                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                FILED
                                                      U.S. COURT OF APPEALS
                            No. 08-14124                ELEVENTH CIRCUIT
                                                            JUNE 9, 2009
                        Non-Argument Calendar
                                                         THOMAS K. KAHN
                      ________________________
                                                              CLERK

               D. C. Docket Nos. 07-01961-CV-T-26-TGW,
                        04-00546-CR-T-24-TGW

SAMUEL DAVIS, JR.,



                                                         Petitioner-Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                       Respondent-Appellee.


                      ________________________

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

                             (June 9, 2009)

Before BLACK, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
      Samuel Davis, Jr., a federal prisoner proceeding pro se, appeals the denial of

his motion to vacate his sentence, pursuant to 28 U.S.C. § 2255, in which he

alleged, inter alia, ineffective assistance of counsel. Davis asserted his counsel

told him that if he had a bench trial he would still receive a sentencing reduction

for acceptance of responsibility and that without counsel’s advice he would have

pled guilty. The district court denied the motion, suggesting Davis had not

suffered prejudice because he failed to show his sentence would have been

different if he had pled guilty instead of going to trial. We granted a certificate of

appealability as to whether counsel was ineffective for advising appellant he would

receive a two-level sentencing reduction for acceptance of responsibility if he

maintained his not-guilty plea but waived his right to a jury trial.

       Davis argues his counsel gave him constitutionally deficient advice that he

would receive a sentencing reduction for acceptance of responsibility if he

maintained his not guilty plea but waived his right to a jury trial. He contends this

advice was deficient because only in rare situations would a defendant receive the

sentencing reduction after pleading not guilty, and his counsel was aware of his

pre-trial false statements and resistance to arrest. Davis asserts he suffered

prejudice because, without counsel’s advice, he would have pled guilty, and the

district court would have reduced his guideline level for acceptance of



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responsibility. Davis acknowledges entering the guilty plea itself would not entitle

him to a sentencing reduction for acceptance of responsibility, but argues that

considering the totality of the circumstances, he demonstrated a reasonable

probability he would have received the reduction if he had pled guilty. Davis

contends the district court’s decision to deny his § 2255 motion should not reflect

on whether the court would have granted him a sentencing reduction for

acceptance of responsibility if he had pled guilty. He also argues the district court

did not fully address whether counsel’s performance was ineffective, instead

focusing on the prejudice caused by counsel’s advice, and he contends we could

remand for further findings about his counsel’s performance.

      In reviewing a denial of a motion to vacate, we examine the factual findings

for clear error and legal conclusions de novo. Devine v. United States, 520 F.3d

1286, 1287 (11th Cir. 2008). An ineffective-assistance-of-counsel claim is a

mixed question of law and fact that is subject to de novo review. Gordon v. United

States, 518 F.3d 1291, 1296 (11th Cir. 2008). “If the trial record is inadequate to

show conclusively that the [§ 2255] movant’s contentions are without merit, the

district court must conduct a[n evidentiary] hearing.” Anderson v. United States,

948 F.2d 704, 706 (11th Cir. 1991) (emphasis in original).




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      Criminal defendants have a right to effective assistance of counsel.

Strickland v. Washington, 104 S. Ct. 2052, 2063 (1984). To prevail on a claim of

ineffective assistance of counsel, the defendant must demonstrate both (1) that his

counsel’s performance was deficient, i.e., the performance fell below an objective

standard of reasonableness, and (2) that he suffered prejudice as a result of that

deficient performance. Id. at 2064-68. A court need not “address both components

of the inquiry if the defendant makes an insufficient showing on one.” Id. at 2069.

      Where an ineffective-assistance-of-counsel claim relates to the entry of a

guilty plea, a movant “must show that there is a reasonable probability that, but for

counsel’s errors, he would . . . have pleaded guilty and would [not] have insisted

on going to trial.” Coulter v. Herring, 60 F.3d 1499, 1504 (11th Cir. 1995)

(quoting Hill v. Lockhart, 106 S. Ct. 366, 370 (1985)). In these cases, the

prejudice requirement “focuses on whether counsel’s constitutionally ineffective

performance affected the outcome of the plea process.” Hill, 106 S. Ct. at 370. If

the movant (1) failed to allege in his motion to vacate that, but for counsel’s

advice, he would not have pled as he did or (2) otherwise failed to show special

circumstances indicating that counsel’s advice affected his decision to plead, then

his allegation of prejudice is insufficient to satisfy Strickland. Id. at 371. Where

the district court has focused on only one prong of Strickland in denying a



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movant’s ineffective-assistance-of-counsel claim, and we hold that, in the absence

of an evidentiary hearing, the record does not support that finding, we remand back

to the district court for it to determine in the first instance if movant has met the

other prong. Clark v. Crosby, 335 F.3d 1303, 1311-12 (11th Cir. 2003). On

remand in such a situation, the district court should determine if the alleged facts

warrant relief under Hill, and if the movant surmounts that threshold, the court

should hold an evidentiary hearing. Yordan v. Dugger, 909 F.2d 474, 478 (11th

Cir. 1990).

       Davis asserted in his § 2255 motion that he only went to trial because of

counsel’s advice he would still receive the reduction for acceptance of

responsibility, and he would otherwise have pled guilty. Statements by Davis’

counsel suggest Davis agreed to the bench trial because he wanted to preserve his

right to challenge the denial of his motion to suppress, yet it is not clear from the

record if that decision was the result of a promise by counsel that he would still

receive a reduction for acceptance of responsibility. The record does not appear to

conclusively show that Davis’ ineffective-assistance allegation is without merit.

The district court should determine whether counsel’s advice caused Davis to not

plead guilty. In denying the § 2255 motion, it is not clear from the record if the

district court focused on whether, but for counsel’s advice, Davis would have pled



                                            5
guilty or if the district court focused on whether Davis’ sentence would have

changed if he pled guilty. Accordingly, we vacate and remand for further

proceedings, including an evidentiary hearing if necessary.

VACATED AND REMANDED.




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