[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-14703

Non-Argument Calendar

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D.C. Docket Nos. 3:11-cv-08025-SLB-HGD; 3:05-cr-00257-SLB-HGD-15

RAUL TOPETE, 

 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 Alabama

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(October 19, 2015)

Before MARCUS, JULIE CARNES and JILL PRYOR, Circuit Judges.

PER CURIAM:

Raul Topete, a federal prisoner, appeals the district court’s denial of his 28 

U.S.C. § 2255 motion to vacate his sentence, alleging that his trial counsel 

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provided ineffective assistance by threatening to withdraw if he testified at his trial. 

On appeal, Topete argues that it was deficient performance for his counsel to 

threaten to withdraw during trial to prevent him from testifying, and he was 

prejudiced because his coerced silence rendered the trial unfair and its result 

unreliable. After careful review, we affirm.

In reviewing a § 2255 proceeding, we review legal conclusions de novo and 

factual findings for clear error. Osley v. United States, 751 F.3d 1214, 1222 (11th 

Cir. 2014). Ineffective-assistance-of-counsel claims are mixed questions of law 

and fact that are reviewed de novo. Id. Whether a defendant voluntarily chose not 

to testify or instead was coerced is a fact finding reviewed for clear error. See

Nichols v. Butler, 953 F.2d 1550, 1552 n.5 (11th Cir. 1992) (en banc).

The Sixth Amendment guarantees a criminal defendant the right to effective 

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The 

benchmark for judging a claim of ineffective assistance of counsel is whether 

counsel’s performance “so undermined the proper functioning of the adversarial 

process that the trial cannot be relied on as having produced a just result.” Id. To 

make such a showing, a prisoner must prove two things: (1) counsel’s performance 

was deficient; and (2) the deficient performance prejudiced the defense. Id. at 687.

The Supreme Court also made clear in Strickland that a court need not address 

both prongs if the petitioner has made an insufficient showing on one of them, and 

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that “a court need not determine whether counsel’s performance was deficient 

before examining the prejudice suffered by the defendant as a result of the alleged 

deficiencies.” Id. at 697.

Under the prejudice prong, 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.” Id. at 694. “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id. The Supreme 

Court has elaborated that “[t]he likelihood of a different result must be substantial, 

not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011).

A defendant has a fundamental constitutional right to choose whether or not 

to testify on his own behalf at trial. United States v. Teague, 953 F.2d 1525, 1532-

33 (11th Cir. 1992) (en banc). Defense counsel bears the primary responsibility for 

advising the defendant of his right to testify or not to testify, the strategic 

implications of each choice, and that it is ultimately for the defendant himself to 

decide. Id. Counsel may advise the client in the strongest possible terms not to 

testify, but the choice whether to testify lies with the defendant. Id. at 1533. 

Counsel has the responsibility of ensuring that any waiver of the right to testify is 

knowing and voluntary. Id. at 1533-34.

A claim that a defendant’s right to testify was violated by defense counsel is 

analyzed as a claim of ineffective assistance of counsel. Id. at 1534. We’ve held 

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that counsel’s performance was deficient when he coerced a defendant into not 

testifying by threatening to withdraw in the middle of trial. Nichols, 953 F.2d at 

1553. We deemed that kind of deficient performance prejudicial in “a very close 

case” where there was at least a reasonable probability that, but for counsel’s 

unprofessional conduct, the result would have been different. Id. at 1554.

Here, the magistrate judge held an evidentiary hearing on the ineffective 

assistance of counsel claim at issue -- concerning trial counsel’s alleged threats to 

withdraw from representing Topete in his criminal case if Topete insisted on 

testifying in his own defense. After the hearing, the magistrate judge concluded 

that counsel had performed deficiently by threatening to withdraw if Topete 

elected to testify, but nevertheless concluded that Topete had failed to establish the 

Strickland prejudice prong. Specifically, the magistrate judge rejected Topete’s 

Strickland claim because he had failed to show a reasonable probability that if he 

had testified in his own defense, the outcome of the trial would have been 

different. The district court ultimately adopted the magistrate judge’s 

recommendation that Topete’s Strickland claim be rejected.

On the record before us, the district court did not err in denying Topete’s § 

2255 motion because Topete failed to show that there was a reasonable probability 

that his testimony would have led to a different outcome in the case. See

Strickland, 466 U.S. at 697 (holding that “a court need not determine whether 

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counsel’s performance was deficient before examining the prejudice suffered by 

the defendant as a result of the alleged deficiencies”). At trial, two witnesses 

testified that they purchased a substantial amount of drugs from Topete, and the 

jury heard recorded conversations between Topete and a codefendant regarding 

planned, but unconsummated, drug sales. At the § 2255 hearing before the 

magistrate judge, Topete offered the testimony he would have given at trial had he 

testified in his own defense. In the proposed testimony, he would have conceded 

that he discussed the sale of drugs, but would have asserted that it was a ploy to 

obtain money that a codefendant owed him for two cars seized by the government, 

and that he never participated or intended to participate in any drug sales. 

It is not reasonably probable that this testimony, nor the remainder of his 

proposed testimony, would have caused the jury to render a different verdict, 

because his recorded conversations with the codefendant support the government’s 

version of events and discredit Topete’s. First, Topete’s recorded conversations 

with the codefendant explicitly refer to the sale of cocaine and “weed.” Second, 

they reflect a history of prior drug dealings and a plan for multiple future drug 

dealings, rather than a one-time transaction to recover $50,000 that Topete claims 

to have proposed. Third, Topete demonstrated a sophisticated understanding of, 

and deep familiarity with, the practice and profession of drug dealing. Fourth, 

Topete’s recorded conversations indicate that Topete was connected with a 

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network of other individuals who helped him carry out his drug transactions on a 

regular basis. Finally, Topete explicitly discussed the cars seized by the 

government independently of his discussion about drugs, implying that his 

discussion about drugs was not simply a ploy to obtain money for the cars. 

Because Topete has not demonstrated a reasonable probability that his 

testimony would have caused the jury to render a different verdict, his claim of 

ineffective assistance of counsel fails. See Strickland, 466 U.S. at 694. 

Accordingly, we affirm the denial of Topete’s § 2255 motion.

AFFIRMED.

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