             Case: 15-14366     Date Filed: 12/08/2016   Page: 1 of 6


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 15-14366
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket Nos. 5:14-cv-00397-MTT-CHW,
                         5:10-cr-00046-MTT-CHW-3


MICHAEL MCSHUN REEVES,

                                                              Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                             Respondent-Appellee.

                          ________________________

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

                               (December 8, 2016)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Michael Reeves, proceeding pro se, appeals the district court’s denial of his

28 U.S.C. § 2255 motion without an evidentiary hearing. We granted a certificate
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of appealability on the issue of “[w]hether the district court erred in denying,

without an evidentiary hearing, Mr. Reeves’s claim that counsel was

constitutionally ineffective for failing to adequately advise him regarding a plea

offer or plea offers from the government.” On appeal, Reeves argues that an

evidentiary hearing was necessary to ascertain relevant facts and make credibility

determinations concerning his claim that his two trial attorneys were ineffective for

inadequately advising him about a plea offer, particularly because the government

did not provide any evidence refuting his claims. After careful review, we affirm.

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

for abuse of discretion. Winthrop-Redin v. United States, 767 F.3d 1210, 1215

(11th Cir. 2014). “A district court abuses its discretion if it applies an incorrect

legal standard, applies the law in an unreasonable or incorrect manner, follows

improper procedures in making a determination, or makes findings of fact that are

clearly erroneous.” Id. (quotation omitted).

      An evidentiary hearing must be held on a motion to vacate “[u]nless 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).      The prisoner is entitled to an

evidentiary hearing if he alleges facts that, if true, would entitle him to relief.

Winthrop-Redin, 767 F.3d at 1216. However, the district court does not have to




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hold a hearing if the allegations are patently frivolous, based upon unsupported

generalizations, or affirmatively contradicted by the record. Id.

      The Sixth Amendment guarantees criminal defendants the right to effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The

two-part Strickland test applies to a defendant’s allegations of ineffective

assistance during plea negotiations, and the defendant must show that: (1) his trial

counsel’s performance was deficient; and (2) trial counsel’s deficient performance

prejudiced the defense. Rosin v. United States, 786 F.3d 873, 877 (11th Cir.), cert.

denied, 136 S. Ct. 429 (2015). If the movant fails to establish either prong, the

reviewing court need not address the other prong. Strickland, 466 U.S. at 697.

Generally, defense counsel has a duty to communicate formal offers from the

government that may be favorable to their client. Missouri v. Frye, 132 S. Ct.

1399, 1408 (2012). In the context of a rejected plea agreement or failed plea

bargaining, the prejudice prong requires that the defendant show that:

      but for the ineffective advice of counsel there is a reasonable probability that
      the plea offer would have been presented to the court (i.e., that the defendant
      would have accepted the plea and the prosecution would not have withdrawn
      it in light of intervening circumstances), that the court would have accepted
      its terms, and that the conviction or sentence, or both, under the offer’s terms
      would have been less severe than under the judgment and sentence that in
      fact were imposed.

Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012).




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      Here, the district court did not abuse its discretion when it denied, without an

evidentiary hearing, Reeves’s claim that his trial attorneys were ineffective for

their alleged failure to adequately advise him about a plea offer. As for his first

counsel, Charles Mathis, Mathis’s performance (even if shown to be deficient)

could not have prejudiced Reeves. Rather, the record reveals that no codefendant

pleaded guilty until more than two months after Reeves’s second counsel, John

Fox, took over, and more than eight months after Mathis died. Thus, the record

conclusively shows that Mathis’s performance could not have affected Reeves’s

ability to accept a plea deal, and Reeves was not entitled to an evidentiary hearing

concerning Mathis.

      As for his second counsel, even if Reeves could show that Fox failed to

present to him an alleged potential deal of 210 to 264 months’ imprisonment,

Reeves was not prejudiced by this failure either. The record conclusively shows

that Reeves already had rejected a deal with a lower term of imprisonment. Reeves

submitted a letter from Fox providing that he informed Reeves of a potential plea

deal for 14 to 17 years’ imprisonment, which Reeves rejected because of the

stipulated drug quantity proposed by the government. Although the letter was

unsworn and dated two years after sentencing, its contents are verified by

contemporaneous events -- for example, the government also referenced that

specific potential agreement at sentencing, and Fox acknowledged on the record


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that negotiations had not worked out. Reeves noted at the sentencing hearing that,

in hindsight, taking a plea would have been a better course of action, but he never

disputed the accuracy of the government’s account of the plea negotiations. Nor

did he ever indicate that he had not heard of the government’s 14-to-17-year offer.

In addition, the government earlier noted at a January 2011 pretrial status hearing,

which Reeves attended, that it would be offering plea deals to everyone. While

Reeves argues that the January 2011 status hearing was continued and did not

occur, the existence of the hearing transcript conclusively shows that the hearing

did occur. Thus, because the record conclusively shows that Reeves already had

rejected a better deal, he is unable to meet his burden of showing a reasonable

probability that he would have taken the alleged 210-to-264 month offer under the

circumstances. See Lafler, 132 S. Ct. at 1385 (holding that the defendant must

show a reasonable probability that he would have accepted the deal).

      Finally, as for Reeves’s argument that his attorneys never discussed his

sentencing exposure and should have advised him more strongly to take a plea

deal, Reeves was aware of his potential exposure to a sentencing range of 360-

months’-to-life imprisonment as early as his initial appearance and arraignment.

He even signed a form acknowledging as much. As a result, the record and

Reeves’s submitted evidence conclusively show that he knew his sentencing

exposure and nonetheless rejected a potential plea agreement for 14-to-17 years’


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imprisonment. He, therefore, could not have been prejudiced by their performance

concerning a later, and less favorable, deal. Accordingly, the district court did not

abuse its discretion by denying Reeves’s § 2255 motion without an evidentiary

hearing.

      AFFIRMED.




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