Roy Geer v. USA, No. 10-15694 (11th Cir. 2011)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 10-15694 Non-Argument Calendar ________________________ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT JULY 22, 2011 JOHN LEY CLERK D.C. Docket No. 1:07-cv-23076-JAL ROY GEER, llllllllllllllllllllllllllllllllllllllll Petitioner - Appellant, versus UNITED STATES OF AMERICA, lllllllllllllllllllllllllllllllllllllll lRespondent - Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (July 22, 2011) Before TJOFLAT, CARNES and WILSON, Circuit Judges. PER CURIAM: Roy Geer appeals the district court s denial of his 28 U.S.C. § 2255 motion attacking his drug conviction. Geer claims his counsel, Ed Shohat, was ineffective for denying his right to testify at trial. We previously remanded this case so that the district court could hold an evidentiary hearing to determine whether the performance prong of the Strickland test was violated.1 Strickland v. Washington, 466 U.S. 668, 104 S. Ct 2052 (1984). After hearing conflicting testimony from both Geer and Shohat, the district court found that Shohat more likely than not followed his normal practice and advised Geer of his right to choose whether he wished to testify. The district court further found that Shohat convinced Geer not to take the stand because of Geer s prior drug conspiracy convictions. [I]f counsel believes that it would be unwise for the defendant to testify, counsel may, and indeed should, advise the client in the strongest possible terms not to testify. United States v. Teague, 953 F.2d 1525, 1533 (11th Cir. 1992) (en banc). After reviewing the record we find no clear error in the district court s findings of historical facts. See Gallego v. United States, 174 F.3d 1196, 1198 (11th Cir. 1999) ( It is perfectly legitimate for the district court to find, based on all the evidence in the record, that a defendant s testimony about his participation in a drug scheme is not credible. ). And we further find no error in the determination by the district court that Geer failed to make a substantial showing that Shohat deprived him of the right to testify in violation of the Sixth 1 Geer v. United States, 354 F. App x 417 (11th Cir. 2009). 2 Amendment. Therefore, we affirm the district court s denial of Geer s § 2255 motion. AFFIRMED 3
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