           Case: 15-12899    Date Filed: 03/01/2017   Page: 1 of 5


                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 15-12899
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket Nos. 1:13-cv-23640-JLK,
                          1:09-cr-20264-JLK-1


JUNIOR SYLVIN,

                                                           Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                          Respondent-Appellee.

                        ________________________

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

                               (March 1, 2017)

Before MARTIN, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM:
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      Junior Sylvin, a federal prisoner proceeding pro se, appeals the denial of his

28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. The district

court granted Sylvin a certificate of appealability (“COA”) on two issues:

   1. Whether Petitioner is entitled to an evidentiary hearing to determine
      whether or not the advice of his counsel during plea negotiations
      constituted ineffective assistance of counsel.

   2. Whether Petitioner is entitled to an evidentiary hearing to determine
      whether his counsel’s failure to call codefendants as witnesses
      constituted ineffective assistance of counsel.

                                           I.

      Sylvin first contends that his trial counsel, Barry Greff (“Greff”), was

ineffective with regard to the plea negotiations because he advised Sylvin to

decline the government’s offer of ten years’ imprisonment in exchange for

pleading guilty and to pursue suppression motions instead. Sylvin notes that the

suppression motions were denied, and he ultimately received a 216-month

sentence.

      “We review the district court’s denial of an evidentiary hearing in a § 2255

proceeding for abuse of discretion.” Winthrop-Redin v. United States, 767 F.3d

1210, 1215 (11th Cir. 2014). “A district court abuses its discretion if it applies an

incorrect legal standard, applies the law in an unreasonable or incorrect manner,

follows improper procedures in making a determination, or makes findings of fact

that are clearly erroneous.” Id.

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      A movant claiming ineffective assistance of counsel must show that (1) his

counsel’s representation fell below an objective standard of reasonableness, and

(2) there is a reasonable probability that the proceeding’s result would have been

different, but for his counsel’s ineffective assistance. Chandler v. United States,

218 F.3d 1305, 1312-13 (11th Cir. 2000) (en banc). We engage in a “highly

deferential” review of counsel’s performance. Id. at 1314.

      An evidentiary hearing must be held on a motion to vacate “[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)(2012); see also Anderson v. United

States, 948 F.2d 704, 706 (11th Cir. 1991) (holding that, unless the record is

adequate to conclusively show that the movant’s contentions are without merit, the

district court must conduct a hearing). The district court, however, should order an

evidentiary hearing and rule on the merits of a petitioner’s claim “if the petitioner

alleges facts that, if true, would entitle him to relief.” Rosin v. United States, 786

F.3d 873, 877 (11th Cir.), cert. denied, 136 S. Ct. 429 (2015)(quotations omitted).

“[A]n evidentiary hearing is unnecessary when the petitioner’s allegations are

affirmatively contradicted by the record.” Id.

      Here, there is no evidence in the record supporting Sylvin’s allegation that a

ten-year offer was extended. See Winthrop-Redin, 767 F.3d at 1215. On the

contrary, Sylvin’s claim is affirmatively contradicted by the record. See Rosin, 786

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F.3d at 877. Accordingly, we conclude that the district court did not abuse its

discretion in denying Sylvin’s § 2255 motion without holding an evidentiary

hearing as to his counsel’s effectiveness during the plea negotiations.



                                            II.

      Sylvin also argues that he was entitled to an evidentiary hearing with regard

to his claim that his counsel was ineffective for failing to bring witnesses to testify

at his sentencing hearing that Sylvin was not an organizer or leader in the

alleged/charged offense. He asserts that affidavits show that the witnesses were

willing to testify on his behalf.

      We have stated that counsel’s decision as to which witnesses to call at

sentencing, if any, “is the epitome of a strategic decision, and it is one that we will

seldom, if ever, second guess.” Conklin v. Schofield, 366 F.3d 1191, 1204 (11th

Cir. 2004) (quotations omitted). Therefore, “[e]ven if counsel’s decision appears

to have been unwise in retrospect, the decision will be held to have been

ineffective assistance only if it was so patently unreasonable that no competent

attorney would have chosen it.” Dingle v. Sec’y, Dep’t of Corrs., 480 F.3d 1092,

1099 (11th Cir. 2007) (quotations omitted).

      Here, we conclude from the record that the district court did not abuse its

discretion in declining to hold an evidentiary hearing with regard to Greff’s failure

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to bring witnesses at sentencing. The affidavits show that two of the witnesses

were unavailable to testify. Moreover, even if the third witness was able to testify,

the decision not to call him was a strategic decision, which was not patently

unreasonable. See Dingle, 480 F.3d at 1099.

      Accordingly, for the above stated reasons, we affirm the district court’s

denial of Sylvin’s § 2255 motion without holding an evidentiary hearing.

      AFFIRMED.




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