                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                             Sept. 18, 2009
                              No. 09-11039                 THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                  D. C. Docket Nos. 08-90006-CV-CAR-5
                            05-00064-CR-001

DONYAL TARVER,


                                                           Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.


                        ________________________

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

                            (September 18, 2009)

Before DUBINA, Chief Judge, BARKETT and FAY, Circuit Judges.

PER CURIAM:
      Appellant Donyal Tarver, a federal prisoner, appeals through counsel the

district court’s dismissal of his 28 U.S.C. § 2255 motion to vacate, set aside, or

correct his sentence, alleging ineffective assistance of counsel based on his

counsel’s failure to challenge the district court’s use of his prior convictions to

calculate his criminal-history score at sentencing. On appeal, Tarver argues that,

pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, 28 U.S.C.

foll. § 2255 (“the § 2255 Rules”), the district court was required to order the

government to file a response to his § 2255 motion, and because the government’s

response did not contain a denial of his allegations, the government effectively

admitted that he received ineffective assistance of counsel, pursuant to

Fed.R.Civ.P. 8(b)(6). If this court does not accept his “procedural argument,”

Tarver argues that we should order the district court to conduct a second

evidentiary hearing for additional development of the factual record.

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

conclusions de novo and factual findings for clear error. A claim of ineffective

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

Devine v. United States, 520 F.3d 1286, 1287 (11th Cir. 2008). “In a section 2255

motion, a petitioner has the burden of sustaining his contentions by a




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preponderance of the evidence.” Wright v. United States, 624 F.2d 557, 558 (5th

Cir. 1980).

      In Strickland v. Washington, the Supreme Court set out a two-part inquiry

for ineffective assistance of counsel claims. 466 U.S. 668, 687, 104 S. Ct. 2052,

2064, 80 L. Ed.2d 674 (1984).

      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious
      that counsel was not functioning as the “counsel” guaranteed the
      defendant by the Sixth Amendment. Second, the defendant must
      show that the deficient performance prejudiced the defense. This
      requires showing that counsel’s errors were so serious as to deprive
      the defendant of a fair trial, a trial whose result is reliable.

Id. To succeed on an ineffective-assistance-of-counsel claim, a habeas petitioner

must satisfy both prongs of the Strickland test. Butcher v. United States, 368 F.3d

1290, 1293 (11th Cir. 2004).

A.    Procedural Argument

      We review a district court’s interpretation of federal procedural rules de

novo. Vencor Hosps., Inc. v. Standard Life & Accident Ins. Co., 279 F.3d 1306,

1308 (11th Cir. 2002). We review de novo the applicability of a Federal Rule of

Civil Procedure in a habeas proceeding. See McBride v. Sharpe, 25 F.3d 962,

967-68 (11th Cir. 1994) (“The applicability of the ten-day notice provision of




                                          3
Fed.R.Civ.P. 56(c) in a Habeas Rule 8(a) disposition is a question of law . . .

subject to de novo review.”).

      Rule 4(b) of the § 2255 Rules provides in full:

      (b) Initial Consideration by the Judge. The judge who receives the
      motion must promptly examine it. If it plainly appears from the
      motion, any attached exhibits, and the record of prior proceedings that
      the moving party is not entitled to relief, the judge must dismiss the
      motion and direct the clerk to notify the moving party. If the motion
      is not dismissed, the judge must order the United States attorney to
      file an answer, motion, or other response within a fixed time, or to
      take other action the judge may order.

28 U.S.C. foll. § 2255, Rule 4(b). Rule 5 of the § 2255 Rules addresses, inter alia,

answers to § 2255 motions, and provides that a “respondent is not required to

answer the motion unless a judge so orders.” 28 U.S.C. foll. § 2255, Rule 5(a).

      Rule 8(b)(6) of the Federal Rules of Civil Procedure provides that, in

responding to a pleading, “[a]n allegation . . . is admitted if a responsive pleading

is required and the allegation is not denied. If a responsive pleading is not

required, an allegation is considered denied or avoided.” Fed.R.Civ.P. 8(b)(6); see

also 28 U.S.C. foll. § 2255, Rule 12 (“The Federal Rules of Civil Procedure . . . to

the extent that they are not inconsistent with any statutory provisions or these rules,

may be applied to a proceeding under these rules.”).

      Because the plain language of Rule 4(b) of the § 2255 Rules did not require

the district court to order the government to file a response to Tarver’s § 2255

                                           4
motion, we hold that pursuant to Rule 8(b)(6), the government was not deemed to

have admitted Tarver’s allegation of ineffective assistance of counsel by failing to

deny the allegation specifically in its response to his motion.

B.    Evidentiary Hearing

      In Murray v. United States, we affirmed the denial of a § 2255 motion and

held that the movant was not entitled to a second evidentiary hearing when he

already had been given an opportunity to prove his allegations. 145 F.3d 1249,

1254 (11th Cir. 1998).

      Because the record here demonstrates that Tarver had a full opportunity to

develop his ineffective-assistance claim at an evidentiary hearing and the district

court could determine that he failed to meet his burden, we hold that Tarver is not

entitled to a second evidentiary hearing.

      For the aforementioned reasons, we affirm the district court’s judgment

dismissing Tarver’s § 2255 motion.

      AFFIRMED.




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