                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                       FILED
                                                             U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                OCTOBER 16, 2009
                                                                THOMAS K. KAHN
                                 No. 09-11592                        CLERK



                   D. C. Docket No. 04-00994-CV-J-25-HTS

ELVIN B. SIMPSON,

                                                    Plaintiff-Appellee,

                                     versus

WALTER A. MCNEIL,
Secretary of the Department of Corrections,
State of Florida,
BILL MCCOLLUM,
Attorney General,

                                                    Defendants-Appellants.



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


                               (October 16, 2009)
Before DUBINA, Chief Judge, TJOFLAT, Circuit Judge, and WALTER,* District
Judge.

PER CURIAM:

       In this case, the federal district court granted Elvin B. Simpson habeas relief

on his claim of ineffective assistance of counsel for failing to advise him about the

consequences of rejecting a plea offer from the State. The State appeals the

district court’s order granting Simpson relief and ordering the State to either

release Simpson for time served or impose a sentence not to exceed the amount of

time provided in the plea offer. Because we conclude from the record that the

district court abused its discretion in granting an evidentiary hearing on this

particular claim of ineffective assistance of counsel and erred when it granted

Simpson habeas relief, we reverse the district court’s order and render judgment

for the State.

                                  I. BACKGROUND

       The State charged Simpson with one count of second degree murder with a

firearm for the murder of his wife. After a trial, the jury returned a guilty verdict

and found that Simpson possessed a firearm when he committed the murder. At



       *
        Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.


                                             2
sentencing, the state trial court imposed a sentence of life in prison, based on the

statutory ground that the murder was committed in the presence of a family

member, the victim’s niece. See Fla. Stat. § 921.0016(3)(m) (1994) (repealed

1998). The state appellate court affirmed Simpson’s conviction and sentence.

Simpson v. State, 676 So. 2d 434 (Fla. Dist. Ct. App. 1996).

      Simpson filed a motion for post-conviction relief in the state trial court.

Among his many claims, Simpson alleged that his trial counsel was ineffective for

failing to advise him properly regarding the details of the State’s plea offer. After

conducting an evidentiary hearing on another claim, the state trial court summarily

denied relief. On appeal, the state appellate court reversed and indicated that the

state trial court should conduct further review of Simpson’s claim that his counsel

did not properly advise him regarding the State’s plea offer. Simpson v. State, 741

So. 2d 1241, 1242 (Fla. Dist. Ct. App. 1999).

      On remand, the state trial court conducted another evidentiary hearing,

found that no plea offer existed, and denied Simpson relief. The state court found,

in pertinent part, that Simpson could not meet his burden of showing that there

was a firm plea offer that he could have accepted. The state court noted that

Simpson’s trial counsel, Burton Green, appeared at the evidentiary hearing but

failed to testify. In light of the absence of testimony or other evidence to confirm

                                          3
the existence of a plea offer, the state trial court denied Simpson’s motion for post-

conviction relief. The state appellate court affirmed. Simpson v. State, 792 So. 2d

474 (Fla. Dist. Ct. App. 2001).

      In September 2001, Simpson filed a successive motion for post-conviction

relief in state court, raising five claims of ineffective assistance of post-conviction

counsel. Among Simpson’s claims was that his post-conviction counsel was

ineffective for failing to call Burton Green to testify at the second evidentiary

hearing. Simpson amended his motion to include a claim that newly discovered

evidence, which could not have been discovered previously through due diligence,

would have changed the outcome of his second evidentiary hearing. In support of

his contention, Simpson attached a recently received letter purportedly written by

John Gitchoff, who assisted Simpson’s trial counsel, stating that Gitchoff recalled

a discussion about the State’s plea offer of 13 years. Specifically, the letter stated:

“I spoke with Burton Green about the State’s plea offer. Burton is against you

accepting a plea of 13 years. He says your maximum sentence is around 18.6

years if convicted. I’m inclined to agree with Burton.” (R. 47 at 32 (quoting App.

Q to the Second Am. Pet., R. 35)).

      The state trial court denied the post-conviction motion as untimely and

successive and found that claims of ineffective assistance of post-conviction

                                           4
counsel are not cognizable in a state post-conviction motion. The state trial court

also found that the claim of newly discovered evidence involved a post-conviction

evidentiary hearing, not a new trial, and thus was not cognizable. The state

appellate court affirmed the trial court’s denial of relief.

      Simpson later filed a state habeas corpus petition, again alleging the claim

of ineffective assistance of post-conviction counsel for failing to present credible

evidence at the evidentiary hearing concerning the State’s alleged plea offer of 13

years. In the petition, Simpson stated that his post-conviction counsel informed

him that if Green was called to testify in the state post-conviction evidentiary

hearing, he only would have stated that he did not remember anything about the

alleged plea offer. Simpson stated that because of Green’s purported

representation to Simpson’s post-conviction counsel, Simpson did not call Green

to testify. The state trial court denied Simpson habeas relief and the appellate

court affirmed. See Simpson v. State, 832 So. 2d 929 (Fla. Dist. Ct. App. 2002).

      Simpson then filed a federal habeas petition pursuant to 28 U.S.C. § 2254

(2000), raising, among other arguments, his claim that his trial counsel was

ineffective for failing to advise him properly about the consequences of declining

a plea offer from the State. Simpson amended his petition, and the State filed a

response. In support of his claim of ineffective trial counsel, Simpson attached to

                                           5
his petition the 1995 Gitchoff letter described above and an affidavit from

Simpson’s trial counsel Burton Green. The district court ordered an evidentiary

hearing on this claim under § 2254(e)(2).1 The State filed a motion for

reconsideration, arguing that the district court was precluded from conducting an

evidentiary hearing on the same claim considered by the state trial court after an

evidentiary hearing because Simpson did not meet the requirements enumerated in

§ 2254(e)(2). The district court denied the State’s motion and conducted the

evidentiary hearing. After the hearing, the federal district court found, contrary to

the State court’s finding, that the State had extended a plea offer to Simpson and

that Simpson’s trial counsel was ineffective for failing to inform him about the full

consequences of rejecting the plea offer. The district court’s order commanded the

State to either release Simpson for time served or impose a sentence not to exceed

13 years, as provided in the plea offer. The State then perfected this appeal.

                                            II. ISSUE

       Whether the district court abused its discretion in granting Simpson an

evidentiary hearing on his claim of ineffective assistance of trial counsel and erred

in granting Simpson habeas relief.



       1
          The district court also denied Simpson’s other claims for relief. The denial of those claims
is not at issue in this appeal.

                                                  6
                          III. STANDARD OF REVIEW

      We review for abuse of discretion the district court’s grant of an evidentiary

hearing. See Atwater v. Crosby, 451 F.3d 799, 811 (11th Cir. 2006) (reviewing

denial of evidentiary hearing). We review de novo the district court’s order

granting Simpson habeas relief. Wood v. Allen, 542 F.3d 1281, 1285 (11th Cir.

2008). The district court’s findings of fact, including the district court’s

determination regarding Simpson’s diligence in developing the factual basis of his

claim in the state court, are subject to the clearly erroneous standard. Hall v.

Head, 310 F.3d 683, 690, 697 (11th Cir. 2002). However, our review is “greatly

circumscribed and is highly deferential to the state courts.” Crawford v. Head,

311 F.3d 1288, 1295 (11th Cir. 2002).

                                 IV. DISCUSSION

      Sixth Amendment ineffective assistance of counsel claims are analyzed

under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S.

Ct. 2052 (1984). Under Strickland:

      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. Unless a defendant makes both showings, it cannot be said

                                           7
      that the conviction . . . resulted from a breakdown in the adversary process
      that renders the result unreliable.


Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; see also Gaskin v. Sec’y, Dep’t of

Corr., 494 F.3d 997, 1002 (11th Cir. 2007). In order to sustain a showing of

prejudice, Simpson had to demonstrate a reasonable probability that but for his

counsel’s errors in failing to inform him of the consequences of not taking the

purported 13 year plea offer, he would have accepted the prosecution’s offer. See

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Hall, 310 F.3d at 700. Therefore,

Simpson had to establish that there was, in fact, a plea offer for less than the life

sentence he received that he could have accepted had he been properly advised of

the risk of a life sentence by his counsel.

      The state court determined that Simpson failed to meet the Strickland

prejudice prong because “there [was] no plea offer to enforce in this case.” The

state court trial judge stated in pertinent part:

              So I just have a real problem with figuring out, if there was a plea
      offer, what it was. The affidavits which occasioned this evidentiary hearing
      talk in terms of 13 years kind of range. I have no indication whatsoever
      there was a firm plea offer made in this case, Mr. Simpson. I just don’t have
      it. It’s your burden. Mr. Green sat here at least until the rule was invoked,
      and he came back in after we concluded the hearing. Mr. Green had access
      to the State. Mr. Bausch has the State Attorney’s files. Somebody could
      have testified that there was a plea offer. Nobody has testified that there
      was a plea offer.

                                              8
             I think that there was nothing more than discussion, which does not
      give you anything to accept. It just gives you something more to talk about.
      Mr. Green may have told you that the low end of the guidelines was 13
      years, which I guess was right. Everybody seems to agree to that. But I
      have to agree with Mr. Holmes that step one here is to establish a plea offer,
      and I think it has to be established by – maybe without Mr. Bausch’s
      testimony, Mr. Simpson, maybe there wouldn’t be anything else. And your
      testimony was not impeached, but it was certainly – because that’s your
      understanding and nobody can impeach your understanding, and nobody
      can impeach what you were told except the person who told you that or
      somebody who heard the conversation; and that person didn’t testify today.

            But certainly the testimony of the State is contrary to the notion of a
      firm plea offer in this case. The Court will find that there is no plea offer to
      enforce in this case. . . . The Court, therefore, finds that counsel could not
      have been ineffective in misadvising because one of the prongs being that
      there was a plea offer to accept, that could have been, would have been
      accepted, has not been met.


 (R. 52 at 17–18 (quoting Tr. of May 1, 2000 State Ct. Evidentiary Hr’g, R. 39,

Ex. N at 66–67).)

      Simpson attached to his federal habeas petition evidence not presented to

the state court as support for his claim of ineffective assistance of counsel for

failure to adequately explain the risk of going to trial instead of accepting the

State’s plea offer. The district court ordered an evidentiary hearing on this claim

and after the hearing concluded that Simpson met his burden of proving Strickland

prejudice. The district court then ordered habeas relief.



                                          9
       The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

Pub. L. No. 104-132, 110 Stat. 1214, provides the standards the federal courts

must follow in determining whether to grant a petitioner habeas relief.2 AEDPA

states in part that a federal court is precluded from granting federal habeas relief

unless the state court’s adjudication of a claim “(1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States; or (2) resulted in a

decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). “A

state-court decision will certainly be contrary to . . . clearly established precedent

if the state court applies a rule that contradicts the governing law set forth in

[Supreme Court] cases.” Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495,

1519 (2000). Simpson’s claim that he was deprived of effective assistance of

counsel is analyzed under the “unreasonable application” prong of § 2254(d)(1).

“Under [AEDPA’s] ‘unreasonable application’ clause, a federal habeas court may

grant the writ if the state court identifies the correct governing legal principle from




       2
         Simpson filed his federal habeas petition after the effective date of AEDPA, April 24, 1996,
and, therefore, the standards enunciated in AEDPA apply. See Lindh v. Murphy, 521 U.S. 320,
326–27, 117 S. Ct. 2059, 2063 (1997).

                                                10
[the Supreme] Court’s decisions but unreasonably applies that principle to the

facts of the prisoner’s case.” Id. at 413, 120 S. Ct. at 1523.

      AEDPA also “requires federal habeas courts to presume the correctness of

state courts’ factual findings unless applicants rebut this presumption with ‘clear

and convincing evidence.’” Schriro v. Landrigan, 550 U.S. 465, 473–74, 127 S.

Ct. 1933, 1939–40 (2007) (citing 28 U.S.C. § 2254(e)(1)). “In cases where an

applicant for federal habeas relief is not barred from obtaining an evidentiary

hearing by 28 U.S.C. § 2254(e)(2) [due to his own lack of diligence], the decision

to grant such a hearing rests in the discretion of the district court.” Id. at 468, 127

S. Ct. at 1937. “In deciding whether to grant an evidentiary hearing, a federal

court must consider whether such a hearing could enable an applicant to prove the

petition’s factual allegations, which, if true, would entitle the applicant to federal

habeas relief.” Id. at 474, 127 S. Ct. at 1940. Thus, if the record refutes the

applicant’s claims or otherwise precludes habeas relief, a district court need not

conduct an evidentiary hearing. Id. Where a petitioner has not diligently

presented the factual basis of his claim for relief in state court, however, AEDPA

further restricts the federal courts’ authority to grant an evidentiary hearing on a

petitioner’s claim, stating:




                                          11
      If the applicant has failed to develop the factual basis of a claim in
      State court proceedings, the court shall not hold an evidentiary
      hearing on the claim unless the applicant shows that –

      (A) the claim relies on –
             (i) a new rule of constitutional law, made retroactive to
             cases on collateral review by the Supreme Court, that
             was previously unavailable; or
             (ii) a factual predicate that could not have been
             previously discovered through the exercise of due
             diligence; and
      (B) the facts underlying the claim would be sufficient to establish by
      clear and convincing evidence that but for constitutional error, no
      reasonable factfinder would have found the applicant guilty of the
      underlying offense.

28 U.S.C. § 2254(e)(2). A petitioner has “failed to develop the factual basis of

[his] claim in State court proceedings” if he lacked diligence in presenting the

factual basis of his habeas claim in state court or in seeking the opportunity to

develop evidence in a state hearing. Breedlove v. Moore, 279 F.3d 952, 959–60

(11th Cir. 2002).

      The district court found that by failing to call Burton Green at the

evidentiary hearing on Simpson’s initial motion for post-conviction relief, §

2254(e)(2) was triggered. The district court stated in pertinent part:

             The record before this Court reflects that Mr. Green was available to
      testify at the May 1, 2000, evidentiary hearing; however, he did not testify.
      As noted by the trial judge, Mr. Green was in the courtroom until the rule of
      sequestration of witnesses was invoked and then he reappeared after the
      conclusion of the hearing. However, Mr. Gitchoff’s January 21, 1995,

                                         12
      letter, which was received by Petitioner in 2001, was not discovered until
      after the May 1, 2000, evidentiary hearing. Further, Mr. Gitchoff had
      passed away before the evidentiary hearing. Petitioner has requested an
      evidentiary hearing on this claim. Therefore, pursuant to 28 U.S.C. §
      2254(e)(2)(A)(ii), this Court will grant an evidentiary hearing on this claim.


(R. 47 at 32–33) (citations omitted).

      We review the district court’s determination that Simpson was not diligent

in developing the factual basis of his claim in the state court under the clearly

erroneous standard. Hall, 310 F.3d at 697. The district court’s finding was not

erroneous, and the district court was correct that § 2254(e)(2) was triggered so as

to limit Simpson’s ability to obtain an evidentiary hearing. The district court

abused its discretion, however, when it determined that the requirements of §

2254(e)(2) were satisfied. Where the petitioner did not diligently develop the

factual basis of his claim in state court, elements of both § 2254(e)(2)(A) and §

2254(e)(2)(B) must be satisfied before a district court can grant an evidentiary

hearing. Section 2254(e)(2)(B) provides that the district court may order an

evidentiary hearing if “the facts underlying the claim would be sufficient to

establish by clear and convincing evidence that but for constitutional error, no

reasonable factfinder would have found the applicant guilty of the underlying

offense.” The requirement of § 2254(e)(2)(B) was not satisfied here. The State’s



                                          13
alleged proffer of a 13 year plea offer in no way evidences Simpson’s innocence,

nor does Simpson attempt to argue that it does. See also Williams, 529 U.S. at

435, 120 S. Ct. at 1490 (referring to the requirement of § 2254(e)(2)(B) as “a

convincing claim of innocence”); Burris v. Parke, 116 F.3d 256, 258 (7th Cir.

1997) (stating that § 2254(e)(2) does not apply to proceedings regarding

ineffective assistance of counsel during sentencing). Therefore we conclude that

the district court abused its discretion when it ordered an evidentiary hearing on

Simpson’s claim.

       Because we conclude that no evidentiary hearing should have been held, we

consider only the evidence adduced at the state evidentiary hearing and attached to

Simpson’s petition in our de novo review of the district court’s grant of habeas

relief under § 2254(d)(1).3

       The record refutes Simpson’s contention that the State made a firm plea

offer to him. The testimony from the state evidentiary hearing indicates that

Simpson did not have any direct conversation with the State’s Attorney, Russ

Bausch, regarding a plea, nor was there any document in evidence that

corroborated the alleged plea offer. Bausch testified that he had no recollection of


       3
         For purposes of discussion, we consider all of the additional evidence proffered by Simpson
with his petition. We do not here opine on the appropriateness of considering evidence that could
have been, but was not, raised during the state court evidentiary hearing.

                                                14
the State making a firm plea offer to Simpson. The other witnesses at the state

evidentiary hearing, including Simpson, indicated nothing more than that Simpson

may have discussed the possibility of a 13 year plea with his attorney. Based on

this testimony, the state court found that no plea offer existed. The additional

evidence proffered by Simpson does not demonstrate by clear and convincing

evidence that this finding was erroneous. See 28 U.S.C. § 2254(e)(1).

      The Gitchoff letter, quoted above, did not contradict the state court’s

finding that there was no plea offer extended. The letter, at most, indicates that

Simpson and his counsel thought there was an offer by the State. It does not prove

that there was an offer. Like the Gitchoff letter, the Green affidavit does not

contradict the state court’s finding that no plea existed. At most, the affidavit

indicates that there was a discussion of a possible plea. Accordingly, neither

document provides clear and convincing evidence to rebut the state court’s factual

finding that no firm plea offer existed.

      Without a firm plea offer, Simpson cannot establish the prejudice prong of

Strickland, and his claim for habeas relief based on his trial counsel’s failure to

adequately explain the risk of going to trial instead of accepting a purported plea

offer from the State fails. Accordingly, we reverse the district court’s order

granting Simpson habeas relief and render judgment for the State.

                                           15
REVERSED and RENDERED.




                         16
