[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13756

____________________

BRANDON WASHINGTON, 

Petitioner-Appellant,

versus

ATTORNEY GENERAL OF THE STATE 

OF ALABAMA, 

COMMISSIONER, ALABAMA DEPARTMENT 

OF CORRECTIONS, 

WARDEN, HOLMAN CORRECTIONAL FACILITY, 

Respondents-Appellees.

____________________

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Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 2:18-cv-01091-ACA-GMB

____________________

Before WILSON, JILL PRYOR, Circuit Judges, and CONWAY,∗ District 

Judge.

WILSON, Circuit Judge:

Brandon Washington, an Alabama prisoner, appeals the district court’s denial of his petition for a writ of habeas corpus, filed 

pursuant to 28 U.S.C. § 2254. The district judge granted a Certificate of Appealability (COA) on whether trial counsel provided ineffective assistance for failing to convey to Washington a favorable 

plea offer of thirty years’ imprisonment during his capital murder 

trial. 

We find that Washington has shown by clear and convincing 

evidence that the state habeas court’s determinations that Washington would not have accepted the plea offer and that the state 

trial court would not have accepted an agreement between Washington and the District Attorney were unreasonable. We also find 

that the Alabama Court of Criminal Appeal’s (ACCA’s) determination that Washington received the plea offer was unreasonable. Because we find that the state habeas court’s factual determinations 

were unreasonable, Washington has cleared the hurdle created by 

∗ Honorable Anne C. Conway, United States District Judge for the Middle District of Florida, sitting by designation.

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the Antiterrorism and Effective Death Penalty Act of 1996, 28 

U.S.C. § 2254 (AEDPA).

Because Washington cleared the AEDPA hurdle, we could 

review his claim de novo, but we find it is best for the district court 

to conduct an evidentiary hearing on Washington’s claim. Thus, 

we VACATE the district court’s denial of Washington’s habeas petition and REMAND for an evidentiary hearing.

I.

First, we will review Washington’s criminal trial and direct 

appeals. Second, we will address Washington’s state habeas petition. Last, we will review Washington’s federal habeas petition.

A.

Alabama indicted Washington for one count of capital murder for the robbery and killing of Justin Campbell, a worker at a

local RadioShack. Alabama sought the death penalty. At the time, 

Washington was 18 years old and a freshman at Miles College. 

In January 2006, Washington proceeded to trial. After the 

lead detective testified, Deputy District Attorney (D.A.) Mike Anderton extended a mid-trial offer of life with parole to Washington 

via Washington’s counsel, Emory Anthony. The trial court asked 

D.A. Anderton about that offer and the outcome. The following 

exchanged occurred: 

MR. ANDERTON: Your Honor, prior to the beginning of the proceedings this morning, I saw Mr. Anthony and I have spoken with the family of Justin 

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Campbell. We extended an offer to Mr. Anthony on 

behalf of his client to allow Brandon Washington to 

plead guilty to the murder and receive a sentence of 

life in this case. It was -- it is my understanding that 

Mr. Anthony spoke to the Defendant and spoke to, I 

believe the Defendant’s grandmother, along with his 

co-counsel, Brandon Taylor, the four of them in a 

room, and Mr. Anthony has told me that Mr. Washington does not wish to accept that offer. 

MR. ANTHONY: And for the record, that is correct.

THE COURT: And Mr. Anthony, do you believe

you’ve had sufficient time to discuss the offer with 

your client, and he understands it? 

MR. ANTHONY: Well, he understands, and that is 

why I brought his grandmother back in there. And 

you know, for the record, he is saying he didn’t do it. 

He is saying he is not guilty. 

THE COURT: He pleads not guilty?

MR. ANTHONY: Right.

THE COURT: Okay.

The trial proceeded, and the jury found Washington guilty 

of capital murder. The jury recommended the death penalty, 

which the trial court accepted. 

Washington appealed. The ACCA overturned his death sentence and remanded the case to the trial court for resentencing, 

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finding it was plain error to sentence Washington without the benefit of a presentence investigation report. Washington v. State, 106 

So. 3d 423, 432–35 (Ala. Crim. App. 2007). Again, the trial court 

imposed the death penalty. Washington again appealed. This time, 

the Alabama Supreme Court overturned his death sentence because the trial court plainly erred by admitting improper victimimpact testimony. Ex parte Washington, 106 So. 3d 441, 447 (Ala. 

2011).

In 2012, at the third sentencing, Alabama did not seek the 

death penalty, and Washington received a life sentence without the 

possibility of parole. The ACCA affirmed. 

B.

In 2013, Washington filed his state habeas petition, alleging 

ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668 (1984). Alabama moved to dismiss, arguing that 

Washington’s trial counsel could not have been ineffective because 

D.A. Anderton was so impressed by their performance at trial that 

he offered a second mid-trial plea deal of thirty years. But Washington claimed that he did not receive the offer. Although the trial 

record included the exchange between the state trial court, D.A. 

Anderton, and Anthony about the life offer, there is nothing in the 

record about the thirty-year plea deal. As a result, Washington 

amended his petition to include trial counsel’s failure to communicate the plea deal in violation of Missouri v. Frye, 566 U.S. 134 (2012).

Washington sought an evidentiary hearing on this issue. In 

support, Washington submitted an affidavit from his grandmother, 

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Amanda Washington, who adopted Washington when he was thirteen years old and was paying for his criminal defense counsel. In 

the affidavit, Amanda stated:

3. During the trial, Mr. Anthony asked me to accompany him to a conference room off the courtroom to 

discuss with him and Brandon [Washington] a plea 

deal offered by the district attorney. Mr. Anthony said 

that the district attorney had offered Brandon a plea 

of life in prison with the possibility of parole. Brandon did not want to accept the plea offer of life and I 

did not attempt to persuade him to take the offer. 

4. I recently learned from Brandon’s current lawyer 

that during the trial the district attorney extended

Brandon a plea offer through Mr. Anthony for 30 

years in prison. That is the first time I had ever heard 

of a plea offer for 30 years. I never heard Mr. Anthony

mention any plea offer other than life in prison. Based 

on my relationship with Brandon, I am confident that 

if any other offer had been communicated to him, he 

would have told me about it. 

Washington moved to take Amanda’s deposition to preserve 

her statement because she was in poor health. The state habeas 

court1 granted Washington’s motion unless the parties stipulated

“for the Court to consider the content of [Amanda’s] Affidavit as 

true.” The parties agreed to the stipulation that Amanda’s affidavit 

1 The same judge presided over Washington’s criminal trial, all three sentencings, and state habeas proceedings.

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is true. In light of Amanda’s affidavit and the lack of discussion on 

the record about this other, mid-trial plea deal, the state habeas 

court ordered Anthony and D.A. Anderton to submit affidavits addressing whether Alabama extended the thirty-year plea deal during trial. 

D.A. Anderton submitted an affidavit that said Anthony was 

effective at representing Washington, which led to D.A. Anderton 

offering a plea agreement “that involved a number of years.” D.A. 

Anderton could not “recall the number of years offered, but recollect[ed] that the offer was for a term of less than a life.”

Anthony submitted an affidavit that said D.A. Anderton 

“made an offer of 30 years” and that Anthony “talked with Brandon 

Washington and his Grandmother, [but] Brandon refused to accept 

the plea offer.” 

The state habeas court denied Washington’s petition and request for an evidentiary hearing. The court acknowledged that 

Amanda’s affidavit and Washington’s petition conflicted with Anthony’s and Anderton’s affidavits. Despite this, the state habeas 

court noted that:

[T]he record is clear that the Defendant, in the midst 

of being on trial in a capital murder case, wherein he 

faced a serious threat of conviction and the death penalty, refused an offer of Life with the possibility of parole. In fact the record is clear, and it is this Court’s 

recollection, that the Defendant, standing in the open 

court with his attorney, the prosecutor, the victim’s 

family and the press, through his attorney, maintained 

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his innocence to the charge. In fact, his position in 

rejecting the offer of settlement, was that “he is saying he didn’t do it, he is saying he is not guilty.”

The state habeas court also noted that there was no significant difference between life with parole and a thirty-year sentence. 

But the court continued:

Regardless of whether this offer of 30 years was 

placed on the record, it is both Mr. Anderton’s and Mr. 

Anthony’s recollection, that any offer of settlement 

for less than Life was communicated and rejected by 

the Defendant. Evidence of the Defendant’s position 

at that time, is made clear from the record in this case 

cited above. Therefore, this court does not find that 

[Washington] has met his burden under Frye of showing a “reasonable probability” that the Defendant 

would have accepted a thirty year offer, or that this 

Court would have accepted the plea agreement, after 

the Defendant had proclaimed his innocence in the 

open and very public courtroom. [Washington] has 

not proven counsel’s performance ineffective, or that, 

but for [counsel’s] performance, the result would have 

been different under Strickland.

Washington appealed to the ACCA. For Washington’s Frye 

claim, the ACCA found that: 

Thus, the circuit court resolved the disputed issue, 

i.e., whether a 30-year plea offer was communicated 

to Washington, in the State’s favor. The circuit court 

also found, based on the affidavits as well as its own 

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recollection of the proceedings, that there was not a 

reasonable probability that Washington would have 

accepted a 30-year plea offer nor that [trial judge] 

would have approved it. Washington points to the 

fact that the parties stipulated to the truth of his 

grandmother’s affidavit. However, Ms. Washington’s 

affidavit stated that she “never heard Mr. Anthony 

mention any plea offer other than for life in prison” 

and that based on her relationship with Washington, 

she was “confident” that he would have told her 

about any other plea offers. Thus, her testimony does 

not rule out the possibility that Washington may have 

chosen not to tell her about the offer.

* * *

The affidavits of Mr. Anthony and Mr. Anderton, 

though contrary to Washington’s assertion in his petition, constitute sufficient evidence on which the circuit court could have based its findings, i.e., that defense counsel did in fact communicate a 30-year plea 

deal to Washington that he rejected. Further, the trial 

court did not find Washington’s assertion that he 

would have accepted [] the plea deal to be credible. 

Thus, Washington failed to prove his claim that counsel rendered deficient performance under Frye. A petitioner must meet both prongs of Strickland, i.e., deficient performance and prejudice, in order to prove a 

claim that counsel was ineffective. Accordingly, 

Washington failed to meet his burden of proof and 

the trial court was correct to deny this claim.

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Ultimately, the ACCA affirmed the state habeas court’s denial of 

Washington’s state habeas petition. 

C.

Washington filed his federal habeas petition in the Northern 

District of Alabama again alleging ineffective assistance of counsel 

based on his counsel’s failure to relay a thirty-year plea offer to him. 

A magistrate judge recommended denying Washington’s petition 

on the merits, explaining that Washington failed to establish deficient performance. Specifically, the magistrate judge found that 

“the ACCA had a reasonable justification for concluding, as it did, 

that the affidavits could be harmonized to find that Anthony relayed the 30-year offer to” Washington. Washington timely objected, raising a number of challenges.

The district judge agreed with Washington on just one 

point—the magistrate judge should have addressed the Strickland

prejudice prong—but ultimately found that the state court’s determination on that prong was reasonable. Washington v. Marshall, No. 

2:18-CV-1091-ACA-GMB, 2021 WL 4409096, at *1 (N.D. Ala. Sept. 

27, 2021). In focusing on the prejudice prong, the district court explained that the two factual determinations—that Washington

would not have accepted the thirty-year offer and that the state 

court would not have accepted the plea agreement—were reasonable. Id. at *4. 

But the district court granted Washington a COA on 

whether trial counsel provided ineffective assistance by failing to 

convey to Washington a favorable plea offer of thirty years’ 

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imprisonment during his capital murder trial. Id. at *5. Washington timely appealed.

II.

Because the ACCA denied Washington’s ineffective assistance of counsel claims, our review is subject to AEDPA. See Lynch 

v. Sec’y, Fla. Dep’t of Corr., 776 F.3d 1209, 1217 (11th Cir. 2015).

Under AEDPA, a federal court can grant relief to a state prisoner only if he shows that the state court’s determination of his 

claim resulted in a decision that was (1) “contrary to, or involved 

an unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States,” or (2) 

“based on an unreasonable determination of the facts in light of 

the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1)–(2). 

Because Washington argues that the ACCA’s factual findings were unreasonable, we review only under § 2254(d)(2). A 

state habeas court’s findings of fact are presumed to be correct and 

the petitioner bears “the burden of rebutting the presumption of 

correctness by clear and convincing evidence.” Id. § 2254(e)(1). 

When determining whether a state court’s decision was based on 

an unreasonable determination of facts, we must focus on the particular factual reasons for “why state courts rejected a state prisoner’s federal claims, and to give appropriate deference to that decision.” Wilson v. Sellers, 138 S. Ct. 1188, 1191–92 (2018) (internal 

citation omitted). 

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“Even if the state court made a clearly erroneous factual determination, that doesn’t necessarily mean the state court’s ‘decision’ was ‘based on’ an ‘unreasonable determination of the facts in 

light of the evidence presented in the State court proceeding.’” Pye 

v. Warden, Ga. Diagnostic Prison, 50 F.4th 1025, 1035 (11th Cir. 2022) 

(en banc). “Depending on the importance of the factual error to 

the state court’s ultimate decision, that decision might still be reasonable even if some of the state court’s individual factual findings 

were erroneous—so long as the decision, taken as a whole, doesn’t 

constitute an unreasonable determination of the facts and isn’t 

based on any such determination.” Id. (internal quotation marks 

omitted). “If reasonable minds reviewing the record might disagree about the [factual] finding in question, on habeas review that 

does not suffice to supersede the trial court’s determination.” 

Brumfield v. Cain, 576 U.S. 305, 314 (2015) (cleaned up).

III.

Washington argues that the state habeas court made three 

unreasonable determinations of fact about his ineffective assistance 

of counsel claim. 

To succeed on an ineffective assistance of counsel claim, 

Washington must demonstrate: (1) that his lawyer rendered deficient performance, such that he “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth 

Amendment,” and (2) that these errors prejudiced the defense, 

such that the “deficient conduct more likely than not altered the 

outcome in the case.” Strickland, 466 U.S. at 687, 693. 

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Washington claims that his counsel was ineffective for not 

informing him about D.A. Anderton’s mid-trial plea offer. 

“[D]efense counsel has the duty to communicate formal offers 

from the prosecution to accept a plea on terms and conditions that 

may be favorable to the accused.” Frye, 566 U.S. at 145. When an 

attorney fails to convey a plea agreement, the petitioner may be 

able to prove deficient performance, thus satisfying the first prong 

of Strickland. See id. 

To satisfy the prejudice prong of Strickland where counsel 

has failed to communicate a plea offer, the petitioner must show: 

(1) “a reasonable probability” that the petitioner would have accepted the plea; (2) the prosecution would not have withdrawn or 

canceled the plea; (3) the trial court would have accepted the plea; 

and (4) as a result of accepting the plea, the ultimate conviction 

would have been for a lesser charge or sentence than what the petitioner received. Id. at 147; see also Lafler v. Cooper, 566 U.S. 156, 

168 (2012).

Addressing the prejudice prong, Washington argues that the 

state habeas court unreasonably concluded that because he rejected the State’s first plea offer for life imprisonment and maintained his innocence at trial, (1) he would not have accepted the 

thirty-year plea offer, and (2) the state trial court would not have 

accepted a thirty-year plea deal. And under the performance 

prong, Washington argues that the ACCA unreasonably concluded 

that Anthony communicated the thirty-year plea offer to him. We 

address each prong in the order Washington argued them.

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A. Prejudice

The ACCA did not address the prejudice prong, so to conduct our review we must look to the last reasoned state court decision. See Wilson, 138 S. Ct. at 1192. The state habeas court’s decision on this prong relied on two factual determinations. It explained that Washington failed to show a reasonable probability 

that Washington “would have accepted a thirty year offer,” or that 

the state trial court “would have accepted the plea agreement, after 

[Washington] had proclaimed his innocence in the open and very 

public courtroom.”

In concluding that Washington proclaimed his innocence in 

an open and public courtroom, the state habeas court referenced a 

single excerpt in the record. There, without prompting by the 

court, D.A. Anderton told the court that he had extended an offer

of life imprisonment to Anthony, who relayed that Washington did 

not want to accept that offer. Anthony then explained that was 

correct and stated that he had sufficient time to discuss the offer

with Washington. Anthony further explained that Washington understood the plea but said that “he didn’t do it. He is saying he is 

not guilty.” Washington did not say anything directly to the court. 

We are tasked with determining whether it was reasonable 

to conclude that Washington’s maintaining his innocence, through 

his attorney, automatically belied his claim that he would have 

taken the thirty-year plea offer. The Constitution affords all defendants—both at the state and federal levels—several rights during criminal prosecution, including requiring the prosecution to 

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prove guilt beyond a reasonable doubt. See U.S. Const. amends. V, 

XIV; see also Taylor v. Kentucky, 436 U.S. 478, 485–86 (1978) (“[T]he 

Due Process Clause of the Fourteenth Amendment must be held 

to safeguard ‘against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.’”); 

In re Winship, 397 U.S. 358, 362 (1970) (collecting cases that show 

the Court “has long assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required”). It is inappropriate for courts to rely solely on a defendant’s assertion of this 

right when considering whether he would have accepted a plea offer.

The Sixth Circuit, confronted with a similar situation, found 

that the petitioner’s “declarations of innocence do not prove . . . 

that he would not have accepted a guilty plea.” Griffin v. United 

States, 330 F.3d 733, 738 (6th Cir. 2003). In Griffin, the petitioner

filed a habeas petition under 28 U.S.C. § 2255, arguing that he

would have taken a plea agreement had one been communicated

to him. Id. at 735. The government argued that even if the plea 

deal had been communicated, the record did not support that the 

petitioner would have taken the plea offer because of the petitioner’s many protestations of his innocence. Id. at 738. The Sixth 

Circuit disagreed. Id. The Sixth Circuit reasoned that 

Defendants must claim innocence right up to the 

point of accepting a guilty plea, or they would lose 

their ability to make any deal with the government. 

It does not make sense to say that a defendant must 

admit guilt prior to accepting a deal on a guilty plea. 

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It therefore does not make sense to say that a defendant’s protestations of innocence belie his later claim 

that he would have accepted a guilty plea. Furthermore, a defendant must be entitled to maintain his innocence throughout trial under the Fifth Amendment.

Id. Considering the record, the Sixth Circuit determined that an 

evidentiary hearing was necessary to determine whether the petitioner would have accepted the plea offer had he known about it. 

Id. at 739.

We found the Sixth Circuit’s reasoning persuasive in Lalani 

v. United States, 315 F. App’x 858, 861 (11th Cir. 2009) (per curiam). 

There, the petitioners filed a habeas petition under 28 U.S.C. 

§ 2255, arguing that their trial counsel was ineffective for failing to 

secure a plea agreement, and that they would have taken a plea 

agreement despite their claims of innocence. Id. at 859. To determine whether the petitioners made a viable Strickland claim, we relied on Griffin, which found it did “not make sense to say that a 

defendant’s protestations of innocence belie his later claim that he 

would have accepted a guilty plea.” Id. at 861 (quoting Griffin, 330 

F.3d at 738). As a result, we held that the petitioners’ claims of innocence did not prevent them from showing prejudice in support 

of ineffective assistance of counsel claims for failing to communicate a plea offer. Id. Ultimately, we remanded to the district court 

to conduct an evidentiary hearing. Id. at 861–82.

Like we found in Lalani, we find the Sixth Circuit’s reasoning 

persuasive and formally adopt it here. A defendant has a right to 

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maintain his innocence without entirely jeopardizing his ability to 

later claim that he would have accepted a subsequent, uncommunicated plea offer. 

We hold that when a petitioner states that he would have 

taken a plea offer while maintaining his innocence, the state court 

cannot use that as the only factual determination to support a finding that the petitioner failed to meet the prejudice prong of Strickland. To be sure, those protestations of innocence are relevant to

determining whether the petitioner would have accepted a plea offer and should be considered along with other facts, such as why 

the petitioner chose to reject other offers and the discussions that 

petitioner had with his counsel about those offers. As a result, this 

circumstance will often require an evidentiary hearing to consider 

those relevant facts.

In finding that Washington would not have accepted the 

thirty-year plea offer, the state habeas court also relied on its own 

assumption that Washington would not have accepted the thirtyyear offer because he had previously rejected a plea offer of a sentence of life with the possibility of parole. Based on the state habeas court’s calculations—and without briefing or input from the 

parties—the court determined that there was no significant difference between a thirty-year sentence and a sentence of life with parole. This finding was unreasonable. There was no evidence in the 

record to support an inference that Washington, who was an eighteen-year-old college freshman at the time of his conviction, would 

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have rejected a thirty-year plea offer simply because he had previously rejected an offer of life in prison.

With respect to the state habeas court’s finding that the state 

trial court would not have accepted the thirty-year plea deal because Washington maintained his claim of innocence, this determination, too, was unreasonable. To be sure, under Alabama law, it 

is within a state trial judge’s discretion whether to accept or reject 

a plea agreement between the prosecution and a defendant. See 

Ala. R. Crim. P. 14.3(b) (“[T]he court may accept or reject the agreement or may defer its decision as to acceptance or rejection until 

receipt of a presentence report.”). Here, though, the dispositive 

question is not whether this state habeas judge—who presided over 

Washington’s trial, three separate sentencings following two reversals by State appellate courts, and his post-conviction proceedings 

one decade later—would not have accepted the District Attorney’s 

thirty-year plea offer. The question is whether a reasonable jurist 

would not have accepted a thirty-year deal extended by D.A. Anderton and agreed to by Washington. It was unreasonable for the 

state habeas judge to rely on Washington’s purported proclamation 

of innocence to determine, after the fact, that she would not have 

accepted the thirty-year deal at the time of trial.

The state habeas court relied only on Washington’s earlier 

rejection of the life-with-parole plea offer and Washington’s claim 

of innocence to support its findings that he would have also rejected a thirty-year plea offer and that the state trial court would 

not have accepted the plea. Because Washington was entitled to 

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maintain his innocence, this reasoning supporting the state habeas 

court’s determinations that neither Washington nor the state trial 

court would have accepted the plea offer was unreasonable. The 

state habeas court’s finding that Washington’s rejection of the lifewith-parole offer indicated he would have also rejected the thirtyyear offer because the two sentences were not significantly different was also unreasonable because it was not supported by any evidence in the record. 

B. Deficient Performance

The ACCA explained that despite the state habeas court having to take Amanda’s affidavit as true, the affidavits of Anthony and 

D.A. Anderton show that Washington was told about the thirtyyear plea offer. Thus, the ACCA found that Washington had not 

shown deficient performance. Washington argues that this was an 

unreasonable determination of facts, and we agree. 

To start, there is very little information in the record about 

this thirty-year plea offer. We have D.A. Anderton’s affidavit establishing that the plea offer was communicated to Anthony, and

Anthony’s confirmation of that plea offer. Anthony then attests 

that he told Washington, who rejected the offer. Washington in 

his state habeas petition says he did not receive the plea offer. If 

these facts were all that we had to go on, our decision would be 

simple—the state court resolved conflicting accounts—and the 

question of deference would be straight forward. See Consalvo v. 

Sec’y for Dep’t of Corr., 664 F.3d 842, 845 (11th Cir. 2011) (per curiam) (“Determining the credibility of witnesses is the province and 

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function of the state courts, not a federal court engaging in habeas 

review.”). But it is not all we have to go on. There is also the affidavit from Washington’s grandmother, Amanda, which the parties 

agreed that the state habeas court should have taken as true. 

Because the parties agreed that the state habeas court should 

take Amanda’s affidavit as true, the court was not required to determine whether it believed Amanda over Anthony. Rather, the 

court had to accept Amanda’s affidavit as true, and that requires 

that the court resolve any inconsistences between her affidavit and 

Anthony’s in her favor. But the court did not do that. Instead, the 

court focused only on Anthony’s and Anderton’s affidavits to make 

its factual finding that Washington received and rejected the thirtyyear plea offer. 

In reviewing the state habeas court’s holding, the ACCA focused on the fact that Amanda’s affidavit did not “rule out the possibility that Washington may not have chosen to tell her about the 

offer.” However, the ACCA’s reasoning misses the mark and, in 

fact, showcases that the affidavits truly contradict each other. 

As we noted above, Amanda’s affidavit said that she “never 

heard Mr. Anthony mention any plea offer other than life.” Doc. 

1-23 at 42. Now, this statement alone is not enough to show that 

the ACCA made an unreasonable determination about whether 

Washington told Amanda about the plea offer. But consider how 

this compares to Anthony’s affidavit, where he claimed that he 

“talked with Brandon Washington and his Grandmother” about 

the thirty-year plea offer. Anthony’s affidavit clearly indicates 

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that—if at all—he told Washington and Amanda together about the 

thirty-year plea offer. So whether Washington told Amanda about 

the plea offer separately is irrelevant. Anthony averred that he told 

Washington and Amanda, and Amanda—whose affidavit the state 

court was bound to consider as truthful—said she never heard anything about a thirty-year plea offer. Thus, the record does not 

support the ACCA’s factual finding that Amanda may not have 

heard about the plea deal simply because Washington may not 

have chosen to tell her. 

The ACCA used that finding alone to support its determination that Anthony told Washington about the thirty-year plea offer. 

Because that factual determination is not supported by the record

and is clearly erroneous, the ACCA’s determination that Washington received the plea offer was unreasonable. 

IV.

Because Washington has established that the state courts 

made unreasonable determinations of the facts, 28 U.S.C.

§ 2254(d)(2), he has overcome AEDPA deference. Thus, we must 

review de novo whether Washington has shown that his counsel 

was ineffective under Strickland. But we are reluctant to do so in

the first instance for two reasons. First, as discussed above, Washington’s protestations of innocence cannot be considered in a vacuum but should be evaluated with his reasons for why he did not

take the prior plea, why he would have taken the thirty-year plea,

and any relevant information from Anthony. Second, even though

Amanda’s affidavit isto be taken astrue, there is very little evidence

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from Anthony and Washington about this second plea offer. To

properly consider Washington’s claim that he never received the

thirty-year plea offer and he would have accepted it had Anthony

communicated it with him, there needs to be factual development

from Washington and Anthony about their attorney-client relationship, their communication, and the thirty-year plea offer. 

Washington has repeatedly requested an evidentiary hearing, and in light of him clearing the AEDPA hurdle, he should be

given an opportunity to present his evidence. See Madison v. 

Comm’r, Ala. Dep’t of Corr., 761 F.3d 1240, 1248–49 (11th Cir. 2014). 

V.

We vacate the district court’s order denying Washington’s 

habeas petition and its order denying an evidentiary hearing. We 

remand this case to the district court for an evidentiary hearing and

to consider Washington’s Strickland claim de novo.

VACATED and REMANDED.

USCA11 Case: 21-13756 Document: 49-1 Date Filed: 07/28/2023 Page: 22 of 22