                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 10-1738
                                     ___________


                          UNITED STATES OF AMERICA

                                           v.

                                   JORGE ALDEA,
                                           Appellant

                             _______________________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                        D.C. Criminal No. 03-cr-00014-002
                            (Honorable Stewart Dalzell)
                                 ______________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 7, 2011

              Before: SCIRICA, SMITH and JORDAN, Circuit Judges.

                              (Filed: November 10, 2011)
                                  _________________

                             OPINION OF THE COURT
                                _________________

SCIRICA, Circuit Judge.

      Aldea appeals from an order denying his motion to vacate, set aside, or correct his

sentence under 28 U.S.C. § 2255. We have jurisdiction under 28 U.S.C. § 1291 and 28

U.S.C. § 2253. We will affirm.
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       Aldea was involved in a conspiracy to distribute hundreds of kilograms of cocaine

from 1995 through 1999. The drugs were obtained from New York City and other areas

outside of Philadelphia and distributed within Philadelphia. The indictment included

allegations Aldea took delivery of two separate shipments of cocaine - approximately 300

kilograms and 351 kilograms - and stored them until they could be distributed. Aldea, as

one of the conspirators, was responsible for transporting and counting the hundreds of

thousands of dollars in resulting drug proceeds.

       Aldea was convicted of conspiracy to distribute in excess of five kilograms of

cocaine under 21 U.S.C. § 846. The District Court sentenced defendant to 280 months

imprisonment, five years of supervised release, a $3,000 fine, and $100 in special

assessments. Defendant appealed and on March 15, 2006, we affirmed his conviction but

remanded for resentencing consistent with United States v. Booker, 543 U.S. 220 (2005).

See United States v. Aldea, 174 Fed. Appx. 52 (3d Cir. 2006). Aldea was resentenced on

October 6, 2006 to 240 months imprisonment in addition to the remaining terms of his

original sentence. Defendant again appealed. We affirmed the District Court‟s judgment

on May 15, 2008.

       Defendant then filed a motion for relief under 28 U.S.C. § 2255 arguing his

counsel was ineffective for forcing him to choose between his right to testify on his own

behalf and his constitutional right to counsel. Finding no denial of a constitutional right,

the District Court declined to issue a certificate of appealability.



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       Defendant appealed and filed a request for a certificate of appealability under Fed.

R. App. P. 22(b). We granted a certificate of appealability limited to the following

question: Did the District Court err in rejecting on the merits Appellant‟s claim that trial

counsel rendered ineffective assistance by coercing Appellant to waive his right to testify

in his own defense?

       Our review over the legal component of a claim for ineffective assistance of

counsel is plenary while underlying facts are reviewed for clear error. See United States

v. Smack, 347 F.3d 533, 537 (3d Cir. 2003).

                                              II

       To establish a claim of ineffective assistance of counsel, Aldea must demonstrate

both that his attorney‟s performance was deficient and that he was prejudiced by the

deficiency. Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to satisfy the

familiar two-prong Strickland test, he must establish counsel‟s performance “fell below

an objective standard of reasonableness,” id. at 688, and “there is a reasonable probability

that, but for counsel‟s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. Counsel cannot be ineffective for failing to raise meritless claims,

and counsel‟s strategic choices are reviewed with a strong presumption of correctness.

See Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996).

       The District Court conducted an evidentiary hearing and heard testimony from

Aldea and his trial counsel. After weighing the credibility of the witnesses, the court

concluded that counsel did not coerce Aldea into waiving his right to testify. Throughout

trial preparation, the court found Aldea was informed of his right to testify and made the

                                              3
ultimate decision on whether to testify. As Aldea admitted on cross-examination,

“[b]asically, at the end, yeah, it was my decision [not to testify] … .” Therefore, the

District Court found as fact Aldea‟s counsel “did not overbear Mr. Aldea‟s will” to testify

and “there was nothing here that occurred with respect to the exquisitely-difficult

question of whether to testify or not to testify that runs afoul of Strickland versus

Washington.”

       We review factual findings for clear error, and find none here. Credibility

findings are entitled to deference. Anderson v. City of Bessemer, 470 U.S. 564, 575

(1985). On the crucial issues, the court credited trial counsel‟s account, not Aldea‟s.

And the court found counsel‟s assessments of trial strategy realistic and not coercive.

Other than asserting that counsel forced him to either testify or find new counsel, Aldea

points to nothing that would undermine the court‟s credibility findings. We see no error,

let alone clear error.

       At the end of the government‟s case-in-chief, counsel recommended Aldea not

testify. Counsel‟s advice in this case not to testify did not infringe on Aldea‟s

constitutional rights. Counsel is “strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional judgment.”

Strickland, 466 U.S. at 690. The District Court found Aldea was aware of his right to

testify evidenced by his weeks of preparation with and without counsel. At trial, counsel

attempted to undercut the government‟s case, undermining key witnesses during cross-

examination, presenting a witness contradicting the government‟s evidence, and

presenting a character witness. Counsel advised Aldea not to testify because the risk of

                                              4
exposing him to cross-examination and the risk in explaining a gunshot wound to his arm

were too great. Aldea never alerted the court of his desire to testify. As a result, the

court found Aldea was aware of his right to testify, understood counsel‟s rationale for not

calling him as a witness, and failed to raise with the court his desire to testify. We agree

with the court‟s finding that this was a “knowing and intelligent waiver” of his right to

testify. Counsel‟s conduct was not deficient under Strickland.

       Even if Aldea satisfied the first part of the Strickland test, his claim would still fail

for lack of prejudice. To establish prejudice, a defendant must demonstrate a reasonable

probability the result would have been different but for counsel‟s ineffectiveness. A

reasonable probability is “one „sufficient to undermine confidence in the outcome.‟”

United States v. Gray, 878 F.2d 702, 710 (3d Cir. 1989) (quoting Strickland, 466 U.S. at

694). We consider the totality of the trial evidence in our prejudice evaluation as “„a

verdict or conclusion only weakly supported by the record is more likely to have been

affected by errors than one with overwhelming record support.‟” Id. at 711 (quoting

Strickland, 466 U.S. at 696).

       Nowhere does Aldea show how his testimony would have changed the result of

the proceeding. While it is true the ability of a defendant to testify at his own trial is

“inherently significant,” Nichols v. Butler, 953 F.2d 1550, 1553 (11th Cir. 1992), the

court implicitly found Aldea‟s testimony would not have undermined the verdict. While

Aldea claims his testimony would have contradicted the testimony of the government‟s

witnesses, the District Court found counsel had “subjected Cruz and Sanabria to

searching cross-examination” and counsel “had not just laid a glove on these cooperators,

                                               5
but hit them pretty hard.” Besides his “searching” cross-examination, the record shows

counsel called Aldea‟s sister to testify to demonstrate the vehicle claimed to be used in

the drug deal was too large to fit within the garage clearance. Counsel also called

Aldea‟s employer, who testified as a favorable character witness. The District Court

found that if Aldea had taken the stand, he would have been subjected to cross-

examination and would have had to explain a gunshot wound to his arm. Accordingly,

we agree that Aldea has failed to show that if he had testified, the outcome of the trial

would have been different.

                                             III

       For the foregoing reasons, we will affirm the court‟s judgment denying Aldea‟s

§ 2255 motion.




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