                                                               [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                  Dec. 03, 2009
                                No. 08-15329                    THOMAS K. KAHN
                            Non-Argument Calendar                   CLERK
                          ________________________

                      D. C. Docket No. 07-23076-CV-JAL

ROY GEER,



                                                               Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                              Respondent-Appellee.


                          ________________________

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

                               (December 3, 2009)

Before BLACK, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Roy Geer, a federal prisoner, appeals pro se the district court’s denial of his
28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. We granted a

Certificate of Appealability (“COA”) on Geer’s ineffective assistance of counsel

claim, specifically whether his counsel erred in denying his requests to testify. On

appeal, Geer argues that the district court erred in finding that his trial counsel’s

performance was not deficient because his attorney ignored Geer’s numerous

requests to testify at his trial. Additionally, Geer maintains that he was prejudiced

by such deficient performance. Because it found a lack of prejudice, the district

court denied Geer an evidentiary hearing on whether his counsel refused to allow

Geer to testify. After a thorough review of the record, we vacate and remand to the

district court for an evidentiary hearing as to whether Geer’s counsel denied his

requests to testify.

       When reviewing the denial of a § 2255 motion, we review a district court’s

factual findings for clear error and legal issues de novo. Lynn v. United States, 365

F.3d 1225, 1232 (11th Cir. 2004) (per curiam) (citation omitted). An ineffective

assistance of counsel claim is a mixed question of law and fact that is subject to de

novo review. Caderno v. United States, 256 F.3d 1213, 1216–17 (11th Cir. 2001)

(per curiam) (citation omitted). We review the district court’s denial of a § 2255

evidentiary hearing for abuse of discretion. Aron v. United States, 291 F.3d 708,

714 n.5 (11th Cir. 2002).



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       To succeed on a claim of ineffective assistance of counsel, a defendant must

show that (1) his counsel’s performance was deficient, and (2) the deficient

performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064 (1984). A court does not need to address both prongs if a

defendant fails to establish one of the prongs. Id. at 697, 104 S. Ct. at 2069.

       We have held that “a criminal defendant has a fundamental constitutional

right to testify on his behalf, that this right is personal to the defendant, and that the

right cannot be waived by defense counsel.” United States v. Teague, 953 F.2d

1525, 1535 (11th Cir. 1992) (en banc). If this right is violated, the defendant’s

claim is one of ineffective assistance of counsel. Id. If counsel deprives his client

of the right to testify, his conduct violates the first prong of the Strickland test. Id.

at 1534.

       However, a defendant must also satisfy the second prong of Strickland,

which requires a showing of prejudice. See Strickland, 466 U.S. at 687, 104 S. Ct.

at 2064. To establish prejudice, the defendant must demonstrate that a reasonable

probability exists that, but for counsel’s ineffectiveness, the result of the case

would have been different, and a reasonable probability is a probability that is

sufficient to undermine confidence in the conviction. Id. at 694, 104 S. Ct. at

2068. A defendant’s testimony “must be considered of prime importance” when



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the point of the criminal trial was to determine if the defendant was involved in the

criminal activity. Nichols v. Butler, 953 F.2d 1550, 1554 (11th Cir. 1992) (en

banc) (quoting United States v. Walker, 772 F.2d 1172, 1179 (5th Cir. 1985)).

      The district court did not conduct an evidentiary hearing to determine prong

one of Strickland, whether Geer’s counsel deprived him of the right to testify. In §

2255 proceedings, the district court is required to conduct an evidentiary hearing

“[u]nless the motion and the files and records of the case conclusively show that

the prisoner is entitled to no relief.” Anderson v. United States, 948 F.2d 704, 706

(11th Cir. 1991) (quoting 28 U.S.C. § 2255(b)). If the prisoner alleges facts that, if

true, would entitle him to relief, a district court should order an evidentiary

hearing. Aron, 291 F.3d at 714–15 (citation omitted). Furthermore, a court should

construe a pro se petition more liberally than one filed by an attorney. See id. at

715 (citation omitted); see also Diaz v. United States, 930 F.2d 832, 834 (11th Cir.

1991) (citation omitted). However, a district court need not hold an evidentiary

hearing for “patently frivolous claims or those which are based upon unsupported

generalizations” or “where the petitioner’s allegations are affirmatively

contradicted by the record.” Holmes v. United States, 876 F.2d 1545, 1553 (11th

Cir. 1989) (quoting Guerra v. United States, 588 F.2d 519, 520–21 (5th Cir.

1979)).



                                           4
      Here, the record cannot conclusively demonstrate that Geer’s claim is

meritless. There is no evidence in the record of whether Geer requested to testify

and was refused. Construing his pro se brief liberally, Geer makes specific

allegations that, if true, would entitle him to relief. As to prong one of Strickland,

Geer alleges that he demanded to testify on multiple occasions, but defense counsel

rested without allowing him to do so.

      Geer has made a showing of prejudice under prong two of Strickland. To

support Geer’s conviction for conspiracy, the government was required to prove

that “an agreement existed between two or more persons to commit a crime and

that the defendant knowingly and voluntarily joined or participated in the

conspiracy.” United States v. Vera, 701 F.2d 1349, 1357 (11th Cir. 1983) (citation

omitted). Mere presence at the scene of the crime or close association with co-

conspirators is insufficient to prove knowing participation in a conspiracy. Id.; see

also United States v. Littrell, 574 F.2d 828, 833 (5th Cir. 1978).

      To support Geer’s conviction for attempted importation of cocaine and

attempted possession with intent to distribute, the government was required to

prove, inter alia, that Geer “acted with the type of culpability required to import

cocaine or to possess cocaine with the intent to distribute it.” United States v.

Walden, 175 F. App’x 308, 311 (11th Cir. 2006) (per curiam) (citing United States



                                           5
v. Forbrich, 758 F.2d 555, 557 (11th Cir. 1985)).

       The circumstantial evidence presented against Geer was as follows: (1) Geer

switched shifts to work on the Seaboard Florida, the cargo ship in which the duffel

bags containing cocaine were found; (2) Geer asked the first mate of the ship twice

why the ship was late; (3) the first mate saw Geer enter the ship driving a yellow

truck that he had never seen before on the ship; (4) the work gloves and hard hat of

one of Geer’s co-defendants were found in the yellow truck; (5) Geer approached,

but did not enter, the storage area (or “junk pile area”) where the cocaine was

located and where he arguably had no need to approach; (6) the co-defendant who

spotted one of the bags containing cocaine turned in the direction of Geer and

made a hand gesture; and (7) Geer then returned to the truck, and moved it to

another position that was closer to the area the drugs were located.

       On Geer’s direct appeal challenging the sufficiency of the evidence, this

Court noted that “[w]hether the evidence is sufficient to sustain the verdict[] in this

case is a close call.”1 Id. We upheld Geer’s verdict, noting that the jury was

entitled to infer that Geer was not merely present at the scene because he switched

shifts to work on the Seaboard Florida on the day of the crime. Id. at 311–12.



       1
        In her dissent, Judge Barkett noted that the “record is completely devoid of any
evidence whatsoever pertaining to any appellants’ knowledge of the presence of any controlled
substance . . . .” Walden, 175 F. App’x at 317.

                                               6
Therefore, there was sufficient evidence of Geer’s knowledge that he was

participating in a conspiracy.

      Geer argues that he would have testified as to the reason he switched shifts,

namely to get home early to help his wife with their annual Fourth of July party.

Because this case was “close,” this testimony may have proved that Geer was

merely present aboard the ship for a legitimate reason. The only other evidence

linking Geer to a conspiracy was a hand gesture in Geer’s direction, the gloves and

hat found in the yellow gear truck, Geer’s questioning of the reason for the ship’s

delay, and that Geer moved the truck from one position to a second position closer

to the “junk pile area.” Only one agent saw a co-defendant make a hand gesture in

Geer’s direction, and only one agent saw Geer move the truck to a second position.

If Geer had testified, the jury could weigh his credibility against that of the two

agents, each of whom only saw a portion of the events that took place that night.

Furthermore, the hard hat and gloves of a co-defendant merely showed an

association with the co-conspirators, not a knowing participation in a conspiracy.

Finally, Geer’s questioning the first mate as to the delay of the ship may have been

explained by his motive for switching shifts.

      In her opening statement, the prosecutor emphasized that the defendants

were on the cargo ship “for no legitimate reason other than to pick up that



                                           7
cocaine,” explaining that according to the actual controlling work schedule, Geer

was supposed to have worked on another ship that night. The prosecutor also

called a witness to testify as to this fact. Furthermore, Geer’s counsel asserted in

his opening statement that he would prove that Geer switched shifts to get home

early for a Fourth of July party. However, his only attempt to do so was to elicit

inadmissible hearsay from a witness. Because the fact that Geer switched shifts

played a significant role in proving that he was not “merely present” at the location

of the drugs, but rather that he was on the ship for an illegitimate purpose, we

conclude that a reasonable probability exists that, but for counsel’s alleged refusal

to allow Geer to testify, the result of the case would have been different.

Therefore, the district court abused its discretion in denying Geer’s request for an

evidentiary hearing.

      The district court erred in denying Geer’s § 2255 motion without holding an

evidentiary hearing to determine whether Geer told his counsel that he wanted to

testify because the record before the district court did not conclusively demonstrate

that Geer is not entitled to any relief. Accordingly, we vacate the district court’s

order and remand for an evidentiary hearing.

      VACATED AND REMANDED.




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