### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 60020

UNITED STATES OF AMERICA,
Plaintiff

- Appellee

v. ROBERT C. ARLEDGE,
Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 5:10

- CV

- 50

Before KING, JOLLY, and COSTA, Circuit Judges

. PER CURIAM: * This appeal arises from the denial of defendant Robert Arledge’s motion for relief under 28 U.S.C. § 2255. Arledge alleges that two of his four trial counsel, Karl Koch and Robert McDuff, provided ineffective assistance at trial

. The district court denied Arledge’s motion without an evidentiary hearing. We granted a certificate of appealability on a limited question related to Arledge’s ineffective

- assistance

- of

- counsel claim s : w hether the district court abused its

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED January 15, 2015

Lyle W. Cayce Clerk Case: 13-60020 Document: 00512904004 Page: 1 Date Filed: 01/15/2015No. 13

- 60020 discretion by denying § 2255 relief without a hearing

. We find no abuse of discretion and affirm

. I. In the underlying merits trial, Arledge was charged in a 34

- count indictment with conspiracy and fraud for his involvement in filing fraudulent claims to recover from the settlement fund s created to compensate victims of the diet drug known as Fen Phen. At trial, Arledge (a n attorney) had four counsel assi sting in his defense : Karl Koch, Robert McDuff, Michael Winfield , and William Kirksey

. 1 After a n eight

- day trial, a jury found Arledge guilty of one count of conspiracy, four counts of mail fraud, and two counts of wire fraud. The jury found him not guil ty of one count of wire fraud and sixteen counts of money laundering

. T he district court dismissed with prejudice the remaining counts against Arledge. This Court affirmed the convictions and sentences. See United States v. Arledge , 553 F.3d 881 (5th Ci r. 2008). Now on appeal before us is Arledge’s pro se motion under 28 U.S.C. § 2255 challenging his conviction. Arledge contends that two of his four trial counsel, Koch and McDuff, provided ineffective assistance at trial

. 2 Arledge contends that fav orable evidence and witnesses were known and available at trial and that, if a defense based on this evidence and testimony had been presented, the jury would have found him not guilty. Arledge also claims that he sought to testify in his own behalf but that two of his trial counsel would

1 Arledge had one additional counsel who withdrew shortly before trial. 2 Arledge’s § 2255 motion raised other claims for relief; however, this Court did not issue a certificate of appealability for those claims. Thus, we do not consider those claims on appeal. S ee 28 U.S.C. § 2253(c)(1)(B) (“ Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from

. . . the final order in a proceeding under section 2255. ”). 2 Case: 13-60020 Document: 00512904004 Page: 2 Date Filed: 01/15/2015No. 13

- 60020 not allow him to take the stand. According to Arledge, counsel Koch and McDuff’s failure to present a case

- in

- chief, including their failure to allow Arledge take the stand, constituted ineffective as sistance warranting relief under § 2255. After considering the evidence

— including Arledge’s sworn § 2255 motion and affidavits from his four trial attorneys, Arledge’s wife, and a trial observer

— the district court judge , who had presided over the underly ing trial, denied Arledge’s § 2255 motion without conducting an evidentiary hearing. This Court granted a certificate of appealability on the narrow issue of whether the district court abused its discretion in denying Arledge’s ineffective

assistance

- of

- t rial

- counsel claims without an evidentiary hearing

. II.
I f a § 2255 motion is “not dismissed, the judge must review the answer, any transcript and records of [prior] proceedings, and any materials submitted . . . to determine whether an evidentiary hearing is warranted.” Rule 8 of the Rules Governing Section 2255 Proceedings; see also United States v. Cavitt , 550 F.3d 430, 441

- 42 (5th Cir. 2008). We review a district court’s decision to resolve a § 2255 motion without an evidentiary hearing for abuse of disc retion. See United States v. Edwards , 442 F.3d 258, 264 (5th Cir. 2006). 3 After reviewing the motion, files, and records of the case, we find no abuse of discretion in the district court’s decision to deny Arledge’s claims without an evidentiary hearing

. No hearing was necessary because , in

3 To establish abuse of discretion in the denial of an evidentiary hearing, a petitioner “must present independent indicia of the likely merit of his allegations.” Cavitt , 550 F.3d at 442 (quotation marks omitted). “Once such independent evidence is presented, ‘a motion brought under 28 U .S.C. § 2255 can be denied without a hearing only if the motion, files, and records of the case conclusively show that the prisoner is entitled to no relief.’ ” Id . (quoting United States v. Bartholomew , 974 F.2d 39, 41 (5th Cir. 1992)). 3 Case: 13-60020 Document: 00512904004 Page: 3 Date Filed: 01/15/2015No. 13

- 60020 substantial part, the same district court judge who resolved Arledge’s § 2255 motion , and who would have heard, or reheard, the evidence at a § 2255 evidentiary hearing, was assigned to this case from the time when Arledge was indicted and ha s continued to be involved and present for all aspects of the case since that time

. T he district court judge was familiar with the qualifications and conduct of Arledge’s trial counsel . And, while presid ing over the eight

- day

m erits trial , he saw the government’s presentation of its case

- in

- chief and observed Arledge’s counsel thoroughly attack the government’s case through

cross - examination

. Given the breadth of the presiding judge ’s familiarity with the evidence, testimony, a nd trial strategy , he was well

- positioned during the § 2255 proceeding to make an ultimate determination

— based on the papers and his experience with the case

— on whether Arledge ’s counsel rendered constitutionally ineffective assistance when they chose not to present a defense

- in

- chief or put Arledge on the stand

. Arledge contends , however, that the district court could neither discredit his affidavits and sworn § 2255 motion , nor credit the contradictory affidavits of Koch and McDuff , without first conducting an evidentiary hearing. We cannot agree

. When deciding whether an affidavit supporting a § 2255 motion
may be discredited or given less weight without an evidentiary hearing, this Court has looked to factors such as whether an af fidavit is speculative, conclusory, plainly false, or contra di cted by the record. See United States v. Reed , 719 F.3d 369, 374 (5th Cir. 2013). We have also considered (1) whether a dueling affidavit “conclusively negates” the movant’s allegations , (2) w hether the district court had “personal knowledge” of the facts discussed i n t he affidavits or “an opportunity during trial to observe [the affiant’s] credibility , ” and (3) whether the district court had “personal knowledge” of an affiant

lawyer’s “general credibility.” See United States v. Arguellas , 78 F. App’x 984, 985

- 87 (5th Cir. 2003). Given these many considerations, a district court need 4 Case: 13-60020 Document: 00512904004 Page: 4 Date Filed: 01/15/2015No. 13

- 60020 not automatically conduct an evidentiary hearing whenever there are “competing affidavits.” The district court certainly has more leeway than that; it can use its own knowledge of the record, its observations from trial, its prior experience with the parties and counsel, and clear contradictions between an affidavit and other record documents to determine whether the § 2255 movant is entitled to “no relief.” Of course , that decision is subject to our review for abuse of discretion. From its thorough order in this case , it appears that the district court performed its task in an exemplary manner and properly exerci sed its discretion when denying an evidentiary hearing . The court considered Arledge’s arguments, credited them where not contradicted clearly by the record, and concluded that Arledge had not established prejudice sufficient to sustain his ineffective

- as sistance claim. See Strickland v. Washington , 466 U.S. 668, 687 (1984) (requiring that a petition er show “that he was prejudiced by his attorney’s substandard performance”). In this connection , the district court determined that the documents and testim ony Arledge contends should have been submitted at trial are inconclusive and fail to show that Arledge had no financial interest in the settlement fund. 4 The court also observed that Arledge’s argument that the case was so complicated that it could not b e easily comprehend ed bolsters the advice given to Arledge that presenting the defense would have confused

— not assisted

— the jury. The district court further concluded that Arledge failed to identify what specific evidence or testimony would have aided his case if presented at trial

. T he district court thus concluded that Arledge ha d not met his high burden to show that there is a reasonable probability that the outcome

4 The district co urt also stated that Arledge inaccurately represented the evidence available to his trial team. 5 Case: 13-60020 Document: 00512904004 Page: 5 Date Filed: 01/15/2015No. 13

- 60020 would be different if the asserted defense had been presented. See Strickland , 466 U.S. at 695 (To prove prejudice, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”). We find nothing in the record or briefing to s uggest any error in the district court’s conclusion that Arledge was not prejudiced by his counsel’s failure to let him testify or present a defense

- in

- chief. 5 There being no material evidence in dispute to challenge the district court’s finding with resp ect to the prejudice prong of Strickland , the district court did not abuse its discretion in denying Arledge’s § 2255 motion without an evidentiary hearing.

III. Because the district court did not abuse its discretion in dismissing Arledge’s Sixth

- Amendment cl aims without holding an evidentiary hearing , w e AFFIRM the denial of Arledge’s § 2255 motion

. Arledge’s motion for leave to file a supplemental appendix is DENIED. 6 Accordingly, the ju dgment of the district court is AFFIRMED.

5 P reventing one’s client from testifying at his criminal trial constitutes deficient performance under Strickland

. S ee United States v. Mullins , 315 F.3d 449, 45 3

- 5 6 (5th Cir. 2002)

. The analysis , however, does not end there. C ourts must also determine whether such performance was prejudicial. See id

. at 456

- 57 ( concluding that not allowing the defendant to take the stand was “sound trial strategy” and thus not prejudicial under Strickland ); see also Johnson v. Cain , 712 F.3d 227, 232 n.3 (5th Cir.) ( noting that counsel’s interference with a defendant’s right to testify is subject to harmless error review ), cert. denied , 134 S. Ct. 431 (2013)

. 6 Arledge seeks to introduce documents that were not presented to the district court. This Court cannot consider such evidence, as it is not part of the record. See Fed. R. App. P. 30(a); see also Fed. R. App. P. 10(a) (enumerating items that constitute the “record”); Theriot v. Parish of Jefferson , 185 F.3d 477, 491 n.26 (5th Cir. 1999) (“An appellate court may not consider new evidence furnished for the first time on appeal and may not consider facts which were not before the district court at the time of the challeng ed ruling.”)

. 6 Case: 13-60020 Document: 00512904004 Page: 6 Date Filed: 01/15/2015