                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 05-15244                   JULY 17, 2006
                          Non-Argument Calendar            THOMAS K. KAHN
                                                                CLERK
                        ________________________

       D. C. Docket Nos. 04-02161-CV-T-24-MAP & 01-00147-CR-T-2

THOMAS JEROME COOK,



                                                      Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                      Respondent-Appellee.


                        ________________________

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

                                (July 17, 2006)

Before ANDERSON, BIRCH and WILSON, Circuit Judges.

PER CURIAM:

     Thomas Jerome Cook, a federal prisoner serving a 360-month sentence for
possession with intent to distribute and distribution of cocaine, in violation of 21

U.S.C. § 841(a)(1), appeals, pro se, the district court’s denial of his motion to

vacate his sentence pursuant to 28 U.S.C. § 2255. We granted a certificate of

appealability on the following issues:

      (1)    Whether the district court erred by determining that this Court
      on direct appeal had foreclosed Cook’s argument in his § 2255 motion
      that his trial counsel was ineffective for failing to object to a
      duplicitous indictment when Cook did not raise that argument on
      direct appeal;

      (2)   Whether the district court erred by failing to address Cook’s
      claims that trial counsel improperly subjected him to plain-error
      review on appeal by failing to preserve issues regarding (a) the
      allegedly false testimony of Deputy Johnson, a government witness;
      and (b) the prosecutor’s alleged improper vouching for government
      witnesses during closing arguments; and

      (3)    Whether the district court erred by determining that trial
      counsel was not ineffective for providing erroneous advice regarding
      the offenses charged in the indictment and failing to adequately advise
      Cook regarding whether he should accept the government’s plea offer.

      When reviewing the denial of a § 2255 motion, we review a district court’s

factual findings for clear error and legal issues de novo. Castillo v. United States,

200 F.3d 735, 736 (11th Cir. 2000) (per curiam). We review an ineffective-

assistance-of-counsel claim de novo. Chandler v. United States, 218 F.3d 1305,

1312 (11th Cir. 2000) (en banc). Generally, an issue that has been raised and

decided on direct appeal is not subject to review in a § 2255 proceeding. See



                                           2
United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000).

      To demonstrate ineffective assistance of counsel, a prisoner first “must show

that counsel’s performance was deficient.” Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Second, the prisoner

must establish “that the deficient performance prejudiced the defense.” Id.

      To prove Strickland’s deficient performance prong, the prisoner must show

that counsel made errors so serious that he or she was not functioning as the

counsel the Sixth Amendment guarantees. Id. “Judicial scrutiny of counsel’s

performance must be highly deferential. . . . , [and] a court must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance . . . .” Id. at 689, 104 S. Ct. at 2065.

      To prove prejudice, “[t]he defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694, 104 S. Ct. at 2068.

“It is not enough for the defendant to show that the errors had some conceivable

effect on the outcome of the proceeding.” Id. at 693, 104 S. Ct. at 2067.

      The Supreme Court has held that Strickland’s two-part test also applies to

“challenges to guilty pleas based on ineffective assistance of counsel.” Hill v.

                                            3
Lockhart, 474 U.S., 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985). Hill

further held that, in order to establish prejudice, “the defendant must show that

there is a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” Id. at 59, 106 S. Ct. at

370. We have held that “after the fact testimony concerning [a] desire to plead,

without more, is insufficient to establish that but for counsel’s alleged

advice . . . he would have accepted the plea offer.” Diaz v. United States, 930 F.2d

832, 835 (11th Cir. 1991).

                                I. Duplicitous Indictment

      On appeal, Cook argues that the district court erred in determining that he

raised on direct appeal his duplicitous indictment claim, which was based on the

jury’s consideration of both the drugs found in his house and the drugs found in his

truck, thus precluding the court from considering it in his § 2255 motion. Cook

argues that because the district court failed to consider his claim, we should

remand the issue based on Clisby v. Jones, 960 F.2d 925, 927-28, 934 (11th Cir.

1992) (en banc) (instructing district courts to “resolve all constitutional claims

raised in a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 [] before

granting or denying relief”).

      Although we addressed Count 3 of Cook’s indictment regarding whether it

                                            4
was proper for the jury to consider the drugs in his truck on direct appeal, we never

addressed duplicity. See United States v. Cook, 11th Cir. 2003, ___ F.3d ___ (No.

02-13232, April 1, 2003). The district court’s error did not violate Clisby,

however, because the court addressed Cook’s claim, although it incorrectly

determined that Cook had previously raised the same argument on direct appeal.

Despite the district court’s error, we may affirm on any ground the record supports.

See United States v. Mejia, 82 F.3d 1032, 1035 (11th Cir. 1996).

      We have noted that accusations involving “charges under two distinct

statutes carrying separate penalties and involving different evidence” constitutes a

duplicitous indictment. United States v. Ramos, 666 F.2d 469, 473 (11th Cir.

1982). In Ramos, the appellants sought to strike as duplicitous the initial count of

the indictment, which charged them with “conspiring to possess and to distribute

methaqualone.” Id. at 473. Although Count 1 of the indictment charged one

crime, conspiracy under 21 U.S.C. § 846, which had “two goals-possession and

distribution,” the appellants claimed that Count 1 was duplicitous because it

charged two conspiratorial objectives. Id. We held that the indictment was not

duplicitous because “the appellants were charged with and sentenced for violating

one statute only, 21 U.S.C. § 846, and [] the required proof was limited to a lone

agreement among the members of one group to consummate a single


                                          5
transaction: the sale of methaqualone to [a DEA agent].” Id. at 474.

       As in Ramos, Cook was charged with violating one statute, 21 U.S.C. § 841,

and the required proof was limited to possession of cocaine base on February 7,

2001.1 Although the district court considered the drugs in both the house and in

the truck, Cook has cited no authority that it was impermissible for the district

court to consider this evidence or charge it in one count. Therefore, because it

appears that the indictment was not duplicitous, counsel’s performance was not

deficient, and we affirm as to Issue 1. See Strickland, 466 U.S. at 687, 104 S. Ct.

at 2064; see also United States v. Folks, 236 F.3d 384, 391-92 (7th Cir. 2001)

(holding that an indictment was not duplicitous when it charged that defendant, on

or about a specified date, had possessed a controlled substance with intent to

distribute it, because defendant’s guilt could have been proved by numerous

scenarios including evidence that drugs had been found within the defendant’s

residence and drug residue previously had been found on sandwich bags in

residence’s trash cans); United States v. Washington, 127 F.3d 510, 513 n.3 (6th

Cir. 1997) (holding that an indictment was not duplicitous when the government

offered proof of two separate drug transactions involving each defendant on the


       1
        Although the indictment itself is not in the record, in our previous decision on direct
appeal we described the indictment with enough specificity that we can rely on that description
as record evidence of the indictment’s contents in this appeal. United States v. Cook, 11th Cir.
2003, ___ F.3d ___ (No. 02-13232, Apr. 1, 2003).

                                                6
same day and either transaction could have provided the predicate for a conviction

for possession with intent to distribute crack cocaine).

  II. Counsel’s Failure to Object to False Testimony And Closing Statement

      Cook also argues that the district court failed to address his claims regarding

whether his trial counsel was ineffective for not objecting to Deputy Johnson’s

allegedly false testimony and for not objecting to the prosecutor’s improper

statements at closing. Cook contends that these failures subjected him to plain-

error review on appeal. He argues that we should remand in light of Clisby

because the court never addressed in his § 2255 motion whether counsel was

ineffective for failing to object and preserve the issue on appeal.

      The district court’s error does not violate Clisby, however, because the

district court addressed Cook’s claim in his § 2255 motion, although it incorrectly

determined that Cook had previously raised the same arguments on direct appeal.

Nevertheless, the district court erroneously found that we considered and rejected

these claims on direct appeal. Although we did state on direct appeal that the

prosecutor’s improper remarks during closing argument did not prejudice Cook,

the district court did not consider whether counsel was ineffective for subjecting

Cook to plain-error review on direct appeal. United States v. Cook, 11th Cir. 2003,

___ F.3d ___ (No. 02-13232, Apr. 1, 2003). The district court also erred in

                                           7
determining that we considered Cook’s argument concerning Deputy Johnson’s

testimony on direct appeal because we did not consider that argument at all. Id.

Therefore, we vacate and remand to allow the district court to consider Cook’s

claims concerning whether his counsel was ineffective for failing to object to the

prosecutor’s remarks and Deputy Johnson’s testimony and the effect of plain-error

review on those issues.2

                            III. Counsel’s Erroneous Advice


       Cook further argues that the district court erred in finding that his trial

counsel was not ineffective for providing erroneous advice regarding whether he

was charged with only the drugs found in the house or also with the drugs found in

his truck. Clark contends that this advice led him to reject the government’s plea

offer when he would have otherwise accepted it.

       Cook also filed a motion for reconsideration, pursuant to Fed. R. Civ. P.

59(e), which is at issue in the present appeal, arguing that: (1) counsel misinformed

him about the drugs found in the truck; (2) he would have accepted the plea offer

had counsel not made the misleading statement; and (3) the district court applied

the wrong standard for determining prejudice. He also submitted new statements


       2
       Unlike in Issue I, there is not enough evidence in the record to substantiate the
government’s claims that counsel’s performance was not ineffective based on the strong
evidence against Cook because the trial transcripts are not in the record.

                                                8
from himself and his father supporting these arguments. The district court denied

the motion for reconsideration and motion to submit the new statements.

      Here, although Cook asserts that he would have accepted the plea offer but

for counsel’s statements regarding the drugs in the truck, the only supporting

evidence that Cook provided in the record was his own statement after the fact.

Therefore, Cook’s evidence was insufficient. See Diaz, 930 F.2d at 835. In

addition, the district court properly denied Cook’s motion for reconsideration and

motion to submit new affidavits because the evidence was available during the

pendency of the § 2255 motion. See Mays v. U.S. Postal Serv., 122 F.3d 43, 46

(11th Cir. 1997) (per curiam). Thus, because Cook did not demonstrate that his

counsel’s advice prejudiced him, we affirm the district court as to Issue 3. See

Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

                                  IV. Conclusion

      Although the district court failed to address properly Cook’s arguments

concerning whether counsel was ineffective for failing to object to a duplicitous

indictment, we affirm Issue I because the indictment was not duplicitous. We

vacate and remand Issue II, however, because the district court failed to address

completely Cook’s arguments regarding whether his trial counsel was ineffective

for failing to object to both a witness’s testimony and the prosecutors remarks and

                                          9
because the record does not demonstrate whether counsel’s performance was

deficient and prejudicial. Because Cook failed to demonstrate that his trial

counsel’s allegedly erroneous advice prejudiced him, we affirm Issue 3.

      AFFIRMED in part, VACATED and REMANDED in part.




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