                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-13710                ELEVENTH CIRCUIT
                                                             JUNE 23, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                D. C. Docket No. 06-00058-CV-5-RS-WCS



JERRY LEE NICHOLS,
                                                          Petitioner-Appellant,

                                  versus


WALTER A. MCNEIL,
                                                        Respondent-Appellee.



                       ________________________

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

                              (June 23, 2009)

Before BLACK, CARNES and WILSON, Circuit Judges.

PER CURIAM:
      Jerry Lee Nichols, a state prisoner proceeding pro se, appeals the district

court’s denial of his habeas petition filed pursuant to 28 U.S.C. § 2254. We

granted a certificate of appealability (“COA”) on the following issue:

      Whether the district court erred in finding that appellant’s trial counsel
      was not ineffective for failing to inform appellant of a prior plea deal.

On appeal, Nichols argues the district court erred in finding the state court did not

unreasonably apply clearly established federal law when it concluded that Nichols

had not received ineffective assistance of counsel. Specifically, Nichols asserts he

was denied effective assistance of counsel because his attorney failed to inform him

of a February 19, 2003, plea offer. He contends that acceptance of the February 19

offer would have resulted in a lower sentence because it would have allowed him to

plead to only a third-degree felony and exposed him to a maximum term of five

years’ imprisonment, while the offer he accepted exposed him to 15 years’

imprisonment upon violation of his community control.

      Where a state prisoner’s claim was adjudicated on the merits in state court,

federal courts may grant habeas relief only where the state court’s decision “was

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

law, as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d). The phrase “clearly established Federal law” refers to “the governing

legal principle or principles set forth by the Supreme Court at the time the state

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court renders its decision.” Lockyer v. Andrade, 123 S. Ct. 1166, 1172 (2003). An

“unreasonable application” of federal law occurs when the state court either

(1) correctly identifies the legal rule from Supreme Court precedent but

unreasonably applies that rule to the facts of the case, or (2) “unreasonably extends,

or unreasonably declines to extend, a legal principle from Supreme Court case law

to a new context.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001).

        The Supreme Court’s decisions in Strickland v. Washington, 104 S. Ct. 2052

(1984), and Hill v. Lockhart, 106 S. Ct. 366 (1985), set forth the standard governing

ineffective assistance of counsel claims in the plea context. Under these cases, a

prisoner claiming ineffective assistance of counsel must show: (1) counsel’s

performance was deficient, and (2) the deficient performance prejudiced the

defense. Strickland, 104 S. Ct. at 2064; Hill, 106 S. Ct. at 370. There is no reason

for a court deciding an ineffective assistance of counsel claim to approach the

inquiry in the same order, or even to address both components of the inquiry, if the

prisoner makes an insufficient showing on one component. Strickland, 104 S. Ct. at

2069.

        Under Strickland, “[c]ounsel’s competence . . . is presumed, . . . and the

defendant must rebut this presumption by proving that his attorney’s representation

was unreasonable under prevailing professional norms and that the challenged



                                            3
action was not sound strategy.” Kimmelman v. Morrison, 106 S. Ct. 2574, 2588

(1986) (internal citation omitted). Counsel has a constitutional duty “to consult

with the defendant on important decisions and to keep the defendant informed of

important developments in the course of the prosecution.” Strickland, 104 S. Ct. at

2065. We have held that this duty includes the obligation to inform a client about a

plea offer. Diaz v. United States, 930 F.2d 832, 834 (11th Cir. 1991)

      To establish prejudice under Strickland, a petitioner “must show that there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 104 S. Ct. at 2068.

In the plea context, the prejudice inquiry focuses on whether counsel’s deficient

error “affected the outcome of the plea process.” Hill, 106 S. Ct. at 370.

Specifically, where a prisoner alleges that his attorney’s deficient performance

prevented him from accepting a favorable plea offer, the prisoner must show that

“but for his attorney’s errors, he would have accepted the plea offer.” Diaz, 930

F.2d at 835.

      The magistrate’s opinion, which the district court adopted, did not discuss

whether deference was due to the state court’s opinion. Rather, the magistrate

judge substituted his analysis, speculating the state court would not have accepted a



                                           4
guilty plea because the February 19 plea offer was based on a superseded version of

a criminal statute. This analysis was inadequate because it assumed the state court

would have rejected Nichols’ guilty plea instead of choosing an alternative, such as

asking the parties to replace the statutory language of the plea agreement with the

text of the updated statute and then accepting the corrected plea agreement. Such

speculation does not address whether the outcome of the plea proceeding was

affected by counsel’s failure to convey the plea offer. See Hill, 106 S. Ct. at 370.

Additionally, based on our review of the record and the parties’ briefs, it is arguable

that the state court unreasonably applied Strickland by failing to consider whether

Nichols subjectively would have preferred the February 19 plea offer.1

       It appears from the record that Nichols made a reasonable attempt to pursue

an evidentiary hearing in state court and such a hearing may assist in the resolution



       1
           We are not suggesting that Nichols’ testimony, even if uncontradicted, must be
accepted as credible by the factfinder. See United States v. Clavis, 956 F.2d 1079, 1096 (11th
Cir. 1992) (noting a factfinder is free to reject a party’s testimony as a complete fabrication);
Murphy v. City of Flagler Beach, 846 F.2d 1306, 1310 (11th Cir. 1988) (“[T]he jury was not
bound to accept the plaintiff’s evidence . . . even if it was not controverted.”); Burston v.
Caldwell, 506 F.2d 24, 26 (5th Cir. 1975) (“The district court, of course, was not required to
accept [the petitioner’s] testimony, even if uncontradicted.”); Goodwin v. Smith, 439 F.2d 1180,
1182 (5th Cir. 1971) (“The State habeas judge was not obliged to credit that testimony [of the
petitioner], even though it was uncontradicted.”); Tyler v. Beto, 391 F.2d 993, 995 (5th Cir.
1968) (“Credibility is for the trier of the facts and the uncontradicted testimony of a witness does
not have to be accepted.”). As a habeas petitioner bears the burden of proof and persuasion, if
the district court rejects Nichols’ testimony as incredible or cannot determine whether Nichols
would have accepted the allegedly withheld offer, relief is due to be denied. See Blankenship v.
Hall, 542 F.3d 1253, 1270 (11th Cir. 2008) (“It is the petitioner’s burden to establish his right to
habeas relief and he must prove all facts necessary to show a constitutional violation.”).

                                                  5
of Nichols’ claim, so § 2254(e)(2) does not bar the district court from holding an

evidentiary hearing. See Breedlove v. Moore, 279 F.3d 952, 960 (11th Cir. 2002).

We conclude this case should be remanded to the district court for an evidentiary

hearing on the merits of Nichols’ ineffective assistance of counsel claim, including:

(1) whether Nichols’ assertion that he would have preferred the February 19 offer is

credible; (2) whether Nichols’ attorney actually failed to convey the plea offer to

Nichols; and (3) if so, the exact terms and conditions of the plea offer, and

counsel’s response. Accordingly, we remand this case for further proceedings

consistent with this opinion.

      REMANDED.




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