                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                    FILED
                      ________________________         U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            December 20, 2007
                             No. 06-16371
                                                          THOMAS K. KAHN
                         Non-Argument Calendar                  CLERK
                       ________________________

         D. C. Docket Nos. 04-22395-CV-JAL & 00-00376 CR-JAL

YUBY RAMIREZ,



                                                         Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

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

                          (December 20, 2007)

Before TJOFLAT, BLACK and WILSON, Circuit Judges.

PER CURIAM:
      Yuby Ramirez appeals the district court’s denial of her 28 U.S.C. § 2255

motion to vacate in which she argued that her trial counsel was constitutionally

ineffective in advising her whether to accept a plea offer.

      Ramirez was indicted for witness tampering, in violation of 18 U.S.C.

§ 1512(a)(1)(c). Specifically, count three alleged in relevant part that Ramirez had

“knowingly, intentionally and willfully” killed Benardo Gonzalez with the intent

to keep Gonzalez from communicating to a law enforcement officer or judge about

the commission of federal offenses by certain individuals. Because the witness

tampering in question was the killing of a witness, the applicable statutes of

limitations and statutory punishments depended on whether the killing was a

capital offense or non-capital offense. If capital, there is no limitations period. 18

U.S.C. § 3281. If non-capital, a five-year limitations period applied, which would

render the indictment tardy because it was returned more than five years after the

offense had been committed. 18 U.S.C. § 3282(a) (providing that “no person shall

be prosecuted, tried, or punished for any offense, not capital, unless the indictment

is found or the information is instituted within five years next after such offense

shall have been committed”).

      Several months before trial, Ramirez moved to dismiss count three, claiming

that it alleged a non-capital offense and was governed by a five-year statute of

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limitations under 18 U.S.C. § 3282. Ramirez argued that because Furman v.

Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) invalidated the

death penalty provisions of 18 U.S.C. § 1111, and because § 1512(a)(2)

incorporates § 1111, a violation of 1512(a)(1)(c) is a non-capital offense. The

district court denied the motion, finding that count three charged a capital offense.

       Despite the district court’s denial, counsel still believed, under a different

theory, that the indictment only charged Ramirez with manslaughter because: (1)

the only offense chargeable under 18 U.S.C. § 1512(a)(1) that qualifies as a capital

offense is first degree murder; and (2) counts 1-3 did not allege “premeditation” or

“malice aforethought”—essential elements of first degree murder. Trial counsel

therefore advised Ramirez that the indictment only charged manslaughter, not

murder, and therefore was barred by the statute of limitations. Trial counsel

further advised Ramirez of their strategy to file a motion attacking the indictment

on this basis after jeopardy had attached and, even if the motion failed, she would

at most face a ten-year term of imprisonment for manslaughter. Based on this

advice, Ramirez rejected successive government plea offers of five-year and ten-

year terms of imprisonment in exchange for her cooperation.1

       1
        Ramirez had two attorneys, one of which submitted an affidavit, and the other, who is now
a judge, submitted an interview proffering testimony that would be presented at an evidentiary
hearing. Both attorneys state that they did not advise her of the possibility of a first degree murder

                                                  3
       After the jury had been sworn in, Ramirez filed her motion for judgment of

acquittal based on the statute of limitations, asserting that the indictment was

insufficient because it failed to charge the necessary elements of first degree

murder. The district court construed the motion as a Fed. R. Crim. P. 12(b)(2)

motion and denied it as untimely. The jury found Ramirez guilty.

       On appeal, we affirmed the district court, holding that the failure to raise the

attack on the indictment prior to trial resulted in waiving the argument. United

States v. Ramirez, 324 F.3d 1225, 1228-29 (11th Cir. 2003) (per curiam). Ramirez

was convicted of witness tampering involving murder and sentenced to life

imprisonment, which is the minimum sentence for murder under 18 U.S.C. § 1512

(a)(3)(A).

       With respect to the instant appeal, the district court denied Ramirez’s

§ 2255 motion without an evidentiary hearing. Although Ramirez asserted

ineffectiveness on several grounds, we granted a certificate of appealability only

on the issue of:

       Whether trial counsel were ineffective because they misrepresented
       the maximum sentence Ramirez faced under the sentencing
       guidelines if convicted at trial. Finch v. Vaughn, 67 F.3d 909, 916


conviction and resulting life sentence. Both attorneys also state that they misrepresented the
statutory maximum and that Ramirez relied on this misrepresentation when rejecting the plea offers.

                                                4
      (11th Cir. 1995).


      Ramirez asserts that her attorneys incorrectly believed and advised her that:

(1) the indictment did not charge first degree murder; (2) the indictment at worst

charged voluntary manslaughter, which would subject her to a ten year maximum

sentence; and (3) the ten-year maximum would apply even if they lost the motion

for a judgment of acquittal/motion to dismiss the indictment. Ramirez asserts that

even if counsel held an earnest, good-fath belief that the indictment was flawed,

they were required to inform her that she faced the possibility of a life-term

sentence when she was considering the government’s plea offers.

      A claim of ineffective assistance of counsel is a mixed question of law and

fact that we review de novo. Brownlee v. Haley, 306 F.3d 1043, 1058 (11th Cir.

2002); Finch, 67 F.3d at 914.

      “To prevail on a claim of ineffective assistance, a defendant must establish

two things: (1) ‘counsel’s performance was deficient,’ meaning it fell below an

objective standard of reasonableness; and (2) ‘the deficient performance

prejudiced the defendant.’” Gordon v. United States, 496 F.3d 1270, 1276-77

(11th Cir. 2007) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.

Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)).


                                          5
      “The purpose of ineffectiveness review is not to grade counsel’s

performance.” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000)

(en banc). In reviewing counsel’s performance, we indulge a strong presumption

that counsel’s conduct fell within the wide range of reasonable, professional

assistance. Id. at 1314. In evaluating the reasonableness of counsel’s actions, we

must avoid second-guessing counsel’s performance, as the fact that counsel takes

an approach other than the one the court would have chosen is not ineffective

assistance. Id. An unsuccessful strategy or defense is also not ineffective

assistance. Id.

      “One of the most precious applications of the Sixth Amendment may well

be in affording counsel to advise a defendant concerning whether [s]he should

enter a plea of guilty.” Reed v. United States, 354 F.2d 227, 229 (5th Cir. 1965).

“For a guilty plea to represent an informed choice so that it is constitutionally

knowing and voluntary, the [c]ounsel must be familiar with the facts and the law

in order to advise the defendant of the options available.” Finch, 67 F.3d at 916

(alteration in original; internal quotation marks omitted). “The failure of an

attorney to inform his client of the relevant law clearly satisfies the first prong of

the Strickland analysis . . . as such an omission cannot be said to fall within the

wide range of professionally competent assistance demanded by the Sixth

                                           6
Amendment.” Id. (alteration in original; internal quotation marks omitted).

      Ramirez is entitled to an evidentiary hearing on her ineffective assistance

claim if she alleges facts which, if proven, would entitle her to relief. Smith v.

Singletary, 170 F.3d 1051, 1053 (11th Cir. 1999); see also 28 U.S.C. § 2255

(providing that a movant is entitled to an evidentiary hearing where the records

and files of the case do not conclusively show that she is not entitled to relief). A

district court, however, need not conduct an evidentiary hearing if it can be

conclusively determined from the record that there was no denial of effective

assistance of counsel. Singletary, 170 F.3d at 1054.

      At the time counsel advised Ramirez that she faced, at most, a ten-year

maximum for manslaughter if the motion for judgment of acquittal was denied,

their defense strategy had three possible outcomes: (1) the district court could

agree with their statute of limitations argument and grant their motion; (2) the

district court could agree with their reading of the indictment, but reject that the

indictment was untimely; or (3) the district court could reject the statute of

limitations argument and their reading of the indictment. The result of these

outcomes would be, respectively: (1) an acquittal; (2) a possible conviction that

had at most a ten-year statutory maximum; or (3) a possible conviction with a

mandatory sentence of life imprisonment.

                                           7
      Here, where the district court had already ruled that the indictment charged

a capital offense with no statute of limitations, counsel should have known that the

third result (a life sentence) was a possibility, however unlikely they considered it

to be. Consequently, if it is true that counsel advised, at the time Ramirez was

considering plea offers of five- and ten-year terms, that Ramirez only faced a

maximum punishment of ten years when in actuality she faced a possible life

sentence, such performance was constitutionally deficient. See United States v.

Herrera, 412 F.3d 577, 581 (5th Cir. 2005) (“An attorney who underestimates his

client’s sentencing exposure by 27 months performs deficiently because he does

not provide his client with the information needed to make an informed decision

about accepting a plea offer or going to trial.”).

      Thus, the district court’s decision to forego an evidentiary hearing on the

basis that it was conclusive from the record that counsel did not perform

deficiently was in error. Because the district court did not address whether

counsels’ performance prejudiced Ramirez, we do not reach it. On remand, if the

district court finds that Ramirez adequately alleged prejudice, Ramirez is entitled

to an evidentiary hearing. 28 U.S.C. § 2255; Singletary, 170 F.3d at 1053. We

accordingly vacate and remand.

      VACATED AND REMANDED.

                                           8
