Joiner v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 22, 1997
• Docket: 95-9344
• Status: Published

Opinion

United States Court of Appeals,

Eleventh Circuit.

No. 95-9344.

Eric JOINER, Petitioner-Appellant,

v.

UNITED STATES of America, Respondent-Appellee.

Jan. 22, 1997.

Appeal from the United States District Court for the Northern District of Georgia. (Nos. 1:90-CR-209-1, 1:94-CV-1735-JTC), Jack T. Camp, Judge.

Before COX and BLACK, Circuit Judges, and FAY, Senior Circuit Judge.

PER CURIAM:

Eric Joiner appeals the district court's denial of his 28

U.S.C. § 2255 petition for habeas relief. In the petition, he

alleges that he was denied effective assistance of appellate

counsel. We affirm.

I. BACKGROUND

Joiner was charged with one count of conspiracy to distribute

cocaine base and five counts of distribution of cocaine base. He

pleaded not guilty to all counts and asserted an entrapment defense

at trial. The jury found him guilty of conspiracy and of three of

the distribution counts.

At sentencing, Joiner objected to the quantity of drugs used

to calculate his base offense level, arguing that the quantity

should be reduced since the amount of drugs he distributed was

determined by government agents who monitored his drug transactions

("sentencing entrapment"). He also objected to the Presentence

Investigation Report's failure to recommend an adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. The district

court rejected these objections and sentenced Joiner to 152 months'

imprisonment on each count of conviction, to be served concurrently

and to be followed by five years' supervised release.

After reviewing only the trial transcript and not the

sentencing transcript, Joiner's attorney filed an appellate brief

that raised only one claim: that the district court erred in not

granting Joiner an acquittal on the conspiracy count because his

co-defendant was acquitted. We rejected that claim and affirmed.

Later, Joiner filed the § 2255 petition involved in this

appeal. In the petition, he requests that his sentence be vacated,

arguing, among other things, that he was denied effective

assistance of counsel on direct appeal. A magistrate judge held an

evidentiary hearing and concluded that although Joiner's appellate

attorney rendered deficient performance, his deficient performance

did not prejudice Joiner. Based on that conclusion, the magistrate

judge recommended that the district court deny relief. The

district court adopted the recommendation, and Joiner appeals.

II. DISCUSSION

We review an ineffective assistance of appellate counsel

claim de novo. Duest v. Singletary, 967 F.2d 472, 476, 477 n. 4

(11th Cir.1992).

To establish that his appellate counsel was ineffective,

Joiner must establish that his appellate counsel performed

deficiently and that the deficient performance resulted in

prejudice. Id. Although Joiner has established that his appellate

counsel performed deficiently, we agree with the district court that Joiner has not established that the deficient performance

resulted in prejudice.

To determine prejudice, we must review the merits of an

omitted claim. If we find that the omitted claim would have had a

reasonable probability of success on appeal, then counsel's

performance necessarily resulted in prejudice. Heath v. Jones, 941

F.2d 1126, 1132 (11th Cir.1991). Joiner argues that his counsel's

omission of two particular claims resulted in prejudice: that the

district court erred in not reducing Joiner's base level because of

sentence entrapment; and, that the district court erred in denying

him an adjustment for acceptance of responsibility.

Joiner would not have had a reasonable probability of success

on appeal had his appellate counsel raised the sentencing

entrapment claim. We have repeatedly rejected such claims in other

cases. See, e.g. United States v. Miller, 71 F.3d 813, 818 (11th

Cir.1996); United States v. Williams, 954 F.2d 668, 673 (11th

Cir.1992).

Reviewing the merits of the wrongful denial of adjustment for

acceptance of responsibility claim, we preliminarily note that

Joiner would not have been barred as a matter of law from receiving

an adjustment merely because he asserted an entrapment defense at

trial, even though some courts have viewed the assertion of an

entrapment defense as the virtual antithesis of acceptance of

responsibility. See e.g., United States v. Demes, 941 F.2d 220,

222 (3d Cir.1991). Rather, as with cases involving any other

defense, whether a defendant has accepted responsibility is a

fact-based question which requires the district court to carefully review all of the evidence bearing on a particular defendant's

contrition. See United States v. Newson, 46 F.3d 730, 734 (8th

Cir.1995) (whether a defendant has demonstrated acceptance of

responsibility is a fact based question and assertion of an

entrapment defense does not automatically bar a defendant from

receiving an acceptance of responsibility reduction); United

States v. Ing, 70 F.3d 553, 555 (9th Cir.1995) ("The assertion of

an entrapment defense is not necessarily incompatible with

acceptance of responsibility.").

Nonetheless, Joiner would not have had a reasonable

probability of success on the wrongful denial claim. When

reviewing the merits of such a claim, we use the highly deferential

clearly erroneous standard, see United States v. Gonzalez, 70 F.3d

1236, 1239 (11th Cir.1995), and a defendant who, like Joiner,

forces the government to trial is rarely entitled to an adjustment

for responsibility. See id.; U.S.S.G. § 3E1.1 comment. (note 2).

Joiner asserts no facts which would have supported a conclusion

that the district court clearly erred in finding that Joiner did

not accept responsibility.

AFFIRMED.