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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-12986 Non-Argument Calendar ________________________
D.C. Docket Nos. 2:15-cv-00178-MHT-TFM; 2:12-cr-00104-MHT-TFM-3
FRANK J. TEERS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Alabama ________________________
(June 28, 2018)
Before WILLIAM PRYOR, BRANCH and HULL, Circuit Judges.
PER CURIAM:
Frank J. Teers, a federal prisoner proceeding pro se, appeals from the denial,
without an evidentiary hearing, of his 28 U.S.C. § 2255 motion to vacate, set aside, Case: 17-12986 Date Filed: 06/28/2018 Page: 2 of 16
or correct his sentence. In his § 2255 motion, Teers alleged that his trial counsel
provided ineffective assistance by failing to adequately advise him regarding the
government’s plea offer. After careful review of the record and the parties’ briefs,
we affirm.
I. BACKGROUND
A. Indictment, Trial, and Direct Appeal
In 2012, a federal grand jury indicted Teers and two codefendants on:
(1) one count of conspiracy to commit bank and wire fraud, in violation of 18
U.S.C. § 1349 (Count 1); (2) six counts of wire fraud, in violation of 18 U.S.C.
§§ 1343 and 2 (Counts 2-7); and (3) three counts of bank fraud, in violation of 18
U.S.C. §§ 1344 and 2 (Counts 8-10). Teers pled not guilty and proceeded to trial.
The evidence at trial showed that Teers, a securities broker, and his
codefendants engaged in a scheme to obtain multimillion dollar loans from
financial institutions under the false representation that one of the codefendants
controlled a large bond portfolio that could serve as collateral for the loans. United
States v. Teers, 591 F. App’x 824, 827 (11th Cir. 2014) (unpublished). Through
that scheme, the defendants obtained loans totaling more than $60 million. Id.
Ultimately, Teers was found guilty at trial and sentenced to 97 months’
imprisonment. Id. at 834-35.
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On direct appeal, Teers raised several claims challenging both his
convictions and sentence. See id. at 835-47. In December 2014, this Court
affirmed Teers’s convictions and 97-month sentence. Id. at 847.
B. Teers’s § 2255 Motion & Supporting Memorandum
In March 2015, Teers filed his § 2255 motion to vacate and a supporting
memorandum (collectively “the § 2255 motion”). Teers’s motion raised a single
claim of ineffective assistance of counsel, based on his trial counsel’s alleged
failure to adequately advise Teers regarding the government’s plea offer. Teers
admitted that he received a plea offer from the government, which his trial counsel
Paul Cooper communicated to him via e-mail. According to Teers, counsel
advised him to reject the plea offer and proceed to trial, stating several times that
his case could be won and that he had a 70 to 80 percent chance of winning. Teers
contended that Cooper failed to accurately advise him regarding the law and facts
of his case, preventing him from making “an informed and conscious choice”
about whether to plead guilty and depriving him of the opportunity to receive a
significantly reduced sentence.
C. Trial Counsel’s Affidavit
In response to Teers’s § 2255 motion, trial counsel Cooper filed an affidavit
and supporting attachments recounting these pretrial events. In his affidavit,
Cooper confirmed that the government offered to allow Teers to plead guilty to an
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information charging a single count of conspiracy under 18 U.S.C. § 371, which
carried a maximum sentence of 5 years (60 months). Cooper forwarded this offer
to Teers via e-mail and attached the e-mail to his affidavit.
In the e-mail, Cooper informed Teers of the plea offer and explained it was
possible, under certain conditions, Teers would have to serve only 33 months of
the 5-year sentence in prison. Cooper told Teers to “think about this [offer] for a
day or so and talk it over with your family, and let’s talk about it.” Cooper
explained: “If you decide to go with this deal, you would have to come in and give
a proffer. You would be a witness at trial and testify on behalf of the Government
against [codefendants] Hulse and Mock. You would have to give substantial
assistance in your testimony.” 1
Cooper’s e-mail included a forwarded message from the prosecutor
containing sentencing guidelines estimates of the best- and worst-case scenarios if
Teers were either (1) to proceed to trial under the indictment, or (2) to enter a
guilty plea to the charges in the indictment. All of these estimates—even the best-
case scenario if Teers pled guilty to the indictment—resulted in sentencing ranges
greater than five years.
Teers responded that “[i]f [the prosecutor] is coming to us with an offer at
this late hour doesn’t that kind of indicate that he may think his case is weak?
1 Codefendant Hulse ultimately pled guilty, but codefendant Mock proceeded to trial with Teers. Teers, 591 F. App’x at 834. 4 Case: 17-12986 Date Filed: 06/28/2018 Page: 5 of 16
That’s what it says to me.” Teers further stated that “[t]he plea bargain outlined is
not enough incentive to lie and say I did something wrong,” and noted “[y]ou have
told me on several occasions that you think this case can be won.” Teers indicated
he would call Cooper to discuss the plea offer further.
In a note to file, Cooper documented that phone call, which took place two
days after Cooper relayed the plea offer. Cooper’s note indicated (1) that he
“explained the recently [sic] email about the plea bargain and the worst case/best
case scenarios for sentencing,” and (2) that “Teers want[s] to go to trial and testify.
He does not want any deal.”
On two subsequent occasions, Cooper reminded Teers of the government’s
plea offer and asked Teers to confirm whether or not he wished to accept the offer.
In one e-mail, Cooper noted that if Teers accepted the plea offer, they could ask the
judge for a sentence of less than five years. In another, Cooper reminded Teers
that, as his attorney, it was Cooper’s “job to relate all offers to you and advise you
about problems that I see.”
Cooper attested that “Teers rejected the plea agreement because he
maintained that he was innocent of all charges” and that Teers maintained his
innocence “at all times” and “under any circumstances and scenarios.” Cooper
told Teers he thought they could win, but that to win, the jury would have to
believe Teers and not the government’s witnesses and evidence. Cooper never
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guaranteed Teers a win at trial, or that the government’s case was weak, or that the
jury would believe Teers. Likewise, Cooper never told Teers his case was a “slam
dunk” or gave Teers a percentage or odds of winning. Cooper maintained that,
“[f]rom the beginning to the end, [Teers] wanted to go to trial because he stated he
was innocent.”
Additionally, Cooper averred that he: (1) gave Teers a copy of the
indictment and “continuously discussed the allegations” with him; (2) mailed Teers
all of the discovery, sent Teers every pleading filed by either party and every
ordered issued by the district court; (3) informed Teers of every legal and
evidentiary development in the case; (4) sent Teers the proffers of government
witnesses; (5) discussed with Teers the government’s “reverse proffer” detailing
the evidence it planned to present at trial and provided Teers with a detailed
timeline prepared by the government; (6) provided Teers a condensed version of
the pattern jury instructions on conspiracy and fraud; (7) provided Teers a
preliminary estimate of the sentencing guidelines calculations prepared by the
Probation Office; and (8) forwarded Teers evidence that “looked bad” or “was
damaging” and discussed it with Teers. Cooper attached several e-mails between
himself and Teers in support of these statements.
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D. Government’s Response to § 2255 Motion
The government also responded to Teers’s § 2255 motion, arguing that
Teers failed to establish either deficient performance or prejudice as to his
ineffective assistance claim. As to performance, the government contended
Cooper’s affidavit and attached exhibits belied Teers’s allegation that Cooper
failed to properly advise him regarding the government’s plea offer. The
government also submitted that Teers failed to demonstrate prejudice because he
had not alleged, much less demonstrated, that the court would have accepted the
terms of the plea agreement if Teers had accepted the government’s offer. Finally,
the government argued that Teers was not entitled to an evidentiary hearing
because he failed to plead sufficient facts demonstrating an entitlement to relief.
E. Magistrate Judge’s Report & Recommendation
A magistrate judge issued a report and recommendation (“R&R”)
recommending that Teers’s § 2255 motion be denied without an evidentiary
hearing and that the case be dismissed with prejudice. The magistrate judge
concluded that (1) Teers’s allegation that Cooper deficiently advised him regarding
the government’s plea offer was belied by Cooper’s affidavit and the attached
exhibits, (2) Teers did not deny the veracity of Cooper’s affidavit or present any
evidence to refute Cooper’s account, and (3) Cooper fully advised Teers of the
terms of the plea offer and his sentencing exposure both if he pled guilty and if he
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proceeded to trial, and provided Teers a detailed accounting of the government’s
evidence.
The magistrate judge further determined that Cooper did not provide an
inflated estimate of Teers’s chance of winning at trial. The magistrate judge found
that “[a]lthough Cooper told Teers he thought he could win at trial, he tempered
any optimism by telling Teers that . . . the jury must believe him and not believe
the government’s witnesses and evidence.” Cooper’s e-mails to Teers identified
evidence that looked bad, was damaging, or was strongly against Teers, and
Cooper did not guarantee Teers a win at trial.
The magistrate judge also highlighted that Teers did not (1) dispute that he
stated the plea offer was an indication of weakness in the government’s case and
was not favorable enough to induce him to plead guilty or (2) deny that he had
always insisted to Cooper that he was innocent and wanted to go to trial. Thus,
Teers’s present insistence that he would have accepted the plea if properly advised
was undermined by his repeated claims of innocence.
F. Teers’s Objections to the R&R and District Court’s Order
Teers objected to the R&R, asserting, among other things, that he relied
completely on Cooper’s expertise, experience, and knowledge in deciding to go to
trial, and that Cooper “never advised [him] of the realities of entering a plea,”
instead repeatedly telling Teers that his case was winnable. Teers represented that
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although Cooper informed him of the plea offer, he never “really [sat] down and
truly discuss[ed] the favorable plea offer with [Teers].” Teers also generally
alleged that all of his communications with Cooper and his understanding of the
government’s evidence were tinged by Cooper’s repeated assurances that they
could win at trial.2
The district court overruled Teers’s objections, adopted the R&R, and
denied Teers’s § 2255 motion. This Court granted Teers a certificate of
appealability (“COA”) on the issue of whether the district court erred in denying
his ineffective assistance claim without an evidentiary hearing.
II. DISCUSSION
A. Applicable Law
Section 2255 provides that a district court shall hold an evidentiary hearing
on a federal prisoner’s § 2255 motion “[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). In other words, a § 2255 movant is entitled to an evidentiary 2 In his objections to the R&R, Teers also raised, for the first time, a claim under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), and Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972), asserting that the government failed to disclose exculpatory evidence about his bank fraud, such as recorded conversations between Teers, as a securities broker, and John Richard Crouch, a bank employee, which Teers asserts were recorded during his employment. Teers also argued that he told Cooper about the recordings, and Cooper was ineffective for failing to obtain them. Teers now seeks to raise these claims on appeal as well. Because these claims fall outside the scope of this Court’s COA, we do not consider them further. See Williams v. McNeil, 557 F.3d 1287, 1290 n.4 (11th Cir. 2009) (“Our appellate review is limited to the issues specified in the COA.”); see also Dell v. United States, 710 F.3d 1267, 1272 (11th Cir. 2013) (“[A]n appellant granted a COA on one issue cannot simply brief other issues as he desires in an attempt to force both the Court and his opponent to address them.”). 9 Case: 17-12986 Date Filed: 06/28/2018 Page: 10 of 16
hearing as long as he alleges reasonably specific, non-conclusory facts that, taken
as true, would entitle him to relief. Winthrop-Redin v. United States, 767 F.3d
1210, 1216 (11th Cir. 2014). The district court need not hold an evidentiary
hearing, however, where the movant’s allegations are patently frivolous, based on
unsupported generalizations, or affirmatively contradicted by the record.3 Id.
Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), a
petitioner demonstrates ineffective assistance of counsel by showing that
(1) counsel’s representation fell below an objective standard of reasonableness, and
(2) counsel’s deficient performance prejudiced the defendant. Nejad v. Att’y Gen.,
830 F.3d 1280, 1290 (11th Cir. 2016). The petitioner must satisfy both prongs to
demonstrate ineffective assistance of counsel. Bishop v. Warden, 726 F.3d 1243,
1254 (11th Cir. 2013).
Counsel’s performance is entitled to a presumption of reasonableness, and to
overcome that presumption, a defendant must show that “no competent counsel
would have taken the action that his counsel did take.” Chandler v. United States,
218 F.3d 1305, 1315 (11th Cir. 2000). An attorney’s failure to adequately
represent his client during plea negotiations can amount to deficient performance
under Strickland. See Missouri v. Frye, 566 U.S. 134, 140-44, 132 S. Ct. 1399,
3 We review the denial of an evidentiary hearing in a § 2255 proceeding for an abuse of discretion. Winthrop-Redin, 767 F.3d at 1215. A district court abuses its discretion if it applies an incorrect legal standard, unreasonably or incorrectly applies the law, follows improper procedures in making its determination, or makes clearly erroneous factual findings. Id. 10 Case: 17-12986 Date Filed: 06/28/2018 Page: 11 of 16
1405-08 (2012). Counsel has a duty to communicate any formal plea offers from
the prosecution, Frye, 566 U.S. at 145, 132 S. Ct. at 1408, and must also “assist the
defendant actually and substantially in deciding whether to enter the plea,” Owens
v. Wainwright, 698 F.2d 1111, 1113 (11th Cir. 1983). To meaningfully advise the
defendant in the plea context, counsel “must be sufficiently familiar with the facts
and law” of the defendant’s case. Owens, 698 F.2d at 1114.
Even if counsel performed deficiently in advising the defendant to reject a
plea offer, the defendant still must demonstrate prejudice to be entitled to relief on
a § 2255 motion. See Lafler v. Cooper, 566 U.S. 156, 163-64, 132 S. Ct. 1376,
1385 (2012); see also Osley v. United States, 751 F.3d 1214, 1223 (11th Cir.
2014). To show prejudice in the plea context, the defendant must show that, but
for counsel’s ineffective advice, there is a reasonable probability that: (1) he would
have accepted the plea offer; (2) the prosecution would not have withdrawn it due
to any intervening circumstances; (3) the court would have accepted its terms; and
(4) the conviction or sentence, or both, would have been less severe than that
actually imposed. Lafler, 566 U.S. at 164, 132 S. Ct. at 1385.
To satisfy the first prong of this test, the defendant must allege that he would
have accepted the plea offer absent counsel’s deficient performance. See Rosin v.
United States, 786 F.3d 873, 878 (11th Cir. 2015). However, the movant’s “own
conclusory after-the-fact-assertion” that he would have accepted a guilty plea,
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without more, is insufficient to demonstrate an entitlement to relief. See id. at 879;
see also Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991) (“Given
appellant’s awareness of the plea offer, his after the fact testimony concerning his
desire to plead, without more, is insufficient to establish that but for counsel’s
alleged advice or inaction, he would have accepted the plea offer.”). This is
particularly so where the defendant consistently professed his innocence both
before and after trial. Osley, 751 F.3d at 1225 (“Osley’s insistence on his
innocence, both before and after trial, makes it more difficult to accept his claim
that he would have taken a fifteen-year plea deal.”); see also Rosin, 786 F.3d at
878-79 (finding defendant failed to sufficiently allege prejudice where the record
showed he had consistently maintained his innocence and refused to accept
responsibility).
B. Analysis
Here, the district court did not abuse its discretion in denying Teers’s § 2255
motion without an evidentiary hearing because the record conclusively
demonstrates that he is entitled to no relief. 28 U.S.C. § 2255(b). First, Cooper’s
affidavit and supporting exhibits demonstrate that Cooper communicated the
government’s plea offer to Teers and conveyed the benefits of that offer in terms of
Teers’s sentencing exposure. See Frye, 566 U.S. at 145, 132 S. Ct. at 1408;
Owens, 698 F.2d at 1113-14. Specifically, Cooper informed Teers that the plea
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offer carried a maximum sentence of 5 years; that under the plea deal, he might
serve as little as 33 months in prison; and that even under a best case scenario,
Teers’s sentencing range if he went to trial or pled guilty to the indictment as
charged would be greater than 5 years. Moreover, the record shows that in the
months leading up to trial, Cooper repeatedly discussed with Teers the evidence
that Cooper viewed as bad or damaging, provided Teers with multiple estimates
regarding his sentencing exposure if he proceeded to trial, informed Teers about
the applicable law and how the jury likely would be instructed, and twice reminded
Teers of the option to accept the government’s plea offer. See Owens, 698 F.2d at
1114.
Teers does not dispute that Cooper provided him such information, but
rather contends that all of this information was presented through the lens of
Cooper’s repeated assertions that Teers had a good chance of winning at trial, such
that Teers did not fully understand the relative strength of the government’s case or
the advantage of accepting the plea offer instead of proceeding to trial. 4 As the
4 For the first time on appeal, Teers also argues that Cooper should have advised Teers of his ability to take an Alford plea. Teers contends that such a plea would have given him the “best of both worlds” by allowing him to continue maintaining his innocence while also receiving the benefit of “a reduced sentence for taking the plea.” Because Teers never raised this issue before the district court, it is abandoned and we need not address it. See Samak v. Warden, FCC Coleman-Medium, 766 F.3d 1271, 1273 n.1 (11th Cir. 2014) (citing Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) for the proposition that issues not raised in district court and raised for the first time on appeal will not be considered by this Court). In any event, however, we note that no such Alford plea was ever offered to Teers, and there is no indication in the record that the government (or the district court) would have 13 Case: 17-12986 Date Filed: 06/28/2018 Page: 14 of 16
magistrate judge noted, however, there is a difference between expressing
optimism about a defendant’s chances at trial and guaranteeing that the defendant
will win. Cf. Lafler, 566 U.S. at 163, 132 S. Ct. at 1384 (“In this case all parties
agree the performance of respondent’s counsel was deficient when he advised
respondent to reject the plea offer on the grounds he could not be convicted at
trial.” (emphasis added)). Even if Cooper did tell Teers that he had a 70 to 80
percent chance of winning at trial (as Teers alleges), Cooper never guaranteed that
Teers would win and consistently advised Teers about evidence that would be
damaging to him at trial. Id. Cooper also made it clear that Teers’s credibility
would be an issue for the jury. In short, Teers has not demonstrated that Cooper’s
advice concerning the government’s plea offer was objectively unreasonable.
Nejad, 830 F.3d at 1290; Owens, 698 F.2d at 1113-14.
Second, even if Teers had demonstrated that Cooper performed deficiently,
he has not established prejudice. See Lafler, 566 U.S. at 163-64, 132 S. Ct. at
1385; Bishop, 726 F.3d at 1254. Here, the record evidence affirmatively
contradicts Teers’s claim that he would have accepted the government’s plea offer
but for Cooper’s alleged misadvice. See Rosin, 786 F.3d at 878-79. Teers has
persistently refused to accept responsibility and adamantly professed his innocence
accepted an Alford plea from Teers had he offered to make one. Indeed, in conveying the government’s actual plea offer to Teers, Cooper informed Teers that the proposed plea agreement would require him to “come in and give a proffer” and to be a witness at trial against his codefendants, indicating that the government’s plea offer would require an affirmative admission of guilt from Teers. 14 Case: 17-12986 Date Filed: 06/28/2018 Page: 15 of 16
throughout his direct criminal and § 2255 proceedings. Id. In response to
Cooper’s initial e-mail about the government’s plea offer, Teers stated that the
offer was “not enough incentive to lie and say [he] did something wrong,” and
Cooper averred that Teers maintained his innocence “throughout the whole time”
and “in all scenarios,” and insisted on going to trial. See id. Additionally, Teers
testified in his own defense at trial, maintaining his innocence throughout his
testimony, and declined to allocute at sentencing, thereby foregoing an opportunity
to accept responsibility. See id.
On appeal, Teers does not contest Cooper’s assertions that he has always
insisted on his innocence, and maintains that he “never admitted his guilt because
he [is] in fact innocent.” Indeed, as discussed in footnote 3, supra, Teers now
contends that he should have been given the opportunity to enter an Alford plea,
which would have allowed him to “gain the benefits” of a plea with “[n]o
admission of guilt.” But no such plea offer was ever made by the government;
rather, the government’s plea offer was that Teers had to cooperate and admit his
guilt. In sum, the record belies Teers’s claim that he would have accepted the
government’s five-year plea offer absent Cooper’s allegedly deficient performance.
Rosin, 786 F.3d at 878-79. Rather, “[t]he evidence shows that [Teers], in fact, had
absolutely no interest in accepting any responsibility or guilt whatsoever,” and
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even now is not truly interested in admitting any wrongdoing. Id. at 879; see also
Osley, 751 F.3d at 1224-25; Diaz, 930 F.2d at 835.
IV. CONCLUSION
For the reasons explained above, the record demonstrates Teers is entitled to
no relief. As such, the district court did not abuse its discretion in denying Teers’s
§ 2255 motion without an evidentiary hearing. Winthrop-Redin, 767 F.3d at 1215.
Accordingly, we affirm.
AFFIRMED.