                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            MAY 04, 2007
                             No. 06-10677                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                  D. C. Docket Nos. 04-20895-CV-KMM
                           01-00456 CR-KMM

THOMAS REYNOLDS,



                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

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

                              (May 4, 2007)

Before TJOFLAT, DUBINA and CARNES, Circuit Judges.

PER CURIAM:
       In his motion to the district court, Petitioner sought relief from his

conviction and sentence under 28 U.S.C. § 2255 on the ground that his counsel was

ineffective in failing to inform and advise him of his right to testify. The court

denied his motion. He now appeals.

       In reviewing claims of ineffective assistance of counsel, we review factual

findings and credibility determinations for clear error and application of these facts

de novo. McGriff v. Dep’t of Corr., 338 F.3d 1231, 1238 (11th Cir. 2003); United

States. v. Teague, 953 F.2d 1525, 1534-35 (11th Cir. 1992). A criminal defendant

has a fundamental constitutional right to testify on his own behalf at trial that

cannot be waived by defense counsel. Teague, 953 F.2d at 1532. To determine if

counsel’s conduct led to the denial of this right, we apply an ineffective-assistance-

of-counsel analysis. Id. at 1534. To prove ineffective assistance of counsel, a

defendant must show (1) that counsel’s performance was constitutionally deficient,

and (2) that he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). For counsel to be effective in

the context presented here, counsel “must advise the defendant (1) of his right to

testify or not testify; (2) of the strategic implications of each choice; and (3) that it

is ultimately for the defendant himself to decide whether to testify.” McGriff, 338

F.3d at 1237. There is a “strong presumption in favor of competence, and the



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petitioner’s burden of persuasion – though the presumption is not insurmountable –

is a heavy one.” Chandler v. United States, 218 F.3d 1305, 1314-16 (11th

Cir. 2000). When the trial counsel is experienced, the presumption of competence

is even higher. Id.

      Here, the district court did not err in finding that Petitioner failed to show

that his counsel’s performance was constitutionally deficient. First, the court did

not clearly err in finding that his attorney provided credible testimony that she was

an experienced trial attorney whose “general practice” was to appraise defendants

of their right to testify, to advise them whether to testify, and to allow them to

make the ultimate decision. Furthermore, the court did not clearly err in finding

that counsel “probably” appraised Petitioner of his rights and did so at a break in

the proceedings before his counsel rested his case. Based on these findings of fact,

we conclude that the court did not err in finding that Petitioner failed to meet his

heavy burden of showing that his counsel’s performance was constitutionally

deficient. See Chandler, 218 F.3d at 1316 (discussing burden of proof); Teague,

953 F.2d at 1527-28, 1535 (holding that when counsel testified that it was her

“normal practice” to discuss the right to testify and that she “probably” had

explained this right to the defendant, the district court did not err in finding that

defendant failed to show ineffectiveness of counsel); McGriff, 338 F.3d at 1237-38



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(holding that when counsel states it was her “ordinary practice” to advise clients of

the right to testify, the court does not clearly err in finding it “more likely that not”

that counsel had advised the defendant). Because he failed to satisfy his burden of

proof for the first prong of Strickland, we need not address the second prong,

prejudice. See Teague, 953 F.2d at 1535; McGriff, 338 F.3d at 1237-38.

      AFFIRMED.




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