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                                                                        [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                               ________________________

                                     No. 14-15179
                               ________________________

           D.C. Docket Nos. 1:11-cv-02294-TWT; 1:07-cr-00138-TWT-JSA-2



STANLEY JOSEPH THOMPSON,

                                                             Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

                                                   Respondent-Appellee.
                                _______________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                      (August 19, 2020)

                          ON PETITION FOR REHEARING

Before JORDAN, GRANT, and SILER,* Circuit Judges.


       *
        Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
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SILER, Circuit Judge:

      Petitioner Stanley Joseph Thompson has moved for panel rehearing and/or

rehearing en banc of our prior decision in this case, see Thompson v. United States,

791 F. App’x 20 (11th Cir. 2019). Upon reconsideration, we vacate the prior

opinion, grant panel rehearing on two issues: (1) the Miranda warning issue arising

from questioning during the traffic stop and (2) the severance issue, and file this

amended opinion. In all other respects, the petition for panel rehearing is denied.

      Stanley Thompson appeals the district court’s denial of his § 2255 motion to

vacate his sentence and his motion for a new trial. We affirm.

      In 2007, the Atlanta area experienced a string of robberies that police believed

were connected. Two men held up a Taco Bell, before six separate area banks were

robbed. R. 145 at 29-30; R. 11. In one robbery, a witness saw someone get in and

out of a red Chevrolet Blazer. The witness recorded the license plate, and police

determined the car belonged to Leary Robinson’s estranged wife.

      Shortly after a robbery at SunTrust Bank, Atlanta Police Detective Capus

Long stopped the Blazer along Interstate 20. R. 146 at 281-82. Thompson was

driving; Edwin Epps was the passenger. Officers ordered Thompson and Epps out

of the car and began asking questions. Thompson said the car was “a hot box,” and

Detective Long understood that to mean that the car was stolen.

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Thompson was placed in the police car where Long showed Thompson a photograph

of Leary Robinson.

Thompson said that Robinson was staying at the

Intown Suites, and Long gave that information to the FBI.

      FBI Agent Chad Fitzgerald then went to Intown Suites, where he learned from

the motel clerk that both Robinson and Thompson had been staying there. R. 146 at

382; 147 at 414. When agents moved in to arrest Robinson, a standoff ensued, but

ended after extended negotiations. R. 146 at 289-91, 310-315. Meanwhile, police

had taken Thompson to the Fulton County Jail and received Thompson’s consent to

a search of his room at the Intown Suites. R. 147 at 424. During that search, police

found a pistol that they believed was used in the robberies. R. 146 at 302-03; 305-

06. Police also found a baseball hat, camouflage pants, and a yellow tablet all

believed to be connected to the crimes. R. 146 at 300-21. Police later searched the

Blazer and found several items of clothing used in the robberies.

      Robinson admitted to the robberies except for the Taco Bell holdup and one

of the bank robberies. R. 146 at 327-31. He also admitted using a gun during the

crimes and that he used the Blazer in most of them. A federal grand jury returned a

12-count indictment against Robinson and Thompson, charging them with all eight

robberies. R. 11.

      After a joint jury trial, Thompson was convicted of one count of aiding and

abetting an interference with commerce by robbery under 18 U.S.C. § 1951, four


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counts of aiding and abetting bank robbery under 18 U.S.C. § 2113(a), two counts

of aiding and abetting bank robbery with a dangerous weapon under 18 U.S.C. §

2113(a), (d), and three counts of aiding and abetting the use or carrying of a firearm

during a crime of violence under 18 U.S.C. § 924(c)(1)(A). R. 109. He was found

not guilty on two other robbery-related counts.

direct appeal. United States v. Thompson, 

(11th Cir. 2010). Thompson then filed this motion to vacate, set aside or correct his

sentence under § 2255. R. 168; 171.

      Thompson argues that trial counsel was ineffective for (1) waiving a

suppression hearing regarding whether he had made statements to police without

being advised of his rights under Miranda v. Arizona, 

(1966), (2)

admitting Thompson’s guilt to robbery during closing arguments; and (3) failing to

move to sever his trial from Robinson’s trial. R. 168 at 7-10.

      Thompson also sought a new trial. That request stemmed from a Freedom of

Information Act request that Thompson filed with the U.S. Department of Justice,

which Thompson claimed showed that his fingerprints were not found on demand

notes used in the bank robbery.

      A magistrate judge issued a report and recommendation to the district court,

suggesting that Thompson’s motions be denied. R. 189. And without holding an

evidentiary hearing, the district court adopted the report and recommendation,


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denied Thompson’s objections, and entered a final judgment. R. 192, 193. The

district court also denied a certificate of appealability (COA). This court granted a

COA on three issues:

   (1) Whether Thompson received ineffective assistance of counsel with respect to

      counsel’s failure to challenge police officers’ questioning of him without

      reading him the requisite Miranda warnings.

   (2) Whether Thompson received ineffective assistance of counsel based on

      counsel’s decision to concede guilt to the charges associated with the Taco

      Bell robbery, due to counsel’s erroneous belief that the government had

      insufficient evidence to prove that the armed robbery affected interstate

      commerce.

   (3) Whether Thompson received ineffective assistance of counsel based on

      counsel’s failure to move for severance from codefendant Robinson’s trial.

      R. 213; 216

      In § 2255 motions, we review counsel’s effectiveness de novo, LeCroy v.

United States, 

, 1312 (11th Cir. 2014), and denial of an evidentiary

hearing for abuse of discretion, Castillo v. United States, 

, 1303 (11th

Cir. 2016). Courts should grant such hearings “[u]nless the motion and the files and

records of the case conclusively show that the prisoner is entitled to no relief.”

§ 2255(b)). Abuse of discretion review also applies to a denial


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of a new trial motion. United States v. Campa, 

, 1151 (11th Cir. 2006)

(en banc).

      To prevail on an ineffective-assistance-of-counsel claim Thompson must

show that his counsel’s performance (1) was deficient, and (2) resulted in prejudice.

Strickland v. Washington, 

, 687 (1984). Strickland’s deficiency prong

is met only when counsel’s performance fell below an objective reasonableness

standard.

Courts “strongly . . . presume[]” that counsel provides adequate

assistance and “made all significant decisions in the exercise of reasonable

professional judgment.”

Thompson must demonstrate “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.”

“The prejudice prong requires a petitioner

to demonstrate that seriously deficient performance of his attorney prejudiced the

defense.” 

(quoting Butcher v. United States, 

, 1293 (11th Cir. 2004)). In the ineffective assistance of counsel context

involving a constitutional suppression issue, prejudice is shown only when the

petitioner demonstrates that “there is a reasonable probability that the verdict would

have been different absent the excludable evidence.” Kimmelman v. Morrison, 

, 375 (1986).

      1. Miranda Warnings. Thompson argues his attorney first erred in failing to

challenge the police officers’ questioning of him without warnings under Miranda


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v. Arizona, 

(1966). Thompson asserts that authorities failed to provide

Miranda warnings on two separate occasions.          First, he argues that police

interrogated him without Miranda warnings during a traffic stop.           Second,

Thompson argues that agents failed to provide Miranda warnings before seeking his

consent to search his hotel room.

      a. Questioning During the Traffic Stop

      According to Thompson, the police did not read him his Miranda rights before

questioning him after pulling him over and detaining him. What’s more, Thompson

says his counsel failed to investigate this Miranda problem and never sought

suppression of Thompson’s statements.

      The district court rejected this argument, holding that Thompson’s discussion

with Detective Long fell under Miranda’s “routine booking exception.” Under that

doctrine, incriminating information can be used against a defendant who was not

given his Miranda warning when the information came in response to police

officers’ questions designed to obtain basic information. United States v. Sweeting,

, 965 (11th Cir. 1991). We agree with the district court that some of

the questions asked by the detective, such as where Thompson was living, satisfy

that exception.

      Thompson challenges his attorney’s failure to move to suppress his responses

to other questions as well, however, including when the detective showed him a


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picture of Robinson and asked him where Robinson was. We concluded that we

need not address whether Thompson was entitled to Miranda warnings before those

questions—because even if he was, he is unable to establish prejudice with regard

to his attorney’s failure to move to suppress his responses. See Strickland v.

Washington, 

, 687 (1984). The evidence in this case included a witness

testifying that Robinson introduced Thompson as his “partner,” a photo and video

showing Thompson’s and Robinson’s unmasked faces as they robbed a Taco Bell,

and surveillance photos and videos showing Robinson robbing several banks.

Thompson’s fingerprints were also found on some of the demand notes used in those

bank robberies. For three of the bank robberies, witnesses testified that the robber

entered and exited a getaway car from the passenger side—indicating that a getaway

driver assisted in the robberies. Several witnesses identified the getaway car as a red

Chevrolet Blazer—the same car that officers found Thompson driving when they

arrested him. And a later search of the vehicle revealed clothing that matched that

worn by the bank robbers. Because Thompson cannot establish prejudice in light of

the strength of the evidence in this case, Thompson cannot show that his attorney’s

decision not to move for suppression of his initial responses amounts to ineffective

assistance of counsel.

      b. Consent to Search Thompson’s Hotel Room




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      Thompson also contends that his counsel was ineffective for failing to object

to admission of statements and physical evidence that arose from a search of

Thompson’s hotel room at Intown Suites.

       During the investigation and search for co-defendant Robinson at Intown

Suites, FBI agents learned from hotel staff that Thompson had also been staying at

Intown Suites, in room 463. After Robinson’s arrest, agents went to the Fulton

County jail to seek Thompson’s consent to search his hotel room.

      At the jail, agents identified themselves and asked Thompson if he had been

residing in room 463 at Intown Suites. According to agents, Thompson verified that

he had been staying in room 463. Thus, agents presented Thompson with an FBI

FD26 consent to search form, which Thompson signed. Subsequently, the agents

searched Thompson’s hotel room and discovered evidence that was linked to the

robberies they were investigating.

      Thompson claims that the consent to search was illegally obtained because he

was in custody when agents asked for his consent and he was not read Miranda

warnings before he gave consent. But Thompson has failed to demonstrate that

counsel’s failure to object to admission of evidence obtained during this search rises

to the level of ineffective assistance of counsel.

      Initially, Thompson has failed to demonstrate that counsel’s failure to object

to admission of this evidence constitutes deficient performance because Miranda


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warnings were not required prior to the agents seeking consent to search at the jail.

This court has previously noted that consent to search is not a self-incriminating

statement. See United States v. Hidalgo, 

, 1568 (11th Cir. 1993). As

such, when agents asked Thompson to confirm that he had been staying in room 463

and if he would give consent to search, they could not have known or suspected that

Thompson’s statement would illicit an incriminating response. Of course, it is true

that the subsequent search of Thompson’s hotel room led to discovery of

incriminating physical evidence, but Thompson’s response to agents’ questions

about consent to search could not have been reasonably expected to illicit an

incriminating statement. As a result, Thompson’s argument that this evidence

should have been suppressed has no merit.

      And, since Thompson’s argument has no merit, his trial counsel cannot be

found ineffective for failure to raise a meritless argument. See, e.g., Chandler v.

Moore, 

, 917 (11th Cir. 2001) (holding that counsel was not ineffective

for failing to raise a meritless argument); United States v. Winfield, 

,

974 (11th Cir. 1992) (same).

      Ultimately, agents were not required to provide Miranda warnings prior to

asking Thompson for his consent to search his hotel room. As such, counsel’s failure

to object to admission of evidence obtained as a result of that consent did not fall

below an objective standard of reasonableness.


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      Moreover, even if counsel’s performance was deficient, Thompson cannot

show that he was prejudiced by counsel’s failure to object or move to suppress

evidence. Under the inevitable discovery doctrine, the evidence that Thompson

seeks to suppress would have been discovered by lawful means, even assuming the

consent to search was obtained unlawfully.

      The inevitable discovery exception to the exclusionary rule allows evidence

that was illegally obtained to be admitted if the government can demonstrate by a

preponderance of the evidence that such evidence would have been inevitably or

ultimately discovered by lawful means that were being actively pursued before the

illegal conduct occurred. See Nix v. Williams, 

, 444 (1984).

      Here, agents would have inevitably obtained the physical evidence discovered

from the search of Thompson’s hotel room, even without Thompson’s consent to

search. When agents asked for Thompson’s consent to search, both Thompson and

Robinson had been arrested, and Robinson had confessed to some of the robberies.

Additionally, while Robinson was barricaded in room 463—the hotel room that

belonged to Thompson—agents saw Robinson brandish a pistol. But the pistol was

not discovered when Robinson was taken into custody. As a result, officers had

probable cause to obtain a search warrant to search Thompson’s room, even without

Thompson’s consent to search. Furthermore, as the district court found, the public

safety exception would have justified a warrantless search of Thompson’s hotel


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room since the weapon that Robinson brandished was not found on his person when

he was arrested.

      In sum, even if Thompson could demonstrate that agents illegally obtained his

consent to search his hotel room, he cannot demonstrate that this evidence should be

suppressed based on the inevitable discovery exception. As a result, even if

counsel’s failure to object and pursue suppression of the physical evidence was

deficient performance, Thompson cannot demonstrate that he was prejudiced by

counsel’s performance. As a result, Thompson has failed to demonstrate that

counsel’s failure to object to admission of evidence obtained during a search of his

hotel room rises to the level of ineffective assistance of counsel.

      2. Admitted Guilt in Taco Bell Robbery. In McCoy v. Louisiana, 138 S. Ct

1500 (2018), the Supreme Court held that criminal defendants “must be allowed to

make [their] own choices about the proper way to protect [their] liberty,” which

includes the right to “insist on maintaining innocence at the guilt phase.”

When counsel does not allow a defendant to maintain his innocence, defendant’s

Sixth Amendment rights are violated.

counsel made a

unilateral decision to admit guilt, which was against Thompson’s wishes.

      The government argues that this argument is outside the COA, but even if we

considered it, Thompson fails because his counsel did not admit guilt. Instead,

counsel took a trial strategy, arguing that the government could not prove the


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interstate commerce element of Hobbs Act robbery. That does not rise to the level

of admitting guilt since counsel denied an essential element of the crime.

      Turns out, of course, that Thompson’s counsel was wrong—so wrong, in fact,

that Thompson thinks he received constitutionally deficient assistance. Under the

Hobbs Act, it is a crime to affect commerce by robbery. 18 U.S.C. § 1951. Only a

small or minimal effect on commerce is needed to prove that element of the crime,

see United States v. Gray, 

, 1272 (11th Cir. 2001), which occurs when,

for example, the robbery reduces the assets of a company involved in interstate

commerce, see United States v. Ransfer, 

, 936 (11th Cir. 2014).

      So, as Thompson argues, his counsel was incorrect regarding the interstate

commerce element of Hobbs Act robbery—the Taco Bell incident certainly could

meet the minimal threshold required. But Thompson still fails to establish prejudice,

a necessary component of his ineffective assistance claim. See 

. As the district court determined, a mound of evidence supported Thompson’s

involvement in the Taco Bell robbery—including pictures and videotape. Indeed,

nothing suggests that the jury would have reached a different outcome on the Taco

Bell count or any other charge. Thus, Thompson has not demonstrated prejudice

and his claim fails.

      3. Failure to Move for Severance. Finally, Thompson argues that his counsel

was ineffective because he failed to move to have the trial severed from his


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codefendant, Robinson. Thompson says that he suffered prejudice because the jury

heard overwhelming evidence against Robinson, so the jury must have thought

Thompson was also involved.

      But again, Thompson fails to demonstrate ineffective assistance. See

show deficient performance, because the severance likely would not have

been granted. The government may try codefendants together “if they are alleged to

have participated in the same act or transaction, or in the same series of acts or

transactions, constituting an offense or offenses.” Fed. R. Crim. P. 8(a). No doubt,

that is this case. True, defendants can move for severance, but a court will grant

such a motion only when joinder will result in prejudice. Fed. R. Crim. P. 14(a).

And usually “people who are charged together are tried together.” United States v.

Novaton, 

, 989 (11th Cir. 2001) (citation omitted).

      Nor can Thompson establish that had the severance been granted the result of

trial would have been different. Thus, he cannot meet Strickland’s prejudice 

. Even if Thompson would have had slightly better odds at trial had

he been tried alone, that does not mean the outcome would have been different—a

burden that Thompson must carry in his § 2255 motion. See Zafiro v. United States,

, 540 (1993).

      Moreover, counsel’s performance was not deficient for not moving to sever

after Robinson testified because Robinson neither identified nor implicated


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Thompson. The Supreme Court has told us that “where a codefendant takes the

stand in his own defense, denies making an alleged out-of-court statement

implicating the defendant, and proceeds to testify favorably to the defendant

concerning the underlying facts, the defendant has been denied no rights protected

by the Sixth and Fourteenth Amendments.” Nelson v. O’Neil, 

, 629–

30 (1971). The same principle, we believe, applies with equal force here.

      During his testimony, Robinson refused to implicate Thompson while on the

witness stand. Robinson denied that Thompson participated in the Taco Bell

robbery; refused to identify Thompson in a photo; declined to name Thompson as

his get-away driver; and rejected assertions that Thompson was the person he had

previously identified as “J.T.”     This testimony was bolstered during cross-

examination by Thompson’s counsel, as Robinson again testified that he never

provided Thompson’s name to a government agency and never told anyone what

“J.T.” stood for.

      Therefore, Robinson’s testimony did not impair any of Thompson’s rights.

See 

(“the absence of the defendant at the time the

codefendant allegedly made the out-of-court statement is immaterial, so long as the

declarant can be cross-examined on the witness stand at trial”); Smith v. Kelso, 

, 1569 (11th Cir. 1989) (“Severance is compelled only when a co-

defendant has refuted those portions of a co-defendant’s case that are necessary to


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find the defendant not guilty of the particular charged offense.”). Even if there was

some other prejudice from Robinson’s testimony, we need not grant a separate trial

“unless the trial judge could not cure the prejudice.” 

. As

there was no such risk in this case, counsel was not deficient for not moving for

severance at that point. See United States v. Bradley, 

, 1488–89 (11th

Cir. 1990) (explaining that a mid-trial severance under Rule 14 requires a “manifest

necessity”).

        4. Motion for a New Trial. Finally, Thompson argues he is entitled to a new

trial because he has newly discovered evidence contradicting the government’s

contention that his fingerprints were on demand notes used in two of the robberies.

The district court can grant a new trial based on newly discovered evidence if that

motion is filed within three years of the verdict, see Fed R. Crim. P. 33(a)(1), and

the defendant shows: (1) the evidence was discovered after the trial; (2) the

defendant exercised due diligence to discover the evidence; (3) the evidence is not

merely cumulative or impeaching; (4) the evidence is material to issues before the

court; and (5) the evidence is of such a nature that a new trial would probably

produce a new result, United States v. Taohim, 

, 1223 (11th Cir. 2013).

Such motions are highly disfavored and rarely granted. See 

.




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      Thompson received information from a FOIA request that the FBI was not in

possession of so-called “lift images” of Thompson’s fingerprints that the

government contended were on the demand notes. This information, Thompson

argues, shows that his fingerprints were not on the demand notes, and thus the

government’s evidence at trial is undermined.

      But the document that Thompson relies on—an FBI declaration—says only

that the lift prints Thompson requested “were taken and processed by the Cobb

County Police Department (CCPD) rendering any processing by the FBI

unnecessary.” R. 187, Ex. A at 8-9. And lift prints are just one type of print. The

FBI declaration further explains that it had latent prints on a demand note used

during the robbery, and those prints were linked to Thompson.

The only

information the declaration presents is that the only “lift prints” in the case were kept

by CCPD, while the FBI had other prints on the demand notes.

      This is hardly newly discovered evidence that would have affected the trial.

. And the district court’s denial of the new trial motion

does not amount to an abuse of discretion. After all, the information shows that both

the FBI and CCPD had fingerprint information. This does not undermine the jury’s

verdict and is not a basis for granting a new trial.

      Upon reconsideration, we GRANT the motion for panel rehearing on the

Miranda warning issue concerning questioning during the traffic stop and the


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severance issue, VACATE the prior panel opinion, Thompson v. United States, 791

F. App’x 20 (11th Cir. 2019), and issue this amended opinion. In all other respects,

the petition for panel rehearing is DENIED. We AFFIRM the judgment of the

district court.




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JORDAN, Circuit Judge, concurring in part and dissenting in part:

      With one exception, I agree with the court’s opinion denying rehearing. I

would grant rehearing on Mr. Thompson’s claim under McCoy v. Louisiana, 138 S.

Ct. 1500 (2018), because I think we made a mistake in our original panel opinion.

Let me explain why.

      In our opinion, we rejected Mr. Thompson’s McCoy claim and concluded that

“counsel did not admit guilt” because, although he conceded a number of factual

elements, he “denied an essential element of the crime [i.e., the interstate commerce

element].” Thompson v. United States, 791 F. App’x 20, 27 (11th Cir. 2019). I

believe Mr. Thompson is correct in asserting in his petition for rehearing that our

McCoy analysis was flawed.

      In McCoy, a capital case, the defendant “vociferously insisted that he did not

engage in the charged acts and adamantly objected to any admission of 

. Nevertheless, his counsel—having concluded that the evidence

against the defendant was “overwhelming” and that “absent a concession at the guilt

stage,” it would be “impossible to avoid” a death sentence at the penalty phase—

told the jury that the defendant had caused the victims’ deaths and that he had

“committed these crimes.”

The Supreme Court held that a defendant

has the right, under the autonomy guaranteed by the Sixth Amendment, to refuse to

admit or concede guilt. So when a defendant “expressly asserts” that he wants “to


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maintain innocence of the charged criminal acts, his lawyer must abide by that

[decision] and may not override it by conceding guilt.”

See also

(“[W]e agree with the majority of state courts of last resort that counsel may

not admit her client’s guilt of a charged crime over the client’s intransigent objection

to that admission.”).

      The Court also held that counsel’s concession of guilt, in the face of the

defendant’s objection, constituted structural error that necessitated a new trial

without a showing of prejudice. See

As Justice Alito’s dissent

pointed out, the Court reached this conclusion even though counsel had not conceded

guilt as to all of the elements necessary for murder—counsel admitted that the

defendant committed one element of the offense, i.e., that he “shot and killed the

three victims,” but “strenuously argued that [the defendant] was not guilty of first-

degree murder because he lacked the intent (the mens rea) required for the offense.”

(Alito, J., dissenting).

      Here, trial counsel conceded in his opening statement and closing argument

that Mr. Thompson robbed the Taco Bell. But he argued (based on his apparently

mistaken legal judgment) that the government had not proven the interstate

commerce element of Hobbs Act robbery. In other words, like the lawyer in McCoy,

Mr. Thompson’s counsel admitted several elements of the offense while challenging

another element. So the factual and procedural context here is just like McCoy, and


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I do not believe we can reject Mr. Thompson’s argument by saying that trial counsel

only admitted guilt on some elements of the crime.

      In his verified 28 U.S.C. § 2255 motion—which functioned like an affidavit,

see, e.g. Sears v. Roberts, 

, 1206 (11th Cir. 2019)—Mr. Thompson

alleged that trial counsel conceded guilt as to the Taco Bell robbery “against [his]

wishes.” Trial counsel allegedly advised Mr. Thompson that the best strategy was

to admit guilt on the Taco Bell robbery while challenging the interstate commerce

element of the robbery.

      Given the verified motion to vacate, Mr. Thompson is entitled to an

evidentiary hearing. See 28 U.S.C. § 2255(b) (providing for a hearing “[u]nless the

motion and the files and records of the case conclusively show that the prisoner is

entitled to no relief”) (emphasis added). First, although the district court

characterized trial counsel’s concession strategy as reasonable, that strategy was

likely based on a misunderstanding of the law regarding the interstate commerce

element, and “[d]ecisions that are based on mistaken beliefs certainly are neither

strategic nor tactical.” Green v. Nelson, 

, 1251 (11th Cir. 2010)

(citation omitted). Second, although Mr. Thompson stated in his verified § 2255

motion that conceding guilt was against his wishes, the record is not clear as to what

Mr. Thompson said (or how he reacted) when trial counsel purportedly told him that

admitting guilt on the Taco Bell robbery was the best trial strategy. If Mr. Thompson


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rejected counsel’s advice and continued to insist that there be no concessions as to

the Taco Bell robbery, then counsel’s unilateral choice was likely structural error

that violated Mr. Thompson’s autonomy as guaranteed by the Sixth Amendment.

See 

–12. On the other hand, if Mr. Thompson said nothing

about counsel’s proposed strategy, then counsel’s performance might need to be

evaluated under Strickland v. Washington, 

(1984), and its progeny.

See Florida v. Nixon, 

, 178, 181, 192 (2004).

      In my view, we should remand for an evidentiary hearing so that the district

court can sort out the facts and evaluate the applicability of McCoy. I therefore

respectfully dissent as to the denial of rehearing on Mr. Thompson’s McCoy claim.




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