                                                       [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 11-10491
                                                           NOVEMBER 15, 2011
                           Non-Argument Calendar
                                                                JOHN LEY
                         ________________________                CLERK

                    D.C. Docket Nos. 1:03-cv-20010-PAS
                            1:96-cr-00075-JIC-8

ABEL RIZO,

                                                            Petitioner-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                           Respondent-Appellee.
                         ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________

                             (November 15, 2011)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

     In United States v. Gallego, 247 F.3d 1191 (11th Cir. 2001), we affirmed
petitioner Abel Rizo’s convictions. In January 2003, petitioner moved the district

court pursuant to 28 U.S.C. § 2255 to vacate his convictions on the ground that his

trial attorney rendered ineffective assistance of counsel at trial. The court referred

the motion to a magistrate judge who issued a Report and Recommendation

(“R&R”) recommending that the district court deny the motion without holding an

evidentiary hearing. The magistrate judge made that recommendation after

concluding that the record of the trial proceedings conclusively established that

the motion was without merit and that the affidavits petitioner proffered in support

of his motion contained nothing to warrant an evidentiary hearing. The district

court overruled petitioner’s objections to the R & R and denied the motion.

      Petitioner now appeals the ruling. The issue before us, which the district

court certified in its certificate of appealability, is whether “the district court

err[ed] in denying [Rizo’s] claim that his trial counsel was ineffective for failing to

interview or call alibi witnesses without holding an evidentiary

hearing?”

      We review the district court’s denial of an evidentiary hearing for abuse of

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

evidentiary hearing must be held on a motion to vacate “[u]nless the motion and

the files and records of the case conclusively show that the prisoner is entitled to

                                            2
no relief.” 28 U.S.C. § 2255(b). “[T]o be entitled to an evidentiary hearing, a

[movant] need only allege-not prove-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 district

court is required to hold an evidentiary hearing.” Aron, 291 F.3d at 715 n. 6

(emphasis in original). “[C]ontested fact[ual] issues in § 2255 cases must be

decided on the basis of an evidentiary hearing, not affidavits.” Montgomery v.

United States, 469 F.2d 148, 150 (5th Cir. 1972).1

       To prevail on a claim of ineffective assistance of counsel, a prisoner must

show both that (1) his counsel’s performance was deficient, and (2) the deficient

performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To establish deficient performance,

the prisoner must prove, by a preponderance of the evidence, that counsel’s

performance was unreasonable. Chandler v. United States, 218 F.3d 1305, 1313

(11th Cir. 2000) (en banc). “[C]omplaints of uncalled witnesses are not favored,

because the presentation of testimonial evidence is a matter of trial strategy and

because allegations of what a witness would have testified are largely


       1
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before the
close of business on September 30, 1981.

                                               3
speculative.” Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978). “The

mere fact that other witnesses might have been available . . . is not a sufficient

ground to prove ineffectiveness of counsel.” Waters v. Thomas, 46 F.3d 1506,

1514 (11th Cir. 1995) (en banc). However, when counsel fails to investigate his

client’s “only . . . possible defense [(that defendant was in another city when the

crime was committed)], although requested to do so by him; and fails to subpoena

witnesses in support of the defense, it can hardly be said that the defendant”

received effective assistance of counsel. Gomez v. Beto, 462 F.2d 596, 597 (5th

Cir. 1972).

      To prove prejudice, the prisoner “must show that there is a reasonable

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

proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at

2068. A reasonable probability is one sufficient to undermine confidence in the

outcome. Id. The court must consider the totality of the evidence before the judge

or jury in making the prejudice determination. Id. at 695, 104 S.Ct. at 2069. A

verdict or conclusion only weakly supported by the record is more likely to have

been affected by errors than one with overwhelming record support. Id. at 696,

104 S.Ct. at 2069.

      Petitioner contends that his trial counsel was ineffective for failing to

                                           4
interview or call alibi witnesses who would have testified that he was not present

at the scenes of the crimes charged, thereby affecting the trial’s outcome. After

examining the affidavits attached to petitioner’s motion and the trial transcript, we

cannot agree with the district court that the affidavits and transcript, considered as

a whole, conclusively establish that counsel’s failure to pursue the potential alibi

witnesses did not prejudice petitioner’s defense. We therefore vacate the district

court’s judgment and remand the case with the instruction that the court hold an

evidentiary hearing on petitioner’s ineffective assistance claim.

      VACATED and REMANDED, with instructions.




                                          5
