[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 27, 2008
THOMAS K. KAHN
No. 07-12114
CLERK
Non-Argument Calendar
________________________
D. C. Docket Nos. 06-02401-CV-ODE-1 & 03-00282 CR-ODE
TERRELL SAUNDERS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 27, 2008)
Before ANDERSON, HULL and FAY, Circuit Judges.
PER CURIAM:
Terrell Saunders, a counseled federal prisoner, appeals the denial of his
motion to vacate, set aside or correct sentence, 28 U.S.C. § 2255. Saunders argues
that he was entitled to an evidentiary hearing on his ineffective assistance of
counsel claim because he alleged in his § 2255 motion that he was prejudiced by
not accepting a plea offer, which led to a “substantially harsher” sentence, based on
his trial counsel’s miscalculation of the potential sentence he faced at trial. For the
reasons set forth more fully below, we affirm.
A jury found Saunders guilty of: (1) possession with intent to distribute
cocaine base, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and (2) possession of a
firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1).
According to the presentence investigation report (“PSI”), Saunders had a total
offense level of 16, pursuant to U.S.S.G. § 2D1.1(c)(12). However, because he
was classified as a career offender, Saunders’s offense level was 32, pursuant to
U.S.S.G. § 4B1.1(a) and (b). Saunders was sentenced to consecutive terms of 168
months’ imprisonment for the cocaine conviction, and 60 months’ imprisonment
for the firearm charge.
Saunders claimed in his § 2255 motion and accompanying memorandum
that his attorney failed to discover one of his convictions that led to his career
offender classification. Saunders stated that he had been advised by his trial
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attorney that the drug guidelines were Level 16 at worst and the gun count carried
a 60 month consecutive sentence with or without a trial. Saunders argued that his
counsel “denied him the opportunity to knowingly accept or reject an offer by
giving him incorrect advice about the sentencing ramifications.” Saunders stated
that, “[b]ut for this erroneous advice, [he] would have accepted a plea offer,” and
“[t]he erroneous advise of counsel at the plea negotiation stage clearly amounts to
ineffective assistance of counsel.” Further, Saunders was prejudiced by not
accepting the government’s plea offer because his trial “led to a substantially
harsher sentence than would have been available under a plea agreement.”
The district court denied Saunders’s § 2255 motion. The court found that
the factual record was sufficiently developed to render judgment and, therefore, no
evidentiary hearing on Saunders’s ineffective assistance of counsel claim was
necessary. The court determined that Saunders’s counsel was not ineffective for
failing to discover Saunders’s conviction, and Saunders could not demonstrate
prejudice because he failed to present any information regarding what sentence he
may have pled guilty to and provided no description of any plea offer.
We granted a COA on the following issue only:
Whether the district court erred in failing to hold an evidentiary
hearing on appellant’s claim that his trial counsel was ineffective for
failing to investigate his criminal history and counsel him regarding
career criminal status and accepting a government-offered plea deal?
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We review the denial of an evidentiary hearing on a § 2255 motion for abuse
of discretion. Aron v. United States, 291 F.3d 708, 714 n.5 (11th Cir. 2002). The
scope of review is limited to the issues specified in the COA. Murray v. United
States, 145 F.3d 1249, 1250-51 (11th Cir.1998).
Pursuant to § 2255:
Unless the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief, the court shall cause
notice thereof to be served upon the United States attorney, grant a
prompt hearing thereon, determine the issues and make findings of
fact and conclusions of law with respect thereto.
28 U.S.C. § 2255(b) (emphasis added). “[I]f the petitioner alleges facts that, if
true, would entitle him to relief, then the district court should order an evidentiary
hearing and rule on the merits of his claim.” Aron, 291 F.3d at 714-15 (citations
and internal quotation omitted). “The law is clear that, in order to be entitled to an
evidentiary hearing, a petitioner need only allege-not prove-reasonably specific,
non-conclusory facts that, if true, would entitle him to relief.” Id. at 715 n.6
(emphasis in original). “A hearing is not required on patently frivolous claims or
those which are based upon unsupported generalizations. Nor is a hearing required
where the petitioner’s allegations are affirmatively contradicted in the record.”
Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989) (citation omitted)
(remanding for evidentiary hearing on ineffective assistance of counsel claim that
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counsel failed to inform appellant of statutory parole consequences before entering
a guilty plea because record did not conclusively show that appellant was entitled
to no relief); see also Lynn v. United States, 365 F.3d 1225, 1238-39 (11th Cir.
2004) (holding that district court was not required to hold an evidentiary hearing
based on § 2255 petitioner’s mere conclusory allegations in his affidavit); Tejada
v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (stating that a 28 U.S.C. § 2254
petitioner is not entitled to an evidentiary hearing if his claims “are merely
conclusory allegations unsupported by specifics or contentions that in the face of
the record are wholly incredible”) (citations and internal quotations omitted).
The Sixth Amendment gives criminal defendants the right to effective
assistance of counsel. U.S. Const., amend. VI; Strickland v. Washington, 466 U.S.
668, 684-86, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). To prevail on a claim
of ineffective assistance of counsel, the defendant must demonstrate (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, 466 U.S. at 687-88, 104 S.Ct. at 2064-65. We
need not “address both components of the inquiry if the defendant makes an
insufficient showing on one.” Id. at 697, 104 S.Ct. at 2069.
To prove prejudice, “[t]he defendant must show that there is a reasonable
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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. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. 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 Cir. 1995) (quotation
and alterations omitted).
Saunders was not entitled to an evidentiary hearing on his ineffective
assistance of counsel claim because he failed to allege facts that, if true, would
entitle him to relief. Although in his § 2255 motion Saunders was not required to
provide evidence to support his claims, by failing to disclose the details of his
alleged plea offer, he has failed to allege “reasonably specific, non-conclusory
facts” with respect to his claim such that there was a reasonable probability
sufficient to undermine confidence in the outcome. Therefore, he failed to
demonstrate that he suffered prejudice. Thus, based on the unsupported
generalizations contained in his motion and accompanying brief, the record
conclusively shows that Saunders was entitled to no relief, and, therefore, the
district court was not required to conduct an evidentiary hearing on Saunders’s
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claim of ineffective assistance of counsel.
In light of the foregoing, the district court’s denial of Saunders’s § 2255
motion is
AFFIRMED.
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