Adam Denney v. USA

Filing

Opinion issued by court as to Appellant Adam Harry Denney. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 14-14477

Date Filed: 08/04/2015

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14477
Non-Argument Calendar
________________________
D.C. Docket Nos. 1:09-cv-01717-JEC,
1:06-cr-00406-JEC-3
ADAM HARRY DENNEY,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 4, 2015)

Before HULL, ROSENBAUM and BLACK, Circuit Judges.
PER CURIAM:

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Adam Denney, a federal prisoner represented by counsel, appeals the district
court’s denial of his motion to vacate, 28 U.S.C. § 2255. Denney received a 30month sentence after a jury convicted him of one count of conspiracy to commit
bank fraud, 18 U.S.C. § 371, and one count of loan application fraud, 18 U.S.C.
§ 1014. After review, 1 we affirm the district court.
The district court concluded trial counsel’s performance was deficient under
Strickland v. Washington, 466 U.S. 668 (1984), because he failed to discuss with
Denney the sentencing benefits of pleading guilty “straight up”—pleading guilty as
charged in the indictment and without a plea agreement from the Government.
However, the court denied habeas relief because Denney was not prejudiced by
counsel’s performance. The court determined there was not a reasonable
probability Denney would have pleaded guilty had he received constitutionally
competent advice. The court based this prejudice determination on the following
findings: (1) Denney was not actually relying on trial counsel’s advice in making
strategic decisions regarding his case; and (2) a competent attorney would have
advised the potential benefit Denney could expect to receive by pleading guilty
would have been a sentence only 13 months shorter than one imposed after a trial.
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With regard to a district court’s denial of a motion to vacate under 28 U.S.C. § 2255,
we review legal conclusions de novo and findings of fact for clear error. Lynn v. United States,
365 F.3d 1225, 1232 (11th Cir. 2004). A claim of ineffective assistance of counsel is a mixed
question of law and fact subject to de novo review. Caderno v. United States, 256 F.3d 1213,
1216-17 (11th Cir. 2001).

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On appeal, Denney challenges this prejudice determination, arguing trial
counsel’s deficient performance was based on the fact he was not familiar with the
federal Sentencing Guidelines and if he had been he would have been able to
persuade Denney to plead guilty. Thus, but for counsel’s deficient performance,
the outcome of the proceeding would have been different because Denney would
have pleaded guilty and received a lesser sentence.
The Sixth Amendment gives criminal defendants the right to effective
assistance of counsel. U.S. Const. amend. VI; Strickland, 466 U.S. at 684-86. To
prevail on a claim of ineffective assistance of counsel, the defendant must
demonstrate: (1) his counsel’s performance was deficient, i.e., the performance fell
below an objective standard of reasonableness; and (2) he suffered prejudice as a
result of that deficient performance. Strickland, 466 U.S. at 687-88. Prejudice is a
“reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694. A reasonable probability is
one sufficient to undermine confidence in the outcome. Id. It is not enough for the
defendant to show the error had some conceivable effect on the outcome of the
proceeding. Id. at 693.
Where a defendant challenges a not-guilty plea based on ineffective
assistance of counsel, he “must show that there is a reasonable probability that, but
for counsel’s errors, he would have pleaded guilty and would not have insisted on
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going to trial.” Coulter v. Herring, 60 F.3d 1499, 1504 (11th Cir. 1995)
(quotations and alterations omitted). In Coulter, we held the petitioner failed to
establish prejudice where, although a counteroffer indicated a willingness to enter
into a plea agreement, there was no further proof the defendant would have entered
into the plea that was actually offered. Id.
Further, in Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991), we
held the defendant, who rejected the government’s plea offer, failed to establish
prejudice where he had cited “no evidence to indicate that prior to his conviction
he expressed any desire to plead guilty.” This Court concluded the defendant’s
“after the fact testimony concerning his desire to plead, without more, [was]
insufficient to establish that but for counsel’s alleged advice or inaction, he would
have accepted the plea offer.” Id.
The district court did not err in determining Denney was not prejudiced by
trial counsel’s performance. First, it was not clear error to determine a prudent
defense attorney would have (1) projected a sentence after a jury conviction of
between 46 and 57 months; (2) projected a sentence based on a guilty plea of
between 33 and 41 months; and (3) thus counseled the sentencing benefit of
pleading guilty versus going to trial would only be 13 months.
Second, it was not clear error to discredit Denney’s post-conviction assertion
he was a passive participant in the decision to proceed to trial. Denney maintained
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his innocence throughout trial, perjured himself at trial by presenting a false alibi
and bank statements that purportedly corroborated the false alibi, and had his wife
give the same false alibi testimony. These actions do not reflect passivity. Thus,
the district court did not err in concluding Denney was not actually relying on trial
counsel’s advice. Based on those two findings—that (1) a prudent defense
attorney would have counseled Denney a guilty plea would give him a sentence 13
months shorter than proceeding to trial and (2) Denney was not actually relying on
counsel’s advice—the court did not err in concluding there was not a reasonable
probability that, but for trial counsel’s deficient performance, Denney would have
pleaded guilty.
AFFIRMED.

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