United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS October 27, 2003
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 02-20867
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
JOSE R. ARGUELLAS, also known as Jose R. Arguelles,
also known as Brazil, also known as Raul,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas, Houston Division
(H-98-CV-2526)
(H-95-CR-112-10)
Before DEMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Jose R. Arguellas (“Arguellas”), federal
prisoner # 42425-004, appeals the denial of his 28 U.S.C. § 2255
motion, in which he challenged his 1996 conviction on the ground
*
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this opinion should not be published and is not precedent except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.
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that his trial attorney rendered ineffective assistance of counsel
by failing to inform him of a plea bargain offered by the
Government. In conducting a paper hearing on Arguellas’ claims,
the district court relied heavily on the affidavit of the Assistant
United States Attorney (“AUSA”) who prosecuted Arguellas as well as
the court’s personal knowledge of that AUSA’s credibility and
competence. We granted a certificate of appealability (“COA”) on
the issue whether the district court abused its discretion in not
granting a live evidentiary hearing before denying Arguellas’ 28
U.S.C. § 2255 motion. See United States v. Arguellas, No. 02-20867
(5th Cir. Feb. 19, 2003)(unpublished). Because the record before
the district court and the affidavit submitted by the AUSA do not
conclusively negate Arguellas’ allegations, and because the
district court did not have personal knowledge of the conversations
between Arguellas and his counsel or an opportunity during trial to
observe Arguellas’ credibility, we find that the district court’s
decision based on a paper evidentiary hearing was an abuse of
discretion. Therefore, we vacate the district court’s dismissal of
Arguellas’ 28 U.S.C. § 2255 motion and remand it for a live
evidentiary hearing.
I. BACKGROUND
Arguellas was convicted of conspiracy to possess with the
intent to distribute five kilograms or more of cocaine in the
United States District Court for the Southern District of Texas
2
after an eight-day jury trial. He was sentenced at the top of the
available guideline range to 365 months in prison. This court
affirmed the conviction on direct appeal. See United States v.
Ramirez, No. 96-20596 (5th Cir. Aug. 27, 1997)(unpublished).
Arguellas filed this 28 U.S.C. § 2255 motion raising numerous
claims, including the claim that his now deceased trial counsel was
ineffective for failing to communicate a Government plea offer. In
support of this contention, Arguellas filed his own affidavit.
This affidavit averred that after his trial counsel died,
Arguellas’ wife obtained the legal file pertaining to Arguellas’
case. In that file was a draft plea agreement, dated January 4,
1996, and under the terms of that agreement, Arguellas would have
received a three-level adjustment in his base offense level in
return for pleading guilty. In addition, the agreement contained
a promise on behalf of the Government that it would recommend
Arguellas be sentenced at the bottom of the applicable guideline
range. Had Arguellas’ accepted the Government’s offer and pled
guilty, the applicable guideline range would be 210 to 260 months
of imprisonment. Thus, had the district court followed the
Government’s recommendation, Arguellas would have received a
sentence of 210 months, which would be approximately 155 months
less than the sentence that Arguellas ultimately received.
Arguellas contends that had he known of the Government’s
proposed plea offer, he would have accepted it. It is well-
3
recognized that a defense counsel has an ethical duty to keep his
client informed, and this court has held that a failure to inform
a defendant of a plea offer may amount to ineffective assistance of
counsel.2 Noting that the record is unlikely to indicate the
content of all conversations between Arguellas and his trial
counsel, and the conflict in the facts alleged by Arguellas and the
Government in response to the 28 U.S.C. § 2255 motion, the
magistrate judge recommended that the district court judge hold an
evidentiary hearing on this ineffective assistance of counsel
claim.3 Finding deficiencies in Arguellas’ affidavit and that the
Government response to Arguellas’ motion was drafted by an
individual other than the AUSA who prosecuted Arguellas, the
district court ordered Arguellas to correct those deficiencies and
invited the prosecuting AUSA to respond to Arguellas’ allegations.
After receiving Arguellas’ corrected and supplemental filings, the
district court elected to conduct a paper hearing on Arguellas’
ineffective assistance of counsel claim.
As part of the paper hearing by the district court, the record
in this case was expanded to include: (1) a revised affidavit by
Arguellas; (2) a supporting affidavit by Arguellas’ wife; (3) a
letter from Arguellas’ deceased trial counsel’s former law partner;
2
See Teague v. Scott, 60 F.3d 1167, 1170 (5th Cir. 1995).
3
All of the other claims raised by Arguellas in his 28 U.S.C.
§ 2255 motion were properly dismissed by the district court and are
not considered as part of this appeal.
4
(4)an affidavit from the AUSA who prosecuted Arguellas; and (5)a
copy of the purported plea agreement. The district court noted
that there was nothing in the record to support Arguellas’
contention other than his own self-serving affidavit testimony.
The district court also noted that several facts regarding the plea
negotiations alleged by the AUSA in his affidavit were supported by
contemporaneous record documents. Thus, the district court denied
Arguellas’ 28 U.S.C. § 2255 motion, relying on the detailed
affidavit submitted by the AUSA, which was often supported by other
documents in the record, the court’s personal knowledge of the
AUSA’s general professionalism and credibility, as well as case law
that discounts self-serving post-conviction testimony that an
inmate would have accepted a plea.4
On appeal, Arguellas argues that the district court erred in
relying on the AUSA’s affidavit because the AUSA only states his
belief that Arguellas’ trial counsel told Arguellas about the plea
offer. Moreover, Arguellas points out that the AUSA specifically
admits that he did not overhear Arguellas’ counsel tell Arguellas
about the offer. Thus, Arguellas argues that it was improper for
the district court to rule based on the AUSA’s beliefs, despite the
AUSA’s perceived credibility, in light of Arguellas’ direct
assertion that his trial counsel never told him about the plea
4
See Mem. Op. and Order, R. 391 (citing Peters v. United
States, 159 F.3d 1043, 1047 (7th Cir. 1998); United States v.
Gordon, 156 F.3d 376, 381 (2d Cir. 1998)).
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offer.
II. ANALYSIS AND CONCLUSION
In this case, it is undisputed that a trial counsel’s failure
to advise a criminal defendant of a Government plea offer could
amount to ineffective assistance of counsel. See Teague, 60 F.3d
1170. The issue is whether the district court abused its
discretion in resolving a disputed fact without a live evidentiary
hearing in denying Arguellas’ 28 U.S.C. § 2255 motion.
A district court may deny a 28 U.S.C. § 2255 motion without
conducting any type of evidentiary hearing if “the motion and the
files and records of the case conclusively show that the prisoner
is entitled to no relief.” See 28 U.S.C. § 2255; United States v.
Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992). Additionally, there
is no requirement in the language of 28 U.S.C. § 2255 that the
district court conduct a live hearing with the prisoner present
when an evidentiary hearing is required to rule on 28 U.S.C. § 2255
motion. See 28 U.S.C. § 2255 (“A court may entertain and determine
such motion without requiring the production of the prisoner at the
hearing.”); Marchibroda v. United States, 368 U.S. 487, 495-96, 82
S. Ct. 510, 7 L. Ed. 2d 473 (1962); Sanders v. United States, 373
U.S. 1, 20-21, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). In those
cases, however, where the record does not conclusively negate a
prisoner’s entitlement to relief, contested fact issues may not be
decided on affidavits alone. See Owens v. United States, 551 F. 2d
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1053, 1054 (internal citations omitted).
In this case, the district court relied heavily on the content
of the AUSA’s affidavit and its personal knowledge of the AUSA’s
general credibility in making the determination that Arguellas was
not entitled to relief. While it is true that many of the facts
alleged by the AUSA in his detailed affidavit are supported by
documents in the record, Arguellas’ assertion that he was not
informed by his counsel about the plea offer is neither
conclusively rebutted by the AUSA’s rendition of the facts nor
negated by the record. The AUSA admits that he never overheard
Arguellas’ counsel discuss the plea agreement with Arguellas.
Moreover, the AUSA stated during a pretrial conference on January
12, 1996 that Arguellas’ counsel had not yet discussed with
Arguellas the terms of the January 4, 1996 plea agreement when the
AUSA asked for a continuance of the trial.5 Because the content
of the discussions between counsel and Arguellas were not in the
record before the district court and the district court had no
occasion to observe Arguellas’ credibility during trial or
otherwise, a live evidentiary hearing is necessary to dispose of
Arguellas’ 28 U.S.C. § 2255 motion where there is a disputed fact
as to the content of those conversations. See Owens, 551 F.2d at
1054. We therefore vacate the district court’s judgment denying
5
See Tr. at pgs. 8-10, R. 186. The record does not reflect
whether Arguellas was present at this hearing.
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relief under 28 U.S.C. § 2255 and remand for a live evidentiary
hearing.
VACATED AND REMANDED
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