Willie Thomas v. Secretary, Florida Department of Corrections, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11790
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WILLIE THOMAS,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:18-cv-62348-PCH
____________________
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2 Opinion of the Court 20-11790
Before R OSENBAUM , JILL PRYOR , and E D CARNES, Circuit Judges.
PER CURIAM:
After hearing oral argument in this case, we ordered a lim-
ited remand for the district court to make fact findings relevant to
the issue of whether permitting the petitioner to amend his habeas
petition again would be futile. We asked the court to make credi-
bility and fact findings about whether, if the state court had not
made an incorrect statement about the effect of his prior convic-
tions, the petitioner would have changed his mind and decided to
testify at trial. He wanted to amend his habeas petition to include
a claim that he would have done that.
The district court held an evidentiary hearing at which the
petitioner testified. After considering the evidence, the court de-
termined that the petitioner had already made a “firm decision not
to testify in the trial” before the state court made its erroneous
statement about his prior convictions. The court found that the
petitioner’s contrary testimony at the evidentiary hearing was not
credible. His responses to questions were “vague, evasive, and
confusing,” and they were “inconsistent with the trial transcript
and [his] post-trial filings.” In assessing credibility, the court took
into consideration the petitioner’s extensive criminal history and
his eleven prior felony convictions. Based on its findings, the court
concluded that allowing the petitioner to amend his habeas peti-
tion another time would be futile.
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20-11790 Opinion of the Court 3
The district court found the necessary facts and made en-
tirely reasonable credibility determinations to support its conclu-
sion that another amendment would be futile. Our review is lim-
ited to clear error, and “review for clear error is deferen-
tial,”
United States v. Robertson, 493 F.3d 1322, 1330 (11th Cir.
2007). “[W]e will not disturb a district court’s findings unless we
are left with a definite and firm conviction that a mistake has been
committed.”
United States v. Ghertler, 605 F.3d 1256, 1267 (11th
Cir. 2010) (quotation marks omitted);
accord, e.g.,
United States v.
Monzo, 852 F.3d 1343, 1345 (11th Cir. 2017). There is no error,
much less clear error, in the district court’s findings.
The district court’s judgment denying the petitioner leave to
amend his 28 U.S.C. § 2254 petition is AFFIRMED.
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