                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                 JUNE 5, 2007
                                No. 05-16137                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                    D. C. Docket Nos. 04-61629-CV-DTKH
                             98-06015-CR-DTK

JEFFREY FRANKLIN,


                                                              Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                             Respondent-Appellee.


                          ________________________

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

                                 (June 5, 2007)

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

     Federal prisoner Jeffrey Franklin, proceeding pro se, appeals the district
court’s denial of his 28 U.S.C. § 2255 (“§ 2255”) motion to vacate, set aside, or

correct his sentence. We granted a Certificate of Appealability (“COA”) as to

whether the district court erred in failing to hold an evidentiary hearing on whether

trial counsel was ineffective in failing to inform Franklin of his right to testify at

trial. On appeal, Franklin argues that he should have received an evidentiary

hearing on his allegation that his attorney failed to advise him of his right to testify.

We AFFIRM.

                                  I. BACKGROUND

         Franklin, a federal prisoner serving a 235-month sentence following his

convictions on numerous drug smuggling charges, filed the instant § 2255 motion

to vacate. In his motion, Franklin alleged the following errors: (1) trial counsel

was ineffective for failing to inform him that he had the right to testify in his own

defense; (2) trial counsel was ineffective for failing to inform him about the safety

valve provision under U.S.S.G. § 5C1.2; and (3) his sentence was based upon facts

found by a preponderance of the evidence standard rather than beyond a reasonable

doubt.

         Franklin argued that his attorney performed deficiently by failing to advise

him of his right to testify. He contended that the denial of a defendant’s right to

testify “transcend[ed]” the typical prejudice analysis for ineffective assistance of



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counsel claims, and prejudice “is sufficiently proven, if not presumed from” such a

denial. R1-3 at 18. Franklin, if informed of his right to testify, would have

testified to the following: (1) he never engaged in any drug transactions with his

co-defendants or the government witnesses; (2) he never received any financial

payments from the government’s witnesses; and (3) he would have contradicted

the allegations made against him by the government’s witnesses. His testimony

would have increased “the realm of probability that he would have been acquitted.”

Id. at 19. Asserting that his allegations could not be conclusively disproved by the

record, he requested an evidentiary hearing so the matter could be properly

developed.

      Franklin attached an affidavit that briefly reiterated the contentions of his §

2255 supporting memorandum. He stated that if he had been aware of his right to

testify that he would have done so and been able to answer “any questions . . .

relating to my criminal case.” R1-6 at 1.

      The government responded that Franklin’s allegations were insufficient to

establish that he was denied effective assistance of counsel. A defendant must

establish both prongs of an ineffective assistance of counsel claim, deficient

performance and prejudice, to prevail on a right to testify claim. The government

contended that Franklin could not show prejudice. Franklin’s proposed testimony,



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that he was not involved in any drug activity, would not have been credible nor

would it have refuted the overwhelming evidence of his guilt. Franklin failed to

establish prejudice because there was no reasonable probability that his self-

serving testimony would have convinced the jury to reject the evidence and acquit

him.

       Franklin was charged for his role in a conspiracy to smuggle controlled

substances through Port Everglades. The government’s evidence consisted of

cooperating witness testimony, wiretap tapes and transcripts, and telephone toll

records. Cecil McCleod, the government’s primary witness, testified about

numerous drug smuggling transactions involving Franklin. The government

offered recordings of telephone conversations, which McCleod interpreted:

             BY MR. SLOMAN [US Attorney]:
             Q. When Mr. Franklin says, “Ya’ll see it in the second
             row,” what was he referring to there? What did you take
             that to mean?
             A. The container.
             ...
             Q. And the reference to the word it, context in the second
             row refers to what?
             A. The container with the marijuana.

Exh. 8 at 1267. The government introduced phone logs, which tracked phone

numbers called by McCleod, on and around the drug smuggling operation dates.

For example, McCleod testified that a phone number on the log belonged to



                                          4
Franklin, and, on that certain phone call, McCleod was setting up a smuggling

event. The government also relied upon the testimony of two port security guards

who were involved in the smuggling operation. One of the security guards

testified to a number of drug smuggling transactions in which he and Franklin were

both involved.

      Franklin’s evidence included a number of witnesses. Vernala Turnquest, an

electrician, testified that he worked on a number of projects with Franklin for some

of the co-defendants in the case. Gloria Jean Franklin Morris, Franklin’s mother,

testified that her son was a handyman and she often loaned him money.

      Latrice Kertrina Franklin, Franklin’s wife, testified that her husband did air

conditioning and landscape work for McCleod. She received many late-night

phone calls from McCleod’s wife, who was trying to locate her husband. Franklin

would then start making phone calls to try and track McCleod down. Franklin

cross-examined the government witnesses, and argued that the primary government

witnesses, those who implicated Franklin, perjured themselves in an attempt to

gain reduced sentences.

      Franklin replied that an evidentiary hearing should be granted so his

testimony could be examined for credibility and a determination could be made on

whether such testimony would have influenced the final outcome of his trial.



                                          5
Franklin argued that the evidence was not overwhelming and that the court could

not reach a conclusion on the impact of his testimony without hearing and

evaluating it.

      The magistrate judge issued a report, recommending that Franklin’s § 2255

motion be denied. The magistrate judge found that Franklin failed to establish that

he was prejudiced by counsel’s deficient performance. The magistrate judge

explainded that: (1) the evidence against Franklin was strong, based upon the

testimony of co-conspirators, phone records, and taped phone conversations; and,

(2) Franklin’s attorney presented a “vigorous, comprehensive defense, forcefully

challenging the credibility of the testifying co-conspirators during cross-

examination;” R1-20 at 4, and (3) the defense witnesses provided explanations for

the many phone calls between McCleod and Franklin. The magistrate judge

concluded by stating:

             Franklin does not proffer what his testimony would have
             been, other than to assert he would have presented his
             version of the facts. After painstakingly reviewing the
             transcript from this lengthy trial, the movant’s assertion
             that had he testified, “the realm of probability that he
             would have been acquitted would have increased
             exponentially” notwithstanding, the undersigned
             concludes that there is no reasonably probability that his
             testimony would have resulted in an acquittal.

Id. at 5 (citing R1-3 at 19) (alterations omitted).



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      Franklin filed objections to the magistrate judge’s report and

recommendation, arguing that the magistrate judge erroneously decided that the

evidence supporting his conviction was overwhelming, making his testimony

meaningless. He claimed that his contention was not that his testimony would

have made a difference, rather that his constitutional right to testify was violated,

which required that his convictions be vacated, irrespective of the impact his

testimony would have had. He argued that there was no evidence in the record that

would disprove his contention that his attorney failed to inform him of his right to

testify. Moreover, Franklin asserted, the court could not consider the impact of his

testimony absent an evidentiary hearing.

      The district court adopted the magistrate judge’s report and denied

Franklin’s § 2255 motion. The district court then denied Franklin’s motion for a

COA, finding that he had failed to make a substantial showing of the denial of a

constitutional right. We, however, granted a COA on “[w]hether the district court

erred in failing to hold an evidentiary hearing on whether trial counsel was

ineffective in failing to inform Franklin of his right to testify at trial.” R30 at 2.

                                   II. DISCUSSION

      Franklin’s primary contention is that the district court determined that his

testimony would not have changed the outcome of the trial without evaluating the



                                            7
testimony he would have provided. He argues that the district court could not

evaluate his credibility or any additional evidence he might have been able to

present without an evidentiary hearing. He further argues that the magistrate judge

relied upon tactical reasons, not presented in the record, to deny his motion. He

focuses on the first prong of the ineffective assistance of counsel framework,

arguing that the court ignored this part of the analysis. He requests a remand so the

district court can completely review his demeanor and testimony.

      We review the denial of an evidentiary hearing on a § 2255 motion for abuse

of discretion. Aron v. United States, 291 F.3d 708, 714 n. 5 (11th Cir. 2002).

Evidentiary hearings must be held on motions to vacate “[u]nless the motion and

the files and records of the case conclusively show that the prisoner is entitled to

no relief.” 28 U.S.C. § 2255. The scope of review is limited to the issues specified

in the COA. Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998)

(per curiam).

      “[I]f the petitioner alleges facts that, if true, would entitle him to relief, then

the district court should order an evidentiary hearing and rule on the merits of his

claim.” Aron, 291 F.3d at 714-715 (citations and internal quotation omitted).

“Moreover, the court should construe a habeas petition by a pro se litigant more

liberally than one filed by an attorney.” Id. at 715. A petitioner is not entitled to



                                            8
an evidentiary hearing if his claims “are merely conclusory allegations unsupported

by specifics or contentions that in the face of the record are wholly incredible.”

Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (addressing issue in

context of 28 U.S.C. § 2254) (citations and internal quotations omitted).

      A criminal defendant has a fundamental constitutional right to testify on his

own behalf at trial, a right that cannot be waived by defense counsel. United States

v. Teague, 953 F.2d 1525, 1532 (11th Cir. 1992) (en banc). The appropriate

vehicle for claims that a defense counsel’s acts led to a violation of this right is an

ineffective assistance of counsel claim. Id. at 1534. Where defense counsel has

not informed the defendant of his right to testify, defense counsel “has not acted

within the range of competence demanded of attorneys in criminal cases.” Gallego

v. United States, 174 F.3d 1196, 1197 (11th Cir. 1999) (citations and internal

quotations omitted).

      The legal standard governing the disposition of ineffective-assistance-of-

counsel claims is derived from Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052 (1984). In Strickland, the Supreme Court established a two-prong test for

adjudicating ineffective-assistance-of-counsel claims. First, a movant must show

that counsel’s performance was deficient. Id. at 687, 104 S. Ct. at 2064. The

proper measure of attorney performance is “reasonableness under prevailing



                                            9
professional norms.” Id. at 688, 104 S. Ct. at 2065. Counsel is “strongly

presumed” to have rendered adequate assistance and to have exercised reasonable

professional judgment. Id. at 690, 104 S. Ct. at 2066. “Second, [a movant] must

show that the deficient performance prejudiced the defense.” Id. at 687, 104 S. Ct.

at 2064. To prove prejudice, a movant must show that there is a reasonable

probability that the outcome would have been different but for counsel’s

unprofessional errors. Id. at 694, 104 S. Ct. at 2068.

      Here, the district court denied Franklin’s § 2255 motion, without an

evidentiary hearing, after finding that Franklin’s proposed testimony, in light of

both parties’ trial evidence, would not have created a reasonable probability that

the trial’s outcome would have been different. Franklin makes a number of

arguments on appeal, including that the question is not whether his testimony

would have altered the final outcome, rather it is whether he was denied the right to

testify. Franklin, however, must establish deficient performance and prejudice to

obtain relief in this § 2255 motion. See id. at 687, 104 S. Ct. at 2064; Teague, 953

F.2d at 1535.

      As the district court assumed Franklin’s counsel performed deficiently, the

only question is whether the district court could conclusively rule on the issue of

prejudice in this case without an evidentiary hearing. See 28 U.S.C. § 2255. The



                                          10
district court reviewed the entire seven-week trial transcript and Franklin’s

assertions about the nature of his testimony before making its determination on the

prejudice prong. The trial transcript explicitly related the evidence on both sides in

the drug smuggling case. The trial transcript and Franklin’s proposed testimony,

as proffered in his pleadings and affidavit filed in support of his § 2255 petition,

provided the district court with all that it needed to determine whether it was

reasonably probable that Franklin’s testimony would have changed the outcome.

See United States v. Taveres, 100 F.3d 995, 998 (D.C. Cir. 1996) (assigning

“special significance to the defendant’s precluded right to testify” while also

“inquir[ing] whether it is reasonably probable that the defendant’s testimony would

have changed the outcome of the trial in his favor”). The evidence of Franklin’s

guilt was overwhelming, with co-conspirator testimony directly implicating him in

the crimes and independent corroborating evidence, including telephone records

and taped telephone conversations in which Franklin and a co-defendant discussed

the drug smuggling operation. See id. at 998-99 (“Even if Taveres could have

contributed something new and substantive to his defense, the evidence of his guilt

of possessing the 8,440 doses of LSD found in . . . his house was so strong that

there is no reasonable probability his testimony would have altered the outcome of

the trial.”). The district court properly assessed Franklin’s proffered testimony in



                                          11
light of the evidence adduced at trial that implicated him in the criminal activities.

After its review, it was not an abuse of discretion for the district court to decide

that Franklin could not show prejudice without an evidentiary hearing.

                                 III. CONCLUSION

      Because the district court did not abuse its discretion in resolving Franklin’s

“ineffective assistance of counsel” claim without conducting an evidentiary

hearing, its denial of Franklin’s 28 U.S.C. § 2255 motion to vacate, set aside, or

correct his sentence is AFFIRMED.




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