                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________           FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-10951         ELEVENTH CIRCUIT
                                                       MARCH 12, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                           CLERK

             D. C. Docket Nos. 07-00915-CV-D-E, 92-00162-CR

MARVIN C. THOMPSON,



                                                            Petitioner-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                           Respondent-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Alabama
                        _________________________

                               (March 12, 2010)

Before CARNES, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

     Marvin C. Thompson appeals pro se the denial of his motion to vacate, set
aside, or correct the sentence of 46 months of imprisonment imposed after

revocation of his supervised release. 28 U.S.C. § 2255. We granted a certificate of

appealability to address whether Thompson was served with a copy of the report

and recommendation that the district court deny Thompson’s motion to vacate and

whether “the district court erred by relying on affidavits presented by the

government, which contradicted the arguments and affidavits presented by

Thompson.” We affirm.

                                 I. BACKGROUND

      We divide our discussion of the background into two parts. First, we discuss

Thompson’s conviction and the revocation of supervised probation that resulted in

the sentence Thompson now challenges. Second, we discuss Thompson’s motion

to vacate his sentence and the decision of the district court.

     A. Thompson’s Conviction and Revocation of His Supervised Probation

      In 1993, Thompson pleaded guilty to conspiracy to distribute cocaine base,

21 U.S.C. § 846, and he was sentenced to 137 months of imprisonment and five

years of supervised release. In 2005, the government filed a petition to revoke

Thompson’s supervised release. The government alleged that on November 17,

2005, Thompson had been arrested for obstructing a governmental operation and

possessing cocaine base and Thompson had possessed a firearm.



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      At the revocation hearing, the government introduced testimony from the

arresting officer, Steven Woods of the Lanette Police Department, and Thompson’s

probation officer, James Chappell. Woods testified that he stopped to investigate

after he observed that Thompson’s vehicle was parked illegally near an intersection

in a “high drug crime area”; Thompson was talking to Ernest Lyman, who Woods

knew abused cocaine base; and Lyman was holding money in his hand. Woods

testified that he arrested Lyman after discovering a crack pipe in his hat.

      Woods proceeded to Thompson’s car to investigate further. Woods testified

that he arrested Thompson for obstructing a governmental operation because

Thompson interfered with Woods’s instructions to Thompson’s girlfriend to exit

the passenger seat of Thompson’s car. Woods also testified that he inventoried

Thompson’s car and discovered on the driver’s seat a black fanny pack that

contained cocaine base and a loaded nine millimeter pistol. Chappell testified that

Thompson had said the pack was owned by one of his daughter’s friends or a

person hired to assist Thompson’s mother.

      Thompson denied any wrongdoing, and he argued through counsel that

someone else owned the fanny pack and he had been targeted by Woods. After the

government rested its case, defense counsel argued that the “single person who was

closest to [the fanny pack] and had the greatest opportunity to exercise control and



                                           3
dominion over that bag” was Thompson’s girlfriend and Thompson “did not

knowingly . . . allow that fanny pack to be in that car.” Defense counsel also

argued that “if someone got into [Thompson’s] car with a black fanny pack, i.e.,

his passenger, there’s absolutely no evidence that he would have necessarily asked

what was in the bag or inspected the bag.” Defense counsel called Lyman as a

witness. Lyman testified that Thompson had loaned him money, Thompson had

stood still when Woods ordered Thompson’s girlfriend out of the car, and Woods

later charged Lyman for buying a controlled substance because he had been

disruptive at the police station.

      Thompson testified that he had been stopped by Woods on three occasions

and ticketed for traffic offenses he had not committed. Thompson did not deny

that the fanny pack had been discovered in his car. Thompson testified that he did

not own or know about the bag and he had allowed his daughter and a friend to

drive his car earlier that day. Thompson admitted that he had advised his girlfriend

to remain in the car, but Thompson denied that he had interfered physically with

Woods’s investigation.

      The district court found that Thompson had obstructed a government

operation and he had possessed cocaine base and a firearm. The district court

revoked Thompson’s supervised release and sentenced him to 46 months of



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imprisonment and one year of supervised release. This Court affirmed and held

that the district court did not abuse its discretion by revoking Thompson’s

supervised release because the “evidence established that, more likely than not,

Thompson constructively possessed the contraband,” and the district court did not

clearly err in crediting Woods’s testimony notwithstanding evidence from

Thompson that “Woods’s testimony was incredible and biased.” United States v.

Thompson, No. 06-12309, slip op. at 1 (11th Cir. Dec. 13, 2006).

                   B. Thompson’s Post-Revocation Proceedings

      In October 2007, Thompson filed a motion to vacate his sentence. 28 U.S.C.

§ 2255. Thompson argued that his attorney acted ineffectively at the revocation

hearing for, among other reasons, failing to present testimony from Thompson’s

girlfriend, Sylvia Banks. Thompson attached to his motion an affidavit signed by

Banks that appeared to have been prepared on the same typewriter as the brief in

support of Thompson’s motion to vacate. Banks attested that Thompson did not

interfere physically with Woods’s investigation and Thompson did not have “a bag

with him[] when he got into the car, nor did he leave a bag on his seat when he got

out of the car.” Thompson also argued that he was entitled to relief on the ground

he had newly discovered evidence that Woods had planted the fanny pack in his

car. In support of his argument, Thompson attached to his motion a newspaper



                                          5
report that Woods had been investigated and fired for abusing his authority.

      The government responded that Thompson’s attorney, Donnie Bethel, was

not ineffective. The government argued that Bethel was not required to call Banks

as a witness because her testimony did not conflict with Woods’s testimony about

the fanny pack and her testimony would have been perjured. The government

referenced an affidavit filed by Bethel explaining that he made a strategic decision

not to have Banks testify. Bethel attested that he had interviewed Banks and she

had said there was a black fanny pack on Thompson’s seat. Bethel also attested

that he chose not to call Banks as a witness for two reasons: Bethel believed

Banks’s testimony about the pack would damage Thompson’s defense, and Bethel

had “concluded beyond doubt” that Thompson had instructed Banks to lie and

claim ownership of the pack.

      Thompson filed two typewritten “rebuttal affidavits” that were signed by his

sister, Barbara Thompson, and Banks. Barbara Thompson attested that she rode

with Thompson to his revocation hearing and observed Thompson receive a

telephone call from Bethel; Bethel told Thompson “not to bring Ms. Banks to the

courthouse”; and Thompson “was clearly upset and . . . surprise[d] that Mr. Bethel

did not intend to let Ms. Banks testify.” Banks attested that she “[n]ever stated” to

Bethel that “there was a bag on the seat of . . . Thompson’s vehicle at the time of



                                          6
his arrest”; Thompson had not “attempted to persuade her to claim ownership of

the bag”; Bethel had told Banks that she would testify at Thompson’s revocation

hearing; and Banks overheard Thompson disagree with Bethel’s plan to “present

[Banks] as an alibi owner of the [fanny pack].”

      A magistrate judge recommended that the district court deny Thompson’s

motion to vacate his sentence. The magistrate judge found that Bethel was not

ineffective for failing to call Banks as a witness when Bethel believed Banks

would testify falsely. The magistrate judge ruled that Thompson’s argument that

Woods planted evidence in his car was not newly discovered and, “[t]o the extent

that Thompson [argued] that his counsel was ineffective for failing to pursue a

‘planted evidence’ defense,” the argument “lack[ed] merit.” The magistrate judge

found that Bethel’s “affidavit and other aspects of the record” established that

Thompson “never disputed that there was a fanny pack in his car before he was

approached by [the] police” and that “counsel had no reasonable basis for pursuing

such a defense at the time of the revocation hearing.” After “an independent

review of the file,” on February 4, 2009, the district court denied summarily

Thompson’s motion to vacate.

      Thompson filed a notice of appeal that challenged the denial of his motion to

vacate. In the notice, Thompson argued that he never received a copy of the



                                          7
recommendation of the magistrate judge and he referenced a notice he had filed

that, effective February 4, 2009, he should be served at an address in Atlanta,

Georgia. The notice was dated February 2, 2009, and was received by the clerk of

the district court on February 4, 2009. The district court treated Thompson’s

notice of appeal as a motion for a certificate of appealability and denied the

motion.

                          II. STANDARDS OF REVIEW

      On denial of a motion to vacate a sentence, we review findings of fact for

clear error and the application of law to those facts de novo. Mamone v. United

States, 559 F.3d 1209, 1210 (11th Cir. 2009).

                                  III. DISCUSSION

      Thompson challenges the ruling of the district court on two grounds. First,

Thompson argues that his right to due process was violated because the district

court failed to provide notice of the report and recommendation at the Federal

Prison Camp in Atlanta, Georgia. Second, Thompson argues that he was entitled

to an evidentiary hearing to resolve inconsistencies in the affidavits filed by his

girlfriend, Banks, and attorney Bethel. These arguments fail.

      The district court did not violate Thompson’s right to due process. To

satisfy the Due Process Clause, “notice must be ‘reasonably calculated, under all



                                           8
the circumstances, to apprise interested parties of the pendency of the action and

afford them an opportunity to present their objections.’” Arrington v. Helms, 438

F.3d 1349–50 (11th Cir. 2006) (quoting Mullane v. Cent. Hanover Bank & Trust

Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950)). The clerk complied with the

requirements of due process by providing Thompson notice in compliance with the

Federal Rules of Civil Procedure. Under those rules, the clerk must “promptly

mail a copy” of a report and recommendation, Fed. R. Civ. P. 72(b)(1), to a party’s

“last known address,” id. 5(b)(2)(C).

      The record establishes that the clerk mailed Thompson a copy of the report

and recommendation to his official address of record at the Federal Correctional

Institution in Yazoo City, Mississippi. Thompson had listed the Yazoo City

address on his complaint and on the next eleven documents that he filed in the

district court between November 2007 and May 2008. Although Thompson argues

that the clerk was required to mail a copy of the report and recommendation to the

Federal Prison Camp address that Thompson had listed on his petition for a writ of

mandamus that he filed in October 2008, Thompson continued to receive actual

notice at the Yazoo City address. The record establishes that the clerk served

Thompson at the Yazoo City address notice that his petition had been denied, and

Thompson appealed that decision. The district court provided Thompson sufficient



                                          9
notice. See Dunlap v. Transamerica Occidental Life Ins. Co., 858 F.2d 629, 632

(11th Cir. 1988).

      The district court also did not abuse its discretion by denying Thompson’s

motion to vacate without an evidentiary hearing. The district court was entitled to

rely on the information it acquired during Thompson’s revocation hearing to

resolve the inconsistencies in the affidavits of Thompson’s attorney, Bethel, and

Thompson’s girlfriend, Banks. See United States v. Schlei, 122 F.3d 944, 994

(11th Cir. 1997) (“‘[T]he acumen gained by a trial judge over the course of the

proceedings [makes him] well qualified to rule on the basis of affidavits without a

hearing.’” (quoting United States v. Hamilton, 559 F.2d 1370, 1373–74 (5th Cir.

1977)). The district court was entitled to regard with suspicion Thompson’s

argument that his counsel had suppressed exculpatory testimony from Banks that

Woods planted the fanny pack in Thompson’s vehicle because Thompson had

testified at the revocation hearing and had not disavowed that a fanny pack

containing cocaine base and a firearm had been discovered in his vehicle. The

testimonies of officers, Lyman, and Thompson about the fanny pack, coupled with

the suspect nature of Banks’s affidavits, provided the district court ample reason to

deny Thompson an evidentiary hearing. See Holmes v. United States, 876 F.2d

1545, 1553 (11th Cir. 1989) (“A hearing is not required on patently frivolous



                                          10
claims or . . . . where the petitioner’s allegations are affirmatively contradicted by

the record.”).

      The district court also did not err by denying Thompson’s motion to vacate

his sentence. Thompson failed to prove that Bethel made a professional error.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The

district court credited Bethel’s statement that he believed Banks would give false

testimony, and we find no clear error in that finding of fact. Bethel’s statement is

consistent with statements in the affidavits of Banks and Barbara Thompson that

Bethel ordered Thompson not to bring Banks to the courthouse. Bethel was not

ineffective because the duty to present a defense does not require that an attorney

suborn perjury. See Putman v. Head, 268 F.3d 1223, 1246 (11th Cir. 2001)

(“Although an attorney has an ethical duty to advance the interest of her client, that

duty is limited by an equally solemn duty to comply with the law and standards of

professional conduct.”) (internal quotation marks and alteration omitted); Davis v.

Singletary, 119 F.3d 1471, 1475 (11th Cir. 1997) (“The duty to render effective

assistance of counsel does not include the duty to present false or misleading

testimony.”). Bethel also was entitled to choose deliberately not to call Banks as a

witness and instead argue that she owned the fanny pack, and we will not second

guess Bethel’s strategic decision. See Chandler v. United States, 218 F.3d 1305,



                                           11
1314 (11th Cir. 2000) (en banc).

                               IV. CONCLUSION

      The denial of Thompson’s motion to vacate his sentence is AFFIRMED.




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