                                                                  [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                            No. 11-11356
                                                                      JANUARY 17, 2012
                                        Non-Argument Calendar
                                                                         JOHN LEY
                                      ________________________            CLERK

                               D.C. Docket Nos. 1:07-cv-02826-ODE,
                                    1:03-cr-00493-ODE-AJB-24

RAMON ALVAREZ-SANCHEZ,

llllllllllllllllllllllllllllllllllllllll                             Petitioner-Appellant,

                                               versus

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                           Respondent-Appellee.
                                      ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________
                                       (January 17, 2012)

Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.

PER CURIAM:

         Ramon Alvarez-Sanchez (“Sanchez”), a federal prisoner proceeding pro se,

appeals the district court’s denial of his motion to vacate, set aside, or correct
sentence, filed under 28 U.S.C. § 2255. For the reasons stated below, we affirm.

                                         I.

      In January 2005, pursuant to a plea agreement, Sanchez pleaded guilty to

conspiring to possess with intent to distribute illegal drugs (Count 1) and

possessing a firearm in furtherance of a drug trafficking crime (Count 23). The

district court sentenced Sanchez to 327 months’ imprisonment on Count 1, to be

followed by a mandatory, consecutive term of 5 years on Count 23, resulting in a

total sentence of 387 months. Among the claims filed in his § 2255 motion,

Sanchez alleged that his trial counsel, Patrick Deering, rendered ineffective

assistance by failing to inform him that the government had offered a more

favorable plea agreement than the one he eventually signed. To support his claim,

Sanchez produced a letter from the government to Deering, dated November 23,

2004, offering a plea deal, pursuant to which Sanchez would plead guilty only to

Count 1 of the indictment, thereby avoiding the consecutive five-year sentence on

the firearm charge.

      The district court denied Sanchez’s § 2255 motion. On appeal, we vacated

the district court’s judgment and remanded for an evidentiary hearing to determine

whether Deering had communicated the November 2004 plea offer to Sanchez and

whether Sanchez would have accepted that offer. Alvarez-Sanchez v. United

                                          2
States, 350 Fed. App’x 421, 425 (11th Cir. 2009). We stated that Deering’s failure

to communicate the offer would constitute deficient performance under Strickland

v. Washington,1 and, if Sanchez would have accepted the offer, he would satisfy

Strickland’s prejudice prong. Id.

       At the evidentiary hearing, Sanchez, who was represented by a new counsel,

called Deering as a witness. Deering testified that, sometime in October 2004, he

met with the Assistant U.S. Attorney (“AUSA”) to discuss Sanchez’s case, and the

AUSA verbally gave Deering a preliminary plea offer, promising to send Deering

a letter about the offer. Before receiving anything in writing, Deering visited

Sanchez and talked to him about the offer. When, on November 23, 2004, Deering

finally received the letter concerning the plea offer, he forwarded it to Sanchez.

Afterwards, Deering talked to Sanchez in detail about the government’s letter and

the accompanying proposed plea agreement. Deering stated that the government’s

letter and the proposed plea agreement reflected the same plea offer that Deering

had initially discussed with the AUSA. He explained that Sanchez refused to

accept the plea offer for two main reasons. First, Sanchez wanted an assurance


       1
          Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In
Strickland, the Supreme Court held that a defendant seeking to overturn a conviction based on
ineffective assistance of counsel at trial must establish two elements: first, the defendant must
show that counsel’s performance was deficient, and second, he must show that the deficient
performance prejudiced him. Id. at 687, 104 S.Ct. at 2064.

                                                 3
from the government that several of his family members would not be prosecuted,

and the government would not provide such an assurance. Second, Sanchez felt

that the proposed plea agreement would result in an overly long prison sentence

under the Sentencing Guidelines.

      Deering additionally testified that, during the relevant times, he visited

Sanchez at the federal penitentiary in Atlanta. As part of the visitation procedures,

Deering had to send a fax to the prison requesting the visit and, upon arrival, had

to sign a log sheet. At this point in the hearing, Deering was shown several letters

that he had faxed to the prison, expressing his intent to visit Sanchez on December

9th and 16th of 2004. Deering stated that he visited Sanchez perhaps 20 times

while representing him, but could not recall any specific visits, including the visits

on December 9th and 16th. When confronted with the visitor log sheets from the

Atlanta penitentiary, which did not list Deering’s name on December 9th or 16th,

Deering asserted that, regardless of what the log sheets contained, he did visit

Sanchez in December.

      After Deering testified, Sanchez himself took the stand. He acknowledged

that Deering visited him in October and early November to discuss a possible plea

to Count 1 of the indictment. He maintained, however, that he had never received

the government’s November 2004 letter concerning the proposed plea agreement.

                                          4
The first time that he saw the document was in 2006, when he received his file

from his appellate lawyer. Sanchez testified that, if he had seen the November

2004 proposed plea agreement, he would have accepted it because that agreement

did not include the weapons charge and because he wanted to plead guilty and had

always accepted responsibility. Sanchez did not recall Deering visiting him in

December 2004, but did recall that Deering saw him in January 2005, a few days

before he actually pleaded guilty.

       After a continuance, Sanchez called to the stand Ralph Hodge, an official

from the Atlanta penitentiary. Hodge testified, in relevant part, that if an attorney

faxed him a letter requesting a visit but the attorney’s name did not appear in the

logbook, it was “more likely” that the attorney did not come. Hodge also testified

that if someone does not sign the logbook, they would not get into the

penitentiary.

      During the hearing, the government introduced several exhibits, including

Deering’s notes from his meetings with Sanchez on October 8th, November 3rd,

and November 16th of 2004. According to Deering’s notes from October 8th,

Sanchez wanted to plead guilty to Count 1, but he would not cooperate with the

government, and he wanted a deal for his family. Notes from the other two

meetings also mentioned a possible plea agreement.

                                          5
       Sanchez’s exhibits included a letter that he had written to the district court,

dated November 16, 2004. In the letter, Sanchez stated that he intends to plead

guilty and to accept “full responsibility for the money found in my home, and also

exclusively for the accusation of my sole crime.” He also asked the court not to

allow the government to convict him of crimes that he had never committed, and

he begged the court for the release of his wife, who, he emphasized, was innocent

of any wrongdoing. In addition to the letter, Sanchez submitted the written plea

offer that the government sent to Deering on November 23, 2004, along with a

proposed plea agreement. Pursuant to the agreement, Sanchez would plead guilty

to Count 1 of the indictment, but there was no limit on the amount of drugs

attributable to him or the length of his potential sentence. Sanchez further

produced a cover letter addressed to him from Deering’s office, dated November

24, 2004, which stated: “Enclosed are documents from the Assistant U.S.

Attorney, regarding a draft plea agreement.” Finally, Sanchez included among his

exhibits the aforementioned visit notifications that Deering had faxed to the

Atlanta penitentiary in December 2004, as well as the log sheets from the

penitentiary.

      After the hearing concluded, the district court issued an order denying

Sanchez’s ineffective-assistance claim. The district court found, among other

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things, that Deering had sent the November 2004 written plea offer to Sanchez,

that Sanchez had received it, and that the written offer was the same as that which

Deering had previously discussed with him. The district court expressly credited

Deering’s testimony that he had visited Sanchez in December 2004 and had

discussed the plea offer, but the court acknowledged that it was not clear why

Deering’s signature did not appear on the prison log sheets. The court found that,

even if Deering did not visit Sanchez in December, Deering had discussed the plea

offer with Sanchez on prior occasions and knew what Sanchez wanted from a plea

agreement. The district court also credited Deering’s testimony regarding

Sanchez’s reasons for rejecting the first plea offer. The court concluded that

Sanchez had failed to establish both the deficiency and prejudice prongs of

Strickland.

      The district court granted a certificate of appealability (“COA”) on the issue

of whether Deering “provided effective assistance of counsel with respect to the

November 2004 plea offer.”

                                        II.

      On appeal, Sanchez argues that the district court erroneously failed to weigh




                                         7
his testimony and to make proper credibility determinations.2 He also contends

that, in light of the evidence presented at the hearing, he has established that his

counsel performed deficiently and that he suffered prejudice as a result.

       In an appeal challenging a § 2255 ruling, we review legal issues de novo

and factual findings for clear error. Murphy v. United States, 634 F.3d 1303, 1306

(11th Cir. 2011). Under the clear error standard, we must affirm a district court’s

findings of fact unless the record lacks substantial evidence to support them. San

Martin v. McNeil, 633 F.3d 1257, 1265 (11th Cir.), cert. denied (U.S. Oct. 3,

2011) (No. 10-10678). We will give even greater deference to fact findings of the

district court that are based on determinations of witness credibility. Stano v.

Butterworth, 51 F.3d 942, 944 (11th Cir. 1995).

                                              A.

       To support his argument regarding credibility, Sanchez relies on our

decision in Gallego v. United States, 174 F.3d 1196 (11th Cir. 1999). In that case,


       2
          In his brief, Sanchez requests a COA on the credibility issue. However, the district
court already issued a broad COA, allowing Sanchez to appeal the denial of his ineffective-
assistance claim. While the COA does not specifically mention the court’s credibility findings,
those findings form an inextricable procedural part of the question on appeal, and, therefore, we
do not need to grant an additional COA. See Murray v. United States, 145 F.3d 1249, 1251 (11th
Cir.1998) (“Although we will not decide any issue not specified in the COA, we will construe the
issue specification in light of the pleadings and other parts of the record.”); see also McCoy v.
United States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001) (reading a COA to encompass those
“procedural issues which must be resolved before this Court can reach the merits” of the
underlying claim).

                                               8
a magistrate judge had denied a prisoner’s ineffective-assistance claim on the

ground that, during the evidentiary hearing, the prisoner failed to present evidence

supporting his testimony. Gallego, 174 F.3d at 1197-98. On appeal, we reversed

the magistrate’s decision and held that the “fact that defendant’s testimony is

uncorroborated is not enough standing alone to support a credibility finding.” Id.

at 1198. We observed that a district court may well find a defendant to be not

credible, but here the magistrate failed to make any credibility findings or to

explain why counsel was the more credible witness, and nothing in the

magistrate’s report indicated that the magistrate weighed the defendant’s

credibility. Id.

      Sanchez’s reliance on Gallego is misplaced. Unlike in Gallego, the district

court in this case did not deny Sanchez’s claim on the ground that he failed to

present evidence corroborating his testimony. As described above, both parties

presented exhibits to support their respective testimonies, and the district court

considered this evidence. Moreover, while the court did not specifically address

Sanchez’s credibility, the court expressly found Deering to be credible, and its

factual findings were consistent with Deering’s testimony, which directly implies

that Sanchez’s contrary testimony was not credible. Thus, the court properly

weighed Sanchez’s testimony, and there is no cause for a remand. See United

                                          9
States v. $242,484.00, 389 F.3d 1149, 1154-55 (11th Cir. 2004) (en banc) (stating

that, if a district court fails to expressly decide a factual issue that matters to the

judgment, this Court may infer that the district court “implicitly resolved that

factual issue in a way consistent with the judgment”); see also Tejada v. Dugger,

941 F.2d 1551, 1563 (11th Cir. 1991) (“When it appears that a trial court would

have granted the relief sought if it had believed the defendant’s testimony, then its

failure to grant relief was tantamount to an express finding against the credibility

of the defendant.” (quotation omitted)).

                                            B.

      With regard to the deficiency prong of Strickland, evidence supports the

district court’s finding that Deering had conveyed to Sanchez the government’s

first plea offer. Deering testified that he had discussed with Sanchez the essential

terms of the government’s offer before receiving the written offer in November

2004; that he had sent the written offer to Sanchez and reviewed it with him; and

that Sanchez refused to accept the plea offer because it would have provided no

protection for his family and would have resulted in an excessive sentence. As

stated above, the district court could, and did, find Deering to be credible. See

Stano, 51 F.3d at 944. Several exhibits supported Deering’s testimony. His notes

indicated that he met with Sanchez three times in October and November to

                                            10
discuss a possible plea deal and that Sanchez, while desiring to plead guilty to

Count 1, also wanted a deal for his family. Moreover, the cover letter from

Deering’s office, dated November 24, 2004, indicated that Deering had sent to

Sanchez the government’s first written plea offer and the accompanying proposed

plea agreement.

      The letter that Sanchez sent to the court on November 16, 2004, and the

prison log sheets, coupled with Hodge’s testimony, do not undermine the district

court’s findings. The November 16th letter shows that Sanchez wanted to plead

guilty, but it also indicates that he wanted to limit the extent of his culpability and

sought the release of his wife. Because the government’s first plea offer placed no

limits on Sanchez’s potential sentence and provided no protection to his family

members, Sanchez’s letter is consistent with Deering’s explanation as to why

Sanchez refused to accept the offer.

      As to the prison log sheets and the accompanying testimony of Hodge, this

evidence is not entirely conclusive as to whether Deering had actually visited

Sanchez in December 2004. Among the exhibits were several notifications that

Deering had faxed to the Atlanta penitentiary, expressing his intent to visit

Sanchez on December 9th and 16th, and one could reasonably conclude that

Deering had not twice notified the prison of his visit but failed to appear both

                                           11
times. Moreover, while Hodge testified that a person would not be able to visit the

penitentiary without signing the log sheet, he also testified that, if someone sent a

fax notification but his name did not appear in the log sheet, “more likely” that

person did not come. This still leaves open a possibility that Deering visited

Sanchez in December without signing the log sheet. Finally, as the district court

noted, even if Deering had not visited Sanchez in December, this does not

preclude the possibility that Deering discussed with Sanchez the essential terms of

the government’s first plea offer in October and November.

      In sum, while the record contains some evidence to support Sanchez’s

position, stronger evidence suggests that Deering had, in fact, conveyed the

government’s first plea offer to Sanchez and thoroughly discussed it with him.

Accordingly, the district court did not clearly err in finding the latter scenario to be

true. See United States v. Holloway, 74 F.3d 249, 252 (11th Cir. 1996) (“If the

district court’s account of the evidence is plausible in light of the record viewed in

its entirety, the court of appeals may not reverse it even though convinced that had

it been sitting as trier of fact, it would have weighed the evidence differently.”

(quotation omitted)).

      Because Sanchez has failed to establish that his trial counsel performed

deficiently, we affirm the denial of his § 2255 motion without addressing

                                          12
prejudice. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069 (stating that a court

need not address both components of the ineffective-assistance inquiry “if the

defendant makes an insufficient showing on one.”).

      AFFIRMED.




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