                                                  [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT            FILED
                    ________________________ U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                            No. 07-15239                 FEB 26, 2009
                       Non-Argument Calendar           THOMAS K. KAHN
                     ________________________              CLERK
                D. C. Docket Nos. 06-02474-CV-JTC-1
                        & 02-00155-CR-JTC

AMZAD LALANI,

                                                      Petitioner-Appellant,

                              versus

UNITED STATES OF AMERICA,

                                                  Respondent-Appellee.

                    ________________________

                            No. 07-15359
                       Non-Argument Calendar
                     ________________________
                D. C. Docket Nos. 06-02475-CV-JTC-1
                         & 02-00155-CR-6-1

WENDY LALANI,
                                                      Petitioner-Appellant,

                              versus

UNITED STATES OF AMERICA,

                                                  Respondent-Appellee.
                            ________________________

                   Appeals from the United States District Court
                       for the Northern District of Georgia
                         _________________________

                                (February 26, 2009)

Before BLACK, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

      Amzad Lalani and Wendy Lalani (collectively “the Petitioners”), proceeding

with separate counsel in this consolidated appeal, challenge the district court’s

denial of their motions to vacate their sentences, pursuant to 28 U.S.C. § 2255.

The Petitioners alleged that their shared trial counsel was constitutionally

ineffective because, after they instructed him to pursue a plea agreement, he

erroneously advised them that a plea agreement was not in their best interests. The

Petitioners further alleged that had their counsel pursued a plea agreement, they

would have obtained a plea offer from the government, and they would have pled

guilty and received a lesser sentence, as did other co-defendants. The district court

found that because the Petitioners maintained their innocence after being

convicted, they could not show prejudice, i.e., that they would have pled guilty but

for counsel’s advice.

I.    Factual Background and Procedural History



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       After a jury trial, the Petitioners were convicted of one count of conspiring

to the interstate transport of stolen goods, in violation of 18 U.S.C. § 371, and 137

counts of the interstate transportation of stolen goods, in violation of 18 U.S.C.

§ 2314. Amzad was sentenced to 121 months’, and Wendy was sentenced to 63

months’ imprisonment.

       Early on in his case, Amzad Lalani instructed trial counsel to pursue a plea

agreement for himself and his wife Wendy Lalani. Amzad also requested that trial

counsel inform him of the exposure he faced by proceeding to trial. In response,

trial counsel told Amzad a plea agreement was “not necessary because he was

going to win the case.” A plea agreement ostensibly may have been an option for

them - other co-conspirators entered into plea agreements,1 although it is not clear

by how much their sentences would have been reduced.

       Amzad Lalani and Wendy Lalani filed separate motions to vacate their

sentences, pursuant to 28 U.S.C. § 2255. The district court issued separate orders

addressing their motions. For both Amzad and Wendy, the district court assumed

that they instructed counsel to pursue a plea agreement and that counsel advised

them that a plea was unnecessary because they would win at trial. Nevertheless,



       1
        Six of the Movants’ co-conspirators pled guilty with the benefit of a plea agreement.
(CM/ECF for the U.S. District Ct. for the N.D. of Georgia, No. 1:02-cr-00155, docket entries
231, 235, 236, 259, 313, 315).

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the district court found that neither could show prejudice because their “post-

conviction-stance[s]” that they were innocent showed that neither could

demonstrate that there was a reasonable probability he or she would have pled

guilty.

          Both Petitioners filed notices of appeal and motions for certificates of

appealability (“COA”). The district court denied their motions in a single order.

We issued a certificate of appealability on the following issue: “Whether the

district court erred in finding that trial counsel was not ineffective for failing to

pursue a plea agreement after the appellants requested that counsel do so, in light

of the fact that no evidentiary hearing was held. See Finch v. Vaughn, 67 F.3d

909, 916 (11th Cir. 1995).”



II.       Standard of Review

          In a 28 U.S.C. § 2255 proceeding, we review the district court’s findings of

fact for clear error and its legal conclusions de novo. Devine v. United States, 520

F.3d 1286, 1287 (11th Cir. 2008). “A claim of ineffective assistance of counsel is

a mixed question of law and fact that we review de novo.” Id. Denial of an

evidentiary hearing is reviewed for abuse of discretion. Aron v. United States, 291

F.3d 708, 714 n.5 (11th Cir. 2002). Furthermore, we may affirm on alternative



                                              4
grounds. McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001).

       The district court “shall” hold an evidentiary hearing on a habeas petition

“[u]nless the motion and the files and records of the case conclusively show that

the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). “[I]f the petitioner

alleges facts that, if true, would entitle him to relief, then the district court should

order an evidentiary hearing and rule on the merits of his claim.” Aron, 291 F.3d

at 714-15 (quotation omitted). Yet the “district court is not required to hold an

evidentiary hearing where the petitioner’s allegations are affirmatively contradicted

by the record, or the claims are patently frivolous.” Id. at 715.

III.   Ineffective Assistance of Counsel

       “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, 518 F.3d 1291, 1297 (11th

Cir. 2008) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct.

2052, 2064 (1984)). If a petitioner fails to show deficient performance, the court

need not go on to determine whether there was prejudice, and vice-versa.

Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).

       The Supreme Court has held that “the two-part Strickland v. Washington test

applies to challenges to guilty pleas based on ineffective assistance of counsel.”

                                             5
Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370 (1985). “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 Amendment.”

Finch v. Vaughn, 67 F.3d 909, 916 (11th Cir. 1995) (quotations and ellipses

omitted). The prejudice inquiry in the context of guilty pleas, “focuses on whether

counsel’s constitutionally ineffective performance affected the outcome of the plea

process.” Hill, 474 U.S. at 59, 106 S. Ct. at 370. To show prejudice after a

rejected plea, an individual must “establish a reasonable probability that, absent

counsel’s alleged ineffective assistance, he would have accepted the plea

agreement.” Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991); accord

Coulter v. Herring, 60 F.3d 1499, 1504 (11th Cir. 1995).

IV.   Discussion

      The district court stated that the Petitioners could not show that they would

have pled guilty because they asserted post-conviction arguments that they were

innocent and that the evidence in their trial was insufficient to convict them.

      The Sixth Circuit has specifically addressed whether a petitioner maintaining

his innocence prevents him from showing that there was a reasonable probability

that he would have pled guilty if informed of the government’s plea offer. Griffin

v. United States, 330 F.3d 733, 738 (6th Cir. 2003). In Griffin, the petitioner

                                            6
alleged that his counsel was ineffective for not informing him of the government’s

plea offer. Id. at 734. The government argued that the record showed that the

petitioner would not have pled guilty if he had known about the offer because he

maintained his innocence throughout the trial and sentencing. Id. at 738. The

Sixth Circuit held that the petitioner’s “repeated declarations of innocence do not

prove, as the government claims, that he would not have accepted a guilty plea.”

Id. (citing North Carolina v. Alford, 400 U.S. 25, 33, 91 S. Ct. 160, 165 (1970)

(“reasons other than the fact that he is guilty may induce a defendant to so plead,

. . . and he must be permitted to judge for himself in this respect” (quotation

omitted))). The court went on to state the following:

             Defendants must claim innocence right up to the point of
             accepting a guilty plea, or they would lose their ability to
             make any deal with the government. It does not make
             sense to say that a defendant must admit guilt prior to
             accepting a deal on a guilty plea. It therefore does not
             make sense to say that a defendant’s protestations of
             innocence belie his later claim that he would have
             accepted a guilty plea. Furthermore, a defendant must be
             entitled to maintain his innocence throughout trial under
             the Fifth Amendment.         Finally, Griffin could have
             possibly entered an Alford plea even while protesting his
             innocence. These declarations of innocence are therefore
             not dispositive on the question of whether Griffin would
             have accepted the government’s plea offer.


Id.

      In this case, the Petitioners challenged their convictions, in part, on the basis

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that they were innocent. The district court held that because they maintained their

innocence after their trial they could not show prejudice. We find the Sixth

Circuit’s opinion in Griffin persuasive with respect to the prejudice prong of

Strickland. Furthermore, because the Petitioner’s protestations of innocence after

their trial do not prevent the Petitioners from showing prejudice, as was held in

Griffin, there is sufficient subjective evidence in the record to warrant an

evidentiary hearing to determine whether there is a reasonable probability that the

Petitioners would have accepted a plea offer had their counsel successfully pursued

a plea offer from the government.

       Also, the petitioners, like Griffin, have presented a potentially meritorious

claim on the deficient performance prong of Strickland, but the district court did

not address the deficiency prong and we leave it to the district court in the first

instance to decide the utility of hearing evidence on that issue.

V.     Conclusion

       For the foregoing reasons, the decision of the district court is VACATED

and the case is REMANDED for an evidentiary hearing to determine whether the

Strickland test is met in light of Griffin .

       VACATED AND REMANDED




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