                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                            No. 08-13433                   APRIL 29, 2009
                        Non-Argument Calendar            THOMAS K. KAHN
                                                              CLERK
                      ________________________

                D. C. Docket Nos. 06-00906-CV-J-32-HTS
                            03-00343-CR-J-3

GINO VELEZ SCOTT,



                                                         Petitioner-Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                       Respondent-Appellee,


                      ________________________

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

                           (April 29, 2009)


Before BLACK, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
      Gino Velez Scott, a federal prisoner proceeding pro se on appeal, appeals the

dismissal with prejudice, and without an evidentiary hearing, of his motion to

vacate his sentence, 28 U.S.C. § 2255. We granted a certificate of appealability on

the following issue only: “Whether the district court erred in denying appellant’s

claim that trial counsel was ineffective for failing to fully advise Scott of potential

sentences during plea negotiations, where counsel and appellant’s allegations

conflicted, and no evidentiary hearing was held.” Scott argues his attorney

provided ineffective assistance of counsel by failing to advise him fully during plea

negotiations as to the possibilities for avoiding a mandatory life sentence pursuant

to a 21 U.S.C. § 851 enhancement, thus denying him the opportunity to make a

knowing and voluntary decision as to whether to plead guilty. He further contends

the district court was required to hold an evidentiary hearing because his attorney’s

affidavit directly contradicted his allegations and the evidentiary hearing would

have given Scott the opportunity to prove those allegations.

      In a § 2255 proceeding, we review the district court’s findings of fact for

clear error and its legal conclusions de novo. Devine v. United States, 520 F.3d

1286, 1287 (11th Cir. 2008). “A claim of ineffective assistance of counsel is a

mixed question of law and fact that we review de novo.” Id. Denial of an

evidentiary hearing is reviewed for abuse of discretion. Aron v. United States, 291



                                            2
F.3d 708, 714 n.5 (11th Cir. 2002).

      In Strickland v. Washington, 104 S. Ct. 2052 (1984), the Supreme Court set

out a two-part inquiry for ineffective assistance of counsel claims:

      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious
      that counsel was not functioning as the “counsel” guaranteed the
      defendant by the Sixth Amendment. Second, the defendant must
      show that the deficient performance prejudiced the defense. This
      requires showing that counsel’s errors were so serious as to deprive
      the defendant of a fair trial, a trial whose result is reliable.

Id. at 2064. A habeas petitioner claiming ineffective assistance of counsel must

succeed on both prongs of the Strickland test. Butcher v. United States, 368 F.3d

1290, 1293 (11th Cir. 2004).

      The Strickland test applies to challenges of guilty pleas, as well as to

convictions by jury. Hill v. Lockhart, 106 S. Ct. 366, 370 (1985). In this context,

the first prong of Strickland requires the defendant to show his plea was not

voluntary because he received advice from counsel that was not within the range of

competence demanded of attorneys in criminal cases. See id. at 369–70. The

second prong “focuses on whether counsel’s constitutionally ineffective

performance affected the outcome of the plea process,” meaning the defendant

must show “a reasonable probability that, but for counsel’s errors,” he would have

entered a different plea. Id. at 370 (stating the test in the context of an accepted



                                            3
guilty plea); see also Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991)

(applying the test to a rejected plea agreement).

       The district court “shall” hold an evidentiary hearing on a habeas petition

“[u]nless 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(b). “[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 (quoting Holmes v. United States, 876 F.2d 1545, 1552 (11th Cir.1989)).

Yet the “district court is not required to hold an evidentiary hearing where the

petitioner’s allegations are affirmatively contradicted by the record, or the claims

are patently frivolous.” Id. at 715. Thus, the petitioner needs to allege “reasonably

specific, non-conclusory facts that, if true, would entitle him to relief. If the

allegations are not affirmatively contradicted by the record and the claims are not

patently frivolous,” the requirement of an evidentiary hearing is triggered and the

petitioner must offer proof at that hearing. Id. at 715 n.6.

       Scott’s brief in support of his § 2255 motion alleges only that his counsel

failed to advise him that he supposedly could have avoided a life sentence by

entering a guilty plea without a plea agreement before the Government had an




                                             4
opportunity to file an § 851 information.1 Scott’s argument assumes a non-

negotiated plea would have prevented the Government from requesting the § 851

enhancement, but Scott provides no support for this proposition. Instead, he only

notes, “it is common practice to negotiate that a sentencing enhancement not be

filed where the defendant agrees to enter a guilty plea.” Scott’s brief in support of

his § 2255 motion, however, does not allege the Government was amenable to such

a negotiation in the absence of a cooperation agreement. Nor does it allege any

other “reasonably specific, non-conclusory facts” to indicate his counsel gave him

constitutionally ineffective advice. Aron, 291 F.3d at 715 n.6. The district court,

thus, did not abuse its discretion in finding Scott was not entitled to an evidentiary

hearing, and it did not err in concluding Scott’s motion failed the first prong of the

Strickland test.

       The district court also did not err in finding Scott had failed to satisfy the

second prong of the Strickland inquiry. Scott attempts to demonstrate prejudice by

suggesting he would have given a guilty plea greater consideration if his counsel

had advised him differently and by stating he could have received a lower sentence

if he had pled guilty without a plea agreement. In Diaz, we concluded a petitioner



       1
        To the extent Scott appears to allege his counsel did not inform him that he faced a life
sentence, his own declaration, filed after the district court denied his § 2255 motion, clarifies his
counsel did actually advise him to that effect.

                                                  5
had failed to establish prejudice when he argued a guilty plea would have resulted

in a lower sentence and offered “after the fact testimony concerning his desire to

plead.” 930 F.2d at 835. In this case, Scott only goes so far as to say he should

have been able to take the lower sentence into account when deciding whether to

plead guilty. Considered in conjunction with his counsel’s affidavit, which

indicated Scott strongly advocated his innocence and was not amenable to pleading

otherwise, Scott’s argument does not establish a reasonable probability he would

actually have pled differently but for his counsel’s alleged advice. See id. at

834–35. Thus, Scott’s argument is insufficient to make the required showing for

Strickland’s second prong.

      In sum, Scott has failed to show that he was entitled to relief or that the

district court abused its discretion in failing to hold an evidentiary hearing.

Accordingly, we uphold the district court’s denial of Scott’s § 2255 motion.2

      AFFIRMED.




      2
          Scott’s motion to amend his reply brief is granted.

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