CA11: Not calling def at suppression hearing was [a founded] strategy decision

Defense counsel’s decision not to call the defendant or other witnesses at a suppression hearing was a strategy decision not subject to second guessing except in extraordinary circumstances. Defense counsel concluded they lacked credibility. Here, defendant testified at trial to distance himself from the drugs found with an anticipatory warrant and the house where they were found. The trial judge also found that he perjured himself during trial testimony. Also, defendant lacked standing in the house and thus cannot show prejudice. Campbell v. United States, 2018 U.S. App. LEXIS 27923 (11th Cir. Oct. 2, 2018), vacating Campbell v. United States, 891 F.3d 940 (11th Cir. 2018) (same result):

As for Campbell’s argument that Haine should have called him and other witnesses to testify on the motion to suppress, we have stated that “[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.” Waters v.Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc); see also United States v.Long, 674 F.2d 848, 855 (11th Cir. 1982) (“This Court will not second-guess tactical decisions of counsel in deciding whether to call certain witnesses.”). In light of Campbell’s testimony at trial that he did not reside at the Praver house (which was contrary to what he told the arresting officer) and the district court’s finding that he perjured himself multiple times during trial, Haine’s fear that the government would trip up Campbell if he testified at a motion to suppress hearing was not unreasonable. And the other witnesses had little to offer that would have been of benefit to Campbell.

Accepting as true the facts in Campbell’s affidavits, he cannot demonstrate deficient performance. As a result, the district court did not abuse its discretion in denying his § 2255 motion without an evidentiary hearing. See Winthrop-Redin, 767 F.3d at 1216 (“A petitioner is entitled to an evidentiary hearing if he alleges facts that, if true, would entitle him to relief.”) (quotation marks omitted); see also Diaz, 930 F.2d at 834 (“[T]his court has held that on habeas a federal district court need not conduct an evidentiary hearing if it can be conclusively determined from the record that the petitioner was not denied effective assistance of counsel.”) (quotation marks and alterations omitted).