[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-15917

Non-Argument Calendar

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D.C. Docket Nos. 1:15-cv-03535-TWT,

1:10-cr-00251-TWT-AJB-10

ARTIS LISBON, 

 Petitioner-Appellant,

versus

UNITED STATES OF AMERICA, 

 Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(December 19, 2018)

Before ED CARNES, Chief Judge, WILLIAM PRYOR, and BRANCH, Circuit 

Judges.

PER CURIAM: 

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Artis Lisbon appeals the district court’s denial of his 28 U.S.C. § 2255 

motion alleging that his trial counsel provided ineffective assistance by advising 

him not to testify in his own defense at his trial on various drug charges.

I.

Lisbon was charged with conspiracy to distribute and to possess with intent 

to distribute at least 5 kilograms of cocaine, at least 100 kilograms of marijuana, 

and at least 1 kilogram of heroin, in violation of 21 U.S.C. §§ 841(b)(1)(A)(i)–(ii), 

(b)(1)(B)(vii), and 846; possession with intent to distribute at least 1 kilogram of 

heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(i), and 18 U.S.C. § 2; and 

possession with intent to distribute at least 5 kilograms of cocaine, in violation of 

21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and 18 U.S.C. § 2. He pleaded not guilty and 

the case proceeded to a jury trial in 2012.

Before trial the government provided notice of its intent to introduce for the 

purpose of increased punishment evidence of Lisbon’s 1996 conviction in Georgia 

state court for possession with intent to distribute cocaine, sale of cocaine, and 

carrying a concealed weapon. Lisbon filed a motion in limine to exclude those 

convictions, arguing that they were inadmissible under Rule 403 of the Federal 

Rules of Evidence because any probative value was substantially outweighed by 

the fact that the convictions were sixteen years old by the time the trial started. 

The government responded that the convictions were relevant to Lisbon’s intent 

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and that they were not unfairly prejudicial under Rule 403. The court heard 

arguments on Lisbon’s motion at a pretrial hearing but deferred ruling on the 

motion until trial.

When the court addressed the motion at trial, it concluded that Lisbon’s 

1996 conviction was “too remote.” Although it said that “the probative value” of 

the conviction “outweighs the prejudicial impact,” it granted Lisbon’s motion 

in limine and excluded the conviction “[g]iven [Lisbon’s] age at the time and the 

remoteness in time to the crimes alleged in the indictment.”

Lisbon declined to testify during the trial based on the advice of his trial 

counsel, who had concluded that Lisbon’s 1996 conviction would have been 

admissible as impeachment evidence under Rule 609 of the Federal Rules of 

Evidence if Lisbon testified. After the close of evidence and outside the presence 

of the jury and the government, the court asked Lisbon a few questions about his 

decision not to testify. During that colloquy the court advised Lisbon that if he 

testified, the government “would be able to question [Lisbon] about [his] prior 

felony drug conviction.” Lisbon and his counsel confirmed that Lisbon knowingly, 

intelligently, and freely waived his right to testify.

The jury found Lisbon guilty on each count against him. We affirmed his 

conviction and sentence on direct appeal and later denied his petition for rehearing 

en banc. The Supreme Court denied his petition for a writ of certiorari.

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Lisbon timely filed his present motion for habeas corpus relief under 28 

U.S.C. § 2255, which he later amended. The district court denied Lisbon’s motion. 

We initially denied Lisbon’s motion for a certificate of appealability, but upon 

reconsideration, we granted him a COA on the following issue: 

Was Mr. Lisbon’s trial counsel ineffective in counseling him not to 

testify in his own defense at trial?

II.

“In a Section 2255 proceeding, we review legal issues de novo and factual 

findings under a clear error standard.” Lynn v. United States, 365 F.3d 1225, 1232 

(11th Cir. 2004) (quotation marks omitted). “An ineffective assistance of counsel 

claim is a mixed question of law and fact subject to de novo review.” McNair v. 

Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). 

To succeed on a claim of ineffective assistance of counsel, the inmate must 

show that his Sixth Amendment right to counsel was violated because (1) his 

“counsel’s performance was deficient,” and (2) “the deficient performance 

prejudiced [his] defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 

2052, 2064 (1984). 

“Judicial scrutiny of counsel’s performance must be highly deferential.” Id.

at 689, 104 S. Ct. at 2065. Counsel’s performance is deficient only if it falls 

“outside the wide range of professionally competent assistance,” id. at 690, 104 S. 

Ct. at 2066, and this Court “must indulge a strong presumption that counsel’s 

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conduct falls within” that range, id. at 689, 104 S. Ct. at 2065. “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.” Chandler v. 

United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc) (quotation marks

omitted). For an inmate “to show that [his counsel’s] conduct was unreasonable, 

[the inmate] must establish that no competent counsel would have taken the action 

that his counsel did take.” Id. at 1315. “The test has nothing to do with what the 

best lawyers would have done. Nor is the test even what most good lawyers would 

have done. We ask only whether some reasonable lawyer at the trial could have 

acted, in the circumstances, as defense counsel acted at trial.” White v. Singletary, 

972 F.2d 1218, 1220 (11th Cir. 1992).

III.

Lisbon contends that his trial counsel’s performance was deficient because 

he advised Lisbon not to testify on his own behalf based on an incorrect legal 

opinion. He asserts that his testimony “was critical to his defense” because it was 

the only way to impeach the testimony of a crucial government witness. But 

Lisbon’s counsel concluded that if Lisbon had testified, his 1996 conviction —

which the district court had excluded when the government offered it for purposes 

of a sentencing enhancement — would be admissible as impeachment evidence

under Rule 609. According to Lisbon that conclusion was incorrect. And because 

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that conclusion informed Lisbon’s counsel’s advice not to testify and because 

Lisbon declined to testify based on that advice, Lisbon argues that his counsel

effectively denied him his right to testify on his own behalf. See United States v. 

Teague, 953 F.2d 1525, 1534 (11th Cir. 1992) (“Because it is primarily the 

responsibility of defense counsel to advise the defendant of his right to testify and 

thereby to ensure that the right is protected, we believe the appropriate vehicle for 

claims that the defendant’s right to testify was violated by defense counsel is a 

claim of ineffective assistance of counsel. . . .”).

But it is at least possible that Lisbon’s 1996 conviction would have been 

admissible under Rule 609, so Lisbon’s counsel’s performance was not

constitutionally deficient. Rule 609 permits a party to attack a witness’s character 

for truthfulness in some circumstances by introducing the witness’s prior 

conviction as impeachment evidence. Fed. R. Evid. 609(a). A prior conviction 

that is more than ten years old, however, may not be admitted as impeachment 

evidence unless: (1) the conviction’s “probative value, supported by specific facts 

and circumstances, substantially outweighs its prejudicial effect; and (2) the 

proponent gives an adverse party reasonable written notice of the intent to use it so 

that the party has a fair opportunity to contest its use.” Fed. R. Evid. 609(b). “In 

this circuit, there is a presumption against the use of prior crime impeachment 

evidence over ten years old; such convictions will be admitted very rarely and only 

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in exceptional circumstances.” United States v. Pritchard, 973 F.2d 905, 908 (11th 

Cir. 1992) (quotation marks omitted).

Lisbon has conceded that the government gave his trial counsel written 

notice of its intent to use his 1996 conviction, so the admissibility of that 

conviction as impeachment evidence would have hinged on whether the

conviction’s probative value substantially outweighed its prejudicial effect. Based 

on our decision in United States v. Pritchard, 973 F.2d 905, and Lisbon’s framing 

of his case, the probative value of the conviction may very well have substantially

outweighed its prejudicial effect.

Lisbon asserts that “the Government’s entire case hung on the credibility of” 

the testimony of a cooperating co-defendant, so “it was critical” for Lisbon to 

testify to impeach the cooperating co-defendant’s testimony. A similar situation 

occurred in Pritchard, where we noted that, “[a]lthough the circumstantial evidence 

was strong, the only direct witness against [the defendant] was [the cooperating coconspirator], a convicted felon who had pleaded guilty to the [same offense] and 

was cooperating with the government. The crux of this case was a credibility 

issue, i.e. the credibility of [the cooperating co-conspirator] versus that of [the 

defendant].” Pritchard, 973 F.2d at 909. In the present case, as in Pritchard, “[t]he 

jury had before it the criminal record of” the cooperating co-defendant, so Lisbon’s 

“criminal record, or the absence thereof,” would have taken “on special 

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significance.” Id. That means that the credibility of Lisbon’s testimony, like the 

testimony of the defendant in Pritchard, would have been “vital.” Id. So had 

Lisbon testified, “the government’s need for the impeaching evidence” would have 

been “substantial.” Id. (citation omitted); see United States v. Cathey, 591 F.2d 

268, 276 (5th Cir. 1979) (“In the context of admissibility of over-age convictions 

[under Rule 609] exceptional circumstances includes, though it is not limited to, 

the need of the party offering the evidence to use it. This concept of necessity is

relevant to the district judge’s evaluation of the probative value of the 

conviction.”). Lisbon, like the defendant in Pritchard, “had no convictions within 

the ten years before the trial,” so Lisbon’s 1996 conviction would not have been 

“merely cumulative of other impeachment evidence.” Pritchard, 973 F.2d at 909. 

And Lisbon’s 1996 conviction was only slightly older (sixteen years old at the time 

of trial) than the Pritchard defendant’s conviction (which we described as “only 

thirteen years old,” id.). 

To be fair, the defendant in Pritchard was twenty-two at the time of his prior 

conviction, id. (describing the Pritchard defendant as “well past juvenile status”),

while Lisbon was only eighteen at the time of his prior conviction. And while the 

Pritchard defendant’s prior conviction for burglary was only “somewhat similar” to 

the bank robbery and conspiracy charges at issue in Pritchard, id., Lisbon’s 1996 

conviction was fairly similar to the charges against him in the prosecution 

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underlying this case. But we are not convinced that Lisbon’s prior conviction was 

so similar to the new charges against him that admitting Lisbon’s prior conviction 

would have created an unacceptable risk that the jury would improperly consider 

his prior conviction as evidence that Lisbon was guilty of the new charges. See id.

Taking all of the relevant factors together, we held in Pritchard that the 

district court did not abuse its discretion by admitting evidence of the Pritchard

defendant’s prior conviction under Rule 609. Id. at 909–10. We similarly 

conclude that if Lisbon had testified, the district court would not have abused its 

discretion by admitting evidence of Lisbon’s 1996 conviction under Rule 609 to 

impeach Lisbon’s testimony.

That’s not to say that it is likely that the district court certainly would have 

admitted evidence of Lisbon’s 1996 conviction to impeach Lisbon’s testimony. 

The district court excluded evidence of the conviction under Rule 403 when the 

government offered it for the purpose of enhanced punishment, and it might have 

excluded it under Rule 609 as well. But regardless of the likelihood, it is still 

possible that the district court would have admitted Lisbon’s 1996 conviction 

under Rule 609 had he testified — especially if evidence of the conviction would 

have “directly contradicted [a] position” Lisbon took while testifying, see United 

States v. Johnson, 542 F.2d 230, 235 (5th Cir. 1976); see also id. at 234–35. So 

Lisbon’s trial counsel’s advice that Lisbon not testify could “be considered sound 

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trial strategy,” Chandler, 218 F.3d at 1314 (quotation marks omitted), and “some 

reasonable lawyer at the trial could have acted, in the circumstances, as [Lisbon’s] 

defense counsel acted at trial,” White, 972 F.2d at 1220. As a result, Lisbon’s trial 

counsel’s performance was not constitutionally deficient under Strickland, which 

means Lisbon’s ineffective assistance of counsel claim fails.

Given our conclusion that counsel’s advice was not outside the wide range 

of reasonable professional assistance, see Strickland, 466 U.S. at 689–90, 104 

S. Ct. at 2065–66, we need not decide whether there is a reasonable probability of 

a different result but for that advice and Lisbon’s decision not to testify.

AFFIRMED.

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