Petitioner’s claim is that his trial counsel was ineffective in not properly advising him with respect to a plea offer that the government had made. The Court today rejects this claim on the ground that the affidavits in the record do not create a genuine issue of material fact with respect to the existence of any such offer. I believe that an evidentiary hearing should have been held on this issue, and therefore I respectfully dissent.
In support of his petition, Mr. Kingsber-ry filed an affidavit swearing that his lawyer had informed him of a plea offer from the United States “which would result in a base offense level of 32 at sentencing.” Appellant’s Add. at A-13. The United States countered with an affidavit from petitioner’s trial counsel, stating that there was never any formal plea offer. Id. at A-18. On the face of it, these warring affidavits create a classic issue of fact. An evidentiary hearing ought to have been held, at which the trier of fact, having heard and observed live testimony from Mr. Kingsberry and his trial counsel, could have decided whom to believe.
*1034The Court avoids this conclusion by citing the affidavit of petitioner’s wife, Tara Kingsberry, which petitioner submitted in support of his claim. According to the Court, see ante at 1033 n. 7, Mrs. Kings-berry averred that the lawyer had communicated a plea agreement in which petitioner’s sentence would have been reduced to five years. By contrast, as I have noted, petitioner’s own affidavit refers to a plea offer that would have reduced his base offense level to 32, producing a sentence of approximately 15 years. The Court today holds that the contradiction which it sees between Mr. Kingsberry’s affidavit and that of his wife operates to avoid the necessity of an evidentiary hearing.
I disagree with this conclusion for two reasons. First of all, there is no'contradiction between the affidavits of Mr. and Mrs. Kingsberry. Mrs. Kingsberry’s reference to a five-year sentence assumed that her husband would cooperate with the government, as a co-defendant had done. Mrs. Kingsberry went on to say that “Mr. Price [petitioner’s trial lawyer] stated that if Anthony did not cooperate and pled guilty he would be sentenced to approximately 15 years in jail.” Appellant’s Add. at A-14. Thus, there is no material difference between the two affidavits. Both of them recount a plea offer that would have produced a sentence of about 15 years.
Furthermore, even if the two affidavits presented in support of the claim differed in some material respect, it does hot follow that an evidentiary hearing was properly dispensed with. The Court invokes the rule of Holloway v. United States, 960 F.2d 1348, 1358 (8th Cir.1992), that “a single, self-serving, self-contradicting statement is insufficient to render the motion, files, and records of [the] case inconclusive .... ” With this statement of the law I have no quarrel. The problem is that there is in the instant case no “single, self-serving, self-contradicting statement” (emphasis supplied). There are, instead, two separate statements differing in detail, but agreeing on the crucial issue, whether the government had made a plea offer to petitioner. Apparently Mrs. Kingsberry’s discussion with the lawyer (if her affidavit is to be believed, which it must be at the present stage of the case) had been more detailed than that of her husband. These discussions may well have taken place at different times. There is nothing at all strange about a lawyer’s discussing a husband’s case with the wife.
So the District Court had three affidavits before it: two on the petitioner’s side, both stating that a plea offer that would have resulted in a 15-year sentence had been made, and one on the government’s side, stating that no “formal” offer was ever made. The odd thing about this case is that we have no affidavit from counsel for the United States. One would think, in a case like this, that the Assistant United States Attorney who handled the case against Mr. Kingsberry would file an affidavit of his own backing up the current recollection of petitioner’s trial counsel. If such an affidavit existed, it perhaps would have been proper to deny an evidentiary hearing, on the ground that both persons competent to testify of their own knowledge whether a plea offer had been made had sworn that there had been no offer.
The Court acknowledges that counsel for the United States has supplied no affidavit. The Court appears to believe that this omission is important, if not crucial. It speculates, however, that the omission “resulted from a technical oversight.... ” Ante, at 1031 n. 3.1 question the use of the term “technical.” If the central issue of fact is whether a plea offer was made, and if this fact is within the personal knowledge of counsel for the United States, it is hard to understand why the omission of an affidavit to that effect should be excused, at the appellate level, as a “technical oversight.” The government has not told us that an oversight has occurred, neither has it sought leave to supply an affidavit at this stage of the case. And yet, the Court today decides the case in favor of the government, subject to the curious condition subsequent that the government will lose (so far as the holding of an evidentiary *1035hearing is concerned) if it files a petition for rehearing admitting that it should lose. This is indeed a jurisprudential curiosity, and grants an extraordinary indulgence to the most powerful and best-funded litigant in the world.
Anthony Kingsberry is serving a life term. Perhaps this is just, but on the present record I do not think we can be sure. The judgment should be reversed, and the cause remanded for an evidentiary hearing.