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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-13339
Non-Argument Calendar
________________________
D.C. Docket Nos. 1:15-cv-01227-WSD,
1:10-cr-00310-ELR-JFK-2
INGER L. JENSEN,
Petitioner–Appellant,
versus
UNITED STATES OF AMERICA,
Respondent–Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 15, 2019)
Before ED CARNES, Chief Judge, MARCUS, and ROSENBAUM, Circuit
Judges.
PER CURIAM:
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Inger Jensen appeals the district court’s denial of her 28 U.S.C. § 2255
motion to vacate her sentence. We granted her a certificate of appealability on the
issue of whether the district court erred in rejecting, without first ordering an
evidentiary hearing, her claim that her trial counsel was ineffective for failing to
negotiate and communicate a plea offer.
“We review the district court’s denial of an evidentiary hearing in a § 2255
proceeding for abuse of discretion.” Winthrop-Redin v. United States,
767 F.3d
1210, 1215 (11th Cir. 2014). Section 2255 requires the district court to hold an
evidentiary hearing on a prisoner’s § 2255 motion “[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). This means that a district court must hold a hearing
if the movant has alleged “reasonably specific, non-conclusory facts that, if true,
would entitle h[er] to relief,” but it “need not hold a hearing if the allegations are
patently frivolous, based upon unsupported generalizations, or affirmatively
contradicted by the record.”
Winthrop-Redin, 767 F.3d at 1216 (quotation marks
omitted).
An attorney is considered constitutionally ineffective if (1) his “performance
was deficient” and (2) that “deficient performance prejudiced the defense.”
Strickland v. Washington,
466 U.S. 668, 687 (1984). And while “there is no
constitutional right to plea bargain,” Weatherford v. Bursey,
429 U.S. 545, 561
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(1977), prejudice can be shown if “there is a reasonable probability that, but for
counsel’s errors, [the movant] would have pleaded guilty and would not have
insisted on going to trial,” Coulter v. Herring,
60 F.3d 1499, 1504 (11th Cir. 1995)
(quotation marks and alterations omitted). A movant must also show a reasonable
probability that but for counsel’s ineffectiveness the plea offer would have been
presented to the court, the court would have accepted it, and “the conviction or
sentence, or both, under the offer’s terms would have been less severe than under
the judgment and sentence that in fact were imposed.” Osley v. United States,
751
F.3d 1214, 1222 (11th Cir. 2014) (quoting Lafler v. Cooper,
566 U.S. 156, 164
(2012)).
Jensen alleged in her § 2255 motion that her trial counsel was deficient
because he “fail[ed] to obtain a pre-trial plea offer from the Government” and
“fail[ed] to present such a plea offer to [her].” She asserts that “there was no
discussion regarding a potential plea,” but that if a plea had been negotiated, and if
she had “been advised of the possibility of reduced charges and a shorter
sentence . . . as well as the consequences of rejecting the plea and proceeding to
trial, there is a reasonable probability that she would have accepted the plea.”
The district court did not abuse its discretion by denying Jensen an
evidentiary hearing. She did not present “reasonably specific, non-conclusory
facts” showing a reasonable probability that she would have pleaded guilty if her
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trial counsel had secured a formal plea offer and communicated that offer to her. 1
Winthrop-Redin, 767 F.3d at 1216 (quotation marks omitted). True, Jensen
asserted in her motion that “there is a reasonable probability that she would have
accepted the plea,” referring to a hypothetical plea offer the government did not
make. Merely restating the standard is not the same as meeting it. And Jensen did
not allege in her motion that she ever told her attorney that she was interested in
pleading guilty or that she ever asked him to pursue a plea deal. Nor did she allege
in that motion that there existed a formal plea offer from the government that her
attorney did not share with her. Cf. Missouri v. Frye,
566 U.S. 134, 145 (2012)
(holding that defense counsel “has the duty to communicate formal offers from the
prosecution”). A district court is not required to hold an evidentiary hearing based
only on a movant’s “own conclusory after-the-fact assertion[s].” Rosin v. United
States,
786 F.3d 873, 879 (11th Cir. 2015); see
id. at 878 (holding that “because
[defendant] did not allege that he would have accepted a guilty plea and abstained
1
The district court stated that “there is simply not enough evidence in the record to
permit the Court to conclude that, but for her counsel’s errors, [Jensen] would have pled guilty to
some unknown and unsubstantiated offer, would not have insisted on going to trial, that the plea
would not have been canceled by the prosecution, and that the district court would have accepted
the plea.” That was a misstatement because the question before the court was not whether there
was enough evidence in the record to substantiate Jensen’s claims, but whether Jensen had
pleaded sufficient facts that, if true, would show that she was prejudiced by her attorney’s
allegedly deficient performance. See
Winthrop-Redin, 767 F.3d at 1215–16. Still, that error was
harmless because Jensen did not allege such facts. See Rivers v. United States,
777 F.3d 1306,
1316 (11th Cir. 2016) (“An error is harmless if it had no substantial influence on the outcome.”).
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from proceeding to trial but for the alleged errors of his trial counsel, [he] has
failed to show that the alleged errors prejudiced him”).
Jensen’s argument has evolved since her initial motion, but that evolution
has not made a hearing any more necessary. In response to Jensen’s motion, the
government submitted an affidavit from Jensen’s trial counsel stating that:
(1) “there were no formal plea offers presented . . . from the prosecution on behalf
of Ms. Jensen to resolve the case,” (2) Jensen’s co-defendant had been offered a
plea deal with a “5 year ‘cap’ on prison time,” but Jensen was “not interested in
pursuing” a similar deal, and (3) Jensen had asked the attorney to “secure an offer
from the prosecution that guaranteed no prison time,” but the government would
not agree to such an offer. In her reply brief before the district court, Jensen
attached an email from her trial counsel that she claimed contradicted his affidavit.
In that email, which the attorney sent when he and Jensen were discussing her
direct criminal appeal, the attorney stated: “As we spoke of earlier, you were
given an offer in the case. You did not want any offer that would result in
anything other than probation. Probation was never an option.” (Emphasis added.)
Jensen also asserted that her trial counsel did not adequately explain to her the
details of her co-defendant’s plea offer (which seems to be the informal offer
referenced in the email). At the time, she said, she thought the offer was that her
co-defendant “would be capped at 5 years imprisonment, but that if he took the
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plea the charges against Jensen would be completely dismissed.” Jensen argued
that her attorney was deficient for not persuading her that she was being unrealistic
in asking for a probation-only offer. And she was prejudiced by his failure to do
so, she contended, because but for his deficiency she would have been able to
make “an informed decision on whether to proceed to trial.”
Those additional arguments still do not provide sufficient factual allegations
that warrant a hearing. While in her initial motion she asserted that “there was no
discussion regarding a potential plea,” she now relies on her trial counsel’s
affidavit to show that she “did, in fact, ask [her attorney] to attempt to secure a plea
offer prior to trial.” But according to that same affidavit, the plea offer she asked
her attorney to secure was one without prison time. She does not dispute that, nor
does she dispute that the government would have rejected, or did reject, that
request. She says only that her attorney should have done a better job explaining
to her what her co-defendant’s plea offer was and persuading her to take a similar
offer. But again, her after-the-fact testimony concerning her desire to plead,
without more, is insufficient to establish that but for counsel’s alleged advice or
inaction, she would have accepted a plea offer that the government was willing to
make. Diax v. United States,
930 F.2d 832, 835 (11th Cir. 1991).
AFFIRMED.
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