                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                JULY 6, 2009
                                No. 08-14020                  THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

           D. C. Docket Nos. 06-08045-CV-BE-S, 03-00535-CR-BE

DONALD BARRY HESTER,



                                                              Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                             Respondent-Appellee.


                          ________________________

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

                                  (July 6, 2009)

Before BIRCH, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

     Donald Hester, a federal prisoner proceeding pro se, appeals the district
court’s dismissal of his motion to vacate, set aside, or correct his sentence, pursuant

to 28 U.S.C. § 2255. The district court granted a certificate of appealability

(“COA”) on two issues. On appeal, Hester raises only one of the two issues:1

             Whether movant was denied the effective assistance of counsel at
             trial when defense counsel rested without calling the movant to
             testify on his own behalf.

         Hester argues that the district court erred in denying this ineffective assistance

of counsel claim, and that the district court further erred by failing to hold an

evidentiary hearing on the issue.2 As Hester is proceeding pro se, we will construe

his pleadings liberally. See United States v. Webb, 565 F.3d 789, 792 (11th Cir.

2009).

                                        DISCUSSION

         First, we discuss Hester’s ineffective assistance of counsel claim. Then, we

turn to the district court’s failure to hold an evidentiary hearing.

         A. Ineffective Assistance of Counsel

         1
               Issues not argued on appeal are abandoned. See United States v. Futch, 518 F.3d
887, 895 n.10 (11th Cir.), cert. denied, 129 S. Ct. 396 (2008).
         2
                Hester also requests that we expand the COA to include the issue of whether his
trial and appellate attorneys were ineffective for failing to challenge his sentence. We need not
(and do not) address whether his request is timely, because the challenge to his sentence that he
now asserts – i.e., that the gun enhancement of his drug distribution sentence renders his
conviction on the gun count a violation of Double Jeopardy – is foreclosed by Witte v. United
States, 515 U.S. 389, 399, 115 S. Ct. 2199, 2206 (1995) (“We thus made clear that use of
evidence of related criminal conduct to enhance a defendant’s sentence for a separate crime
within the authorized statutory limits does not constitute punishment for that conduct within the
meaning of the Double Jeopardy Clause.”).

                                                2
      With regard to a district court’s denial of a motion to vacate pursuant to 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). An ineffective

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

novo review. Gordon v. United States, 518 F.3d 1291, 1296 (11th Cir. 2008).

      A criminal defendant has a fundamental constitutional right to testify on his

own behalf at trial, and this right cannot be waived by defense counsel. Gallego v.

United States, 174 F.3d 1196, 1197 (11th Cir. 1999). “A claim of ineffective

assistance of counsel is the proper framework to analyze defendant’s allegation that

his attorney has violated his right to testify.” Id. 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 (1984).

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

demonstrate both (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, 691-92, 104 S. Ct at 2064-67. This Court 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.



                                           3
        In order to prove prejudice, “[t]he defendant must show that there 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 a probability sufficient to undermine confidence

in the outcome.” Id. “It is not enough for the defendant to show that the errors had

some conceivable effect on the outcome of the proceeding.” Id. at 693, 104 S. Ct.

2067.

        On this record, we are compelled to conclude that there is no reasonable

probability that the outcome of the trial would have been different had Hester

testified in his own defense. Hester makes two arguments. First, Hester would have

testified that he never carried a gun during drug transactions.3 However, in light of

all the evidence, there is not a reasonably probability that his testimony would have

changed the outcome of the trial. Four witnesses testified that Hester carried a gun

during drug transactions. In addition, a law enforcement officer identified a



        3
                Hester’s affidavit states that he would have testified to the following facts: (1)
Hester was “very interested in and collected guns” since the age of eleven; (2) Hester “had a
number of rifles, pistols and shotguns,” which were “usually kept” in his gun safe; (3) Hester
had a permit to carry a pistol; (4) Hester’s wife had been injured by the accidental discharge of a
pistol and imposed a “house rule” that pistols could not be carried inside the home; (5) as a joke,
Hester played along with a statement by an informant that he had a gun in his pants; (6) when
one of the informants asked about buying a pistol, Hester took it out of the safe to show it to her;
(7) the informant’s were long-time friends and never appeared “intimidated” by Hester; (8)
Hester never owned an ankle holster or carried a pistol on his ankle; and (9) Hester never pulled
out a gun or threatened anyone with a gun.

                                                 4
handgun recovered from Hester’s home. Finally, Hester’s mother, testifying for the

defense, made the following statements on direct examination:

      Q:      Was it unusual to see handguns in [Hester’s] house?

      A:      No, sir, no, sir.

      Q:      Was it unusual to see [Hester] with a handgun on him, in his pocket or
              in a holster or anything of that nature?

      A:      No, sir.

      Q:      Was that something that was common?

      A:      Yes, Sir.

Accordingly, Hester cannot satisfy the prejudice prong of the Strickland analysis.

      Second, Hester argues that his testimony would have provided a basis for an

entrapment defense or, at a minimum, sentencing manipulation.4 We reject both

arguments.

      A successful entrapment defense requires two elements: 1) government
      inducement of the crime, and 2) lack of predisposition on the part of the
defendant. The defendant bears the initial burden of production to show government
inducement. The mere suggestion of a crime or initiation of contact is not enough.
Rather, inducement requires an element of persuasion or mild coercion.

United States v. Padron, 527 F.3d 1156, 1160 (11th Cir. 2008) (internal citations and

quotations omitted). Here, Hester’s own affidavit demonstrates that he willingly


       4
               Hester argues that he was entitled to a defense of sentencing entrapment. This
Circuit does not recognize sentencing entrapment as a viable defense. See United States v.
Ciszkowski, 492 F.3d 1264, 1270 (11th Cir. 2007).

                                               5
produced a gun. Turning to Hester’s second argument, we note that, “to bring sting

operations within the ambit of sentencing factor manipulation, the government must

engage in extraordinary misconduct.” United States v. Ciszkowski, 492 F.3d 1264,

1271 (11th Cir. 2007). There is no evidence of such misconduct here. See id. (“The

fact that law enforcement may provide drugs or guns essential to a willing and

predisposed offender does not necessarily constitute misconduct.”). Accordingly,

Hester cannot satisfy the prejudice prong of the Strickland analysis, and we conclude

that Hester did not receive ineffective assistance of counsel.

      B. Failure to Hold an Evidentiary Hearing

      We review a district court’s denial of an evidentiary hearing in a § 2255

proceeding for abuse of discretion. Aron v. United States, 291 F.3d 708, 714 n.5

(11th Cir. 2002). When confronted with a § 2255 motion, a district court must grant

an evidentiary hearing “unless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b);

Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991). Because Hester’s claim of

prejudice – even liberally construed – is unsupported on the face of the record, the

district court did not abuse its discretion by failing to hold an evidentiary hearing.

                                    CONCLUSION

      For the forgoing reasons, the opinion of the district court is



                                            6
      AFFIRMED.5




       5
                Appellee’s motion to dismiss all issues not granted in the certificate of
appealability is dismissed as moot.

                                                  7
