           Case: 14-11710    Date Filed: 12/17/2015   Page: 1 of 7


                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-11710
                        Non-Argument Calendar
                        ________________________

              D.C. Docket Nos. 5:12-cv-90122-MTT-CHW,
                     5:08-cr-00072-MTT-CHW-1


ORASAMA ANDREWS,

                                                           Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                          Respondent-Appellee.

                      ________________________

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

                            (December 17, 2015)



Before MARTIN, ANDERSON, and EDMONDSON, Circuit Judges.



PER CURIAM:
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       Orasama Andrews, through counsel, appeals the district court’s denial of his

28 U.S.C. § 2255 motion to vacate, in which Andrews challenged his life sentence

for distribution of crack cocaine. We granted Andrews a certificate of

appealability on whether Andrews’s trial lawyer was ineffective for “failing to

adequately inform [Andrews] of the sentencing consequences of the 21 U.S.C.

§ 841 enhancement, thereby causing [Andrews] to reject the government’s plea

offer.”* Andrews also challenges the district court’s denial of his pro se motion for

a new trial. No reversible error has been shown; we affirm.



                                               I.



       In reviewing a district court’s denial of a section 2255 motion, we review

legal conclusions de novo and fact determinations for clear error. Devine v. United

States, 520 F.3d 1286, 1287 (11th Cir. 2008). “A claim of ineffective assistance of

counsel is a mixed question of law and fact that we review de novo.” Id. We

accord “substantial deference to the factfinder in reaching credibility



*
 Under the terms of the government’s plea offer, Andrews’s guideline range would have been
reduced to between 151 and 188 months’ imprisonment. Instead of accepting the plea offer,
Andrews proceeded to trial and was convicted of two counts of drug distribution. As a result of
the section 841 sentencing enhancement -- imposed based on Andrews’s two prior felony drug
convictions -- Andrews was subject to a mandatory life sentence.
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determinations with respect to witness testimony.” Id. (alteration omitted). We

will not disturb a credibility determination “unless it is contrary to the laws of

nature, or is so inconsistent or improbable on its face that no reasonable factfinder

could accept it.” United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir.

2002).

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

demonstrate (1) that his lawyer’s “representation fell below an objective standard

of reasonableness,” and (2) “a reasonable probability that, but for counsel’s

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

Chandler v. United States, 218 F.3d 1305, 1312-13 (11th Cir. 2000) (en banc). If

the defendant makes an insufficient showing on one element, we need not address

the other. Strickland v. Washington, 104 S.Ct. 2052, 2069 (1984). We apply this

two-part test to ineffective-assistance-of-counsel claims about a lawyer’s

performance during the plea-bargaining process. Coulter v. Herring, 60 F.3d 1499,

1503-04 & n.7 (11th Cir. 1995).

      The proper measure of a lawyer’s performance is “reasonableness under

prevailing professional norms”; and our review of a lawyer’s performance is

“highly deferential.” Chandler, 218 F.3d at 1313-14. A “strong presumption”

exists that counsel’s performance was reasonable. Id. at 1314. Thus, “where the

record is incomplete or unclear about counsel’s actions, we will presume that he


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did what he should have done, and that he exercised reasonable professional

judgment.” Id. at 1315 n.15 (alteration omitted).

      To demonstrate prejudice, a defendant who rejected the government’s plea

offer must show “a reasonable probability that, but for counsel’s errors, he would

have pleaded guilty and would not have insisted on going to trial.” Coulter, 60

F.3d at 1504 (alterations omitted). A defendant cannot show prejudice if he offers

no evidence that he would have accepted a plea offer absent his lawyer’s errors.

Id.

      After conducting an evidentiary hearing and observing the demeanor of both

Andrews and Andrews’s trial lawyer, the magistrate judge credited the trial

lawyer’s testimony (1) that he informed Andrews that the government had filed an

enhancement under which Andrews would face a mandatory life sentence if

convicted; and (2) that he never told Andrews that Andrews would be exposed to

the same sentence regardless of whether Andrews accepted the government’s plea

offer or was convicted at trial. We grant substantial deference to the magistrate

judge’s credibility findings. See Devine, 520 F.3d at 1287.

      Moreover, the record contradicts Andrews’s contention that he was unaware

of the section 841 enhancement or that he faced a mandatory life sentence if

convicted. At the arraignment and detention hearing, the government explained

expressly that it had filed an enhancement that would subject Andrews to a


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mandatory life sentence. In response, the judge determined -- “because of the

enhancement” and because Andrews was “facing a possibility of life

imprisonment” -- that Andrews was a flight risk and, thus, ordered pretrial

detention. On this record, we accept the magistrate judge’s credibility

determination. Andrews has failed to show that his trial lawyer performed

deficiently.

      Andrews has also offered no evidence that he would have accepted the

government’s plea offer absent his trial lawyer’s alleged error. Thus, Andrews has

also failed to demonstrate that he suffered prejudice. See Coulter, 60 F.3d at 1504.

We affirm the district court’s denial of Andrews’s section 2255 motion to vacate.



                                         II.



      Andrews also argues that the district court erred in denying his motion for a

new trial without conducting an evidentiary hearing. In support of his motion,

Andrews submitted four affidavits that he contends constitute newly discovered

evidence of three facts: (1) that the two confidential informants, Swint and Reid,

conspired to make fake controlled drug buys from Andrews; (2) that an officer

threatened Swint into testifying against Andrews; and (3) that Reid used drugs

before meeting officers to conduct the second controlled buy.


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       We review for abuse of discretion the district court’s denial of a motion for a

new trial based on newly discovered evidence. United States v. Fernandez, 136

F.3d 1434, 1438 (11th Cir. 1998). We also review the denial of an evidentiary

hearing under an abuse-of-discretion standard. Id.

       To warrant a new trial based on newly discovered evidence a defendant must

satisfy these five criteria:

       (1) the evidence was discovered after trial, (2) [the defendant’s]
       failure . . . to discover the evidence was not due to a lack of due
       diligence, (3) the evidence is not merely cumulative or impeaching,
       (4) the evidence is material to issues before the court, and (5) the
       evidence is such that a new trial would probably produce a different
       result.

United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003). “[M]otions for a

new trial are highly disfavored,” and district courts must exercise “great caution”

in awarding a new trial based on newly discovered evidence. Id.

       The district court committed no abuse of discretion in denying Andrews’s

motion for a new trial. The affidavits relied upon by Andrews consist largely of

inadmissible hearsay, and the allegations in the affidavits are unsubstantiated by an

“objectively credible source.” See United States v. Calderon, 127 F.3d 1314, 1354

(11th Cir. 1997) (denying a motion for new trial based only on “self-serving

affidavits” that were “totally unsubstantiated by any objectively credible source.”)

Furthermore, because the testimony in the affidavits would be used mainly to

impeach the confidential informants’ trial testimony about the controlled drug buys
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from Andrews, the evidence fails to satisfy the third criteria. See United States v.

Garcia, 13 F.3d 1464, 1472 (11th Cir. 1994) (“Newly discovered impeaching

evidence is unworthy of a new trial.”).

      The district court also abused no discretion in denying Andrews an

evidentiary hearing on his motion; the court had sufficient evidence to rule on the

motion. Unlike our decision in United States v. Gates, 10 F.3d 765 (11th Cir.

1993) -- in which we remanded for an evidentiary hearing to explore further an

exculpatory affidavit from a non-testifying co-defendant -- this case presents no

unique situation warranting an evidentiary hearing.

      AFFIRMED.




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