                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 09-13006                ELEVENTH CIRCUIT
                                                               APRIL 20, 2010
                           Non-Argument Calendar
                                                                JOHN LEY
                         ________________________
                                                                 CLERK

                   D. C. Docket No. 07-00219-CV-HLM-4

EDWARD L. ROACH,



                                                           Petitioner-Appellant,

                                    versus

STEVE ROBERTS,

                                                          Respondent-Appellee.


                         ________________________

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

                               (April 20, 2010)

Before CARNES, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

     Edward Leo Roach, a Georgia state prisoner proceeding pro se, appeals the
district court’s denial of his 28 U.S.C. § 2254 petition for habeas corpus relief.

The district court found that the state habeas court’s adjudication of Roach’s

ineffective assistance of counsel claim was neither based on an unreasonable

determination of fact, nor based on an unreasonable application of federal law. We

granted a certificate of appealability on the following issue only:

      Whether the district court erred in denying the following
      ineffective assistance of counsel claim: that counsel was
      ineffective for misadvising Roach that he would be eligible for
      parole if he pled guilty.

      The Supreme Court has held that “the two-part Strickland v. Washington test

applies to challenges to guilty pleas based on ineffective assistance of counsel.”

Holmes v. United States, 876 F.2d 1545, 1551 (11th Cir. 1989) (citing Hill v.

Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370 (1985)). “To satisfy this test,

petitioner must show not only that counsel’s representations fell below an objective

standard of reasonableness, but also that he was prejudiced by counsel’s

unprofessional errors.” Id. (citing Strickland v. Washington, 466 U.S. 688, 694,

104 S. Ct. 2052, 2068 (1984)). In order to satisfy the “prejudice” requirement in

the context of a guilty plea, “the defendant must show that there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S. Ct. at 370. The

petitioner has the burden of establishing that he was prejudiced by his lawyer’s

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deficient performance. Strickland, 466 U.S. at 696, 104 S. Ct. at 2069. A

reviewing court need not address the performance prong of the test if the defendant

cannot meet the prejudice prong, or vice-versa. Holladay v. Haley, 209 F.3d 1243,

1248 (11th Cir. 2000).

       Because Roach is appearing pro se, we liberally construe his pleadings. See

United States v. Webb, 565 F.3d 789, 792 (11th Cir. 2009). On appeal, Roach

argues that the evidence presented to the state court showed that the only reason he

accepted a guilty plea was based on his expectation that he would be eligible for

parole, when in fact he was statutorily ineligible for parole as a serious violent

offender under O.C.G.A. § 17-10-6.1. The state habeas court concluded that,

although Roach sufficiently established that his attorney’s performance fell below

an objective standard of reasonableness, he failed to satisfy his burden of showing

that his decision to plead guilty was based solely on the state’s decision to drop a

“no parole” stipulation from the plea deal. Therefore, he failed to satisfy the

prejudice prong of the Strickland test. Roach argues that this finding was “an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d)(2).1 Accordingly, he contends that

       1
                Under the AEDPA, we may only grant an application for a writ of habeas corpus
if the adjudication of the claim in state court either (1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State court

                                                   3
he was prejudiced by his counsel’s misrepresentation regarding parole because had

he known about § 17-10-6.1 he would have insisted on proceeding to trial. In sum,

Roach argues that the erroneous advice by his attorney constitutes ineffective

assistance of counsel which warrants this court to set aside the plea and sentence.

       We disagree. Roach did not make the requisite showing before the state

habeas court of a reasonable probability that, but for his lawyers' errors, he would

have rejected the plea deal and insisted on proceeding to trial. Furthermore, he has

not satisfied his heavy burden under the AEDPA to show that the state court’s

decision amounted to an unreasonable determination of the facts presented at the

state habeas hearing.

       When reviewing the district court’s denial of a habeas petition, we review de

novo questions of law and mixed questions of law and fact, and findings of fact for

clear error. Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000). Habeas

petitions based on ineffective assistance of counsel present “a mixed question of

fact and law requiring application of legal principles to the historical facts of the

case.” Coulter v. Herring, 60 F.3d 1499, 1503 (11th Cir. 1995) (internal quotation

and citation omitted). Thus, although the state court’s findings of historical fact

underlying an ineffective assistance of counsel claim are entitled to a presumption



proceeding. 28 U.S.C. § 2254(d).

                                            4
of correctness, the court’s conclusion on the claim itself is not. Id.

      Viewing the record as a whole, there is ample evidence that illustrates the

reasonableness of the state habeas court’s findings. First, although Roach argued

in his colloquy with the state habeas court that the “no parole” stipulation was the

determinative factor in his decision to accept the plea deal, he did not testify to that

effect or elicit any testimony in support of this position from his trial counsel. We

have stated that a petitioner’s bare allegation that he would not have pleaded guilty

is insufficient to establish prejudice under Strickland. United States v. Campbell,

778 F.2d 764, 768 (11th Cir. 1985).

      Second, the transcript of the plea colloquy does not contain any evidence

that the initial plea deal Roach rejected contained a “no parole” stipulation or that a

new stipulation of parole eligibility influenced his final decision to enter his guilty

plea. Even accepting as true Roach’s statements in his state habeas hearing that his

attorney used his parole eligibility to persuade him to accept the modified plea

deal, the record as a whole casts significant doubt on the centrality of parole

eligibility to Roach’s final decision to plea. The transcript reflects that Roach

wavered significantly on whether or not to accept a plea deal throughout

negotiations with his counsel and the state. It appears that he rejected the terms of

the initial plea deal due to the stipulation that he would not have the right to appeal.



                                            5
Neither the state nor the court made any mention of Roach’s parole eligibility or

ineligibility at this time. Moreover, the transcript demonstrates that other factors

influenced his ultimate decision to plea as well. Roach expressed ambivalence

about proceeding to trial due to concern over his attorney’s preparedness and

momentarily rescinded his agreement to the modified plea deal when he was

required to admit guilt to certain acts of molestation. Significantly, when Roach

finally acquiesced to the plea deal, he stated: “I want this over with. I can’t take it

no more. I’m going to have a heart attack over this, they saying I did this and that.

I’m guilty of this, please just do it please.”

       Finally, Roach correctly points out that he only agreed to accept a plea deal

in which he retained his right to parole. However, that plea deal departed from the

initial offer in another significant way: Roach only pled guilty to 5 counts, where

previously he was prepared to plead guilty to all 22 counts.

       In sum, although the parole eligibility stipulation was part of the modified

plea deal’s terms, there is no evidence in the record, other than Roach’s own

assertion in argument (not in testimony), that without this provision he would have

proceeded to trial. We conclude that the state habeas court’s determination of facts

was based on a reasonable interpretation of the evidence presented during those

proceedings. 28 U.S.C. § 2254(d)(2). Accordingly, Roach failed to meet his



                                             6
burden under Strickland of establishing prejudice, and the state court decision was

not contrary to, or an unreasonable application of, clearly established federal law.

28 U.S.C. § 2254(d)(1). Because Roach failed to establish the prejudice prong, we

need not address the performance prong of the Strickland test. See Holladay, 209

F.3d at 1248. The district court correctly denied Roach’s petition and we affirm.

      AFFIRMED.




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