              Case: 12-12813     Date Filed: 12/12/2012   Page: 1 of 9



                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-12813
                             Non-Argument Calendar
                           ________________________

           D.C. Docket Nos. 1:10-cv-21372-JAL; 1:06-cr-20149-JAL-2

JIMMY FELICIANO,

                                                           Petitioner-Appellant,

                                       versus

UNITED STATES OF AMERICA,

                                                           Respondent-Appellee.
                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________
                               (December 12, 2012)

Before TJOFLAT, CARNES, and PRYOR, Circuit Judges.

PER CURIAM:

      Jimmy Feliciano, a federal prisoner serving a 188-month sentence for drug

and robbery-related offenses, appeals the denial of his pro se motion to vacate

sentence, filed under 28 U.S.C. § 2255. The district court granted a certificate of
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appealability on the sole issue of whether it erred in failing to hold an evidentiary

hearing to determine whether Feliciano’s trial counsel was ineffective in allegedly

preventing him from testifying at trial.

                                           I.

      Feliciano, along with five codefendants including Omar Ortega and Joel

Goenaga, was indicted for (1) conspiring to possess with intent to distribute

cocaine, in violation of 21 U.S.C. §§ 841 and 846; (2) attempting to possess with

intent to distribute cocaine, in violation of 21 U.S.C. §§ 841 and 846, and 18

U.S.C. § 2; (3) conspiring to interfere with commerce by robbery, in violation of

18 U.S.C. § 1951; (4) attempting to interfere with commerce by robbery, in

violation of 18 U.S.C. §§ 1951 and 2; and (5) conspiring to use a firearm in

relation to a drug trafficking crime or crime of violence, in violation of 18 U.S.C. §

924. Feliciano’s initial trial ended in a mistrial due to a hung jury, and the district

court granted his motion for a judgment of acquittal on the firearm charge.

Following his retrial, which lasted six days and featured the testimony of six

government witnesses, Feliciano was found guilty by a jury of all remaining counts

except for the attempted robbery charge. The district court sentenced Feliciano to

188 months imprisonment.

      We affirmed Feliciano’s convictions and sentence on direct appeal. United

States v. Feliciano, F. App’x 795 (11th Cir. 2008). In rejecting his various

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challenges, we repeatedly emphasized that there was “ample evidence” offered at

trial to show that he participated in the conspiracy to rob a cocaine stash house,

including the testimony of Ortega, Goenaga, and the arresting officer, as well as

cell phone records introduced by the government. Id. at 799–800, 803.

      Feliciano then filed a pro se motion to vacate sentence under § 2255. As

relevant to this appeal, Feliciano claimed that defense counsel was ineffective in

preventing him from testifying on his own behalf at trial. Feliciano maintained

that counsel should have permitted him to take the stand to “tell the jury his side of

the story” and refute the testimony of “two admitted li[a]rs,” namely Ortega and

Goenaga, “whose concocted statements were solely for the purpose of lowering

their prison sentences.” Feliciano further argued that, had he testified, there was a

reasonable probability that he would have been acquitted of all charges given the

“minimal” evidence against him, which was mainly comprised of the testimony of

the two cooperating co-conspirators.

      A magistrate judge issued a report recommending that Feliciano’s § 2255

motion be denied without an evidentiary hearing. The magistrate judge

alternatively found that defense counsel did not prevent Feliciano from testifying at

trial and, even assuming that counsel’s performance was deficient, Feliciano could

not demonstrate the requisite prejudice because overwhelming evidence of his guilt

was presented at trial. The magistrate judge further explained that Feliciano’s

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proposed testimony would have been cumulative, as defense counsel impeached

Ortega and Goenaga by showing that they were untrustworthy and agreed to

cooperate with the government in order to receive reduced sentences.

       Feliciano objected to the magistrate judge’s report and recommendation,

arguing that he was entitled to an evidentiary hearing because the record was silent

as to whether trial counsel properly consulted with him about his right to testify.

Feliciano also challenged the magistrate judge’s finding that the evidence against

him was overwhelming, arguing that, other than the testimony of Ortega and

Goenaga, there was little evidence of his guilt. Feliciano maintained that, had he

been allowed to take the stand at trial, he would have professed his innocence and

rebutted the incriminating testimony of the cooperating co-conspirators. Although

Feliciano acknowledged that defense counsel was able to show that Ortega and

Goenaga had been untruthful and agreed to testify against him in the hope of

receiving reduced sentences, he maintained that there was a reasonable probability

that the jury would have acquitted him if it “learned the facts in his own words.”

       The district court adopted the magistrate judge’s finding that Feliciano failed

to establish that he was prejudiced by trial counsel’s alleged deficient performance

and, thus, was not entitled to an evidentiary hearing.1 The court explained that


1
  The district court expressly rejected the magistrate judge’s finding that counsel did not prevent
Feliciano from testifying at trial, noting that the record from Feliciano’s second trial was silent as
to whether counsel consulted with him about his right to testify.
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Feliciano’s proposed testimony did not give rise to a reasonable probability of a

different trial outcome because there was ample evidence of his participation in the

conspiracy and the jury chose to believe Ortega and Goenaga despite defense

counsel’s impeachment of them. Nevertheless, the court later granted Feliciano a

COA on the issue of whether it should have held an evidentiary hearing before

rejecting his claim of ineffective assistance of counsel.2

                                                  II.

        On appeal, Feliciano contends that the district court erred in declining to

hold an evidentiary hearing because the record was silent as to whether trial

counsel consulted with him about his right to testify, and the court could not

predict whether his proposed testimony would have affected the jury’s verdict.

Feliciano further argues that there is a reasonable probability that his proposed

testimony would have altered the outcome of the trial given the “minimal”

evidence implicating him in the conspiracy and the impeached testimony of the

cooperating co-conspirators.

        We review the denial of an evidentiary hearing on a § 2255 motion for an

abuse of discretion. Aron v. United States, 291 F.3d 708, 714 n.5 (11th Cir. 2002).



2
  The district court specifically granted a COA “on the issue of whether [it] should have held an
evidentiary hearing to determine whether trial counsel prevented Feliciano from testifying at
trial.” Nonetheless, given the district court’s findings, it is evident that the real issue on appeal is
whether it erred in declining to hold an evidentiary hearing to determine whether Feliciano was
prejudiced by trial counsel’s performance.
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A district court is required to hold an evidentiary hearing on a motion to vacate a

sentence “[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). Accordingly,

if a prisoner “alleges facts that, if true, would entitle him to relief, then the district

court should order an evidentiary hearing.” Aron, 291 F.3d at 714–15 (quotation

marks omitted).

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

behalf, and that right cannot be waived by defense counsel. United States v.

Teague, 953 F.2d 1525, 1532 (11th Cir. 1992) (en banc). The appropriate vehicle

for challenging defense counsel’s alleged violation of this right is a claim of

ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052 (1984). Id. at 1534. In order to satisfy the standard articulated in

Strickland, a prisoner must show both that counsel’s performance was deficient,

and the deficient performance prejudiced his defense. 466 U.S. at 687, 104 S.Ct. at

2064. Because the failure to establish either deficient performance or prejudice is

dispositive, a court ruling on an ineffective-assistance claim need not address both

prongs if the movant makes an insufficient showing as to either one. Windom v.

Sec’y, Dep’t of Corr., 578 F.3d 1227, 1248 (11th Cir. 2009).

       To prove prejudice, a prisoner must demonstrate that “there is a reasonable

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

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proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. Prejudice

requires a “substantial”, not merely “conceivable,” likelihood of a different result.

Harrington v. Richter, — U.S. —, 131 S.Ct. 770, 792 (2011). In making this

determination, courts “must consider the totality of the evidence before the judge

or jury.” Strickland, 466 U.S. at 695, 104 S.Ct. at 2069. “[A] verdict or

conclusion only weakly supported by the record is more likely to have been

affected by errors than one with overwhelming record support.” Id. at 696, 104

S.Ct. at 2069.

      The district court did not abuse its discretion in resolving Feliciano’s

ineffective-assistance claim without conducting an evidentiary hearing. The

district court assumed that counsel rendered deficient performance by preventing

Feliciano from testifying at trial, and thus was left with the purely legal question of

whether Feliciano’s proposed testimony, when assessed in light of the evidence

adduced at trial, created a reasonable probability of a different outcome. Given its

assumptions, the district court was not required to hold an evidentiary hearing to

determine whether trial counsel did, in fact, prevent Feliciano from testifying. And

contrary to Feliciano’s suggestion that the district court could not conclusively rule

on the issue of prejudice without an evidentiary hearing, the prejudice inquiry

necessarily requires a court to speculate as to the effect of omitted evidence on the

entire evidentiary picture before a judge or jury. See Sears v. Upton, — U.S. —,

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130 S.Ct. 3259, 3266 (2010) (emphasizing that the prejudice inquiry necessarily

requires “a court to ‘speculate’ as to the effect of the new evidence”).

      Moreover, the district court properly concluded that Feliciano failed to

demonstrate a reasonable probability that his proposed testimony would have

altered the outcome of the trial. As we noted on his direct appeal, ample evidence

was presented to show that Feliciano participated in the charged conspiracy. See

Feliciano, 300 F. App’x at 799–800, 803. Ortega and Goenaga directly implicated

Feliciano in the planned robbery of a cocaine stash house, testifying that he agreed

to serve as a lookout in exchange for a kilogram of cocaine. Their testimony was

corroborated by cell phone records introduced by the government, which showed

that, on the morning of the planned robbery, seven calls were made between

Ortega’s and Feliciano’s phones, two were made between Ortega’s and Goenaga’s

phones, and two were made between Feliciano’s and Goenaga’s phones. Feliciano

was also arrested along with the other co-conspirators while en route to a pre-

arranged meeting location on the day of the planned robbery. At the time of his

arrest, Feliciano was driving a car with Goenaga as his passenger.

      When weighed against the strong evidence of his guilt, Feliciano’s proposed

testimony does not create a substantial likelihood of a different outcome. To the

extent Feliciano wished to personally impeach the credibility of Ortega and

Goenaga, his proposed testimony was largely cumulative of the information

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elicited by defense counsel on cross-examination. See Sochor v. Sec’y, Dep’t of

Corr., 685 F.3d 1016, 1032 (11th Cir. 2012) (noting that a movant cannot

demonstrate prejudice with evidence that is largely cumulative of that already

presented at trial). At trial both Ortega and Goenaga openly admitted to being

lifelong criminals, previously lying about various details of the planned robbery,

and hoping to receive reduced sentences in exchange for testifying against

Feliciano. Nevertheless, despite defense counsel’s vigorous cross-examination, the

jury still elected to believe their testimony about Feliciano’s role in the conspiracy.

Furthermore, to the extent Feliciano intended to profess his innocence, there is

little to suggest that the jury would have believed his testimony over that of his co-

conspirators, particularly given the other evidence of his guilt. As we have long

emphasized, a defendant who testifies runs the risk that a jury will both disbelieve

his testimony and “conclude that the opposite of his testimony is true.” Atkins v.

Singletary, 965 F.2d 952, 961 n.7 (11th Cir. 1992)

      Because the record conclusively showed that Feliciano could not

demonstrate that he was prejudiced by trial counsel’s performance, the district

court did not abuse its discretion in declining to hold an evidentiary hearing. We

therefore affirm the denial of Feliciano’s § 2255 motion to vacate sentence.

      AFFIRMED.




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