FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JANUARY 12, 2010

JOHN P. LEY

ACTING CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-13242

Non-Argument Calendar

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D. C. Docket Nos. 08-22867-CV-JEM, 05-20776-CR-JEM

ARKEEM ATEBA WILTSHIRE, 

Petitioner-Appellant, 

versus

UNITED STATES OF AMERICA, 

Respondent-Appellee. 

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(January 12, 2010)

Before TJOFLAT, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
In United States v. Wiltshire, 238 Fed.Appx. 557 (11 Cir. 2007), we th

affirmed petitioner’s convictions and sentences for conspiracy to import and to

possess cocaine and for the substantive importation and possession offenses. 

Petitioner thereafter moved the district court to set aside his convictions and

sentences pursuant to 28 U.S.C. § 2255 on the ground, among others, that his trial

attorney had rendered ineffective assistance of counsel by erroneously advising

him that, if found guilty of any of the charges contained in the indictment, he

would be sentenced as a career offender. Had counsel told him that he would not

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have been sentenced as a career offender, petitioner asserted, he would not have

proceeded to trial; instead, he would have entered a plea of guilty.

The district court referred the motion to a magistrate judge, who held an

evidentiary hearing at which petitioner and his two court-appointed attorneys

testified. Petitioner testified that, in discussing with the second attorney appointed

to represent him the possibility of entering a guilty plea, counsel showed him the

Sentencing Guidelines and told him that he “scored out to 360 to life” and that he

would be sentenced as a “career offender because [he] had two priors.” Given this

advice, petitioner said, he chose to stand trial. His attorney testified and denied

 Successive attorneys were appointed to represent petitioner. The 1

erroneous advice was allegedly provided by the second attorney. 

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giving petitioner such advice. He said that he told petitioner that the charges

lodged against him carried a mandatory minimum sentence of ten years and that,

due to his criminal history, he would not qualify for safety-valve relief from that

minimum. According to the attorney, petitioner elected to go to trial because he

“couldn’t fathom taking that [ten-year mandatory minimum] sentence.”

The magistrate judge, relying on the attorney’s testimony and rejecting

petitioner’s as not credible, recommended that the district court deny relief. The

district court adopted the magistrate judge’s recommendation and denied

petitioner’s § 2255 motion in full. Petitioner filed a notice of appeal, and the

district court granted a certificate of appealability on one issue: whether

petitioner’s attorney rendered ineffective assistance of counsel by incorrectly

advising petitioner that he would be sentenced as a career offender if he pled

guilty.

A defendant is entitled to effective assistance of counsel under the Sixth

Amendment. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S.Ct. 2052,

2063, 80 L.Ed.2d 674 (1984). The two-part Strickland test for ineffective

assistance of counsel applies in determining whether counsel was ineffective

during the plea process. Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S.Ct. 366, 369-

70, 88 L.Ed.2d 203 (1985); see Coulter v. Herring, 60 F.3d 1499, 1504 n.7 (11th

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Cir. 1995) (noting that Hill applies when a defendant decided not to accept a plea

offer and proceeds to trial). First, to prevail on an ineffective assistance claim,

“the defendant must show that counsel’s performance was deficient. This requires

showing that counsel made errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466

U.S. at 687, 104 S.Ct. at 2064. Second, the defendant must establish that he

suffered prejudice as a result of that deficient performance. Id.; see Coulter, 60

F.3d at 1504. In the case at hand, petitioner 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 going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. at 370;

see Coulter, 60 F.3d at 1504. 

As noted above, this appeal turns on whether the magistrate judge, and thus

the district court, committed clear error in rejecting petitioner’s testimony and

accepting his attorney’s. In reviewing such a claim, we defer to their credibility

determinations. Devine v. United States, 520 F.3d 1286, 1287 (11th Cir. 2008)

(citing United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003)). We do so

“even if we would have decided the case differently.” McPhee, 336 F.3d at 1275

(quotation omitted).

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We find no basis in the record for rejecting the credibility determinations

made following the evidentiary hearing in this case. We acordingly affirm the

district court’s judgment.

AFFIRMED.

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