Case: 14-14695     Date Filed: 08/11/2015   Page: 1 of 5


                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 14-14695
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket Nos. 2:13-cv-14018-KMM
                                       2:09-cr-14016-KMM-4


DESHAWN KENNETH JAMES,

                                                               Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                              Respondent-Appellee.

                           ________________________

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

                                 (August 11, 2015)

Before MARTIN, JORDAN, and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Deshawn Kenneth James, a federal prisoner represented by counsel, appeals

the district court’s denial of his 28 U.S.C. § 2255 motion to vacate and his request
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for an evidentiary hearing. In 2009 James was convicted of conspiracy to commit

robbery, five counts of robbery, and five counts of brandishing a firearm during a

crime of violence, and sentenced to 1,017 months in prison. James argues that he

was entitled to an evidentiary hearing regarding his claim that his trial counsel

rendered ineffective assistance at the plea-bargaining stage. In particular, he

argues that counsel failed to relay the government’s plea offers and failed to

properly advise him about the plea offers or that he faced the possibility of a much

longer sentence if convicted at trial.1 After careful consideration, we affirm.

       We review a district court’s denial of an evidentiary hearing in a § 2255

proceeding for an abuse of discretion. Aron v. United States, 

, 714

n.5 (11th Cir. 2002). “In a section 2255 proceeding, the district court must accord

the movant an evidentiary hearing unless the motion and the files and records of

the case conclusively show that the prisoner is entitled to no relief.” Anderson v.

United States, 

, 706 (11th Cir. 1991) (alteration adopted) (quotation

omitted). Thus, if a movant “alleges facts that, if true, would entitle him to relief,

then the district court should order an evidentiary hearing and rule on the merits of

his claim.” 

–15 (quotation omitted). On the other hand, “the



       1
          James raised other claims in his § 2255 motion and the district court ultimately granted
a certificate of appealability for all of his claims. On appeal, however, James only argues his
plea-offer claim. He has therefore abandoned his other claims. See Pope v. Sec’y for Dep’t of
Corr., 

, 1295 n.17 (11th Cir. 2012) (holding that a habeas petitioner abandoned
issues contained in the COA but not mentioned on appeal).
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district court is not required to hold an evidentiary hearing [if] the petitioner’s

allegations are affirmatively contradicted by the record, or the claims are patently

frivolous.” 

      To demonstrate that trial counsel’s assistance was constitutionally defective,

a movant must allege facts showing that: (1) his counsel “made errors so serious

that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment”; and (2) “the deficient performance prejudiced the defense.”

Strickland v. Washington, 

, 687, 

, 2064 (1984). Once

a court has determined that the movant fails to establish either the performance or

prejudice prong, it need not address the other prong. 

104 S. Ct. at 2069.

Applying the prejudice prong in the context of a rejected plea agreement,

      a defendant must show that but for the ineffective advice of counsel
      there is a reasonable probability that the plea offer would have been
      presented to the court (i.e., that the defendant would have accepted the
      plea and the prosecution would not have withdrawn it in light of
      intervening circumstances), that the court would have accepted its
      terms, and that the conviction or sentence, or both, under the offer’s
      terms would have been less severe than under the judgment and
      sentence that in fact were imposed.

Lafler v. Cooper, 566 U.S. ___, ___, 

, 1385 (2012).

      Here, even assuming deficient performance, there is no reasonable

probability that James would have accepted a plea offer. In his habeas petition,

James alleged that his attorney “failed to relay, explain, and/or advise [him] as to

the risk(s) and/or benefits to accepting or rejecting [the] plea offers.” As the

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Magistrate Judge noted, however, “the thrust of the Movant’s argument is not that

he was left uninformed of the plea offers,” but that his counsel’s advice was

insufficient. In fact, James does not challenge the government’s response that

“Movant acknowledges that he was aware of the Government’s plea offers.” Thus,

we focus on whether James was prejudiced by his counsel’s allegedly deficient

advice regarding the government’s offers.

      The only particular fact that James says he did not know and that would

have changed his pleading decision was “the potential maximum sentence [he]

faced upon conviction, including the 960 months of consecutive [sentences]

mandated by statute for the firearms convictions.” However, at the arraignment for

his superseding indictment, the government specifically stated that James faced “a

maximum of 20 years in prison” on Counts 1, 13, 15, 17, 19, and 21, “a

consecutive seven years up to life in prison” on Count 14, and “a consecutive 25

years up to life in prison” on each of Counts 16, 18, 20, and 22. When asked

whether he “underst[oo]d the charges against [him] and the penalties [he was]

facing,” he answered “yes, sir.” In short, despite any of the alleged failures by his

counsel, James was aware of the plea offers from the government, and the record

clearly shows that he was aware of the potential maximum consecutive sentences

he faced.

      Beyond that, we have held that “[g]iven [a defendant’s] awareness of the


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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.” Diaz v. United States, 

, 835

(11th Cir. 1991). Here, James cites no evidence that he expressed a desire to plead

guilty prior to his conviction at trial. In fact, James maintained his innocence

throughout his case, and even stated under oath during his sentencing hearing that

he was innocent of the charges and that the government’s primary witness had lied

to secure his conviction. Although not dispositive, a defendant’s “claim that he

would have ple[aded] guilty had he been properly informed is . . . undermined by

his repeated claims of innocence.” Osley v. United States, 

, 1224

(11th Cir. 2014).

      The district court did not err when it found that the record contradicted

James’s assertion that he was prejudiced by his counsel’s deficient performance at

the plea-bargaining stage. The court therefore did not err in denying James’s

petition and did not abuse its discretion when it refused his request for an

evidentiary hearing.

      AFFIRMED.




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