford Focus rather than informing him that
a jury would believe that he owned the vehicle, he would not have pled guilty. The
record, however, conclusively demonstrates that even if Frausto had known about the
DEA report, there is not a substantial probability that he would have insisted on
proceeding to trial. As described above, the Government had ample evidence
connecting Frausto to the conspiracy, including his recorded conversations with the
confidential informant arranging the drug transactions. Additionally, the Government
had uncontested evidence that Frausto arrived at the restaurant in the Ford Focus
before the January 18 methamphetamine transaction. The fact that his counsel could

                                           -6-
have presented evidence to the jury that Frausto did not own the Ford Focus is
insignificant when compared to the evidence of Frausto’s guilt, and thus, Frausto’s
non-ownership of the vehicle would have been unlikely to change the outcome of a
trial. See Iron Wing, 34 F.3d at 665; see also Harvey, 850 F.2d at 402. Accordingly,
the record conclusively establishes that he is not entitled to relief on this ineffective-
assistance-of-counsel claim.

        Finally, the record conclusively establishes that Frausto is not entitled to relief
based on his counsel’s failure to inform him about the availability of spectrographic
voice analysis. Frausto does not allege that his counsel was ineffective for failing to
consult an expert in spectrographic voice analysis; rather, he merely alleges that he
would not have pled guilty if his counsel would have told him about the technology.
Frausto’s bare assertion that he would not have pled guilty is insufficient to allow for
an intelligent assessment of the likelihood that Frausto would not have pled guilty and
is far too speculative to warrant § 2255 relief. See Rodela-Aguilar v. United States,
596 F.3d 457, 462 (8th Cir. 2010); Tran v. Lockhart, 849 F.2d 1064, 1067 (8th Cir.
1988) (explaining that a petitioner must provide the court “with the type of specific
facts which would allow . . . . an intelligent assessment of the likelihood that [a
petitioner] would not have ple[]d guilty”). Moreover, where a petitioner alleges
ineffective assistance of counsel based on his counsel’s failure to consult and call an
expert at trial, we require “‘evidence of what a scientific expert would have stated’ at
trial in order to establish Strickland prejudice.” Rodela-Aguilar, 596 F.3d at 462.
Frausto has not provided this evidence, and we will not dispense with that requirement
simply because Frausto alleges that knowledge of the existence of the technology
would have caused him to insist on a trial. See Hill, 474 U.S. at 59 (explaining that
“[i]n many guilty plea cases, the ‘prejudice’ inquiry will closely resemble the inquiry
engaged in by courts reviewing ineffective-assistance challenges to convictions
obtained through a trial” and “will depend in large part on a prediction whether the
evidence likely would have changed the outcome of trial”).



                                           -7-
III. Conclusion

       Because the petition, briefs, and record conclusively show that Frausto is not
entitled to § 2255 relief, the district court did not abuse its discretion by denying his
petition without an evidentiary hearing. We affirm.
                         ______________________________




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