            Case: 12-13930   Date Filed: 07/01/2013   Page: 1 of 7


                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-13930
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket Nos. 1:11-cv-20507-FAM,
                          1:04-cr-20778-AJ-1


KENT FRANK,

                                                           Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                       ________________________

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

                               (July 1, 2013)

Before DUBINA, Chief Judge, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
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      Appellant Kent Frank appeals the district court’s denial of his 28 U.S.C.

§ 2255 motion to vacate. After denying Frank’s § 2255 motion, the district court

granted him a certificate of appealability on the issue of whether he was denied

effective assistance of counsel during plea negotiations when he followed the

advice of his attorney to reject a five-year plea offer from the government and

proceed to trial. On appeal, Frank argues that his counsel rendered ineffective

assistance by advising him to reject the government’s five-year plea offer, and that

subsequently, he suffered prejudice when he was convicted and sentenced to a total

of 40 years’ imprisonment.

      With regard to a district court’s denial of a motion to vacate under 28 U.S.C.

§ 2255, we review legal conclusions de novo and findings of fact for clear error.

Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004). A claim of

ineffective assistance of counsel is a mixed question of law and fact that is subject

to de novo review. Caderno v. United States, 256 F.3d 1213, 1216-1217 (11th Cir.

2001).

      We accord considerable deference to the district court’s credibility findings.

United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). “Credibility

determinations are typically the province of the fact finder because the fact finder

personally observes the testimony and is thus in a better position than a reviewing

court to assess the credibility of witnesses.” Id. Specifically in a 28 U.S.C. § 2255


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proceeding, we “allot substantial deference to the factfinder in reaching credibility

determinations with respect to witness testimony.” Devine v. United States, 520

F.3d 1286, 1287 (11th Cir. 2008) (internal quotation marks omitted).

      The Sixth Amendment gives criminal defendants the right to effective

assistance of counsel. U.S. Const., amend. VI; Strickland v. Washington, 466 U.S.

668, 684-86, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674 (1984). To prevail on a

claim of ineffective assistance of counsel, the defendant must demonstrate: (1) that

his counsel’s performance was deficient, i.e., the performance fell below an

objective standard of reasonableness; and (2) that he suffered prejudice as a result

of that deficient performance. Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064-

65. A habeas petitioner claiming ineffective assistance of counsel must succeed on

both prongs of the Strickland test. Johnson v. Alabama, 256 F.3d 1156, 1176 (11th

Cir. 2001). Further, we need not “address both components of the inquiry if the

defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104

S. Ct. at 2069.

      To meet the deficient performance prong of Strickland, the defendant must

show that counsel made errors so serious that he was not functioning as the counsel

guaranteed by the Sixth Amendment. Id. at 687, 104 S. Ct. at 2064. There is a

strong presumption that counsel’s conduct fell within the range of reasonable

professional assistance. Id. at 689, 104 S. Ct. at 2065. Counsel’s performance is


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deficient only if it falls below the wide range of competence demanded of

attorneys in criminal cases. Id.

      Under Strickland, a petitioner pursuing a claim of ineffective assistance of

counsel must also demonstrate prejudice. Purvis v. Crosby, 451 F.3d 734, 743

(11th Cir. 2006). Prejudice is a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A reasonable probability is one

sufficient to undermine confidence in the outcome. Id. It is not enough for the

defendant to show that the error had some conceivable effect on the outcome of the

proceeding. Id. at 693, 104 S. Ct. at 2067. Rather, he must show that the result

would have been different. Id.

      In Missouri v. Frye, 566 U.S. ___, 132 S. Ct. 1399 (2012), and Lafler v.

Cooper, 566 U.S. ___, 132 S. Ct. 1376 (2012), the Supreme Court held that the

Sixth Amendment right to effective assistance of counsel extends to plea

negotiations. Frye, 566 U.S. ___, 132 S. Ct. at 1404-08; Lafler, 566 U.S. at ___,

132 S. Ct. at 1384. Thus, criminal defendants are “entitled to the effective

assistance of competent counsel” during plea negotiations. Lafler, 566 U.S. at ___,

132 S. Ct. at 1384 (internal quotation marks omitted). The Court also considered

how to apply the prejudice prong of the ineffective-assistance-of-counsel test set

forth in Strickland and concluded that, in order to show prejudice, a defendant


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must demonstrate a reasonable probability that: (1) he would have accepted a plea

offer but for counsel’s ineffective assistance; (2) the plea would have been entered

without the prosecution canceling it or the trial court refusing to accept it; and

(3) the plea would have resulted in a lesser charge or a lower sentence. Frye, 566

U.S. at ___, 132 S. Ct. at 1409; Lafler, 566 U.S. at ___, 132 S. Ct. at 1384-85.

Moreover, we have also held that the Strickland two-part test applies to challenges

to guilty pleas based on ineffective assistance of counsel. United States v. Pease,

240 F.3d 938, 941 (11th Cir. 2001).

      We conclude from the record here that the district court did not err in finding

that Frank failed to establish ineffective assistance of counsel. First, with regard to

the deficient-performance prong of Strickland, Frank did not show that his attorney

made errors so serious that he was no longer functioning as the counsel guaranteed

by the Sixth Amendment. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The

record shows that Frank’s attorney apprised him of the relevant maximum

penalties that could apply if he rejected the government’s plea offer and was

convicted at trial. Additionally, Frank himself acknowledged that he had read the

indictment and, therefore, knew of the potential maximum penalties he faced if

convicted. Therefore, giving substantial deference to the factfinder below, the

magistrate judge did not clearly err by finding that Frank knew of the potential

sentencing exposure he faced if convicted at trial, or by finding any of Frank’s


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contrary testimony not credible. See Devine, 520 F.3d at 1287. Accordingly,

counsel’s performance did not fall below an objective standard of reasonableness,

and Frank has not demonstrated that said performance was constitutionally

deficient. See Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064-65.

      Moreover, even assuming that counsel’s representation was constitutionally

deficient, Frank still does not succeed on his claim of ineffective assistance of

counsel because he did not suffer any prejudice. The record shows that Frank

would not accept any plea offer from the government that required him to register

as a sex offender—as the government’s plea offer did, in fact, require. Therefore,

he has not shown that he would have accepted the plea offer even if counsel had

advocated doing so. Further, even if Frank had accepted the government’s five-

year plea offer, he still would not have suffered prejudice under Strickland because

the district court stated, unequivocally, that no judge in the Southern District of

Florida “ever accepts” Rule 11(c)(1)(C) plea agreements such as the government’s

offer here. Therefore, even if Frank had accepted the plea offer, he has not shown

that the outcome of his case would have been any different. Thus, he has not

demonstrated prejudice under Strickland. See Strickland, 466 U.S. at 694, 104 S.

Ct. at 2068.




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      Accordingly, as Frank has demonstrated neither deficient performance nor

prejudice under Strickland, we hold that the district court did not err in denying his

§ 2255 motion to vacate.

      AFFIRMED.




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