                                                                     [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                                                                              FILED
                         ------------------------------------------- U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                      No. 06-14763                        AUGUST 14, 2007
                                Non-Argument Calendar                   THOMAS K. KAHN
                        --------------------------------------------         CLERK
                                  D.C. Docket Nos.
                                04-00045-CV-MP-AK
                                  99-00029-CR-MP

KIER ELGIN RILEY,

                                                         Petitioner-Appellant,

                                          versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

              ----------------------------------------------------------------
                   Appeal from the United States District Court
                         for the Northern District of Florida
              ----------------------------------------------------------------
                                   (August 14, 2007)

Before EDMONDSON, Chief Judge, TJOFLAT and HULL, Circuit Judges.

PER CURIAM:

      Kier Elgin Riley, a federal prisoner proceeding pro se, appeals the district

court’s denial of his 28 U.S.C. § 2255 motion to vacate his sentence. We granted
a certificate of appealability on this issue: “Whether the district court erred in

failing to hold an evidentiary hearing on [Riley’s] claim that his trial counsel was

ineffective for failing to inform him of a plea agreement offered by the

government.” Reversible error has been shown; we vacate and remand for further

proceedings.

      We review the district court’s denial of an evidentiary hearing for abuse of

discretion. See Breedlove v. Moore, 279 F.3d 952, 959 (11th Cir. 2002). If a

prisoner “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.”

Holmes v. United States, 876 F.2d 1545, 1552 (11th Cir. 1989) (internal quotation

omitted). But “a 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 . . . .” Aron v. United States, 291 F.3d 708, 715 (11th

Cir. 2002).

      A claim of ineffective assistance of counsel presents a mixed question of

law and fact that we review de novo. Smith v. Singletary, 170 F.3d 1051, 1053

(11th Cir. 1999). “To prevail on an ineffective-assistance-of-counsel claim, a

habeas corpus petitioner must show that: (1) his lawyer’s performance was

deficient, and (2) a reasonable probability that, but for counsel’s errors, he would

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have pleaded guilty and would not have insisted on going to trial.” Id. (internal

quotation and alteration omitted).

      Riley was charged with conspiracy to distribute more than 50 grams of a

substance containing cocaine base. Riley’s first trial for this offense ended with a

hung jury. After Riley was convicted of the conspiracy offense at a second trial,

Riley’s trial lawyer, Victor Africano, withdrew from Riley’s case. Thomas Miller

assumed representation of Riley; and Riley was sentenced to 235 months’

imprisonment. According to Riley, Miller told Riley that the government had

made an offer to Africano -- before Riley’s second trial -- that Riley could plead

guilty and serve a sentence of “8 to 15 years” in prison. Riley asserts that he was

not informed of this plea offer and that, if he was timely informed of the

government’s plea offer, he would have accepted it.

      As part of its response to Riley’s section 2255 motion, the government

submitted an affidavit by Miller stating that “At no time during undersigned

counsel’s representation of defendant was a ‘plea offer’ tendered by the

government which would/could have resulted in a reduced sentence.” In deciding

that an evidentiary hearing was not required in this case, the district court noted,

among other things, that Miller’s affidavit explained that no plea was offered

during Miller’s representation of Riley. The government argues that Miller’s

                                          3
affidavit refutes Riley’s claim that Miller had advised him of a government plea

offer.

         But Miller’s affidavit only addresses events during Miller’s representation

of Riley and does not respond to Riley’s allegation that a plea offer was made

while Riley was represented by Africano. Therefore, Miller’s affidavit does not

affirmatively contradict Riley’s assertion that Miller told him of a plea offer made

by the government before Miller succeeded Africano in representing Riley. For

this reason, the district court erred in concluding that an evidentiary hearing was

not appropriate here.*

         We vacate the district court’s order denying Riley’s section 2255 motion

and remand this case for the district court to conduct an evidentiary hearing on

Riley’s claim that his trial lawyer was ineffective for not informing him of a plea

offer made by the government.

         VACATED AND REMANDED.




  *
    We note that, although the government’s response to Riley’s section 2255 motion denied making
a plea offer to Riley and the government has explained that its standard operating procedure does not
include making plea offers of specific sentences, the government has not submitted a sworn affidavit
stating that a plea offer was never made in Riley’s case. Therefore, the record contains no sworn
affidavits from the government or from Africano, who is deceased. Riley has submitted an affidavit
supporting his version of events; and Miller’s affidavit is unresponsive to Riley’s allegation that
Miller was aware of a plea offer made during Africano’s representation of Riley. In the light of all
of these circumstances, an evidentiary hearing is not inappropriate.

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