                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 09-14033                   APRIL 27, 2011
                           Non-Argument Calendar                JOHN LEY
                                                                 CLERK
                         ________________________

                    D. C. Docket Nos. 05-23089-CV-FAM,
                             99-00714 CR-FAM

JOSE DENIS,


                                                             Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.


                         ________________________

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

                                (April 27, 2011)

Before CARNES, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

     Jose Denis appeals the denial of his motion to vacate his convictions for
conspiring to possess and attempting to possess with intent to distribute cocaine, 21

U.S.C. §§ 841(a)(1), 846, and committing a murder during a drug trafficking

offense, 18 U.S.C. § 924(j). 28 U.S.C. § 2255. The district court granted a

certificate of appealability to address whether Denis was entitled to “an evidentiary

hearing on the claim of ineffective assistance of counsel as it relates to the testing

of the original tape recording” of a conversation in which Denis admitted that he

shot a man while attempting to steal drugs from his hotel room. Denis requests a

second time that this Court expand the scope of the certificate of appealability, but

we will not further reconsider this matter, see 11th Cir. R. 27-3, or review Denis’s

arguments about issues other than the tape recording, see Jordan v. Sec’y, Dep’t. of

Corr., 485 F.3d 1351, 1356 (11th Cir. 2007). We affirm.

      A movant must “[s]urmount[] . . . [a] high bar” to prevail on an argument

that trial counsel acted ineffectively. Padilla v. Kentucky, 130 S. Ct. 1473, 1485

(2010). The movant must prove both that counsel acted deficiently and that those

errors “were significant enough to have affected the outcome” of the trial. United

States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000). Counsel is presumed to

have provided representation “within the ‘wide range’ of reasonable professional

assistance” and, for the movant to succeed on an argument of deficient

performance, he must establish that “‘counsel made errors so serious that [he] was



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not functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment.’” Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (quoting

Strickland v. Washington, 466 U.S. 668, 687, 689, 104 S. Ct. 2052, 2064, 2065

(1984)). If counsel has acted deficiently, the movant must also prove that

counsel’s errors were “‘so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.’” Id. at 787–88 (quoting Strickland, 466 U.S. at 687, 104

S. Ct. at 2064).

      Denis argues that trial counsel should have tested the original tape recording

to determine if the recording had been altered, but trial counsel made a reasonable

strategic decision not to obtain and test the original audiotape. See Strickland, 466

U.S. at 690, 104 S. Ct. at 2066. Counsel had a copy of the tape recorded

conversation tested twice and identified specific “areas of concern” in the

recording, but neither of the tests revealed that the recording had been altered.

Counsel hired an investigator to assist with Denis’s case, and the investigator told

counsel that it would not be worthwhile to test the original audiotape. Denis

argues that counsel should have tested the original recording after learning that the

informant who had made the recording had edited or spliced another recording, but

counsel cannot be faulted for failing to “pursue an investigation” that reasonably

appeared to “be fruitless” based on the information counsel had obtained from two



                                            3
analysts and Denis. Harrington, 131 S. Ct. at 789; Strickland, 466 U.S. at 691, 104

S. Ct. at 2066. The district court did not err by concluding that Denis failed to

prove that his counsel performed deficiently.

      Denis also failed to prove by “a reasonable probability” that the result of his

trial would have been different had counsel tested the original audiotape.

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Four other conspirators in the

attempted robbery testified that Denis had murdered the victim of the attempted

robbery. Two of the other conspirators were eyewitnesses to the murder and

testified that Denis had shot the man at close range, and a forensic scientist

testified that the victim had been shot with a gun that had been held approximately

one foot from his head. Denis has never denied making the incriminating

statements on the tape. The district court did not err by concluding that Denis

failed to prove that he was prejudiced by counsel’s performance.

      Denis complains that he was denied an evidentiary hearing, but this

argument is baseless. The record reflects that on March 5 and 6, 2008, a magistrate

judge held an evidentiary hearing on Denis’s motion, during which Denis and five

other witnesses testified. Denis does not argue that the magistrate judge failed to

consider any evidence or explain why the district court should have been required

to hold another evidentiary hearing. “An evidentiary hearing is not required when



                                           4
‘the motion and the files and records of the case conclusively show that the

prisoner is entitled to no relief.’” Gordon v. United States, 518 F.3d 1291, 1301

(11th Cir. 2008) (quoting 28 U.S.C. § 2255). The district court could determine

from the pleadings and the transcript of the hearing that Denis was not entitled to

postconviction relief. The district court did not abuse its discretion by denying

Denis another evidentiary hearing.

      The denial of Denis’s motion to vacate his convictions is AFFIRMED.




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