            Case: 12-13692    Date Filed: 02/11/2013   Page: 1 of 7

                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-13692
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket Nos. 1:10-cv-21070-MGC,
                                   1:06-cr-20457-MGC-1


JOSE PEDRON,

                                                            Petitioner-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                           Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (February 11, 2013)

Before DUBINA, Chief Judge, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
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      Appellant Jose Pedron appeals the district court’s denial of his motion to

vacate sentence that he filed pursuant to 28 U.S.C. § 2255 and after his trial and

conviction in 2006 of various drug-related crimes. At trial, the government

submitted evidence and testimony establishing that Pedron’s neighbor had

provided amphetamines, which the neighbor allegedly obtained from Pedron, to

agents with the Drug Enforcement Administration (“DEA”), and that those

amphetamines had the same purity level, unusual color, and markings as

amphetamines found in Pedron’s vehicle at the time of Pedron’s arrest.

      In defense, Pedron argued that he was set up by his neighbor, who was

attempting to force Pedron and Pedron’s family to vacate their home, which had

been purchased in the neighbor’s name but with Pedron’s money. Pedron claimed

that his neighbor had attempted to interfere with Pedron’s enjoyment of his home

by rerouting his mail. As part of that defense, Pedron’s counsel subpoenaed two

postal employees, but allegedly failed to comply with various federal regulations

required to subpoena federal employees. The postal employees purportedly would

have testified that Pedron’s wife had filed complaints about their mail being

diverted to the neighbor’s home. At trial, Pedron’s wife testified about the

problems with the mail.

      Pedron also testified in his own defense. In his § 2255 motion, Pedron

asserts that his counsel did not inform him of his rights regarding his decision to


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testify, including that he had the right to choose not to testify in his own defense,

that he alone had the right to decide whether or not to testify, and that the jury was

not allowed to consider his failure to testify. The government submitted a

declaration in which Pedro’s counsel stated that he did not remember the

conversation exactly, but that he was sure that he had discussed Pedron’s rights

about the decision to testify with him and that they had come to a mutual

agreement on the issue.

       The district court denied Pedron’s § 2255 motion, finding that his counsel

was not ineffective as to the postal witnesses because Pedron did not cite the

specific regulations counsel failed to follow, and because Pedron did not establish

that there was a reasonable probability that, if the postal witnesses had testified, the

outcome of the trial would have been different. The district court also concluded

that Pedron did not establish that there was a reasonable probability that the

outcome of the trial would have been different if he had not testified. The court,

however, granted a certificate of appealability (“COA”) as to whether Pedron’s

counsel was ineffective for either (1) failing to follow the federal regulations

required to subpoena the postal employees, or (2) failing to advise Pedron about

his right to testify.

                                           I.




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      In a § 2255 proceeding, “we review a district court’s legal conclusions de

novo and factual findings for clear error.” Devine v. United States, 520 F.3d 1286,

1287 (11th Cir. 2008). We accord “substantial deference to the fact finder . . . in

reaching credibility determinations with respect to witness testimony.” Id.

(internal quotation marks omitted) (ellipses in original).

      To make a successful claim of ineffective assistance of counsel, the

defendant must show that (1) counsel’s performance was deficient, and (2) the

deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Courts need not

“address both components of the inquiry if the defendant makes an insufficient

showing on one.” Id. at 697, 104 S. Ct. at 2069.

      Under the first prong, the defendant must establish that counsel’s

performance was deficient by demonstrating that counsel’s performance was

unreasonable under prevailing professional norms. Id. at 688, 104 S. Ct. at 2065.

The defendant bears the burden to prove by a preponderance of the evidence that

counsel’s performance was unreasonable by establishing “that particular and

identified acts or omissions of counsel were outside the wide range of

professionally competent assistance.” Chandler v. United States, 218 F.3d 1305,

1313-14 (11th Cir. 2000) (internal quotation marks omitted). Our review of a

counsel’s performance is highly deferential, and we apply a “strong presumption”


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that counsel’s performance was reasonable and that counsel made all significant

decisions in the exercise of reasonable professional judgment.” Id. at 1314

(internal quotation marks omitted). We conduct an objective inquiry into the

reasonableness of counsel’s performance, such that “a petitioner must establish that

no competent counsel would have taken the action that his counsel did take.” Id. at

1315. We evaluate counsel’s effectiveness based on counsel’s perspective at the

time. Id. at 1316.

      Under the second prong of the Strickland test, the defendant must establish

prejudice by showing 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. The defendant

must affirmatively prove prejudice because attorney errors are as likely to be

“utterly harmless” as they are to be prejudicial. Gilreath v. Head, 234 F.3d 547,

551 (11th Cir. 2000) (quoting Strickland, 466 U.S. at 693, 104 S. Ct. at 2067).

      Here, we conclude from the record that the district court did not err by

determining that Pedron’s trial counsel was not ineffective for failing to comply

with federal regulations in order to subpoena the postal employees, as those

witnesses’ purported testimony would have been duplicative of by Pedron’s wife’s

testimony. Moreover, Pedron cannot show prejudice to the outcome of the


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proceedings because there was ample evidence for the jury to convict Pedron on all

counts. The government showed that the DEA agents found amphetamine pills

and cocaine both on Pedron’s person and in his vehicle at the time of the arrest,

and that those amphetamine pills matched the pills Pedron’s neighbor provided to

the DEA agents.

                                          II.

      A defendant can bring an ineffective-assistance-of-counsel claim based on

his attorney’s failure to inform him fully about his right to testify. See Gallego v.

United States, 174 F.3d 1196, 1197 (11th Cir. 1999). When counsel does not

inform the defendant of his right to testify and that the final decision belongs to the

defendant alone, the defendant has not received reasonably effective assistance of

counsel. Id.

      Here, we conclude from the record that that the district court did not err by

determining that Pedron had not received ineffective assistance of counsel as to his

right to testify. Although there was a factual dispute as to whether Pedron was

informed of those rights, Pedron did not establish that he was prejudiced by the

alleged failure because he did not state that he would have chosen not to testify,

and there was sufficient evidence to convict him, regardless of whether he testified.

      For the above-stated reasons, we affirm the district court’s order denying

Pedron’s motion to vacate sentence.


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AFFIRMED.




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