                    Case: 10-15702         Date Filed: 10/23/2012   Page: 1 of 4

                                                                        [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 10-15702
                                        Non-Argument Calendar
                                      ________________________

     D.C. Docket Nos. 2:08-cv-00418-WHA-SRW, 2:06-cr-00012-UWC-SRW-4



DEMETRIUS J. HAWKINS,

lllllllllllllllllllllllllllllllllllllll                                  Petitioner-Appellant,

                                                 versus

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                               Respondent-Appellee.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Alabama
                                 ________________________

                                           (October 23, 2012)


Before BARKETT, PRYOR and BLACK, Circuit Judges.

PER CURIAM:
                Case: 10-15702       Date Filed: 10/23/2012      Page: 2 of 4

       Demetrius J. Hawkins, a federal prisoner, appeals the denial of his motion to

vacate his sentence, pursuant to 28 U.S.C. § 2255, and his request for an

evidentiary hearing. We granted a certificate of appealability to determine

whether the district court erred when it denied Hawkins’ claim that counsel

provided ineffective assistance for failing to move to exclude the testimony of

Toby Boutwell, a records custodian for a cellular telephone company. Hawkins

contends his counsel was ineffective for failing to move to exclude this testimony

because the records were unfairly prejudicial under Federal Rule of Evidence 403.1

The cell phone records introduced through Boutwell’s testimony supported

Hawkins’ participation in the drug conspiracy of which he was convicted. After

review, we affirm the district court.

       In a § 2255 proceeding, we review a district court’s legal conclusions de

novo and its factual findings for clear error. Devine v. United States, 520 F.3d

1286, 1287 (11th Cir. 2008). Whether counsel was ineffective is a mixed question

of law and fact that we review de novo. Id. In order to prevail on an ineffective

assistance of counsel claim, Hawkins must establish: (1) his counsel’s



       1
         Hawkins also argues the cell phone records lacked proper foundation and were not
authenticated. However, because these arguments were not raised below, we decline to address
them on appeal. See Johnson v. United States, 340 F.3d 1219, 1228 n.8 (11th Cir. 2003) (stating
that arguments not raised in the district court are waived on appeal).

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performance was deficient; and (2) he suffered prejudice as a result of the

deficient performance. Strickland v. Washington, 104 S. Ct. 2052, 2064 (1984).

      As to deficient performance, Hawkins is unable to show his counsel’s

representation fell below an objective standard of reasonableness under prevailing

professional norms. Green v. Nelson, 595 F.3d 1245, 1249 (11th Cir. 2010).

Counsel’s decision not to move to exclude the testimony of the records custodian

was a reasonable strategic choice, since there was little evidentiary basis on which

to exclude the evidence. Strickland, 104 S. Ct. at 2066. Therefore, Hawkins has

not overcome the strong presumption that his counsel provided professionally

reasonable assistance. Dingle v. Sec’y for Dept. of Corr., 480 F.3d 1092, 1099

(11th Cir. 2007).

      As to prejudice, Hawkins has not established “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 2068. First, Hawkins cannot show

that, if his counsel had objected to the admissibility of the evidence, the district

court should have excluded it under Federal Rule of Evidence 403. In light of the

undisputed fact that Rapp testified he found a cell phone with the number 404-

660-6042 on Hawkins after he was arrested, the cell phone record evidence was

highly probative and Hawkins was unable to show he was unfairly prejudiced by

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its admissibility. See Fed. R. Evid. 403. Second, Hawkins cannot establish the

exclusion of this evidence would have changed the result of the proceeding. Other

evidence introduced at trial, including the testimony of Rapp and Canady, directly

linked Hawkins to the marijuana conspiracy. Moreover, the fact that the cell

phone evidence was not introduced at the first trial, which resulted in a mistrial,

does not conclusively establish Hawkins was prejudiced by introduction of the cell

phone records at the second trial, which resulted in Hawkins’ conviction.

      We conclude the district court did not err when it denied Hawkins’ claim

that counsel provided ineffective assistance for failing to move to exclude

Boutwell’s testimony. Moreover, we find an evidentiary hearing is not required

since the motion, files, and records of the case conclusively establish Hawkins is

not entitled to relief. See Aron v. United States, 291 F.3d 708, 714 n.5 (11th Cir.

2002). Accordingly, we affirm the decision of the district court.

      AFFIRMED.




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