                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                 MAY 9, 2007
                                No. 06-13775                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

        D. C. Docket Nos. 06-00769-CV-T-26EAJ & 05-00061-CR-T-2

JEVON SCOTT,



                                                         Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.


                          ________________________

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

                                  (May 9, 2007)

Before TJOFLAT, BIRCH and KRAVITCH, Circuit Judges.

PER CURIAM:

     Jevon Scott, a federal prisoner proceeding pro se, appeals the district court’s
summary denial of his motion to vacate, brought pursuant to 28 U.S.C. § 2255.

Scott alleges ineffective assistance of counsel because his attorney failed to

investigate and pursue a claim of selective prosecution. Because Scott’s motion

did not establish that his counsel’s performance was deficient, we affirm.



                                I. BACKGROUND

      According to the uncontested record, Scott, pursuant to a written plea

agreement, pleaded guilty to conspiracy to possess with the intent to distribute 50

grams or more of crack cocaine, in violation of 21 U.S.C. § 846, and was sentenced

to 180 months of imprisonment.

      Scott did not file a direct appeal but instead filed a motion to vacate his

sentence, alleging that his counsel provided ineffective assistance by failing to

investigate and pursue a claim of selective prosecution. Specifically, Scott claimed

that he and other African-Americans were selected for federal prosecution on drug

crimes while similarly-situated white defendants were prosecuted in state court. In

his motion, Scott included affidavits from fellow African-American prisoners who

stated that they too were prosecuted for federal drug crimes while similarly-

situated white defendants were prosecuted in state court. He also included the

arrest affidavits for various white defendants indicating that those individuals were



                                           2
prosecuted by the state for drug crimes.1

       The district court summarily dismissed Scott’s motion without an

evidentiary hearing, pursuant to Rule 4 of the Rules Governing Section 2255

Proceedings, because Scott failed to show that he suffered prejudice from the

alleged selective prosecution. The district court held that a claim of selective

prosecution requires that the defendant must show that the “similarly situated

individuals were not prosecuted, and [he was] also required to show that the

difference in treatment, or selectivity of the prosecution, was motivated by a

discriminatory purpose.” United States v. Smith, 231 F.3d 800, 809 (11th Cir.

2000) (citing United States v. Armstrong, 517 U.S. 456, 465 (1996) (emphasis in

the district court opinion). Because Scott only alleged that the white defendants

had been prosecuted in state court rather than federal court, the district court held

that Scott could not have won a selective prosecution claim, and thus could not

satisfy the prejudice prong in a claim of ineffective assistance of counsel.




       1
           After the briefing for this appeal, Scott moved to supplement the Record on Appeal
pursuant to Federal Rules of Appellate Procedure 10(e)(2) with several documents, including an
affidavit from Handy Baily, a federal prisoner who attests to the length of time necessary to
gather the documents Scott presented to the district court, and correspondence between Scott and
law enforcement officials regarding his requests for documents. We hereby grant Scott’s motion
to supplement the record.

                                               3
                           II. STANDARD OF REVIEW

      We review a district court’s denial of a petition for writ of habeas corpus de

novo, and the district court’s findings of fact for clear error. Lynn v. United States,

365 F.3d 1225, 1232 (11th Cir. 2004); Wright v. Hopper, 169 F.3d 695, 700 (11th

Cir. 1999).



                                 III. DISCUSSION

      In order to prevail on his claim of ineffective assistance of counsel for not

investigating and pursuing a claim of selective prosecution, Scott must show that

his counsel’s performance was constitutionally deficient and that this deficiency

prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687 (1984); United

States v. Greer, 440 F.3d 1267, 1272 (11th Cir. 2006) (“To prevail on a claim of

ineffective assistance of counsel, [petitioner] must prove: (1) that his attorney’s

performance fell below an objective standard of reasonableness, and (2) that he

was thereby prejudiced, that is, there is a reasonable probability that but for

counsel’s deficient performance, the result of his trial would have been different.”).

“Both showings are necessary for any relief; failure to establish either is fatal and

makes it unnecessary to consider the other.” Rutherford v. Crosby, 385 F.3d 1300,

1308-09 (11th Cir. 2004) (citing Strickland, 466 U.S. at 697).



                                           4
       The standard to prove selective prosecution is a demanding one. Armstrong,

517 U.S. at 463. Scott must show by clear evidence that the alleged selective

prosecution “had a discriminatory effect and that it was motivated by a

discriminatory purpose.” Smith, 231 F.3d at 808. After reviewing the record, we

conclude that Scott did not meet his burden of demonstrating defective

representation because he has not shown any evidence that his counsel knew or

should have known about the alleged discrepancies in federal drug prosecutions

based on race.2

       Moreover, even if Scott’s counsel was aware or should have been aware of

the alleged racial discrepancies in federal prosecutions, that discrepancy alone is

not enough to succeed on a selective prosecution claim. Scott must show that the

difference in treatment was “motivated by a discriminatory purpose.” Smith, 231

F.3d at 809 (citing Armstrong, 517 U.S. at 465). Scott did not allege or provide

any evidence regarding any discriminatory motive for the alleged selective

prosecution. Because of the lack of any evidence regarding the motives of the

prosecutors in selecting Scott for federal prosecution and the slim evidence

regarding the alleged racial disparity in federal prosecutions, the failure of Scott’s



       2
          In fact, in his motion to supplement the record on appeal, Scott himself notes that it
took his fellow prisoner more than five years to gather the documents Scott submitted on behalf
of his motion.

                                                5
counsel to pursue a claim of selective prosecution does not fall “below an objective

standard of reasonableness” necessary to succeed on an ineffective assistance of

counsel claim. Chandler v. United States, 218 F.3d 1305, 1312 (11th Cir. 2000)

(en banc) (quoting Darden v. Wainwright, 477 U.S. 168, 184 (1986).3



                                    IV. CONCLUSION

       For the foregoing reasons, we AFFIRM the district courts denial of Scott’s

motion to vacate.




       3
         Although the district court denied the motion to vacate based on the prejudice prong of
Strickland, we affirm the decision of the district court on alternative grounds. See United States
v. Cover, 199 F.3d 1270, 1277 (11th Cir. 2000). Because we conclude that Scott does not meet
his burden to show deficient representation, we need not address the question of prejudice.
Rutherford, 385 F.3d at 1308-09.

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