                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                      FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 October 18, 2006
                               No. 05-16330                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                      D. C. Docket No. 02-00085-CR-CG

OCTAVIO PAEZ-ORTIZ,



                                                             Petitioner-Appellant.

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee,


                         ________________________

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

                               (October 18, 2006)


Before ANDERSON, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

     Federal prisoner Octavio Paez-Ortiz, proceeding pro se, appeals the district
courts’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his

sentence arguing, inter alia, that his trial counsel was constitutionally ineffective

because he failed to advise Paez-Ortiz to plead guilty. We issued a certificate of

appealability (“COA”) on the following issues:

      (1) Whether the district court erred by finding that appellant had
      failed to demonstrate that counsel’s performance was constitutionally
      ineffective under the standard set forth in Strickland v. Washington,
      466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)?

      (2) Whether the district court erred by failing to conduct an
      evidentiary hearing with regard to appellant’s claim of ineffective
      assistance of counsel?

On appeal, Paez-Ortiz argues that the district court erred in deciding his motion

without holding an evidentiary hearing because there were issues of fact that could

not be determined solely from the motion and the record of the case. Paez-Ortiz

also argues that his trial counsel’s deficient performance resulted in prejudice to

him because he was not involved in the decision to accept or reject a plea offer, and

because his counsel failed to keep him informed of important developments in the

case. Specifically, he asserts that had trial counsel advised him regarding the

advantages of pleading guilty to the charged offenses, rather than proceeding to

trial, the outcome of his case would have been different.




                                            2
                                          I.

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

fact that is subject to de novo review. Hagins v. United States, 267 F.3d 1202,

1204 (11th Cir. 2001). To prevail, the defendant must demonstrate both (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 v. Washington, 466 U.S. 668, 687-88,

104 S.Ct 2052, 2064-65, 80 L.Ed.2d 674 (1984). To meet the deficient

performance prong of the Strickland test, the defendant must show that counsel

made errors so serious that he or she was not functioning as the counsel guaranteed

by the Sixth Amendment. Id. at 687, 104 S.Ct. at 2064. There is a strong

presumption that counsel’s conduct fell within the range of reasonable professional

assistance. Id. at 689, 104 S.Ct. at 2065. To prove prejudice, “[t]he defendant

must show that there is a reasonable 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. 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



                                          3
Cir. 1995) (quotation and alterations omitted). We need not “address both

components of the inquiry if the defendant makes an insufficient showing on one.”

Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.

      In the instant appeal, Paez-Ortiz failed to demonstrate that but for counsel’s

errors, the result of his case would have been different. Although Paez-Ortiz avers

that he was prejudiced by counsel’s failure to advise him of any plea offers, the

record does not indicate that any such offers existed. The record does indicate,

however, that Paez-Ortiz was aware of his option to plead guilty to the charged

offenses, and was aware of the consequences a guilty plea would have at

sentencing. Despite this awareness, there is no clear evidence that Paez-Ortiz ever

expressed a desire or intent to plead guilty before he was convicted. To the

contrary, the record indicates that Paez-Ortiz consistently maintained his innocence

throughout his sentencing and on direct appeal. Accordingly, the district court did

not err in finding that Paez-Ortiz was not denied effective counsel.

                                         II.

      An evidentiary hearing must be held on a motion to vacate “unless the

motion and the files and records of the case conclusively show that the prisoner is

entitled to no relief.” 28 U.S.C. § 2255; see also Anderson v. United States, 948

F.2d 704, 706 (11th Cir. 1991) (holding that, unless the record is adequate to show



                                          4
conclusively that the movant’s contentions are without merit, the district court

must conduct a hearing). On review, the court “must accept all of the petitioner’s

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

claim.” Diaz v. United States, 930 F.2d 832, 834 (11th Cir. 1991) (quotation

omitted). However, “on habeas a federal district court need not conduct an

evidentiary hearing if it can be conclusively determined from the record that the

petitioner was not denied effective assistance of counsel.” Id. (quotation omitted).

      The record indicates that the district court accepted all of Paez-Ortiz’s

allegations as true in reviewing the merits of his § 2255 motion. As discussed

above, the evidence, or lack of evidence, in the record indicates that Paez-Ortiz

was unable to show that but for counsel’s inaction, he would have pled guilty to

the charged offenses. Accordingly, the district court did not err in failing to

conduct an evidentiary hearing, and we affirm.

      AFFIRMED.




                                           5
