                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                                F I L E D
                    UNITED STATES COURT OF APPEALS
                                                                  May 4, 2007
                        FOR THE FIFTH CIRCUIT
                                                             Charles R. Fulbruge III
                                                                     Clerk


                               04-21012
                           Summary Calendar



     UNITED STATES OF AMERICA,

                                       Plaintiff-Appellee,

                                  v.

     BENJAMIN ARREAGA PEREZ,

                                       Defendant-Appellant.



         Appeal from the United States District Court for the
                  Southern District of Texas, Houston
                     4:02-CR-572-14 / 4:04-CV-1402



Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*


     Pursuant to a written plea agreement, Benjamin Arreaga Perez

pleaded guilty to one count of possession with intent to distribute

500 grams or more of cocaine.   He was sentenced to a prison term of

64 months.     He filed a pro se motion for modification of his

sentence under 18 U.S.C. § 3582(c)(2), arguing that his defense

attorney induced his guilty plea by promising him a sentence of no

     *
       Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
more than 24 months.     The court denied that motion for lack of

jurisdiction.     Perez then filed a timely § 2255 motion to vacate

his sentence based on several claims of ineffective assistance. He

also requested an evidentiary hearing.        The court denied the

request for a hearing, denied the motion, and denied Perez’s

subsequent request for a Certificate of Appealability (COA).      We

then granted the COA as to Perez’s claims that his plea was invalid

and that he was entitled to an evidentiary hearing in the district

court.    United States v. Perez, No. 04-21012 (5th Cir. Jan. 9,

2006) (unpublished order).    We now find that Perez is entitled to

an evidentiary hearing and REMAND his case to the district court.

                   I. FACTS AND STANDARD OF REVIEW

     Benjamin Arreaga    Perez wished to plead guilty to one count of

possession with intent to distribute cocaine.    At his arraignment,

when the court asked him if anyone had made any promises to him to

persuade him to plead guilty, he said “yes.”    The court hesitated,

and then repeated the question, at which time Perez changed his

answer to “no.”    The court accepted his plea and sentenced him to

64 months of imprisonment.    Perez eventually filed a timely § 2255

motion in which he contended that his lawyer, Kenneth Smith,

induced him to plead guilty by promising that he would receive a

sentence of 24 months.    He requested an evidentiary hearing on the

motion.

     To support his contention that Smith made him such a promise,



                                  2
he submitted a declaration under penalty of perjury and two sworn,

notarized affidavits, one each from his wife and his wife’s sister-

in-law. In his own declaration, Perez states that Smith repeatedly

told him his sentence would be 24 months, and that Smith told him

to deny in court that anyone had promised him anything in return

for his guilty plea.    Perez’s wife, Juana Perez, states in her

affidavit that she personally visited with Smith about ten times in

his office, and that during those conversations Smith repeatedly

assured her that her husband would receive a sentence of 24 months.

He added that the sentence would include one year in jail, followed

by one year of probation.   Irene Rodriguez, the sister-in-law of

Ms. Perez, states in her affidavit that she was in the courtroom

for sentencing, and that she witnessed Mr. Smith tell another

attorney that Perez would surely receive a sentence of 24 months.1

     The district court dismissed Perez’s § 2255 motion without an

evidentiary hearing and without receiving any evidence from Smith.

The court did so on the grounds that Perez’s affidavit failed to

provide the identity of an eyewitness to the promise of a 24-month

sentence, as required by our precedent.      See United States v.

Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998) (citing Harmason v.

Smith, 888 F.2d 1527, 1529 (5th Cir. 1989)).   Perez appealed both


     1
      Both   affiants  make   several   other   allegations   about
misrepresentations by Smith that are not relevant to the narrow
question before us today. They may prove relevant on remand, in
which case the district court should consider them, but we need not
enumerate them all here.

                                3
the dismissal of his § 2255 motion and the denial of his request

for a hearing.2

     For the reasons that follow, we find it necessary to consider

only the denial of an evidentiary hearing.   Partly because no such

hearing was held, there is not enough evidence in the record for us

to consider the merits of Perez’s ineffective assistance claim. We

review the district court’s denial of the hearing for abuse of

discretion. Id. (citing United States v. Bartholomew, 974 F.2d 39,

41 (5th Cir. 1992) (per curiam)).

              II. THE DENIAL OF AN EVIDENTIARY HEARING

     It is settled law that “a guilty plea may be invalid if

induced by defense counsel’s unkept promises.”        Id. (citation

omitted).    To obtain relief on an ineffective assistance theory,

Perez ultimately must demonstrate that Smith’s performance was

deficient and that there is a reasonable probability that, but for

Smith’s deficient performance, he would not have entered a guilty

plea and would have insisted on a trial.   See Hill v. Lockhart, 474

U.S. 52, 59 (1985); Strickland v. Washington, 466 U.S. 668, 687

(1984).     We are not now deciding the merits of the ineffective

assistance claim, however, but rather the preliminary question of

whether Perez was entitled to an evidentiary hearing on the matter.



     2
      Perez also argues on appeal that the government’s reply brief
should be stricken as untimely. However, the government obtained
an extension for filing its brief and successfully satisfied that
deadline.

                                 4
      When the district judge asked Perez at sentencing if anyone

had made him promises to induce his plea, he first said “yes,” but

then changed his answer to “no.” While this equivocation may prove

significant on remand, at this point the latter answer constitutes

testimony under oath, and “a defendant ordinarily will not be heard

to refute [his] testimony given at a plea hearing while under

oath.”     Cervantes, 132 F.3d at 1110 (citing United States v.

Fuller,     769    F.2d    1095,    1099       (5th     Cir.    1985)).         “‘Solemn

declarations in open court carry a strong presumption of verity,’

forming    a     ‘formidable   barrier         in     any   subsequent     collateral

proceedings.’”       Id. (quoting Blackledge v. Allison, 431 U.S. 63,

73–74 (1977)).      “Nevertheless, a defendant may seek habeas relief

on   the   basis    of    alleged   promises,          though    inconsistent       with

representations [he] made in open court when entering [his] guilty

plea, by proving (1) the exact terms of the alleged promise, (2)

exactly when, where, and by whom the promise was made, and (3) the

precise identity of an eyewitness to the promise.”                      Id. (citation

omitted).      “If the defendant produces independent indicia of the

likely merit of [his] allegations, typically in the form of one or

more affidavits from reliable third parties, [he] is entitled to an

evidentiary hearing on the issue.”                  Id. (citation omitted).

      On   the    record   before    us,       we     believe   Perez     did   present

sufficient indicia of the likely merit of his allegations to

warrant an evidentiary hearing, and that it was an abuse of


                                           5
discretion for the district court to deny that request.                    The

district court apparently discounted the affidavits that Perez

offered on the grounds that they failed to establish an eyewitness

to the promise of a 24-month sentence.           However, the eyewitness

requirement is somewhat flexible.          In Hayes v. Maggio, 699 F.2d

198, 202 (5th Cir. 1983), the defendant relied on a witness who

testified that on the day of trial, he witnessed the district

attorney make a promise to the client’s defense attorney. Although

there was no testimony that the witness saw any promise made

directly to the defendant, we held that the witness’s testimony

satisfied the Blackledge requirements.         Id. at 202–04.    Similarly,

in this case, neither affiant claims to have witnessed a promise

between Smith and Perez, but both claim to have seen Smith state

unequivocally that he was going to get his client a sentence of 24

months.      Juana Perez states that this promise was made directly to

her, while Irene Rodriguez affirms that she witnessed Smith say the

same thing to another attorney in the courtroom.            Both witnesses

were able to identify the time and place of these promises with

adequate specificity.

     In ruling that the affidavits, even if true, could not satisfy

the Blackledge requirements, the district court plainly misapplied

our precedent.        Perez was entitled to an evidentiary hearing at

which   he    could   try   to   demonstrate   the   validity   of   his   own

declaration and the two affidavits.        Of course, the government is


                                       6
entitled to present its evidence to the contrary.3   It was an abuse

of discretion for the district court to rule otherwise.

                         III. CONCLUSION

     The case is REMANDED to the district court with instructions

to conduct an evidentiary hearing on Perez’s § 2255 claim in a

manner consistent with this opinion.   We pass no judgment on the

weight of the evidence put forth by Perez or the government at

this time, except to say that there is a factual dispute

sufficient to warrant a hearing.




     3
      We need not consider the substance of the government’s
evidence at this time, as that is best left for the district court
in the first instance. However, we must note that the government
spends much of its brief arguing that the affidavits of Juana Perez
and Irene Rodriguez are “deficient” because they are unsworn. We
are at a complete loss to understand the government’s point on this
issue. Juana Perez’s affidavit begins: “I[,] Juana Marisela Perez,
sworn [sic] under oath that the following is true and correct to
the best of my knowledge.”     Irene Rodriguez’s affidavit begins
similarly: “I, Irene Rodriguez, solemnly swear[,] depose and says
[sic] that I am the sister-in-law of Benjamin Arreaga Perez’s wife,
and make this affidavit under personal acknowledge [sic] in support
of my Sister-in-law husband’s [sic] motion for reduction of
sentence.” Both affidavits are signed and notarized.
     Despite our best efforts, we can think of no reason why
counsel for the government would characterize these affidavits as
unsworn. They seem plainly sufficient to us, and we are troubled
that the government would make such a serious allegation, and at
some length, without providing more support for it. Perhaps the
government has noticed some flaw that escapes us, but if so it has
failed to articulate it clearly. Perhaps the argument was included
in the brief by mistake.     Whatever the reason, counsel for the
government is admonished to take more care when making such
assertions.

                                   7
