FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

October 21, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-12514

Non-Argument Calendar

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D. C. Docket Nos. 03-03242-CV-JOF-1 & 00-00357 CR-JOF

JOHN CUTHBERT,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

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Appeal from the United States District Court

for the Northern District of Georgia

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(October 21, 2008)

Before ANDERSON, CARNES and HULL, Circuit Judges.

PER CURIAM:

John Cuthbert, a federal prisoner, appeals from the district court’s denial of
his pro se motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C.

§ 2255. He contends that his trial counsel, John Pickens, rendered ineffective

assistance by failing to call character witnesses and also deprived Cuthbert of his

right to testify on his own behalf.

Defendants have the right to assistance of counsel during criminal

prosecutions. U.S. Const. Amend. VI. This right to counsel “is the right to the

effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686, 104

S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984) (quotation omitted). “Under Strickland, a

movant demonstrates ineffective assistance of counsel by showing (1) that

counsel’s representation fell below an objective standard of reasonableness, and

(2) that counsel’s deficient performance prejudiced the defendant.” Devine, 520

F.3d at 1288 (quotation omitted). “[T]here is no reason for a court deciding an

ineffective assistance claim to . . . address both components of the inquiry if the

defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104

S.Ct. at 2069.

With respect to Strickland’s performance prong, “[t]he burden of persuasion

is on a petitioner to prove, by a preponderance of competent evidence, that

counsel’s performance was unreasonable. The petitioner must establish that

particular and identified acts or omissions of counsel were outside the wide range

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of professionally competent assistance.” Chandler v. United States, 218 F.3d 1305,

1313-14 (11th Cir. 2000) (en banc) (citations and quotation omitted). However,

“[j]udicial scrutiny of counsel’s performance must be highly deferential,” and

“[c]ourts must indulge the strong presumption that counsel’s performance was

reasonable and that counsel made all significant decisions in the exercise of

reasonable professional judgment.” Id. at 1314 (quotations and alteration omitted).

“Thus, counsel cannot be adjudged incompetent for performing in a particular way

in a case, as long as the approach taken might be considered sound trial strategy.

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

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

(quotation and citation omitted).

I.

In regard to the claim about council’s failure to call character witnesses,

“[w]hich witnesses, if any, to call, and when to call them, is the epitome of a

strategic decision, and it is one that we will seldom, if ever, second guess.” Walter

v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc). Counsel decided not to

call two character witnesses at Cuthbert’s trial because the district court had ruled

that if any character evidence was presented a recorded conversation that might

have been damaging to the defense could be introduced by the prosecution. The

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decision to avoid risking that damage was a reasonable one.

Counsel’s decision not to pursue the evidentiary ruling issue by submitting a

transcript of the recorded conversation, as he was invited by the court to do, was

also objectively reasonable because of the slim chance that doing so would have

brought about a favorable ruling. Not only that, but Cuthbert has failed to carry his

burden of establishing prejudice by showing a reasonable probability of a different

result if counsel had pursued the matter. See Strickland, 466 U.S. at 694, 104

S.Ct. at 2068.

II.

As for Cuthbert’s other claim, “a criminal defendant has a fundamental

constitutional right to testify in his or her own behalf at trial. This right is personal

to the defendant and cannot be waived either by the trial court or by defense

counsel.” United States v. Teague, 953 F.2d 1525, 1532 (11th Cir. 1992) (en

banc). “[T]he appropriate vehicle for claims that the defendant’s right to testify

was violated by defense counsel is a claim of ineffective assistance of counsel

under Strickland . . . .” Id. at 1534.

Where the defendant claims a violation of his right to testify by

defense counsel, the essence of the claim is that the action or inaction

of the attorney deprived the defendant of the ability to choose whether

or not to testify in his own behalf. In other words, by not protecting

the defendant’s right to testify, defense counsel’s performance fell

below the constitutional minimum, thereby violating the first prong of

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the Strickland test. For example, if defense counsel refused to accept

the defendant’s decision to testify and would not call him to the stand,

counsel would have acted unethically to prevent the defendant from

exercising his fundamental constitutional right to testify.

Alternatively, if defense counsel never informed the defendant of the

right to testify, and that the ultimate decision belongs to the defendant,

counsel would have neglected the vital professional responsibility of

ensuring that the defendant’s right to testify is protected and that any

waiver of that right is knowing and voluntary.

Id.

Counsel testified, in effect, that Cuthbert was aware of his right to testify and

did not insist on testifying. Cuthbert testified to the contrary. The district court

credited counsel’s testimony over Cuthbert’s. We are not persuaded that

credibility determination was clearly erroneous. It follows that Cuthbert has failed

to establish the factual predicate for this claim.

III.

We AFFIRM the district court’s denial of Cuthbert’s § 2255 motion.

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