FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 OCTOBER 29, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-16275

Non-Argument Calendar

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D. C. Docket Nos. 07-02826-CV-ODE-1,

03-00493-CR-24-ODE-1

RAMON ALVAREZ-SANCHEZ,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

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Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(October 29, 2009)

Before CARNES, MARCUS and FAY, Circuit Judges.

PER CURIAM:
Ramon Alvarez-Sanchez, a federal prisoner proceeding pro se, appeals from

the district court’s denial of his motion to vacate his conviction and sentence

pursuant to 28 U.S.C. § 2255. On appeal, Alvarez-Sanchez argues that the district

court erred by denying his motion without holding an evidentiary hearing. He also

argues that the district court erred by denying his claims that his guilty plea was

unknowing and, thus, invalid because: (1) no one informed him of his right to

contact the Mexican Consulate after his arrest, pursuant to Article 36 of the Vienna

Convention on Consular Relations (“VCCR”); and (2) his attorney did not inform

him that he could be deported after serving his term of imprisonment. For the

reasons set forth below, we vacate and remand in part, and dismiss in part.

I.

In his § 2255 motion, Alvarez-Sanchez alleged, among other things, that he

received ineffective assistance of counsel under Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) because his attorney failed to

communicate a plea offer that the government had extended to him in November

2004. He explained that he did not learn of this plea offer until his appellate

attorney sent him documents from his case. During Alvarez-Sanchez’s review of

these documents, he discovered the written November 2004 plea offer. Had he

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known of this plea offer, he would have accepted it because it would have

permitted him to plead guilty only to Count 1 of the indictment, while the offer he

ultimately accepted required him to plead guilty to two of the counts in the

indictment. Alvarez-Sanchez submitted a copy of the November 2004 plea offer in

support of his § 2255 motion. In his motion, Alvarez-Sanchez also claimed that

his guilty plea was unknowing and, therefore, invalid because no one informed him

of his rights under Article 36 of the VCCR, or of the fact that he could be deported

after completing his term of imprisonment. He requested that the court hold an

evidentiary hearing regarding his § 2255 motion. Also in his motion, AlvarezSanchez signed a statement in which he swore under penalty of perjury that all of

the statements that he made therein were true.

The government responded, asserting that Alvarez-Sanchez’s ineffectiveness

claim lacked merit because his attorney, Patrick D. Deering, had communicated the

November 2004 plea offer to him. The government attached Deering’s affidavit to

its response. In his affidavit, Deering averred that he had communicated the

November 2004 plea offer to Alvarez-Sanchez, but Alvarez-Sanchez had rejected

the offer.

The district court denied Alvarez-Sanchez’s ineffectiveness claim based

solely on Deering’s affidavit. The court also denied all of Alvarez-Sanchez’s

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remaining claims, as well as his request for an evidentiary hearing.

We issued a certificate of appealability (“COA”) as to the following issue

only: Whether the district court abused its discretion by relying on an affidavit

submitted by the government that contradicted Alvarez-Sanchez’s allegations?

II.

As an initial matter, it is noted that the COA does not specify which of the

claims that Alvarez-Sanchez raised in his § 2255 motion was erroneously decided

based solely on an affidavit. The district court, however, relied solely on Deering’s

affidavit only in denying Alvarez-Sanchez’s claim that he received ineffective

assistance of counsel due to his attorney’s failure to communicate a plea offer. The

court did not rely solely on Deering’s affidavit in denying Alvarez-Sanchez’s

additional claims. Accordingly, we discuss whether the district court abused its

discretion in connection with only Alvarez-Sanchez’s claim regarding the plea

offer.

Where a petitioner challenges the district court’s denial of his request for an

evidentiary hearing regarding his habeas petition, we review the district court’s

ruling for abuse of discretion. See Aron v. United States, 291 F.3d 708, 714-15,

n.5 (11th Cir. 2002). Under 28 U.S.C. § 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

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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). “[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 (quotation omitted). In

addition, a court is required to liberally construe a pro se petitioner’s claim. Diaz

v. United States, 930 F.2d 832, 834 (11th Cir. 1991). In Aron, we stated:

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. If the

allegations are not affirmatively contradicted by the record and the

claims are not patently frivolous, the district court is required to hold

an evidentiary hearing. It is in such a hearing that the petitioner must

offer proof.

291 F.3d at 715 n.6.

Ordinarily, contested factual issues in a § 2255 proceeding may not be

determined based only on affidavits. Owens v. United States, 551 F.2d 1053, 1054

(5th Cir. 1972) (affirming the district court’s denial of the petitioner’s § 2255

motion and noting that, although a disputed factual issue ordinarily cannot be

decided based only on an affidavit, the affidavit that the district court had relied on

was corroborated by other record evidence); see also Jordan v. Estelle, 594 F.2d

144, 145-46 (5th Cir. 1979) (holding that the district court erred in denying a

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§ 2254 petition because it had improperly resolved a disputed factual issue based

solely on an affidavit filed by the petitioner’s attorney, and there was no record

evidence that corroborated the attorney’s affidavit); Montgomery v. United States,

469 F.2d 148, 150 (5th Cir. 1972) (holding that “contested fact[ual] issues in

§ 2255 cases must be decided on the basis of an evidentiary hearing, not

affidavits”). A district court is not required to hold a hearing, however, where the

petitioner’s claims are clearly contradicted by the record or are patently frivolous.

Aron, 291 F.3d at 715.

Here, although the government produced Deering’s sworn affidavit, in

which he averred that he communicated the November 2004 plea offer to

Alvarez-Sanchez, Alvarez-Sanchez made a sworn statement that Deering did not

communicate this plea offer. The district court, however, relied solely on

Deering’s affidavit in denying Alvarez-Sanchez’s claim that he received

ineffective assistance of counsel due to his attorney’s failure to communicate a plea

offer. The record does not include any documents that corroborate Deering’s

affidavit, or any documents that affirmatively contradict Alvarez-Sanchez’s claim

that his attorney did not inform him of the November 2004 plea offer. Moreover,

as discussed below, Alvarez-Sanchez’s ineffective assistance claim concerning the

plea offer is not patently frivolous. Thus, because a district court ordinarily should

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not resolve a disputed factual issue in a habeas proceeding based solely on an

affidavit, the district court abused its discretion in denying Alvarez-Sanchez’s

request for an evidentiary hearing as long as he alleged facts that, if true, would

have entitled him to relief. Accordingly, it is necessary to consider whether the

facts Alvarez-Sanchez alleged in his § 2255 motion would, if true, permit him to

prevail on his ineffective assistance claim.

In Strickland v. Washington, the Supreme Court set forth a two-part inquiry

for ineffective assistance of counsel claims: “First, the defendant must show that

counsel’s performance was deficient. This requires showing that counsel made

errors so serious that counsel was not functioning as the counsel guaranteed the

defendant by the Sixth Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense.” 466 U.S. 668, 687, 104 S.Ct. 2052,

2064, 80 L.Ed.2d 674 (1984). A habeas petitioner claiming ineffective assistance

of counsel must succeed on both prongs of the Strickland test. Butcher v. United

States, 368 F.3d 1290, 1293 (11th Cir. 2004).

The Supreme Court has provided the following explanation regarding

Strickland’s application in the guilty plea context:

In the context of guilty pleas, the first half of the Strickland [] test is

nothing more than a restatement of the standard of attorney

competence . . . . [t]he second, or ‘prejudice,’ requirement, on the

other hand, focuses on whether counsel’s constitutionally ineffective

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performance affected the outcome of the plea process. In other words,

in order to satisfy the “prejudice” requirement, the defendant must

show that there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on

going to trial.

Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).

We have held that “Counsel has an obligation to consult with his client on

important decisions and to keep him informed of important developments in the

course of the prosecution.” Diaz, 930 F.2d at 834. This obligation includes the

duty to inform a defendant of any plea offers. See id. at 834-35; see also Beckham

v. Wainwright, 639 F.2d 262, 267 (5th Cir. Unit B Mar. 1981) (holding that, where

a defendant pleads guilty or withdraws a guilty plea, his attorney must inform him

of all of the available options and possible consequences, and the failure to do so

can fall outside the range of competence required by attorneys in criminal cases);

Stano v. Dugger, 921 F.2d 1125, 1146 (11th Cir. 1991) (holding that, “[t]he

defendant remains the master of his case, particularly with respect to the entry of a

guilty plea”).

Alvarez-Sanchez’s assertion that Deering did not communicate a plea offer

to him, if true, would establish that his attorney rendered a constitutionally

deficient performance. In addition, if Alvarez-Sanchez’s assertion that he would

have accepted the November 2004 plea offer is true, he would satisfy Strickland’s

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prejudice prong. Thus, Alvarez-Sanchez alleged facts in his § 2255 motion that, if

true, would have entitled him to relief, and the district court abused its discretion

by rejecting Alvarez-Sanchez’s claim based solely on Deering’s affidavit.

Accordingly, we vacate and remand as to this issue so that the district court

may conduct an evidentiary hearing. At the hearing, the district court should

determine whether Alvarez-Sanchez’s attorney communicated the November 2004

plea offer, and whether Alvarez-Sanchez’s claim that he would have accepted this

offer is credible.

III.

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a

petitioner must obtain a COA before he can appeal the denial of a § 2255 motion.

28 U.S.C. § 2253(c)(1)(B). We have jurisdiction to review only those issues

specified in the COA. Murray v. United States, 145 F.3d 1249, 1250-51 (11th

Cir.1998); Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 1039, 154

L.Ed.2d 931 (2003) (§ 2254 context).

As noted above, the COA specified only the following issue for review:

“Whether the district court abused its discretion by relying on an affidavit submitted

by the government that contradicted Alvarez-Sanchez’s allegations?” The district

court did not rely solely on an affidavit in denying Alvarez-Sanchez’s claims

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regarding Article 36 of the VCCR or his attorney’s failure to inform him that he

could be deported after completing his sentence. Thus, these claims do not fall

within the scope of the COA, and we lack jurisdiction to consider

Alvarez-Sanchez’s arguments concerning these claims on appeal. Accordingly, we

dismiss these arguments.

Conclusion

Because Alvarez-Sanchez alleged facts in his § 2255 motion that, if true,

would have entitled him to relief, the district court abused its discretion by relying

solely on his trial attorney’s affidavit to deny his ineffectiveness claim regarding the

November 2004 plea offer. Accordingly, we vacate and remand so that the district

court may hold an evidentiary hearing as to the issue. We dismiss the remaining

arguments that Alvarez-Sanchez raises on appeal because they fall outside the scope

of the COA.

VACATED AND REMANDED IN PART, DISMISSED IN PART.

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