USA v. Johnson Thelisma

Filing

Opinion issued by court as to Appellant Johnson Thelisma. 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: 14-15306

Date Filed: 09/08/2015

Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-15306
Non-Argument Calendar
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D.C. Docket No. 1:08-cr-20108-DMM-2

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNSON THELISMA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 8, 2015)
Before WILSON, JORDAN, and JILL PRYOR, Circuit Judges.
PER CURIAM:

Case: 14-15306

Date Filed: 09/08/2015

Page: 2 of 4

Johnson Thelisma appeals his conviction and 360-month sentence for
conspiracy to possess with intent to distribute fifty grams or more of cocaine base,
in violation of 21 U.S.C. § 846. On appeal, Thelisma argues that the district court
erred in finding credible the testimony of his trial counsel, Ana Davide;
specifically, that she presented Thelisma with a second plea offer from the
government at an evidentiary hearing. In addition, Thelisma contends that this
error caused the district court to err in concluding that that his trial counsel was
constitutionally effective, err in applying the wrong legal standard for determining
ineffective assistance of counsel, and err in sentencing him 120 months above the
statutory limit. If Thelisma’s arguments with respect to the district court’s
credibility determination fail, then we need not address Thelisma’s ineffective
assistance of counsel and sentencing claims because those claims are contingent
upon whether the district court’s credibility determinations were erroneous.
We accord considerable deference to the district court’s credibility findings.
United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). “Credibility
determinations are typically the province of the fact finder because the fact finder
personally observes the testimony and is thus in a better position than a reviewing
court to assess the credibility of witnesses.” Id. On review, we will accept the
district court’s credibility determination “unless it is contrary to the laws of nature,

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or is so inconsistent or improbable on its face that no reasonable factfinder could
accept it.” Id. (internal quotation marks omitted).
Here, Thelisma has not demonstrated any basis for rejecting the credibility
determinations. Davide’s testimony at the second hearing that she presented the
government’s second plea offer to Thelisma on August 1 while in the marshal’s
lockup at the courthouse was detailed, consistent with her first hearing testimony in
material respects, and supported by documentary evidence, which included her
personal records, documents from the government, and visitor logs from the
marshal’s lockup. The district court was able to hear Davide and Thelisma testify
and observe their demeanor in order to determine the credibility of their
statements, and none of Thelisma’s arguments have demonstrated that Davide’s
testimony was contrary to the laws of nature or unacceptable to a reasonable
factfinder. Ramirez-Chilel, 289 F.3d at 748–49. We also note that Thelisma has
not challenged the district court’s determination that his testimony was not
credible, and has, therefore, abandoned any such challenge. See Hamilton v.
Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) (noting that
an appellant waives a claim on appeal when he either makes no reference to it,
only passing references to it, or raises it in a perfunctory manner without
supporting arguments and authority).

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Date Filed: 09/08/2015

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Accordingly, we defer to the district court’s determination that Davide’s
testimony regarding the presentation of the second plea offer to Thelisma was
credible. Because we hold that the district court did not err in its credibility
determinations, we need not address Thelisma’s ineffective assistance of counsel
and sentencing claims.
AFFIRMED.

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