[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 18, 2006
No. 05-16330 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00085-CR-CG
OCTAVIO PAEZ-ORTIZ,
Petitioner-Appellant.
UNITED STATES OF AMERICA,
Respondent-Appellee,
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(October 18, 2006)
Before ANDERSON, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Federal prisoner Octavio Paez-Ortiz, proceeding pro se, appeals the district
courts’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his
sentence arguing, inter alia, that his trial counsel was constitutionally ineffective
because he failed to advise Paez-Ortiz to plead guilty. We issued a certificate of
appealability (“COA”) on the following issues:
(1) Whether the district court erred by finding that appellant had
failed to demonstrate that counsel’s performance was constitutionally
ineffective under the standard set forth in Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)?
(2) Whether the district court erred by failing to conduct an
evidentiary hearing with regard to appellant’s claim of ineffective
assistance of counsel?
On appeal, Paez-Ortiz argues that the district court erred in deciding his motion
without holding an evidentiary hearing because there were issues of fact that could
not be determined solely from the motion and the record of the case. Paez-Ortiz
also argues that his trial counsel’s deficient performance resulted in prejudice to
him because he was not involved in the decision to accept or reject a plea offer, and
because his counsel failed to keep him informed of important developments in the
case. Specifically, he asserts that had trial counsel advised him regarding the
advantages of pleading guilty to the charged offenses, rather than proceeding to
trial, the outcome of his case would have been different.
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I.
An ineffective assistance of counsel claim is a mixed question of law and
fact that is subject to de novo review. Hagins v. United States, 267 F.3d 1202,
1204 (11th Cir. 2001). To prevail, the defendant must demonstrate both (1) that
his counsel’s performance was deficient, i.e., the performance fell below an
objective standard of reasonableness, and (2) that he suffered prejudice as a result
of that deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88,
104 S.Ct 2052, 2064-65, 80 L.Ed.2d 674 (1984). To meet the deficient
performance prong of the Strickland test, the defendant must show that counsel
made errors so serious that he or she was not functioning as the counsel guaranteed
by the Sixth Amendment. Id. at 687, 104 S.Ct. at 2064. There is a strong
presumption that counsel’s conduct fell within the range of reasonable professional
assistance. Id. at 689, 104 S.Ct. at 2065. To prove prejudice, “[t]he 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, 104 S.Ct. at 2068. Where a defendant challenges a not-guilty plea based on
ineffective assistance of counsel, he “must show that there is a reasonable
probability that, but for counsel’s errors, he would have pleaded guilty and would
not have insisted on going to trial.” Coulter v. Herring, 60 F.3d 1499, 1504 (11th
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Cir. 1995) (quotation and alterations omitted). We need not “address both
components of the inquiry if the defendant makes an insufficient showing on one.”
Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.
In the instant appeal, Paez-Ortiz failed to demonstrate that but for counsel’s
errors, the result of his case would have been different. Although Paez-Ortiz avers
that he was prejudiced by counsel’s failure to advise him of any plea offers, the
record does not indicate that any such offers existed. The record does indicate,
however, that Paez-Ortiz was aware of his option to plead guilty to the charged
offenses, and was aware of the consequences a guilty plea would have at
sentencing. Despite this awareness, there is no clear evidence that Paez-Ortiz ever
expressed a desire or intent to plead guilty before he was convicted. To the
contrary, the record indicates that Paez-Ortiz consistently maintained his innocence
throughout his sentencing and on direct appeal. Accordingly, the district court did
not err in finding that Paez-Ortiz was not denied effective counsel.
II.
An evidentiary hearing must be held on a motion to vacate “unless the
motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255; see also Anderson v. United States, 948
F.2d 704, 706 (11th Cir. 1991) (holding that, unless the record is adequate to show
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conclusively that the movant’s contentions are without merit, the district court
must conduct a hearing). On review, the court “must accept all of the petitioner’s
alleged facts as true and determine whether the petitioner has set forth a valid
claim.” Diaz v. United States, 930 F.2d 832, 834 (11th Cir. 1991) (quotation
omitted). However, “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.” Id. (quotation omitted).
The record indicates that the district court accepted all of Paez-Ortiz’s
allegations as true in reviewing the merits of his § 2255 motion. As discussed
above, the evidence, or lack of evidence, in the record indicates that Paez-Ortiz
was unable to show that but for counsel’s inaction, he would have pled guilty to
the charged offenses. Accordingly, the district court did not err in failing to
conduct an evidentiary hearing, and we affirm.
AFFIRMED.
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