                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                           AUGUST 15, 2011
                             No. 10-14655
                                                             JOHN LEY
                         Non-Argument Calendar
                                                              CLERK
                       ________________________

                D. C. Docket No. 7:07-cv-08006-CLS-PWG


JOSEPH R. DICKEY,

                                                         Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.



                      ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                             (August 15, 2011)


Before HULL, PRYOR and BLACK, Circuit Judges.

PER CURIAM:
       Joseph R. Dickey, through counsel, appeals the district court’s denial of his

28 U.S.C. § 2255 motion attacking his 135 year sentence for child pornography

convictions. Dickey now claims he “did not receive constitutionally adequate

counsel prior to entering his guilty plea.”1 After review, we affirm the district

court’s denial of Dickey’s § 2255 motion.2

       To establish an ineffective assistance of counsel claim, a petitioner must

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

performance prejudiced the defense.” Strickland v. Washington, 104 S. Ct. 2052,

2064 (1984). We “need not address the performance prong if the defendant

cannot meet the prejudice prong.” Holladay v. Haley, 209 F.3d 1243, 1248 (11th

Cir. 2000). To show prejudice in the context of a guilty plea, a petitioner must

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




       1
          Dickey received an evidentiary hearing on this claim before the magistrate judge. In his
brief on appeal, Dickey contends the magistrate judge erred by not allowing expert testimony as
to whether counsel’s performance was constitutionally deficient and prejudicial. See Freund v.
Butterworth, 165 F.3d 839, 863 n.34 (11th Cir. 1999) (“Permitting ‘expert’ testimony to establish
ineffective assistance is inconsistent with our recognition that the issue involved is a mixed
question of law and fact that the court decides.”).
       2
          In a § 2255 proceeding, we review legal issues de novo and factual findings for clear
error. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004). We review an ineffective
assistance of counsel claim de novo. United States v. Gordon, 518 F.3d 1291, 1296 (11th Cir.
2008).

                                                2
have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart,

106 S. Ct. 366, 370 (1985).

      Dickey’s primary contention is that his counsel erroneously advised him

that his guidelines sentencing range could be anywhere from 10 to 135 years,

when in fact his guidelines range was life. Even assuming counsel’s performance

was deficient, Dickey cannot show prejudice. At Dickey’s plea hearing, the

district court advised him of the minimum and maximum penalty for each count,

and explained that the sentences could run consecutively. Dickey stated that he

understood and was thus fully apprised of his potential sentence.     Moreover, the

evidence against Dickey was both overwhelming and inflammatory, such that

there was no realistic chance of acquittal at a trial. Dickey has failed to establish

that but for any errors by counsel, he would not have pleaded guilty and would

have insisted on going to trial. Hill, 106 S. Ct. at 370.

      AFFIRMED.




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