                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               FEB 18, 2009
                               No. 08-11489                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                     D. C. Docket Nos. 04-22395-CV-JAL
                              00-00376-CR-JAL

YUBY RAMIREZ,


                                                             Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                           Respondent-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                             (February 18, 2009)

Before BLACK, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

     Yuby Ramirez, a federal prisoner serving a life sentence, appeals through
counsel the district court’s denial of her 28 U.S.C. § 2255 habeas corpus petition

alleging ineffective assistance of counsel. She also appeals the district court’s

denial of an evidentiary hearing on whether she was prejudiced by her trial

counsel’s deficient performance based on their mistaken belief that she was not

charged with a capital offense.

      The court applied the standard for ineffective assistance of counsel

established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), and

initially denied Ramirez’s § 2255 petition. The court found that Ramirez did not

establish that counsel’s performance fell below an objective standard of

reasonableness. Accordingly, it neither addressed whether counsel’s performance

was prejudicial nor granted an evidentiary hearing.

      On Ramirez’s first appeal, we found that counsel performed deficiently by

mistakenly advising Ramirez at the time she was considering plea offers for five-

and ten-year prison terms that she faced at most a ten-year prison term if convicted

at trial when she actually faced a possible life sentence. Ramirez v. United States,

260 F. App’x 185, 188 (11th Cir. 2007) (per curiam). We remanded the case to the

district court to determine whether counsel’s deficient performance was

prejudicial. On remand, the district court again denied Ramirez’s § 2255 motion

and request for an evidentiary hearing, finding that she failed adequately to allege



                                           2
prejudice. We then granted a certificate of appealability on the issue whether

Ramirez satisfied Strickland’s prejudice prong with evidence that but for counsel’s

deficient advice regarding the possible statutory maximum sentence, she would

have pleaded guilty.

      In this appeal, Ramirez alleges that she was prejudiced because she would

have pleaded guilty if counsel had advised her to do so. For the reasons below, we

find that an evidentiary hearing is warranted here. We therefore vacate the district

court’s denial of an evidentiary hearing and remand for further proceedings.

                               S TANDARD OF R EVIEW

      An ineffective assistance of counsel claim is a mixed question of law and

fact, which we review de novo. Devine v. United States, 520 F.3d 1286, 1287

(11th Cir. 2008) (per curiam). We review a district court’s denial of an evidentiary

hearing for an abuse of discretion. Aron v. United States, 291 F.3d 708, 714 n.5

(11th Cir. 2002).

                                     D ISCUSSION

      Ramirez argues that she has shown prejudice under Strickland because had

counsel known that the indictment charged first-degree murder, a capital offense,

they would have advised her to take the plea offer, and she would have taken it.

Alternatively, she argues that she has alleged sufficient facts to warrant an



                                           3
evidentiary hearing on the issue of prejudice.

      To challenge the plea process based on ineffective assistance of counsel, a

federal habeas petitioner must satisfy the two-part test articulated in Strickland. To

succeed under Strickland, a petitioner must show “that counsel’s representation fell

below an objective standard of reasonableness” and “that the deficient performance

prejudiced the defense,” 466 U.S. at 687-88, 104 S. Ct. at 2064. When challenging

the plea process, the prejudice prong “focuses on whether counsel’s

constitutionally ineffective performance affected the outcome of the plea process.”

Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985). To establish

prejudice, a petitioner “must show that there is a reasonable probability that, but

for counsel’s errors, [s]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)

(per curiam) (quotation omitted).

      “A federal habeas corpus petitioner is entitled to an evidentiary hearing if

[s]he alleges facts, which, if proven, would entitle h[er] to relief.” Diaz v. United

States, 930 F.2d 832, 834 (11th Cir. 1991) (quotation omitted). “[A] petitioner

need only allege–not prove–reasonably specific, non-conclusory facts . . . .” Aron,

291 F.3d at 715 n.6. “The court on review must accept all of the petitioner’s

alleged facts as true and determine whether the petitioner has set forth a valid



                                           4
claim. . . .” Diaz, 930 F.2d at 834 (quotation omitted). “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.” Aron, 291 F.3d at 715

n.6.

       Since we have already determined that Ramirez’s trial counsel performed

deficiently, Ramirez, 260 F. App’x at 188, we consider only the district court’s

prejudice analysis. See United States v. White, 846 F.2d 678, 684 (11th Cir. 1988)

(quotation omitted) (“The doctrine of the law of the case mandates that an

appellate court decision on an issue . . . be followed in all subsequent trial court

proceedings in the same case.”). The district court erred in its prejudice analysis

because it attempted to isolate counsel’s assessment of the strength of the statute of

limitations defense from counsel’s advice regarding Ramirez’s potential maximum

punishment. The two, however, are directly related. Since counsel did not believe

that the indictment charged first-degree murder, counsel did not contemplate that

Ramirez possibly faced a life sentence.

       Ramirez’s statements and counsel’s affidavit and interview suggest that

Ramirez would have done whatever counsel advised, including pleading guilty.

But counsel advised Ramirez under the mistaken belief that she would face no

imprisonment if acquitted or at most ten years’ imprisonment if convicted at trial.



                                            5
If counsel believed that the indictment charged first-degree murder, a capital

offense not subject to a statute of limitations defense, then it stands to reason that

counsel would not have believed so strongly that Ramirez’s indictment was time

barred. Cf. 18 U.S.C. § 3281 (no statute of limitations for capital offenses) and 18

U.S.C. § 3282(a) (five-year statute of limitations for non-capital offenses).

      The government denies that an evidentiary hearing is warranted because

Ramirez alleges no facts demonstrating that she would have accepted the plea

offers had she known that she faced life imprisonment. Nor has she alleged, argues

the government, that counsel would have advised her to plead guilty if they had

known that she possibly faced life imprisonment.

      But since counsel’s affidavit and interview are silent on the issue, the record

does not “affirmatively contradict[]” Ramirez’s non-frivolous allegation that she

would have pleaded guilty if properly advised. Aron, 291 F.3d at 715 n.6. Thus,

the district court abused its discretion by denying an evidentiary hearing on

whether Ramirez was prejudiced by counsel’s deficient performance.

                                     C ONCLUSION

      After carefully reviewing the parties’ briefs and the record, we conclude that

the district court erred in its prejudice analysis and abused its discretion by not

conducting an evidentiary hearing on whether Ramirez’s counsel would have



                                            6
advised her to plead guilty absent their own deficient performance. Accordingly,

we vacate and remand for an evidentiary hearing on (1) whether Ramirez would

have pleaded guilty upon the advice of counsel, and (2) whether counsel would

have advised her to plead guilty had they known that she faced possible life

imprisonment.

      VACATED AND REMANDED.




                                         7
