Dean Drummond v. United States

Opinion

Case: 12-10022 Date Filed: 07/19/2012 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________________________

No. 12-10022 Non-Argument Calendar ____________________________

D.C. Docket Nos. 1:10-cv-23135-AJ ; 1:05-cr-20315-AJ-1

DEAN DRUMMOND,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

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

(July 19, 2012)

Before BARKETT, HULL and FAY, Circuit Judges.

PER CURIAM:

Dean Drummond, a federal prisoner, appeals the denial of his motion to Case: 12-10022 Date Filed: 07/19/2012 Page: 2 of 3

vacate his sentence filed pursuant to 28 U.S.C. § 2255.1 Drummond contends that

his defense counsel was constitutionally ineffective under Strickland v.

Washington, 466 U.S. 668 (1984), in failing to advise him of his option to plead

guilty without entering into a written plea agreement.

To establish that his counsel provided ineffective assistance, Drummond

must show that his counsel’s performance fell below an objective standard of

reasonableness measured by prevailing professional norms, and that this deficiency

prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687-88

(1984). We need not decide whether counsel performed deficiently if we conclude

that Drummond was not prejudiced by any alleged deficiency. See id. at 697.

Drummond argues that he received ineffective assistance because he claims

that none of the three defense attorneys who represented him prior to his trial

advised him of the option to enter an open plea and thereby become eligible for a

reduction of his sentence for acceptance of responsibility. However, the magistrate

judge who presided over an evidentiary hearing on Drummond’s § 2255 petition

found that, even if Drummond had been advised of the opportunity to enter an

open plea, he still would have decided to go to trial. The magistrate judge’s

1 Drummond was convicted of conspiring to import cocaine and marijuana, conspiring to possess cocaine and marijuana, and possessing with intent to distribute marijuana, in violation of 21 U.S.C. §§ 963, 846, 841(a)(1).

2 Case: 12-10022 Date Filed: 07/19/2012 Page: 3 of 3

conclusion is supported by the testimony of two of Drummond’s attorneys, who

testified that Drummond repeatedly expressed interest in going to trial and believed

that trial was worthwhile given the length of his potential sentence, even with a

reduction for acceptance of responsibility.

Moreover, although Drummond claims that none of his attorneys advised

him of the opportunity to enter an open plea, one of his defense attorneys testified

that he did inform Drummond of his probable sentence if he entered a guilty plea,

and that Drummond responded that he wanted to go to trial because, even with a

plea, the sentence would be too long.2 The magistrate judge who presided over the

hearing on Drummond’s § 2255 motion found the defense attorney’s version of

events to be credible. We accord deference to this determination, and Drummond

points to no additional evidence or testimony that calls the magistrate judge’s

finding into question. See Devine v. United States, 520 F.3d 1286, 1287 (11th Cir.

2008). Accordingly, Drummond has not shown that any lack of advice from his

attorneys prejudiced the outcome of his sentencing.

AFFIRMED

2 R. 3 at 54-55.