                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                    UNITED STATES COURT OF APPEALS            October 27, 2003
                         For the Fifth Circuit
                                                          Charles R. Fulbruge III
                                                                  Clerk

                             No. 02-20867


                       UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee,


                                  v.


         JOSE R. ARGUELLAS, also known as Jose R. Arguelles,
              also known as Brazil, also known as Raul,

                                                  Defendant-Appellant.


             Appeal from the United States District Court
         For the Southern District of Texas, Houston Division

                            (H-98-CV-2526)
                           (H-95-CR-112-10)




Before DEMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Jose R. Arguellas (“Arguellas”), federal

prisoner # 42425-004, appeals the denial of his 28 U.S.C. § 2255

motion, in which he challenged his 1996 conviction on the ground


     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

                                  1
that his trial attorney rendered ineffective assistance of counsel

by   failing   to   inform   him   of   a    plea   bargain    offered   by   the

Government.    In conducting a paper hearing on Arguellas’ claims,

the district court relied heavily on the affidavit of the Assistant

United States Attorney (“AUSA”) who prosecuted Arguellas as well as

the court’s personal knowledge of that AUSA’s credibility and

competence.    We granted a certificate of appealability (“COA”) on

the issue whether the district court abused its discretion in not

granting a live evidentiary hearing before denying Arguellas’ 28

U.S.C. § 2255 motion.    See United States v. Arguellas, No. 02-20867

(5th Cir. Feb. 19, 2003)(unpublished).              Because the record before

the district court and the affidavit submitted by the AUSA do not

conclusively    negate   Arguellas’         allegations,      and   because   the

district court did not have personal knowledge of the conversations

between Arguellas and his counsel or an opportunity during trial to

observe Arguellas’ credibility, we find that the district court’s

decision based on a paper evidentiary hearing was an abuse of

discretion. Therefore, we vacate the district court’s dismissal of

Arguellas’ 28 U.S.C. § 2255 motion and remand it for a live

evidentiary hearing.

I.    BACKGROUND

      Arguellas was convicted of conspiracy to possess with the

intent to distribute five kilograms or more of cocaine in the

United States District Court for the Southern District of Texas



                                        2
after an eight-day jury trial.          He was sentenced at the top of the

available guideline range to 365 months in prison.                     This court

affirmed the conviction on direct appeal.                  See United States v.

Ramirez,    No.   96-20596     (5th    Cir.   Aug.   27,    1997)(unpublished).

Arguellas filed this 28 U.S.C. § 2255 motion raising numerous

claims, including the claim that his now deceased trial counsel was

ineffective for failing to communicate a Government plea offer. In

support of this contention, Arguellas filed his own affidavit.

This    affidavit    averred    that     after   his     trial      counsel   died,

Arguellas’ wife obtained the legal file pertaining to Arguellas’

case.    In that file was a draft plea agreement, dated January 4,

1996, and under the terms of that agreement, Arguellas would have

received a three-level adjustment in his base offense level in

return for pleading guilty.           In addition, the agreement contained

a promise on behalf of the Government that it would recommend

Arguellas be sentenced at the bottom of the applicable guideline

range.     Had Arguellas’ accepted the Government’s offer and pled

guilty, the applicable guideline range would be 210 to 260 months

of   imprisonment.      Thus,    had    the   district      court    followed   the

Government’s      recommendation,      Arguellas     would    have     received   a

sentence of 210 months, which would be approximately 155 months

less than the sentence that Arguellas ultimately received.

       Arguellas contends that had he known of the Government’s

proposed plea offer, he would have accepted it.                       It is well-



                                         3
recognized that a defense counsel has an ethical duty to keep his

client informed, and this court has held that a failure to inform

a defendant of a plea offer may amount to ineffective assistance of

counsel.2    Noting that the record is unlikely to indicate the

content of all conversations between Arguellas and his trial

counsel, and the conflict in the facts alleged by Arguellas and the

Government   in   response   to   the       28   U.S.C.   §   2255   motion,   the

magistrate judge recommended that the district court judge hold an

evidentiary hearing on this ineffective assistance of counsel

claim.3   Finding deficiencies in Arguellas’ affidavit and that the

Government   response   to   Arguellas’          motion   was   drafted   by   an

individual other than the AUSA who prosecuted Arguellas, the

district court ordered Arguellas to correct those deficiencies and

invited the prosecuting AUSA to respond to Arguellas’ allegations.

After receiving Arguellas’ corrected and supplemental filings, the

district court elected to conduct a paper hearing on Arguellas’

ineffective assistance of counsel claim.

     As part of the paper hearing by the district court, the record

in this case was expanded to include: (1) a revised affidavit by

Arguellas; (2) a supporting affidavit by Arguellas’ wife; (3) a

letter from Arguellas’ deceased trial counsel’s former law partner;


     2
      See Teague v. Scott, 60 F.3d 1167, 1170 (5th Cir. 1995).
     3
      All of the other claims raised by Arguellas in his 28 U.S.C.
§ 2255 motion were properly dismissed by the district court and are
not considered as part of this appeal.

                                        4
(4)an affidavit from the AUSA who prosecuted Arguellas; and (5)a

copy of the purported plea agreement.                   The district court noted

that       there   was   nothing     in     the    record   to   support   Arguellas’

contention other than his own self-serving affidavit testimony.

The district court also noted that several facts regarding the plea

negotiations alleged by the AUSA in his affidavit were supported by

contemporaneous record documents.                 Thus, the district court denied

Arguellas’         28   U.S.C.   §   2255    motion,    relying    on   the   detailed

affidavit submitted by the AUSA, which was often supported by other

documents in the record, the court’s personal knowledge of the

AUSA’s general professionalism and credibility, as well as case law

that discounts           self-serving       post-conviction      testimony     that   an

inmate would have accepted a plea.4

       On appeal, Arguellas argues that the district court erred in

relying on the AUSA’s affidavit because the AUSA only states his

belief that Arguellas’ trial counsel told Arguellas about the plea

offer.       Moreover, Arguellas points out that the AUSA specifically

admits that he did not overhear Arguellas’ counsel tell Arguellas

about the offer.          Thus, Arguellas argues that it was improper for

the district court to rule based on the AUSA’s beliefs, despite the

AUSA’s       perceived     credibility,       in    light   of    Arguellas’    direct

assertion that his trial counsel never told him about the plea


       4
      See Mem. Op. and Order, R. 391 (citing Peters v. United
States, 159 F.3d 1043, 1047 (7th Cir. 1998); United States v.
Gordon, 156 F.3d 376, 381 (2d Cir. 1998)).

                                              5
offer.

II.   ANALYSIS AND CONCLUSION

      In this case, it is undisputed that a trial counsel’s failure

to advise a criminal defendant of a Government plea offer could

amount to ineffective assistance of counsel.           See Teague, 60 F.3d

1170.    The   issue   is   whether   the   district    court   abused   its

discretion in resolving a disputed fact without a live evidentiary

hearing in denying Arguellas’ 28 U.S.C. § 2255 motion.

      A district court may deny a 28 U.S.C. § 2255 motion without

conducting any type of evidentiary hearing if “the motion and the

files and records of the case conclusively show that the prisoner

is entitled to no relief.”     See 28 U.S.C. § 2255;      United States v.

Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992).          Additionally, there

is no requirement in the language of 28 U.S.C. § 2255 that the

district court conduct a live hearing with the prisoner present

when an evidentiary hearing is required to rule on 28 U.S.C. § 2255

motion. See 28 U.S.C. § 2255 (“A court may entertain and determine

such motion without requiring the production of the prisoner at the

hearing.”); Marchibroda v. United States, 368 U.S. 487, 495-96, 82

S. Ct. 510, 7 L. Ed. 2d 473 (1962); Sanders v. United States, 373

U.S. 1, 20-21, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963).           In those

cases, however, where the record does not conclusively negate a

prisoner’s entitlement to relief, contested fact issues may not be

decided on affidavits alone.     See Owens v. United States, 551 F. 2d



                                      6
1053, 1054 (internal citations omitted).

     In this case, the district court relied heavily on the content

of the AUSA’s affidavit and its personal knowledge of the AUSA’s

general credibility in making the determination that Arguellas was

not entitled to relief.     While it is true that many of the facts

alleged by the AUSA in his detailed affidavit are supported by

documents in the record, Arguellas’ assertion that he was not

informed   by   his   counsel   about     the    plea    offer   is    neither

conclusively rebutted by the AUSA’s rendition of the facts nor

negated by the record.     The AUSA admits that he never overheard

Arguellas’ counsel discuss the plea agreement with Arguellas.

Moreover, the AUSA stated during a pretrial conference on January

12, 1996    that   Arguellas’   counsel    had   not    yet   discussed       with

Arguellas the terms of the January 4, 1996 plea agreement when the

AUSA asked for a continuance of the trial.5             Because the content

of the discussions between counsel and Arguellas were not in the

record before the district court and the district court had no

occasion   to   observe   Arguellas’      credibility     during      trial    or

otherwise, a live evidentiary hearing is necessary to dispose of

Arguellas’ 28 U.S.C. § 2255 motion where there is a disputed fact

as to the content of those conversations.          See Owens, 551 F.2d at

1054.    We therefore vacate the district court’s judgment denying



     5
      See Tr. at pgs. 8-10, R. 186. The record does not reflect
whether Arguellas was present at this hearing.

                                    7
relief under 28 U.S.C. § 2255 and remand for a live evidentiary

hearing.

    VACATED AND REMANDED




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