                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________           FILED
                                                    U.S. COURT OF APPEALS
                                 No. 10-10811         ELEVENTH CIRCUIT
                             Non-Argument Calendar     OCTOBER 19, 2010
                           ________________________        JOHN LEY
                                                            CLERK
    D.C. Docket Nos. 8:07-cv-01961-SCB-TGW, 8:04-cr-00546-SCB-TGW-1

SAMUEL DAVIS, JR.,

                                                     Petitioner-Appellant,

                                       versus

UNITED STATES OF AMERICA,

                                                     Respondent-Appellee.

                           ________________________

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

                                (October 19, 2010)

Before EDMONDSON, BLACK and FAY, Circuit Judges.

PER CURIAM:

      Samuel Davis, Jr., a federal prisoner proceeding through counsel, appeals

the denial of his motion to vacate, 28 U.S.C. § 2255, in which he alleged, inter
alia, ineffective assistance of trial counsel. Davis contends his trial counsel’s

advice fell below the norms of “professionally competent assistance” when she

assured him he would not jeopardize his eligibility for an acceptance-of-

responsibility reduction if he maintained his not guilty plea and proceeded to a

largely stipulated bench trial. Davis further claims he suffered prejudice because

he would have pled guilty, but for trial counsel’s constitutionally deficient advice.

The district court granted a certificate of appealability on the following issues:

       (1)     Whether trial counsel’s actions and advice fell below the norms of
               “professionally competent assistance” and therefore was
               constitutionally deficient under the Sixth Amendment; and

       (2)     Whether Petitioner showed a reasonable probability that Petitioner
               suffered prejudice because the results of the criminal proceeding
               would have been different, but for trial counsel’s constitutionally
               deficient errors.

After review, we affirm the district court’s denial of the motion to vacate.1


       Criminal defendants have a right to effective assistance of counsel.

Strickland v. Washington, 104 S. Ct. 2052, 2063 (1984). To prevail on a claim of

ineffective assistance of counsel, the defendant must demonstrate (1) his counsel’s

performance was deficient, i.e., the performance fell below an objective standard of

       1
         “Whether a criminal defendant has received ineffective assistance of counsel is a mixed
question of fact and law.” Mincey v. Head, 206 F.3d 1106, 1142 (11th Cir. 2000). We review for
clear error questions of fact underlying the claim and review de novo the district court’s decision
on the ultimate issue of “whether counsel’s performance passed constitutional muster.” Id.

                                                2
reasonableness, and (2) he suffered prejudice as a result of that deficient

performance. Id. at 2064-65. The two-part Strickland test applies to

ineffective-assistance claims concerning both the decision to accept a guilty plea

offer and the decision to forgo a plea offer and stand trial. Coulter v. Herring, 60

F.3d 1499, 1504 n.7 (11th Circuit 1995). The deficient performance requirement

concerns “whether counsel’s advice was within the range of competence demanded

of attorneys in criminal cases.” Hill v. Lockhart, 106 S. Ct. 366, 369 (1985)

(quotation omitted). There is a strong presumption that counsel’s conduct fell

within the range of reasonable professional assistance. Strickland, 104 S. Ct. at

2065.

        The offense level of a defendant who “clearly demonstrates acceptance of

responsibility for his offense,” should be decreased by two levels. U.S.S.G.

§ 3E1.1(a) (2004). While the reduction is not intended to apply to a defendant who

puts the government to its burden of proof by standing trial, conviction by trial

“does not automatically preclude a defendant from” an acceptance-of-

responsibility reduction. Id., comment. (n.2).

        In rare situations a defendant may clearly demonstrate an acceptance
        of responsibility for his criminal conduct even though he exercises his
        constitutional right to a trial. This may occur, for example, where a
        defendant goes to trial to assert and preserve issues that do not relate
        to factual guilt (e.g., to make a constitutional challenge to a statute or
        a challenge to the applicability of a statute to his conduct). In each

                                            3
      such instance, however, a determination that a defendant has accepted
      responsibility will be based primarily upon pre-trial statements and
      conduct.

Id. In contrast, “[a] defendant who enters a guilty plea is not entitled to an

adjustment [for acceptance of responsibility] as a matter of right,” as his guilty plea

and admission of guilt may be “outweighed by conduct . . . that is inconsistent with

. . . acceptance of responsibility.” Id., comment. (n.3).

      The performance of Davis’s trial counsel was not constitutionally deficient.

First, counsel testified during the evidentiary hearing, and the district court made a

factual finding that counsel never guaranteed Davis he would receive an

acceptance-of-responsibility reduction. This finding was not clearly erroneous as it

is supported by the record, which shows counsel consistently assured Davis that he

would not jeopardize his eligibility for the acceptance-of-responsibility reduction,

but also indicated she was not certain the district court would award the reduction.

Moreover, the district court specifically credited counsel’s testimony that she made

no guarantee of the reduction over Davis’s testimony to the contrary. This

credibility determination was within the district court’s province as fact finder. See

Carr v. Schofield, 364 F.3d 1246, 1265 (11th Cir. 2004) (determining the

credibility of a testifying attorney during an evidentiary hearing on an ineffective




                                           4
assistance-of-counsel claim is “within the province of the district court, which has

the opportunity to observe and study the witness.”).

      Further, counsel’s advice that Davis would not jeopardize his eligibility for a

two-level, acceptance-of-responsibility reduction by proceeding to a bench trial, in

which he did not contest his factual guilt was consistent with the commentary to

§ 3E1.1. See U.S.S.G. § 3E1.1, comment. (n.2) (2004). While counsel admittedly

failed to take into account Davis’s pretrial conduct and its impact on Davis’s

eligibility for the reduction, considerations which would have informed her

assessment of Davis’s likelihood of receiving the reduction, this possible error did

not render counsel’s performance constitutionally deficient. U.S.S.G. § 3E1.1,

comment. (n.2) (2004); see also Lancaster v. Newsome, 880 F.2d 362, 375 (11th

Cir. 1989) (noting a criminal defendant is “not entitled to error-free

representation”). Davis’s pretrial conduct was relevant to the acceptance-of-

responsibility inquiry whether he pled guilty or stood trial.

      Because trial counsel’s performance was not constitutionally deficient, we

need not address whether Davis was prejudiced by his counsel’s alleged errors.

See Strickland, 104 S. Ct. at 2069 (stating there is no reason for a court deciding an

ineffective-assistance-of-counsel claim to approach the inquiry in the same order,

or even to address both components of the inquiry, if the prisoner makes an


                                          5
insufficient showing on one). Accordingly, we affirm the district court’s order

denying Davis’s § 2255 motion.

      AFFIRMED.




                                         6
