                                                   [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT           FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                            AUGUST 18, 2005
                              No. 05-10570
                                                           THOMAS K. KAHN
                          Non-Argument Calendar
                                                               CLERK
                        ________________________

          D. C. Docket Nos. 03-00092-CV-HL-3 & 02-00001 CR-HL



DIMITRI GOOLSBY,
a.k.a. Demetrious Goolsby


                                                      Petitioner-Appellant,

                                   versus


UNITED STATES OF AMERICA,

                                                      Respondent-Appellee.

                        ________________________

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

                             (August 18, 2005)

Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:

       Dimitri Goolsby appeals the district court’s denial of his 28 U.S.C. § 2255

motion to vacate, set aside, or correct his sentence. Goolsby pled guilty, pursuant

to a plea agreement, to possession of more than 5 grams of crack cocaine with

intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) (Count

One) and possession of a gun in furtherance of a drug trafficking offense in

violation of 18 U.S.C. § 924(c) (Count Two).

       On appeal, Goolsby raises an ineffective assistance of counsel claim arguing

that the conduct of his trial counsel, James Smith, was ineffective because he

entered into an oral agreement with the government stating that the government

would not seek a firearm enhancement and Smith failed to reduce the agreement to

writing.1 Thus, but for the deficiency of his attorney, Goolsby claims that the

firearm enhancement would not have been applied to his sentence.

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


       1
         The second issue raised by Goolsby on appeal is that his plea was not knowing and
voluntary as he was not advised that the firearm could be used to enhance his sentence.
However, in this section of his brief Goolsby argues that he was denied effective assistance
counsel because his lawyer advised him to reject the government’s offer to plead guilty to Count
Two and to plead guilty to Count One. Goolsby contends that had he pled guilty to Count One,
his sentence would have been shorter. As Goolsby has not requested that the Certificate of
Appealability (COA) be expanded to include this ineffective assistance of counsel claim, we
decline to address this issue because it is outside the narrow scope of the COA. Murray v. United
States, 145 F.3d 1249, 1251 (11th Cir. 1998) (holding that “appellate review is limited to the
issues specified in the COA”).

                                               2
novo, and its findings of fact for clear error. Williams v. United States, 396 F.3d

1340, 1341 (11th Cir. 2005). To establish an ineffective assistance of counsel

claim, “the defendant must [first] show that counsel’s performance was deficient.”

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). “This

requires showing that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Id. Second, the defendant must prove that the deficiency in counsel prejudiced the

defense by “depriv[ing] [him] of a fair trial.” Id. Further, it is well established

that attorney assistance must meet the objective standard of reasonable

effectiveness. Id. at 688, 104 S. Ct. at 2064.

      Goolsby’s ineffective assistance of counsel claim necessarily fails because

he has not met his burden of establishing the deficient performance of his attorney.

In the instant case, the district court adopted the magistrate’s recommendation to

deny Goolsby’s claim of ineffective assistance of counsel based on his counsel’s

failure to put the oral agreement regarding the sentencing enhancement in writing.

The magistrate made a factual finding that there was no oral agreement. After

reviewing the record, we conclude that this factual finding was not clearly

erroneous.

      Smith testified to the existence of an oral agreement. However, the

                                           3
government testified that there was no such agreement, but instead that Smith was

informed of the possibility of a firearm enhancement and that he could oppose the

enhancement. The record supports the district court’s conclusion that there was no

agreement between Smith and the government. Because the district court correctly

concluded that there was no agreement between Smith and the government

regarding the firearm sentence enhancement, Smith’s failure to put the agreement

in writing is of no consequence.2

       Goolsby failed to establish the first prong of the Strickland v. Washington

test. 466 U.S. at 687, 104 S. Ct. at 2064. Thus, we conclude that the district court

did not err in finding that Goolsby was not denied effective assistance of counsel.

Accordingly, we affirm the district court’s denial of Goolsby’s § 2255 motion.

       AFFIRMED.




       2
         Goolsby alternatively claims that if in fact there was no agreement regarding the
firearm enhancement, then Smith would have advised him to plead guilty to Count Two,
allowing for a shorter sentence. However, it is unclear whether the sentence imposed for Count
One was necessarily longer than the sentence possible for Count Two. Thus, Goolsby has not
demonstrated that Smith’s assistance was not reasonably effective.

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