                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3257
                                   ___________

Quintin L. Brown,                     *
                                      *
            Movant Below - Appellant, * Appeal from the United States
                                      * District Court for the
      v.                              * Western District of Missouri.
                                      *
United States of America,             * [UNPUBLISHED]
                                      *
            Respondent - Appellee.    *
                                ___________

                             Submitted: April 21, 2006
                                Filed: April 26, 2006
                                 ___________

Before LOKEN, Chief Judge, BOWMAN, and BYE, Circuit Judges.
                             ___________

PER CURIAM.

       Quintin L. Brown challenges his conviction and the sentence imposed by the
district court1 under 28 U.S.C. § 2255, arguing his counsel was ineffective.

      Brown’s § 2255 motion sought relief on a number of grounds, all of which were
denied by the district court without an evidentiary hearing. We granted a certificate
of appealability on two issues: whether Brown sufficiently alleged he was prejudiced


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        The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
by counsel’s advice as to the sentence he faced at trial and whether counsel’s
performance in determining Brown’s potential sentencing exposure was
constitutionally deficient.

       Brown argues the district court erred in denying him an evidentiary hearing on
his ineffective assistance claim. Under § 2255, a defendant is entitled to an
evidentiary hearing unless “the motion and the files and the records of the case
conclusively show that the [defendant] is entitled to no relief.” 28 U.S.C. § 2255. We
review a district court’s decision not to hold an evidentiary hearing for abuse of
discretion. United States v. Ledezma-Rodriguez, 423 F.3d 830, 836 (8th Cir. 2005).
In order to determine whether to remand for an evidentiary hearing, we must conduct
a de novo review of the district court’s legal conclusion Brown’s ineffective assistance
claim is without merit. Id.

       A meritorious ineffective assistance of counsel claim requires a defendant to
establish counsel’s performance fell below an objective standard of reasonableness
and but for such deficient performance, the result of the proceeding would have been
different. Id. The defendant bears the burden to overcome the strong presumption of
reasonableness of counsel’s performance. Becht v. United States, 403 F.3d 541, 545
(8th Cir. 2005).

       Brown alleged his counsel’s performance was deficient because counsel
incorrectly informed Brown of his potential sentencing exposure resulting from a
guilty plea. Brown alleges his counsel informed him he would face a maximum of
approximately 132 months of imprisonment if he went to trial. Brown alleges he
would have accepted the government’s plea agreement had he known he might be
sentenced to 293 months, as he was, if he went to trial. Brown further alleges counsel
informed him of the weakness of the government’s case and the likelihood of defense
success at trial and such advice also induced him to go to trial.



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       In order to prevail on his § 2255 motion, Brown must establish the district court
erred in concluding his ineffective assistance claim was without merit and abused its
discretion in denying an evidentiary hearing. Brown cannot do so. Brown relies upon
two unsworn affidavits for his factual allegations supporting his claim of ineffective
assistance, yet informed the district court he never entertained the idea of a guilty plea
and repeatedly claimed innocence of the crimes for which he was convicted. No
evidentiary hearing is required when “the allegations cannot be accepted as true
because they are contradicted by the record, inherently incredible, or conclusions
rather than statements of fact.” Engelen v. United States, 68 F.3d 238, 240 (8th Cir.
1995). Further, the district court relied upon a sworn affidavit and other evidence
provided by counsel establishing counsel’s calculations were estimates made prior to
the withdrawal of the government’s plea offer and counsel’s attempts to have Brown
plead guilty. Brown disputes neither the revocation of the plea offer nor counsel’s
claim the revocation was based upon facts, of which Brown was aware, which
increased Brown’s potential sentence.

        Accordingly, the district court did not err by determining the files and records
of the case conclusively show Brown is not entitled to relief. See 28 U.S.C. § 2255
(providing no evidentiary hearing is required when the files and records of the case
conclusively establish the defendant is not entitled to relief); Chesney v. United States,
367 F.3d 1055, 1060 (8th Cir. 2004) (finding no error in district court’s denial of a §
2255 motion when the defendant adamantly argued his innocence and failed to
establish he would have accepted a plea offer despite counsel’s failure to communicate
a plea offer to the defendant); Sanders v. United States, 341 F.3d 720, 722 (8th Cir.
2003) (holding the failure to establish defendant would have accepted the plea is fatal
to an ineffective assistance of counsel claim based upon defendant’s decision to go to
trial rather than plead guilty); Cheek v. United States, 858 F.2d 1330, 1336 (8th Cir.
1988) (holding the failure to establish counsel gave unreasonable




                                           -3-
advice is fatal to an ineffective assistance claim). We therefore affirm the district
court.
                      _________________________________




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