           Case: 12-12979    Date Filed: 12/19/2013   Page: 1 of 6


                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-12979
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket Nos. 9:09-cv-81530-DTKH,
                        9:99-cr-08125-DTKH-2


GARLAND HOGAN,

                                                           Petitioner-Appellant,

                                   versus


UNITED STATES OF AMERICA,

                                                          Respondent-Appellee.

                      ________________________

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

                            (December 19, 2013)

Before WILSON, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
               Case: 12-12979    Date Filed: 12/19/2013    Page: 2 of 6


       Garland Hogan, a federal prisoner, appeals the district court’s denial of his

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

following his convictions for one count of conspiracy to commit wire and mail

fraud, in violation of 18 U.S.C. § 371, nine counts of mail fraud, in violation of 18

U.S.C. § 1341, one count of conspiracy to commit money laundering, in violation

of 18 U.S.C. § 1956(h), and one count of money laundering, in violation of 18

U.S.C. § 1957. Hogan claimed that his trial counsel, Nathan Clark, rendered

constitutionally ineffective assistance by failing to seek to suppress statements that

Hogan made at a pretrial debriefing in 1999. At the debriefing, he made

statements indicating that he had lied to the grand jury under oath. At the

underlying criminal trial, the government presented these statements as evidence of

his guilt.

       A magistrate judge held an evidentiary hearing and issued a report and

recommendation (R&R) recommending that Hogan’s § 2255 motion be denied

because the debriefing did not constitute a plea negotiation. The magistrate

discredited Hogan’s testimony, and concluded that Hogan had written a comment

stating that he did not attend the debriefing with the intent of pleading guilty on a

memo related to the debriefing. The district court adopted the R&R in full and

denied Hogan’s motion.




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      On appeal, Hogan argues that Clark provided ineffective assistance by

failing to file a motion to suppress the statements he made at the debriefing. He

contends that the government’s statements in the debriefing memo along with the

testimony at the § 2255 hearing demonstrate that the debriefing was essentially

part of a plea negotiation. He claims Clark’s failure to seek to suppress Hogan’s

statements constituted deficient performance, which was prejudicial because the

government relied heavily on his admission that he lied to the grand jury to

undermine his credibility at trial and prove that he had the requisite knowledge and

intent to commit the offenses.

      “In a 28 U.S.C. § 2255 proceeding, we review a district court’s legal

conclusions de novo and factual findings for clear error.” Devine v. United States,

520 F.3d 1286, 1287 (11th Cir. 2008) (per curiam). “A claim of ineffective

assistance of counsel is a mixed question of law and fact that we review de novo.”

Id. Substantial deference is given to the factfinder in reaching credibility

determinations. Id. We may affirm on any ground supported by the record. Lucas

v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001).

      To make a successful claim of ineffective assistance of counsel, a defendant

must show both that his counsel’s performance was deficient and that the deficient

performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064 (1984). We are not required to consider the two prongs in


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any particular order. Dell v. United States, 710 F.3d 1267, 1274 (11th Cir. 2013).

Because the petitioner must establish both prongs, we “need not address the

performance prong if the defendant cannot meet the prejudice prong, or vice

versa.” Id. (internal quotation marks omitted).

      Regarding the performance prong, “counsel is strongly presumed to have

rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.” Strickland, 466 U.S. at 690, 104 S. Ct.

at 2066. The prisoner must “establish that counsel performed outside the wide

range of reasonable professional assistance and made errors so serious that he

failed to function as the kind of counsel guaranteed by the Sixth Amendment.”

Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir. 2004). To show

prejudice, a defendant must establish “a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. “The prejudice prong

requires a petitioner to demonstrate that seriously deficient performance of his

attorney prejudiced the defense.” Butcher, 368 F.3d at 1293.

      Rule 11 of the Federal Rules of Criminal Procedure provides that “[t]he

admissibility . . . of a plea, plea discussion, and any related statement is governed

by Federal Rule of Evidence 410.” Fed. R. Crim. P. 11(f). Rule 410 states, in

relevant part, that any statement made in the course of any Rule 11 proceeding is


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not admissible against a defendant in any civil or criminal proceeding. Fed. R.

Evid. 410(a)(3). A court cannot admit a statement made during plea discussions if

the discussions did not result in a guilty plea or resulted in a later-withdrawn guilty

plea. Fed. R. Evid. 410(a)(4). “To determine whether a discussion should be

characterized as a plea negotiation the trial court must determine, first, whether the

accused exhibited an actual subjective expectation to negotiate a plea at the time of

the discussion, and, second, whether the accused’s expectation was reasonable

given the totality of the objective circumstances.” United States v. Merrill, 685

F.3d 1002, 1013 (11th Cir. 2012) (internal quotation marks omitted).

      Clark’s failure to file a suppression motion did not constitute deficient

performance because the debriefing was not a plea negotiation for the purposes of

Rule 11 and Rule 410. Critically, Hogan’s comments on the debriefing memo

indicate that he never expressed a desire to plead guilty, which demonstrates that

he did not have a subjective expectation to negotiate a plea at the debriefing. See

Merrill, 685 F.3d at 1013. Though Hogan says that the comments in the memo

were not written by him, he admitted to sending the edited memo to Clark via e-

mail and Clark said that he relied on Hogan’s statement that he did not participate

in the debriefing with the intent of pleading guilty. Further, the magistrate

discredited Hogan’s testimony and concluded that he had prepared the comment in

the memo. See Devine, 520 F.3d at 1287 (“We allot substantial deference to the


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factfinder in reaching credibility determinations with respect to witness

testimony.” (internal quotation marks and alteration omitted)).

      Even if Hogan had the subjective expectation to negotiate a plea, he

admitted that he voluntarily participated at the debriefing and that he understood

that he was not being promised any benefit for his cooperation, and there was

never a firm plea offer from the government. Given the government’s firm

position that it would not promise any benefits to Hogan for his cooperation, any

expectation that Hogan had to negotiate a plea was not objectively reasonable. See

Merrill, 685 F.3d at 1013. Ultimately, even if Hogan had a colorable argument

that his statements at the purported plea negotiations were inadmissible, counsel’s

failure to raise the issue cannot be construed to be “outside the wide range of

reasonable professional assistance.” Butcher, 368 F.3d at 1293. Thus, Hogan has

failed to make a showing of deficient performance on the part of his trial counsel.

Accordingly, we affirm the district court’s denial of Hogan’s § 2255 motion.

      AFFIRMED.




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