
    UNITED STATES of America, Plaintiff-Appellee, v. Olubanji Milton MACAULAY, also known as Benji Macaulay, also known as Reginald Eugene Harris, Defendant-Appellant.
    No. 05-51005
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    Nov. 1, 2006.
    
      Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
    John Wolfgang Gehart, Vellanoweth & Gehart, Los Angeles, CA, for Defendant-Appellant.
    Before SMITH, WIENER, and OWEN, Circuit Judges.
   PER CURIAM:

Defendant-Appellant Olubanji Milton Macaulay was convicted by a jury on three counts of perjury and five counts of falsely asserting that he was a United States citizen. Macaulay filed a motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. The district court denied Macaulay’s motion but granted a certificate of appealability (COA) on the issue whether his trial counsel rendered ineffective assistance by interfering with his right to testify.

To prevail on a claim of ineffective assistance of counsel, Macaulay must show that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Failure to establish either deficient performance or prejudice is fatal to the claim. Id. at 697, 104 S.Ct. 2052.

The district court determined that counsel’s advice against testifying did not render his performance deficient, considering Macaulay’s prior convictions involving mendacity and the lack of evidentiary support for his claim of citizenship. Macaulay states that he would have testified that he had lied in the past but that he sincerely believed in his citizenship. He acknowledges that he had no evidence to support this claim, either documents or testimony. Given his prior criminal history, his lack of evidentiary support, and the anticipated nature of his potential testimony, counsel’s advice against testifying was sound trial strategy. See United States v. Mullins, 315 F.3d 449, 453-54 (5th Cir.2002).

The district court’s ruling, including the sentence imposed, are

AFFIRMED. 
      
       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     