                                                               [DO NOT PUBLISH]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 BLACK, WILSON 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



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

of 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. Id. at 1504 n.7. 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

                                          3
      a challenge to the applicability of a statute to his conduct). In each
      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



                                          4
on an ineffective 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
