Yuby Ramirez v. United States , 315 F. App'x 227 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 18, 2009
No. 08-11489 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 04-22395-CV-JAL
00-00376-CR-JAL
YUBY RAMIREZ,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 18, 2009)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Yuby Ramirez, a federal prisoner serving a life sentence, appeals through
counsel the district court’s denial of her 28 U.S.C. § 2255 habeas corpus petition
alleging ineffective assistance of counsel. She also appeals the district court’s
denial of an evidentiary hearing on whether she was prejudiced by her trial
counsel’s deficient performance based on their mistaken belief that she was not
charged with a capital offense.
The court applied the standard for ineffective assistance of counsel
established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), and
initially denied Ramirez’s § 2255 petition. The court found that Ramirez did not
establish that counsel’s performance fell below an objective standard of
reasonableness. Accordingly, it neither addressed whether counsel’s performance
was prejudicial nor granted an evidentiary hearing.
On Ramirez’s first appeal, we found that counsel performed deficiently by
mistakenly advising Ramirez at the time she was considering plea offers for five-
and ten-year prison terms that she faced at most a ten-year prison term if convicted
at trial when she actually faced a possible life sentence. Ramirez v. United States,
260 F. App’x 185, 188 (11th Cir. 2007) (per curiam). We remanded the case to the
district court to determine whether counsel’s deficient performance was
prejudicial. On remand, the district court again denied Ramirez’s § 2255 motion
and request for an evidentiary hearing, finding that she failed adequately to allege
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prejudice. We then granted a certificate of appealability on the issue whether
Ramirez satisfied Strickland’s prejudice prong with evidence that but for counsel’s
deficient advice regarding the possible statutory maximum sentence, she would
have pleaded guilty.
In this appeal, Ramirez alleges that she was prejudiced because she would
have pleaded guilty if counsel had advised her to do so. For the reasons below, we
find that an evidentiary hearing is warranted here. We therefore vacate the district
court’s denial of an evidentiary hearing and remand for further proceedings.
S TANDARD OF R EVIEW
An ineffective assistance of counsel claim is a mixed question of law and
fact, which we review de novo. Devine v. United States, 520 F.3d 1286, 1287
(11th Cir. 2008) (per curiam). We review a district court’s denial of an evidentiary
hearing for an abuse of discretion. Aron v. United States, 291 F.3d 708, 714 n.5
(11th Cir. 2002).
D ISCUSSION
Ramirez argues that she has shown prejudice under Strickland because had
counsel known that the indictment charged first-degree murder, a capital offense,
they would have advised her to take the plea offer, and she would have taken it.
Alternatively, she argues that she has alleged sufficient facts to warrant an
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evidentiary hearing on the issue of prejudice.
To challenge the plea process based on ineffective assistance of counsel, a
federal habeas petitioner must satisfy the two-part test articulated in Strickland. To
succeed under Strickland, a petitioner must show “that counsel’s representation fell
below an objective standard of reasonableness” and “that the deficient performance
prejudiced the defense,” 466 U.S. at 687-88, 104 S. Ct. at 2064. When challenging
the plea process, the prejudice prong “focuses on whether counsel’s
constitutionally ineffective performance affected the outcome of the plea process.”
Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985). To establish
prejudice, a petitioner “must show that there is a reasonable probability that, but
for counsel’s errors, [s]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)
(per curiam) (quotation omitted).
“A federal habeas corpus petitioner is entitled to an evidentiary hearing if
[s]he alleges facts, which, if proven, would entitle h[er] to relief.” Diaz v. United
States, 930 F.2d 832, 834 (11th Cir. 1991) (quotation omitted). “[A] petitioner
need only allege–not prove–reasonably specific, non-conclusory facts . . . .” Aron,
291 F.3d at 715 n.6. “The court on review must accept all of the petitioner’s
alleged facts as true and determine whether the petitioner has set forth a valid
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claim. . . .” Diaz, 930 F.2d at 834 (quotation omitted). “If the allegations are not
affirmatively contradicted by the record and the claims are not patently frivolous,
the district court is required to hold an evidentiary hearing.” Aron, 291 F.3d at 715
n.6.
Since we have already determined that Ramirez’s trial counsel performed
deficiently, Ramirez, 260 F. App’x at 188, we consider only the district court’s
prejudice analysis. See United States v. White, 846 F.2d 678, 684 (11th Cir. 1988)
(quotation omitted) (“The doctrine of the law of the case mandates that an
appellate court decision on an issue . . . be followed in all subsequent trial court
proceedings in the same case.”). The district court erred in its prejudice analysis
because it attempted to isolate counsel’s assessment of the strength of the statute of
limitations defense from counsel’s advice regarding Ramirez’s potential maximum
punishment. The two, however, are directly related. Since counsel did not believe
that the indictment charged first-degree murder, counsel did not contemplate that
Ramirez possibly faced a life sentence.
Ramirez’s statements and counsel’s affidavit and interview suggest that
Ramirez would have done whatever counsel advised, including pleading guilty.
But counsel advised Ramirez under the mistaken belief that she would face no
imprisonment if acquitted or at most ten years’ imprisonment if convicted at trial.
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If counsel believed that the indictment charged first-degree murder, a capital
offense not subject to a statute of limitations defense, then it stands to reason that
counsel would not have believed so strongly that Ramirez’s indictment was time
barred. Cf. 18 U.S.C. § 3281 (no statute of limitations for capital offenses) and 18
U.S.C. § 3282(a) (five-year statute of limitations for non-capital offenses).
The government denies that an evidentiary hearing is warranted because
Ramirez alleges no facts demonstrating that she would have accepted the plea
offers had she known that she faced life imprisonment. Nor has she alleged, argues
the government, that counsel would have advised her to plead guilty if they had
known that she possibly faced life imprisonment.
But since counsel’s affidavit and interview are silent on the issue, the record
does not “affirmatively contradict[]” Ramirez’s non-frivolous allegation that she
would have pleaded guilty if properly advised. Aron, 291 F.3d at 715 n.6. Thus,
the district court abused its discretion by denying an evidentiary hearing on
whether Ramirez was prejudiced by counsel’s deficient performance.
C ONCLUSION
After carefully reviewing the parties’ briefs and the record, we conclude that
the district court erred in its prejudice analysis and abused its discretion by not
conducting an evidentiary hearing on whether Ramirez’s counsel would have
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advised her to plead guilty absent their own deficient performance. Accordingly,
we vacate and remand for an evidentiary hearing on (1) whether Ramirez would
have pleaded guilty upon the advice of counsel, and (2) whether counsel would
have advised her to plead guilty had they known that she faced possible life
imprisonment.
VACATED AND REMANDED.
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