[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            April 15, 2008
                             No. 06-13183                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D. C. Docket Nos. 04-22561-CV-AJ
                             00-00345-CR-AJ

THOMAS R. JACKSON,



                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

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

                             (April 15, 2008)

Before BIRCH, DUBINA and WILSON, Circuit Judges.

PER CURIAM:
      Thomas R. Jackson, a federal prisoner, appeals the district court’s denial of

his pro se motion to vacate, pursuant to 18 U.S.C. § 2255. The district court

granted a limited certificate of appealability on the issue of whether Jackson

received ineffective assistance of counsel when his trial counsel failed to subpoena

and call a particular individual, Corey Jones, as a defense witness during his trial.

On appeal, Jackson argues that Jones was an indispensable witness for his defense

because he possessed letters from Luis Perez, a cooperating government witness

who testified against Jackson at trial, letters which allegedly exculpated him of the

offense conduct. Jackson further asserts that Jones’s testimony could have been

used to impeach Perez, contradicting (1) his explanation at trial that his written

statements and affidavit exculpating Jackson of the offense conduct were only

made out of fear of Jackson, and (2) his other trial testimony that these written

statements and affidavit contained false statements.

      Whether counsel was ineffective is a mixed question of law and fact. United

States v. Bender, 

, 1284 (11th Cir. 2002). “In a Section 2255

proceeding, we review legal issues de novo and factual findings under a clear error

standard.” Otero v. United States, 

, 1269 (11th Cir. 2007) (per

curiam) (internal quotation marks omitted).

      A claim of ineffective assistance of counsel is governed by the standards of



                                           2
Strickland v. Washington, 

, 

, 

(1984).

Grossman v. McDonough, 

, 1344 (11th Cir. 2006). Under

Strickland’s two-part test, petitioner must demonstrate: (1) that “counsel’s

representation fell below an objective standard of reasonableness,” and (2) that

“there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Darden v. Wainwright, 

, 184, 

, 2473, 

(1986) (internal quotation

marks omitted); Chandler v. United States, 

, 1313 (11th Cir. 2000)

(en banc). A reasonable probability is one “sufficient to undermine confidence in

the outcome.” 

, 104 S. Ct. at 2068.

      Our scrutiny of counsel’s performance is “highly deferential,” and we

indulge a “strong presumption” that counsel’s performance was reasonable.

(internal quotation marks omitted). “We must avoid

second-guessing counsel’s performance: It does not follow that any counsel who

takes an approach we would not have chosen is guilty of rendering ineffective

assistance.” 

marks and brackets omitted). Thus, “[g]iven the

strong presumption in favor of competence, the petitioner’s burden of persuasion

– though the presumption is not insurmountable – is a heavy one.” 

to satisfy either prong under Strickland. First, the district



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court did not clearly err in finding that trial counsel made reasonable efforts to

contact and interview Jones prior to learning, during a pre-trial hearing, that the

government did not intend to elicit any testimony regarding Jones during Jackson’s

trial. Moreover, trial counsel reasonably ceased in his efforts to contact Jones after

that hearing, since Jones’s testimony no longer appeared to be relevant to his

defense of the case.1 Second, Jackson failed to show that he was prejudiced by

trial counsel’s allegedly deficient performance. As we previously found in

affirming Jackson’s convictions and sentences on direct appeal, even if counsel had

successfully interviewed Jones and had become aware of the letters from Perez

before trial, it would likely not have produced a different result.2

       Since Jackson failed to demonstrate either part of the test in Strickland, we

affirm the district court’s denial of his § 2255 motion.

AFFIRMED.




       1
         Trial counsel was unaware, prior to trial, that Jones would have provided exculpatory
testimony. At the time, counsel reasonably believed that Jones’s only relevance to the trial
strategy was that Jones could rebut testimony from Perez that Jones introduced Perez to Jackson
for the purpose of facilitating a drug deal.
       2
         At most, the letters were additional impeachment material against Perez, who already
was cross-examined extensively during trial. Moreover, there was sufficient evidence, other
than Perez’s testimony, on which a reasonable juror could have relied to find Jackson guilty of
the offense conduct at trial.

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