                                                                  [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                            FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                          June 24, 2005
                                    No. 04-14325
                                                                      THOMAS K. KAHN
                              ________________________                    CLERK

                          D. C. Docket Nos. 03-00517-CV-CB
                                 & 02-00058-CR-CB

MICHAEL ADAM DAVIDSON,



                                                                       Petitioner-Appellant,

                                            versus

UNITED STATES OF AMERICA,

                                                                      Respondent-Appellee.


                              ________________________

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

                                      (June 24, 2005)

Before CARNES and PRYOR, Circuit Judges, and FORRESTER *, District Judge.


       *
       Honorable J. Owen Forrester, United States District Judge for the Northern District of
Georgia, sitting by designation.
PER CURIAM:

        This is an appeal from the denial of a motion for 28 U.S.C. § 2255 relief

from a judgment of conviction entered after a guilty plea. We won’t belabor the

facts or procedural history because the parties and district court are familiar with

them.

        Davidson’s § 2255 motion raised three claims. The first claim is that the

conviction violates the Due Process Clause because the government failed to

disclose information that would have impeached the statements made in the

affidavit supporting the search warrant. This claim fails because the Supreme

Court has held that there is no constitutional requirement for the government to

disclose impeachment evidence in advance of a guilty plea. United States v. Ruiz,

536 U.S. 622, 629, 122 S. Ct. 2450, 2455 (2002).

        The third claim raised in the § 2255 motion amounts to a request for a new

trial on the basis of newly discovered evidence that allegedly impeaches, or tends

to impeach, statements made in the search warrant affidavit. Assuming that such a

ground for relief can be raised in a § 2255 proceeding, it fails because

impeachment evidence will not support a new trial claim. United States v. Kersey,

130 F.3d 1463, 1465 n.2 (11th Cir. 1997) (for a motion for a new trial based on

newly discovered evidence to be granted, “the evidence must not be merely



                                           2
cumulative or impeaching”).

      The second claim raised in the § 2255 motion is one of ineffective assistance

of counsel in connection with the guilty plea. The alleged shortcomings of counsel

concern his actions (or inactions) and his advice involving the search warrant

issues. The district court rejected this claim based on its view that a motion to

suppress the evidence obtained from the search would have failed under the test set

out in Franks v. Delaware, 438 U.S. 154 (1978). That is not, however, the test for

the prejudice prong of an ineffective assistance of counsel claim relating to the

entry of a guilty plea. Instead, the prejudice inquiry is focused on whether, if

counsel had not performed ineffectively, Davidson still would have pleaded guilty.

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

      It may be that before Davidson pleaded guilty counsel communicated to him

all of the information counsel had (and reasonably should have had) bearing on the

search warrant issue, and gave Davidson reasonable advice concerning that issue.

If counsel did that, the ineffective assistance of counsel claim fails on the

performance prong. However, if counsel did not perform within the wide range of

reasonable professional assistance, under the Hill decision this claim will turn on

whether Davidson would have pleaded not guilty but for the ineffective assistance.




                                           3
Both of those issues should be addressed in an evidentiary hearing.1

       We are aware that the district court has already determined that any motion

to suppress on Franks grounds would have been without merit and thus denied.

However under Hill, assuming the deficient performance prong of ineffective

assistance is established, the prejudice prong turns not on whether Davidson would

have prevailed on a motion to suppress had counsel filed one but instead on

whether Davidson would have pleaded guilty had counsel’s performance not been

deficient. Given the number and nature of Davidson’s allegations of ineffective

assistance of counsel in regard to entry of his guilty plea, it may be possible for

him to establish that he would not have pleaded guilty even if any motion to

suppress would have been denied by the district court. Whether he can depends on

facts that have not yet been found.

       For these reasons, we AFFIRM the district court’s judgment except insofar

as it involves the ineffective assistance of counsel claim. We VACATE the

judgment insofar as the ineffective assistance of counsel claim is concerned and

REMAND this case for further proceedings relating to that claim. In doing so, we

       1
          In some of his filings in the district court Davidson contended that he requested that his
counsel file a motion to suppress, but contentions are not evidence. At the hearing, Davidson
will have an opportunity to present evidence on that and other factual issues. If the court finds
that Davidson made such a request, it can then determine whether, in light of it, counsel’s failure
to file a motion to suppress constitutes ineffective assistance. If the court finds that Davidson
did not make such a request, it can then decide whether the failure to file a motion to suppress
even without a request constituted ineffective assistance.

                                                 4
do not express any view about how the Franks issue should be decided if a decision

of that issue does become necessary.




                                        5
