                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                     MAY 27, 2008
                                                  THOMAS K. KAHN
                            No. 07-12114
                                                       CLERK
                         Non-Argument Calendar
                       ________________________

        D. C. Docket Nos. 06-02401-CV-ODE-1 & 03-00282 CR-ODE

TERRELL SAUNDERS,



                                                  Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                  Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                              (May 27, 2008)

Before ANDERSON, HULL and FAY, Circuit Judges.

PER CURIAM:
      Terrell Saunders, a counseled federal prisoner, appeals the denial of his

motion to vacate, set aside or correct sentence, 28 U.S.C. § 2255. Saunders argues

that he was entitled to an evidentiary hearing on his ineffective assistance of

counsel claim because he alleged in his § 2255 motion that he was prejudiced by

not accepting a plea offer, which led to a “substantially harsher” sentence, based on

his trial counsel’s miscalculation of the potential sentence he faced at trial. For the

reasons set forth more fully below, we affirm.

      A jury found Saunders guilty of: (1) possession with intent to distribute

cocaine base, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and (2) possession of a

firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1).

According to the presentence investigation report (“PSI”), Saunders had a total

offense level of 16, pursuant to U.S.S.G. § 2D1.1(c)(12). However, because he

was classified as a career offender, Saunders’s offense level was 32, pursuant to

U.S.S.G. § 4B1.1(a) and (b). Saunders was sentenced to consecutive terms of 168

months’ imprisonment for the cocaine conviction, and 60 months’ imprisonment

for the firearm charge.

      Saunders claimed in his § 2255 motion and accompanying memorandum

that his attorney failed to discover one of his convictions that led to his career

offender classification. Saunders stated that he had been advised by his trial



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attorney that the drug guidelines were Level 16 at worst and the gun count carried

a 60 month consecutive sentence with or without a trial. Saunders argued that his

counsel “denied him the opportunity to knowingly accept or reject an offer by

giving him incorrect advice about the sentencing ramifications.” Saunders stated

that, “[b]ut for this erroneous advice, [he] would have accepted a plea offer,” and

“[t]he erroneous advise of counsel at the plea negotiation stage clearly amounts to

ineffective assistance of counsel.” Further, Saunders was prejudiced by not

accepting the government’s plea offer because his trial “led to a substantially

harsher sentence than would have been available under a plea agreement.”

      The district court denied Saunders’s § 2255 motion. The court found that

the factual record was sufficiently developed to render judgment and, therefore, no

evidentiary hearing on Saunders’s ineffective assistance of counsel claim was

necessary. The court determined that Saunders’s counsel was not ineffective for

failing to discover Saunders’s conviction, and Saunders could not demonstrate

prejudice because he failed to present any information regarding what sentence he

may have pled guilty to and provided no description of any plea offer.

      We granted a COA on the following issue only:

      Whether the district court erred in failing to hold an evidentiary
      hearing on appellant’s claim that his trial counsel was ineffective for
      failing to investigate his criminal history and counsel him regarding
      career criminal status and accepting a government-offered plea deal?

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      We review the denial of an evidentiary hearing on a § 2255 motion for abuse

of discretion. Aron v. United States, 291 F.3d 708, 714 n.5 (11th Cir. 2002). The

scope of review is limited to the issues specified in the COA. Murray v. United

States, 145 F.3d 1249, 1250-51 (11th Cir.1998).

      Pursuant to § 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
      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) (emphasis added). “[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 (citations

and internal quotation omitted). “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.” Id. at 715 n.6

(emphasis in original). “A hearing is not required on patently frivolous claims or

those which are based upon unsupported generalizations. Nor is a hearing required

where the petitioner’s allegations are affirmatively contradicted in the record.”

Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989) (citation omitted)

(remanding for evidentiary hearing on ineffective assistance of counsel claim that



                                           4
counsel failed to inform appellant of statutory parole consequences before entering

a guilty plea because record did not conclusively show that appellant was entitled

to no relief); see also Lynn v. United States, 365 F.3d 1225, 1238-39 (11th Cir.

2004) (holding that district court was not required to hold an evidentiary hearing

based on § 2255 petitioner’s mere conclusory allegations in his affidavit); Tejada

v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (stating that a 28 U.S.C. § 2254

petitioner is not entitled to an evidentiary hearing if his claims “are merely

conclusory allegations unsupported by specifics or contentions that in the face of

the record are wholly incredible”) (citations and internal quotations omitted).

      The Sixth Amendment gives criminal defendants the right to effective

assistance of counsel. U.S. Const., amend. VI; Strickland v. Washington, 466 U.S.

668, 684-86, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). To prevail on a claim

of ineffective assistance of counsel, the defendant must demonstrate (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, 466 U.S. at 687-88, 104 S.Ct. at 2064-65. We

need not “address both components of the inquiry if the defendant makes an

insufficient showing on one.” Id. at 697, 104 S.Ct. at 2069.

      To prove prejudice, “[t]he defendant must show that there is a reasonable



                                           5
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. “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. 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 Cir. 1995) (quotation

and alterations omitted).

      Saunders was not entitled to an evidentiary hearing on his ineffective

assistance of counsel claim because he failed to allege facts that, if true, would

entitle him to relief. Although in his § 2255 motion Saunders was not required to

provide evidence to support his claims, by failing to disclose the details of his

alleged plea offer, he has failed to allege “reasonably specific, non-conclusory

facts” with respect to his claim such that there was a reasonable probability

sufficient to undermine confidence in the outcome. Therefore, he failed to

demonstrate that he suffered prejudice. Thus, based on the unsupported

generalizations contained in his motion and accompanying brief, the record

conclusively shows that Saunders was entitled to no relief, and, therefore, the

district court was not required to conduct an evidentiary hearing on Saunders’s



                                           6
claim of ineffective assistance of counsel.

      In light of the foregoing, the district court’s denial of Saunders’s § 2255

motion is

      AFFIRMED.




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