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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                    No. 14-11031                           FILED
                                                                      August 1, 2016
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk

             Plaintiff - Appellee

v.

DONALD RAYMOND SCRIBNER, II,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Northern District of Texas


Before KING, JOLLY, and ELROD, Circuit Judges.
PER CURIAM:
      Defendant–Appellant Donald Raymond Scribner, II, filed a federal
habeas petition under 28 U.S.C. § 2255, seeking to vacate his conviction and
sentence on the ground that his trial counsel rendered ineffective assistance.
Scribner asserted that his trial counsel failed to notify him of a sentencing
enhancement that ultimately increased his sentence. Scribner argued that,
but for this failure, he would have accepted a plea agreement with the
government and received a reduced sentence. A magistrate judge held an
evidentiary hearing on Scribner’s petition and, after hearing testimony, issued
a report recommending relief as to this claim. The district court, however,
declined to accept the magistrate judge’s recommendation and denied
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Scribner’s § 2255 petition, holding that Scribner was not prejudiced by any
ineffective assistance.   Because the district court rejected the magistrate
judge’s credibility findings, made after an evidentiary hearing, in holding that
Scribner was not prejudiced by counsel’s ineffective assistance without holding
its own evidentiary hearing, we VACATE the district court’s judgment and
REMAND this case for the district court to conduct its own evidentiary hearing
or to accept and draw the appropriate inferences from the magistrate judge’s
credibility findings.
            I. FACTUAL AND PROCEDURAL BACKGROUND
      This § 2255 habeas petition by Defendant–Appellant Donald Raymond
Scribner, II, arises from his conviction for possession with intent to distribute
50 or more marijuana plants. On July 20, 2010, officers of the Rowlett and
Sasche Police Departments executed a search warrant for a residence in
Sasche, Texas, on suspicion that the residence was related to a marijuana
growing operation. Therein, officers arrested Scribner and two other suspects
and seized 79 marijuana plants as well as equipment indicating the presence
of a marijuana growing operation on the premises.         Following his arrest,
Scribner was indicted on August 17, 2010, on two counts of a three count
indictment against him and others. Count One of the indictment charged
Scribner with conspiracy to manufacture and possess with the intent to
distribute 100 or more plants of marijuana.        And Count Three charged
Scribner, along with his co-defendants, with aiding and abetting the possession
of 50 marijuana plants with the intent to distribute.
      Scribner was assigned a Federal Public Defender who, after reviewing
discovery and estimating the advisory sentencing range under the United
States Sentencing Guidelines (U.S.S.G.), incorrectly advised Scribner that he
would receive a guideline range of 37 to 46 months if he was found guilty at
trial or a range of 30 to 37 months if he entered a guilty plea. As Scribner’s
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trial counsel later admitted, she did not realize that the Career Offender
Guideline, U.S.S.G. § 4B1.1, applied to Scribner. Based on that Guideline,
Scribner faced an advisory sentencing range of 210 to 262 months if he lost at
trial and potentially a guideline range of 151 to 188 months if he pleaded guilty
with a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The
government, for its part, forwarded plea documents to Scribner’s trial counsel
who shared them with Scribner. Under the government’s plea deal, Scribner
would have been required to plead guilty to both charged counts and to waive
his appellate rights. Scribner rejected the plea deal and proceeded to a jury
trial, asserting actual innocence of the offenses charged. On January 12, 2011,
a jury found Scribner not guilty on Count One of the indictment but guilty as
to Count Three. In line with the recommendations in the Presentence Report
(PSR) submitted to the court, 1 the district court sentenced Scribner on April
28, 2011 to 210 months in prison with three years of supervised release.
Scribner appealed his conviction, challenging the sufficiency of the evidence,
and we affirmed on May 4, 2012. See United States v. Scribner, 469 F. App’x
384, 386 (5th Cir. 2012) (per curiam) (unpublished).
       Scribner filed the instant 28 U.S.C. § 2255 habeas petition pro se on
March 18, 2013, seeking to vacate, set aside, or correct his sentence. Scribner
attacked his sentence on the ground that his trial counsel had rendered
ineffective assistance. 2      Scribner alleged that his trial counsel had never


       1  The PSR calculated Scribner’s Base Offense Level at 32, adding up the score for
Scribner’s offense of conviction and the Career Offender Enhancement he received as a result
of his previous convictions. The PSR noted that, because Scribner did not plead guilty and
was found guilty by a jury, he could not receive a reduction for acceptance of responsibility.
As the recommended Guideline Imprisonment Range of 210 to 262 months exceeded the
statutorily authorized maximum sentence of 240 months, the PSR set the Guideline
Imprisonment Range at 210 to 240 months.
        2 In his § 2255 petition, Scribner raised two grounds for relief based on ineffective

assistance of counsel. The first ground, as relevant to this appeal and recounted herein,
related to counsel’s failure correctly to advise him of the sentencing range. The second ground
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                                       No. 14-11031
advised him that he would receive a sentencing enhancement under the Career
Offender Enhancement and incorrectly advised him of his sentencing range.
Scribner further alleged that, had he been advised of his actual sentencing
range of 210 to 240 months, he would have pleaded guilty and have been
eligible for an acceptance of responsibility reduction.                In its response to
Scribner’s petition, the government noted that the conduct alleged by Scribner
in his first ground for relief “likely constitute[d] deficient performance,” but
disputed whether there was prejudice for an ineffective assistance claim given
Scribner’s previous refusals to admit guilt and claim of actual innocence at
trial. The government recommended an evidentiary hearing on Scribner’s
claims, and the magistrate judge granted a hearing.
       On June 25, 2014, the evidentiary hearing was held before the
magistrate judge. At the hearing, Scribner’s trial counsel testified that she
had misadvised Scribner as to the sentencing range but also testified that
Scribner’s claim of actual innocence drove the decision to go to trial. Scribner
also testified at the hearing. In response to questions regarding whether or
not he maintained his innocence, Scribner stated that he believed “[his]
definition of being guilty and maybe the law’s definition of guilty [we]re
different.” In particular, while he admitted to tearing down the marijuana
growing operation, he denied having an intent to distribute marijuana. But
Scribner testified that, while he had maintained his innocence to his lawyer up
to trial, his assertion of innocence was based on his own view of the law at the
time and answered “Yes” when asked if he believed that he was guilty of
possession with intent to distribute as an aider and abettor. Scribner added



related to counsel’s failure to object to the Career Offender Enhancement. The magistrate
judge and the district court both denied Scribner relief on the second ground, and we only
granted a certificate of appealability as to the first ground. We therefore do not address or
further discuss the second ground for relief Scribner originally raised in his § 2255 petition.
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that had he known about the Career Offender Enhancement, he would have
pleaded guilty.
      The   magistrate    judge    issued   her    findings,   conclusions,   and
recommendation as to Scribner’s § 2255 petition on July 2, 2014. Recounting
the facts adduced at the hearing and on the record, the magistrate judge
recommended that relief be granted to Scribner and that the judgment in his
criminal trial be vacated.    The magistrate judge noted that both parties
conceded that Scribner’s trial counsel had rendered deficient performance. As
to prejudice, the magistrate judge analyzed three factors: whether Scribner
would have accepted the plea offer before it was withdrawn by the government,
whether the district court would have accepted the terms of the offer, and
whether Scribner would have received a lesser sentence had he accepted the
plea. Because Scribner’s co-defendants had pleaded guilty to Count Three and
the district court had accepted their pleas, the court found no dispute that the
district court would have accepted a guilty plea from Scribner. It also found
no dispute between the parties that Scribner’s sentence would have been less
severe had he pleaded guilty under an acceptance of responsibility reduction.
Instead, the magistrate judge stated that the issue was whether Scribner
would have accepted the guilty plea. Repeating the government’s argument
that Scribner maintained his innocence throughout trial, the magistrate judge
noted that Scribner did admit his role in dismantling the marijuana growing
operation. The magistrate judge also noted that Scribner testified that part of
his decision to plead not guilty was greatly influenced by the low estimated
guidelines range he had been advised of by counsel. The magistrate judge
ultimately found Scribner’s testimony at the evidentiary hearing credible,
found that he would have pleaded guilty, and concluded that he had met his
burden to show prejudice for an ineffective assistance claim.


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       The district court did not hold a separate evidentiary hearing on
Scribner’s petition but issued its order and final judgment on August 28, 2014,
denying Scribner’s § 2255 petition. The district court declined to accept the
magistrate judge’s finding that Scribner should be granted relief. Nonetheless,
it accepted and adopted the magistrate judge’s findings and recommendations
in all other respects. In evaluating whether Scribner was prejudiced by his
trial counsel’s advice, the district court accepted the magistrate judge’s
analysis of the first factor as to prejudice—whether Scribner would have
accepted the plea—stating that it declined to disturb the magistrate judge’s
credibility determination that Scribner would have pleaded guilty. 3 However,
as to the other two factors, the district court held that Scribner failed to show
prejudice because there was not a reasonable probability, based on the record
of Scribner’s trial and his evidentiary hearing, that the sentencing court would
have accepted his guilty plea or that his sentence would have been less severe.
As to the second factor—whether the court would have accepted the plea—the
district court concluded that the record in the case “disclose[d] nothing other
than [Scribner]’s dogged insistence of innocence.” According to the district
court, “[Scribner] continued to vacillate about whether he was in fact guilty” in
his testimony at the evidentiary hearing and, in context of this testimony, the
district court “conclude[d] that [Scribner] would not have admitted the factual
basis necessary to support a plea of guilty” and that a court would not have
accepted the terms of the plea. As to the third factor—whether Scribner’s
sentence would have been less severe—the district court again asserted that
the    record   evidence     demonstrated        that   Scribner     had    not   accepted
responsibility for his offense and would not have received a reduction for



       3The district court, however, suggested that it independently could not “conclude that
[Scribner] would have accepted a plea agreement.”
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acceptance of responsibility. In particular, the district court noted that at the
hearing “[Scribner] d[id] not appear convinced [that] he [was] guilty,” and that
Scribner had not “engaged in any conduct consistent with acceptance of
responsibility” after conviction and before sentencing. Scribner requested a
certificate of appealability (COA) to appeal the denial of his § 2255 petition,
and we granted a COA as to this ineffective assistance claim.
                          II. STANDARD OF REVIEW
      “Following [a] district court’s denial of a § 2255 motion, we review [a]
district court’s mixed factual and legal conclusions with regard to ineffective
assistance of counsel de novo.” United States v. Culverhouse, 507 F.3d 888, 892
(5th Cir. 2007). “We review § 2255 findings of fact for clear error.” United
States v. Molina-Uribe, 429 F.3d 514, 518 (5th Cir. 2005). Under this standard,
we also defer to a district court’s findings unless clearly erroneous even where
the district court adopts the fact findings of a magistrate judge who conducted
an evidentiary hearing. McInerney v. Pluckett, 919 F.2d 350, 352 (5th Cir.
1990); see also United States v. Gibbs, 421 F.3d 352, 257 (5th Cir. 2005) (“[W]e
defer to the district court’s acceptance of the magistrate judge’s credibility
recommendations, based on his having heard live testimony.”).          However,
“[w]here the district judge makes material credibility choices at variance with
those of the magistrate, the judge must, at least in certain cases, have a
hearing at which he or she personally hears the testimony.” Garcia v. Boldin,
691 F.2d 1172, 1179 n.13 (5th Cir. 1982) (citing Louis v. Blackburn, 630 F.2d
1105 (5th Cir. 1980)).
    III. THE DISTRICT COURT’S PREJUDICE DETERMINATION
      On appeal, our review is limited to the issue as to which we granted a
COA, namely whether Scribner’s trial counsel rendered ineffective assistance
by failing to advise him of the Career Offender Enhancement and whether
Scribner was prejudiced by this failure. Lackey v. Johnson, 116 F.3d 149, 151
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(5th Cir. 1997). In evaluating ineffective assistance claims, we look to the
framework established by Strickland v. Washington, 466 U.S. 668, 687 (1984).
In order to prevail on an ineffective assistance claim under the Strickland
standard, a petitioner (1) “must show that counsel’s performance was
deficient,” and (2) “must show that the deficient performance prejudiced [him].”
Id.    It is well established that a criminal defendant’s right to effective
assistance of counsel under the Sixth Amendment extends not just to trial or
sentencing but to “the negotiation of a plea bargain,” as it “is a critical phase
of litigation for the purposes of the Sixth Amendment right to effective
assistance of counsel.” Padilla v. Kentucky, 559 U.S. 356, 373 (2010). As such,
“[w]hen considering whether to plead guilty or proceed to trial, a defendant
should be aware of the relevant circumstances and the likely consequences of
his decision so that he can make an intelligent choice.” United States v. Rivas-
Lopez, 678 F.3d 353, 356–57 (5th Cir. 2012). And “[w]here a defendant persists
in a plea of not guilty, counsel’s failure to properly inform him about potential
sentencing exposure may constitute ineffective assistance.” Id. at 357.
       Once a petitioner shows that counsel rendered deficient performance in
failing to properly advise him of his sentencing exposure in accepting a plea,
the petitioner must show that he was prejudiced by this failure under prong
two of the Strickland standard.             To demonstrate prejudice in such
circumstances, a petitioner must show that
       but for the ineffective advice of counsel there is a reasonable
       probability [(1)] that the plea offer would have been presented to
       the court (i.e., that the defendant would have accepted the plea and
       the prosecution would not have withdrawn it in light of
       intervening circumstances), [(2)] that the court would have
       accepted its terms, and [(3)] that the conviction or sentence, or
       both, under the offer’s terms would have been less severe than
       under the judgment and sentence that in fact were imposed.



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Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012). The magistrate judge, in her
recommendation, concluded that all three requirements under Lafler had been
met. However, the district court declined to accept this recommendation and
made factual findings that Scribner failed to demonstrate a reasonable
probability that his plea would have been accepted or that he would have
received a reduction for acceptance of responsibility in light of his “dogged
insistence of innocence.”
       Neither party in this case disputes that Scribner’s trial counsel rendered
deficient performance under prong one of Strickland when counsel failed to
advise Scribner of the Career Offender Enhancement. Instead, at issue is
whether the district court erred in finding, under the prejudice prong, that
Scribner’s plea would not have been accepted by the sentencing court and that
he would not have received a lesser sentence had he pleaded guilty. While we
would generally review the district court’s factual findings as to these Lafler
factors for clear error, the district court implicitly rejected the magistrate
judge’s credibility determinations, made after an evidentiary hearing, on these
factors. 4 Because the district court did so without holding its own evidentiary
hearing, we must vacate and remand this case for further proceedings.



       4  Although there was some question at oral argument as to whether determinations
on the individual Lafler factors involve questions of law or questions of fact, we previously
noted that a defendant’s decision to plead guilty, the acceptance of the plea, and whether the
plea would result in a less severe sentence are findings of fact normally subject to clear error
review. See United States v. Grammas, 376 F.3d 433, 438 (5th Cir. 2004) (“Whether it is
reasonably probable that [petitioner]’s decision to plead guilty would have been different had
he been properly counseled as to his potential punishment is a question of fact. Such a
determination should be left to the district court.”); see also id. at 438–39 (noting that “further
proceedings in front of the district court” were required in order to determine whether a
petitioner would have received a reduced sentence from the district court had he accepted a
guilty plea). Moreover, the Supreme Court’s own opinion in Lafler strongly suggests that a
district court makes factual determinations as to whether a petitioner has made out the three
Lafler factors. See Lafler, 132 S. Ct. at 1391 (citing with approval the lower court’s holding
that the evidence demonstrated that the petitioner in that case would have pleaded guilty
and received a lower sentence but for counsel’s poor advice).
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        We have noted that “[u]nder the Federal Magistrate’s Act [28 U.S.C.
§ 636], the district court may give to the magistrate judge’s proposed findings
of fact and recommendations ‘. . . such weight as [their] merit commands and
the sound discretion of the [district court] judge warrants.’” Tijerina v. Estelle,
692 F.2d 3, 5 (5th Cir. 1982) (quoting Mathews v. Weber, 423 U.S. 261, 275
(1976)). However, we and other circuits have held that “in a situation involving
the constitutional rights of a criminal defendant . . . the district judge should
not enter an order inconsistent with the credibility choices made by the
magistrate without personally hearing the live testimony of the witnesses
whose testimony is determinative.” Louis, 630 F.2d at 1109; see also Johnson
v. Finn, 665 F.3d 1063, 1074 (9th Cir. 2011) (“Taking the Supreme Court’s
various hints, the First, Second, Third, Fifth, and Eleventh Circuits have all
held that a district judge may not reject the credibility finding of a magistrate
judge without holding a new evidentiary hearing.”). 5
        In such cases, where the “the district judge doubts the credibility
determination of the magistrate, only by hearing the testimony himself does
he have an adequate basis on which to base his decision.” Louis, 630 F.2d at
1110.       This is because—under the Due Process Clause—“[i]n order to
adequately determine the credibility of a witness as to such constitutional
issues, the fact finder must observe the witness.” Id. A district court not only
errs in this respect by expressly rejecting a magistrate judge’s credibility
findings but also by “accept[ing] the magistrate judge’s decision . . . as to
credibility, [but] then dr[awing] different inferences from” testimony found to



        5As recounted in Johnson, a number of other circuits have followed this rule citing
with approval and drawing from our opinion in Louis. See United States v. Powell, 628 F.3d
1254, 1257 (11th Cir. 2010) (per curiam); United States v. Hernandez-Rodriguez, 443 F.3d
138, 148 (1st Cir. 2006); Cullen v. United States, 194 F.3d 401, 407 (2d Cir. 1999); Hill v.
Beyer, 62 F.3d 474, 482 (3d Cir. 1995). Moreover, “[n]o circuits appear to have rejected the
rule in question.” Johnson, 665 F.3d at 1074 n.5.
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be credible. Id. at 1107.         Thus, when a district court ultimately rejects a
magistrate judge’s credibility findings (made after an evidentiary hearing)
explicitly or implicitly without holding its own hearing, we have held that
remand is necessary so that the district court may either “accept[] the
determination of the magistrate after reading the record, or . . . reject[] the
magistrate’s decision and com[e] to an independent decision after hearing the
testimony and viewing the witnesses.” Id. at 1110. 6
       Here, the district court stated that it was deferring to the magistrate
judge’s credibility determination—that Scribner was credible in his
testimony—as to the first Lafler factor but, in fact, “implicitly rejected” this
credibility determination in assessing the second and third Lafler factors. 7 Id.
at 1108.     As to the second factor, the district court concluded that the
sentencing court would not have accepted any guilty plea because “[Scribner]
would not have admitted the factual basis necessary to support a plea of
guilty.”   The district court further added that “the record in this matter


       6  The government at oral argument suggested that our unpublished decision in United
States v. Moore, 416 F. App’x 454, 461–62 (5th Cir. 2011) (per curiam) (unpublished),
somehow suggests that the district court did not err in making factual findings that ran
contrary to the magistrate judge’s credibility determination without a hearing. Moore is
inapposite to this case. Moore did not involve an instance where the district court rejected
the credibility findings of a magistrate judge or where a hearing had been held in front of a
magistrate judge. Furthermore, we expressly declined to review whether an evidentiary
hearing was required by the district court in that case as the petitioner had not raised it in
his COA. Id. at 462. We decline to review this issue today as well and limit ourselves to the
particular factual circumstances—where a magistrate judge has held an evidentiary hearing
and a district court has implicitly rejected the credibility determinations of that magistrate
judge without holding its own hearing.
        7 Although the government argues that the credibility determination was immaterial

to the district court’s decision to deny relief on Scribner’s ineffective assistance claim and
Scribner’s failure to prove the remaining two factors, the district court’s reasoning makes
clear that it based its conclusion on the other two factors—at least in part—on its doubts as
to Scribner’s acceptance of guilt. At the very least, the district court drew inferences from
Scribner’s testimony that it could not have drawn if it accepted that he was credible when he
testified as to his guilt of aiding and abetting and his willingness to plead guilty. Our
precedent does not allow for such contrary inferences where the district court does not hold
its own hearing. See Louis, 630 F.2d at 1107.
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                                 No. 14-11031
disclose[d] nothing other than [Scribner]’s dogged insistence of innocence.”
These factual findings, however, run contrary to the magistrate judge’s
determination that Scribner’s testimony was credible—testimony that
included Scribner’s admission of guilt to aiding and abetting and his statement
that he would have pleaded guilty to Count Three if not for counsel’s advice.
Similarly, the district court’s findings on the third Lafler factor implicitly
rejected the magistrate judge’s credibility determination. The district court
concluded that Scribner would not have received an acceptance of
responsibility reduction at sentencing, in part, because “at his § 2255
evidentiary hearing, [Scribner] maintained he was innocent of any intent to
distribute” and “he d[id] not appear convinced [that] he [wa]s guilty.” But
these findings contradict the magistrate judge’s determination that Scribner
was credible when he testified that he believed that he was guilty of Count
Three and that he would have pleaded guilty.
      Because the district court’s factual findings on the second and third
Lafler factors implicitly rejected the magistrate judge’s finding that Scribner’s
testimony was credible, we must vacate the district court’s judgment and
remand to the district court for further proceedings. The district court is free
on remand to accept and draw the appropriate inferences from the magistrate
judge’s credibility determination in deciding the merits of Scribner’s § 2255
petition without holding a hearing, or in the alternative, the district court may
reject the magistrate judge’s credibility determination and come to its own
conclusions after holding a hearing on Scribner’s § 2255 petition.
                              IV. CONCLUSION
      We VACATE the district court’s judgment and REMAND this case for
further proceedings consistent with this opinion.




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