Roy Geer v. United States

354 F. App'x 417
CourtCourt of Appeals for the Eleventh Circuit
DecidedDecember 3, 2009
Docket08-15329
StatusUnpublished

This text of 354 F. App'x 417 (Roy Geer v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roy Geer v. United States, 354 F. App'x 417 (11th Cir. 2009).

Opinion

PER CURIAM:

Roy Geer, a federal prisoner, appeals pro se the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. We granted a Certificate of Appealability (“COA”) on Geer’s ineffective assistance of counsel claim, specifically whether his counsel erred in denying his requests to testify. On appeal, Geer argues that the district court erred in finding that his trial counsel’s performance was not deficient because his attorney ignored Geer’s numerous requests to testify at his trial. Additionally, Geer maintains that he was prejudiced by such deficient pei'formance. Because it found a lack of prejudice, the district court denied Geer an evidentiary hearing on whether his counsel refused to allow Geer to testify. After a thorough review of the record, we vacate and remand to the district court for an evi-dentiary hearing as to whether Geer’s counsel denied his requests to testify.

When reviewing the denial of a § 2255 motion, we review a district court’s factual findings for clear error and legal issues de novo. Lynn v. United States, 365 F.3d *419 1225, 1232 (11th Cir.2004) (per curiam) (citation omitted). An ineffective assistance of counsel claim is a mixed question! of law and fact that is subject to de novo review. Caderno v. United States, 256 F.3d 1213, 1216-17 (11th Cir.2001) (per curiam) (citation omitted). We review the district court’s denial of a § 2255 eviden-tiary hearing for abuse of discretion. Aron v. United States, 291 F.3d 708, 714 n. 5 (11th Cir.2002).

To succeed on a claim of ineffective assistance of counsel, a defendant must show that (1) his 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). A court does not need to address both prongs if a defendant fails to establish one of the prongs. Id. at 697, 104 S.Ct. at 2069.

We have held that “a criminal defendant has a fundamental constitutional right to testify on his behalf, that this right is personal to the defendant, and that the right cannot be waived by defense counsel.” United States v. Teague, 953 F.2d 1525, 1535 (11th Cir.1992) (en banc). If this right is violated, the defendant’s claim is one of ineffective assistance of counsel. Id. If counsel deprives his client of the right to testify, his conduct violates the first prong of the Strickland test. Id. at 1534.

However, a defendant must also satisfy the second prong of Strickland, which requires a showing of prejudice. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To establish prejudice, the defendant must demonstrate that a reasonable probability exists that, but for counsel’s ineffectiveness, the result of the case would have been different, and a reasonable probability is a probability that is sufficient to undermine confidence in the conviction. Id. at 694, 104 S.Ct. at 2068. A defendant’s testimony “must be considered of prime importance” when the point of the criminal trial was to determine if the defendant was involved in the criminal activity. Nichols v. Butler, 953 F.2d 1550, 1554 (11th Cir.1992) (en banc) (quoting United States v. Walker, 772 F.2d 1172, 1179 (5th Cir.1985)).

The district court did not conduct an evidentiary hearing to determine prong one of Strickland, whether Geer’s counsel deprived him of the right to testify. In § 2255 proceedings, the district court is required to conduct an evidentiary hearing “[ujnless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” Anderson v. United States, 948 F.2d 704, 706 (11th Cir.1991) (quoting 28 U.S.C. § 2255(b)). If the prisoner alleges facts that, if true, would entitle him to relief, a district court should order an evidentiary hearing. Aron, 291 F.3d at 714-15 (citation omitted). Furthermore, a court should construe a pro se petition more liberally than one filed by an attorney. See id. at 715 (citation omitted); see also Diaz v. United States, 930 F.2d 832, 834 (11th Cir.1991) (citation omitted). However, a district court need not hold an evi-dentiary hearing for “patently frivolous claims or those which are based upon unsupported generalizations” or “where the petitioner’s allegations are affirmatively contradicted by the record.” Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir.1989) (quoting United States v. Guerra, 588 F.2d 519, 520-21 (5th Cir.1979)).

Here, the record cannot conclusively demonstrate that Geer’s claim is meritless. There is no evidence in the record of whether Geer requested to testify and was refused. Construing his pro se brief liberally, Geer makes specific allegations that, if true, would entitle him to relief. As to prong one of Strickland, Geer alleg *420 es that he demanded to testify on multiple occasions, but defense counsel rested without allowing him to do so.

Geer has made a showing of prejudice under prong two of Strickland. To support Geer’s conviction for conspiracy, the government was required to prove that “an agreement existed between two or more persons to commit a crime and that the defendant knowingly and voluntarily joined or participated in the conspiracy.” United States v. Vera, 701 F.2d 1349, 1357 (11th Cir.1983) (citation omitted). Mere presence at the scene of the crime or close association with coconspirators is insufficient to prove knowing participation in a conspiracy. Id.; see also United States v. Littrell, 574 F.2d 828, 833 (5th Cir.1978).

To support Geer’s conviction for attempted importation of cocaine and attempted possession with intent to distribute, the government was required to prove, inter alia,

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354 F. App'x 417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roy-geer-v-united-states-ca11-2009.