                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               SEPT 16, 2008
                               No. 07-15085                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                    D. C. Docket Nos. 04-02554-CV-CAP-1
                             01-00513-CR-CAP


GEORGE OLIVER,

                                                            Petitioner-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                           Respondent-Appellee.


                         ________________________

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

                             (September 16, 2008)

Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:

     Federal prisoner George Oliver (“Oliver”), proceeding pro se, appeals the
district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct

his sentence without holding an evidentiary hearing. On appeal, Oliver argues that

he is entitled to an evidentiary hearing because his counsel, Billy L. Spruell

(“Spruell”), did not inform him of a plea offer extended by the government on the

eve of his trial and he meets the criteria for an evidentiary hearing in such

circumstances.

      This Court reviews the denial of an evidentiary hearing in a § 2255

proceeding for abuse of discretion. Aron v. United States, 291 F.3d 708, 714 n.5

(11th Cir. 2002). An evidentiary hearing must be held on a motion to vacate

“unless the motion and files and records of the case conclusively show that the

prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). However, “on habeas a

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

conclusively determined from the record that the petitioner was not denied

effective assistance of counsel.” Diaz v. United States, 930 F.2d 832, 834 (internal

quotation marks and alterations omitted). On review, the district court “must

accept all of the petitioner’s alleged facts as true and determine whether the

petitioner has set forth a valid claim.” Id. (internal quotation marks omitted).

      To prevail on an effective assistance of counsel claim, a defendant must

demonstrate both (1) that his counsel’s performance was deficient, i.e., the



                                           2
performance fell below an objective standard of reasonableness, and (2) that he

suffered prejudice as a result of that deficient performance. Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To

meet the deficient performance prong of the Strickland test, a defendant must show

that counsel made errors so serious that he or she was not functioning as the

counsel guaranteed by the Sixth Amendment. Id. at 687, 104 S.Ct. at 2064. To

prove prejudice, “[t]he defendant must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694, 104 S.Ct. at 2068. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id.

       In this case, the district court did not abuse its discretion in denying Oliver’s

motion without an evidentiary hearing because the record reflects that Oliver was

not denied effective assistance of counsel. Accepting Oliver’s alleged facts as true,

Oliver’s attorney failed to inform him of the government’s eve-of-trial plea offer,

which constitutes deficient performance.1 See Strickland, 466 U.S. at 688, 104 S.



       1
         Oliver’s counsel, Spruell, stated in an affidavit that “neither of us” seriously considered
the plea agreement offered by the government on the eve of trial. The district court interpreted
that statement as implying that Oliver and Spruell had discussed the plea offer. However,
Spruell stated that he did not remember discussing the plea offer with Oliver. Oliver alleges that
“neither of us” referred to Spruell and his co-counsel, not Spruell and Oliver. The district court
was bound to accept Oliver’s allegation on this point as true. Diaz, 930 F.2d at 834. However,
as discussed in the remainder of this opinion, Oliver cannot meet the prejudice prong of the
ineffective assistance of counsel test.

                                                 3
Ct. at 2065 (stating that defense counsel has a duty “to consult with the defendant

on important decisions and to keep the defendant informed of important

developments in the course of the prosecution”). However, Oliver has not

demonstrated prejudice as a result of his attorney’s error. When a defendant

challenges a not-guilty plea based on ineffective assistance of counsel, he “must

show that there is a reasonable probability that, but for the 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) (internal quotation marks and

alterations omitted). In Coulter, this Court rejected a defendant’s claim of

ineffective assistance of counsel because the defendant could not show that, absent

counsel’s errors, he would have accepted the plea offer. Id. Here, Oliver stated

only that he would have “seriously considered” the government’s plea offer,

which, as in Coulter, falls short of the required standard. In addition, Oliver

maintained his innocence throughout trial and during his sentencing, which

undermines his claim that he would have consented to a plea agreement.2 See

Diaz, 930 F.2d at 835 (rejecting defendant’s claim that he would have accepted a

plea agreement when he had not indicated any desire to plead guilty prior to his


       2
         As the district court did, we afford little weight to Oliver’s claim before the district
court that he would have accepted the government’s plea offer. This is because Oliver stated in
an affidavit, under penalty of perjury, that he would have “seriously considered” the plea offer.
The statement made under penalty of perjury is entitled to more weight.

                                                4
conviction). As a result, Oliver has not established that, but for Spruell’s failure to

inform him of the government’s proposed plea offer, the outcome would have been

different. Therefore, the district court did not abuse its discretion when it denied

Oliver’s § 2255 motion without holding an evidentiary hearing. Accordingly, the

judgment of the district court is

      AFFIRMED.




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