                                                                         [DO NOT PUBLISH]


                   IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT           FILED
                                                        U.S. COURT OF APPEALS
                                ________________________ ELEVENTH CIRCUIT
                                                             MARCH 11, 2011
                                                               JOHN LEY
                                      No. 09-16278               CLERK
                                ________________________

                          D. C. Docket Nos. 06-81032-CV-DTKH
                                   03-80093 CR-DTK

AMAURY SALAZAR,

                                                                          Petitioner-Appellant,

                                              versus

UNITED STATES OF AMERICA,

                                                                         Respondent-Appellee.

                                ________________________

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

                                        (March 11, 2011)

Before TJOFLAT and BARKETT, Circuit Judges, and STEELE,* District Judge.

PER CURIAM:

       *
           Honorable John E. Steele, United States District Judge for the Middle District of
Florida.
      In United States v . Salazar (Salazar I), 157 Fed.Appx. 190. 2005 WL

3274999 (C.A.11 (Fla.)), we affirmed Amaury Salazar’s 360 months’ prison

sentence imposed by the district court after a jury found him guilty of possession

with intent to distribute at least 50 grams of crack cocaine, in violation of 21

U.S.C. § 841(a)(1). On November 6, 2006, Salazar, proceeding pro se, moved the

district court to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255

on the ground that his trial attorney rendered ineffective assistance of counsel, in

violation of the Sixth Amendment, by failing to call two witnesses he considered

critical to his defense at trial, Amanda Harlan and Cesar Olave. They were

passengers in the Jeep Wrangler he drove to a local bar (on the day he was arrested

for the § 841(a)(1) offense) allegedly to distribute crack cocaine to an undercover

police officer. According to the police, and apparently found by the jury, Salazar

exited the vehicle carrying a white paper bag containing the drugs for which he

was indicted and convicted. In his motion, Salazar asserted that Harlan and Olave

would have contradicted the police officers’ testimony and thus corroborated his

claim that he had no crack cocaine in his possession. (Salazar did not testify at his

trial; nor did he take the stand at the evidentiary hearing described below to make

such a claim.)

      The district court denied Salazar’s motion without an evidentiary hearing.

                                          2
Salazar appealed. Concluding that his allegation of ineffective assistance was not

affirmatively contradicted by the record, we vacated the district court’s decision

denying the motion and remanded the case for an evidentiary hearing. Salazar v.

United States (Salazar II), 319 Fed.Appx. 815, 2009 WL 684772 (C.A.11 (Fla.)).

       On remand, the district judge referred the matter to a magistrate judge, who

appointed counsel for Salazar and held an evidentiary hearing. At the hearing, the

magistrate judge heard the testimony of Salazar’s trial attorney, and the testimony

of Amanda Harlan.1 After hearing from Harlan, who was romantically involved

with Salazar at the time he was arrested and afterwards, the magistrate judge found

that her testimony was “highly suspect, and disingenuous,” and “at times

equivocal or contradictory,” and that it “would not have affected the outcome of

the . . . trial. The magistrate judge therefore concluded that, assuming that trial

counsel should have called Harlan to testify and that she testified in accordance

with her statements at the evidentiary hearing, her testimony would not have




       1
           Olave did not testify at the hearing; nor did Salazar introduce an affidavit setting out
what Olave would have said had he testified at the trial. Trial counsel testified that she did not
call Olave to testify at Salazar’s trial because he had been arrested immediately following
Salazar’s arrest and had a small amount of cocaine in his possession. Counsel said that if called
to testify in Salazar’s defense and if he did not invoke his Fifth Amendment privilege to remain
silent, his testimony would not have been inculpatory.

                                                 3
altered the outcome of the trial.1 In other words, Salazar had not shown prejudice

sufficient to make out a claim of ineffective assistance under Strickland v.

Washington, 466 U.S. 668 (1984).

       The magistrate judge issued a Report & Recommendation (“R & R”)

recommending that the district court deny § 2255 relief. After conducting a de

novo review of the record, the district court adopted the R & R and denied

Salazar’s § 2255 motion.

       Salazar now appeals. We issued a certificate of appealability (“COA”) on

one issue: whether trial counsel’s performance was constitutionally deficient as

Salazar has alleged. In his brief, Salazar frames the issue thusly: “Whether trial

counsel was ineffective for failing to interview eyewitness Amanda Harlan.”

Appellant’s Br. at 1. The magistrate judge, and subsequently the district judge,

found, in effect, that counsel’s failure to interview Harlan prior to trial was of no

moment, for she would not have provided exculpatory testimony or otherwise

altered the outcome of the proceeding. We agree for the reasons stated in the R &

R. The district court’s judgment is therefore

       AFFIRMED.


       1
         We note in passing trial counsel’s testimony that Salazar never instructed her to call
Harlan (or Olave) to testify in his behalf. Of course, this fact does not have a bearing on whether
counsel should have interviewed Harlan prior to Salazar’s trial.

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