             Case: 12-10609     Date Filed: 02/28/2013   Page: 1 of 4

                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-10609
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket Nos. 6:10-cv-01902-PCF-GJK,

                              6:08-00247-PCF-GJK-2


TRAMAINE ANTON HIBBERT,

                                                          Petitioner - Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                          Respondent - Appellee.

                          ________________________

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

                               (February 28, 2013)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      Tramaine Hibbert, proceeding pro se, appeals the district court’s denial of

his 28 U.S.C. § 2255 motion to vacate his 180-month sentence, imposed after he
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pleaded guilty to conspiracy to distribute and possess with intent to distribute

powder cocaine and possession of a firearm by a convicted felon and in furtherance

of a drug trafficking offense. We granted a certificate of appealability (COA) on

the following issue: “[W]hether Hibbert’s trial counsel was ineffective for failing

to object to a breach of the plea agreement.” After careful review, we affirm.

       The facts relevant to the COA are summarized below. In 2009, Hibbert

pleaded guilty to the above counts. At the time of his plea, he faced a pending

state charge for possession of a firearm by a convicted felon, which arose out of

the same conduct as the federal charges to which he was pleading guilty.

       Hibbert’s plea agreement provided that it was “limited to the Office of the

United States Attorney for the Middle District of Florida and cannot bind other

federal, state or local prosecuting authorities . . . .” It also stated that “no other

promises, agreements, or representations [had] been made to the defendant or the

defendant’s attorney with regard to [the] guilty plea.” Nothing in the agreement

suggested that the federal prosecutor would arrange for the dismissal of the state

charge. Hibbert initialed every page of the agreement and signed it.

       At the change of plea hearing, Hibbert verbally confirmed that the written

plea agreement reflected “every promise and representation” on which he relied in

deciding whether to plead guilty, and that he was not relying on anything outside

of the written document in deciding to plead guilty. Hibbert also inquired about


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his pending state charge, and the prosecutor stated he would send a letter to the

state prosecutor requesting dismissal of the charge. Hibbert then confirmed that he

understood that there was no guarantee the state charge would be dismissed. The

district court accepted Hibbert’s change of plea and eventually sentenced him to

180 months’ imprisonment. Hibbert did not appeal.

      After sentencing, Hibbert pleaded guilty to the state charge and subsequently

filed a 28 U.S.C. § 2255 motion to vacate his federal sentence, arguing that his

counsel was ineffective for failing to object to the government’s breach of its

promise to contact the state prosecutor about the related state charge. The district

court denied the motion and this is Hibbert’s appeal.

      In reviewing a denial of a § 2255 motion to vacate, we review the district

court’s legal conclusions de novo and its fact findings for clear error. Lynn v.

United States, 365 F.3d 1225, 1232 (11th Cir. 2004). Our review is “limited to the

issues specified in the COA.” Murray v. United States, 145 F.3d 1249, 1251 (11th

Cir. 1998).

      To demonstrate ineffective assistance of counsel, Hibbert must show that:

(1) his counsel’s performance was deficient and (2) “the deficient performance

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To

demonstrate prejudice in the context of a guilty plea, a petitioner “must show that

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


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pleaded guilty and would have insisted on going to trial.” Figuereo-Sanchez v.

United States, 678 F.3d 1203, 1209 (11th Cir. 2012) (internal quotation marks

omitted).

      Hibbert argues that, at the time he decided to plead guilty, he expected the

federal prosecutor to contact state authorities to recommend the dismissal of the

related state charge. He contends that the federal prosecutor never did so and that

his attorney’s failure to object to this alleged breach of the plea agreement

constituted ineffective assistance of counsel. But Hibbert cannot demonstrate that,

but for his attorney’s failure to object, he would have decided to go to trial. His

written plea agreement mentioned no promises with respect to the state charge, and

Hibbert stated that his decision to plead guilty was based solely on that written

agreement. Because the promise to contact state authorities did not inform his

decision to plead guilty, his ineffective assistance of counsel claim fails. See id.

      For the foregoing reasons, the district court’s denial of Hibbert’s § 2255

motion is

      AFFIRMED.




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