The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 20, 2007
No. 06-16371
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
_________________________
(December 20, 2007)
Before TJOFLAT, BLACK and WILSON, Circuit Judges.
PER CURIAM:
Yuby Ramirez appeals the district court’s denial of her 28 U.S.C. § 2255
motion to vacate in which she argued that her trial counsel was constitutionally
ineffective in advising her whether to accept a plea offer.
Ramirez was indicted for witness tampering, in violation of 18 U.S.C.
§ 1512(a)(1)(c). Specifically, count three alleged in relevant part that Ramirez had
“knowingly, intentionally and willfully” killed Benardo Gonzalez with the intent
to keep Gonzalez from communicating to a law enforcement officer or judge about
the commission of federal offenses by certain individuals. Because the witness
tampering in question was the killing of a witness, the applicable statutes of
limitations and statutory punishments depended on whether the killing was a
capital offense or non-capital offense. If capital, there is no limitations period. 18
U.S.C. § 3281. If non-capital, a five-year limitations period applied, which would
render the indictment tardy because it was returned more than five years after the
offense had been committed. 18 U.S.C. § 3282(a) (providing that “no person shall
be prosecuted, tried, or punished for any offense, not capital, unless the indictment
is found or the information is instituted within five years next after such offense
shall have been committed”).
Several months before trial, Ramirez moved to dismiss count three, claiming
that it alleged a non-capital offense and was governed by a five-year statute of
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limitations under 18 U.S.C. § 3282. Ramirez argued that because Furman v.
Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) invalidated the
death penalty provisions of 18 U.S.C. § 1111, and because § 1512(a)(2)
incorporates § 1111, a violation of 1512(a)(1)(c) is a non-capital offense. The
district court denied the motion, finding that count three charged a capital offense.
Despite the district court’s denial, counsel still believed, under a different
theory, that the indictment only charged Ramirez with manslaughter because: (1)
the only offense chargeable under 18 U.S.C. § 1512(a)(1) that qualifies as a capital
offense is first degree murder; and (2) counts 1-3 did not allege “premeditation” or
“malice aforethought”—essential elements of first degree murder. Trial counsel
therefore advised Ramirez that the indictment only charged manslaughter, not
murder, and therefore was barred by the statute of limitations. Trial counsel
further advised Ramirez of their strategy to file a motion attacking the indictment
on this basis after jeopardy had attached and, even if the motion failed, she would
at most face a ten-year term of imprisonment for manslaughter. Based on this
advice, Ramirez rejected successive government plea offers of five-year and ten-
year terms of imprisonment in exchange for her cooperation.1
1
Ramirez had two attorneys, one of which submitted an affidavit, and the other, who is now
a judge, submitted an interview proffering testimony that would be presented at an evidentiary
hearing. Both attorneys state that they did not advise her of the possibility of a first degree murder
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After the jury had been sworn in, Ramirez filed her motion for judgment of
acquittal based on the statute of limitations, asserting that the indictment was
insufficient because it failed to charge the necessary elements of first degree
murder. The district court construed the motion as a Fed. R. Crim. P. 12(b)(2)
motion and denied it as untimely. The jury found Ramirez guilty.
On appeal, we affirmed the district court, holding that the failure to raise the
attack on the indictment prior to trial resulted in waiving the argument. United
States v. Ramirez, 324 F.3d 1225, 1228-29 (11th Cir. 2003) (per curiam). Ramirez
was convicted of witness tampering involving murder and sentenced to life
imprisonment, which is the minimum sentence for murder under 18 U.S.C. § 1512
(a)(3)(A).
With respect to the instant appeal, the district court denied Ramirez’s
§ 2255 motion without an evidentiary hearing. Although Ramirez asserted
ineffectiveness on several grounds, we granted a certificate of appealability only
on the issue of:
Whether trial counsel were ineffective because they misrepresented
the maximum sentence Ramirez faced under the sentencing
guidelines if convicted at trial. Finch v. Vaughn, 67 F.3d 909, 916
conviction and resulting life sentence. Both attorneys also state that they misrepresented the
statutory maximum and that Ramirez relied on this misrepresentation when rejecting the plea offers.
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(11th Cir. 1995).
Ramirez asserts that her attorneys incorrectly believed and advised her that:
(1) the indictment did not charge first degree murder; (2) the indictment at worst
charged voluntary manslaughter, which would subject her to a ten year maximum
sentence; and (3) the ten-year maximum would apply even if they lost the motion
for a judgment of acquittal/motion to dismiss the indictment. Ramirez asserts that
even if counsel held an earnest, good-fath belief that the indictment was flawed,
they were required to inform her that she faced the possibility of a life-term
sentence when she was considering the government’s plea offers.
A claim of ineffective assistance of counsel is a mixed question of law and
fact that we review de novo. Brownlee v. Haley, 306 F.3d 1043, 1058 (11th Cir.
2002); Finch, 67 F.3d at 914.
“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, 496 F.3d 1270, 1276-77
(11th Cir. 2007) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.
Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)).
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“The purpose of ineffectiveness review is not to grade counsel’s
performance.” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000)
(en banc). In reviewing counsel’s performance, we indulge a strong presumption
that counsel’s conduct fell within the wide range of reasonable, professional
assistance. Id. at 1314. In evaluating the reasonableness of counsel’s actions, we
must avoid second-guessing counsel’s performance, as the fact that counsel takes
an approach other than the one the court would have chosen is not ineffective
assistance. Id. An unsuccessful strategy or defense is also not ineffective
assistance. Id.
“One of the most precious applications of the Sixth Amendment may well
be in affording counsel to advise a defendant concerning whether [s]he should
enter a plea of guilty.” Reed v. United States, 354 F.2d 227, 229 (5th Cir. 1965).
“For a guilty plea to represent an informed choice so that it is constitutionally
knowing and voluntary, the [c]ounsel must be familiar with the facts and the law
in order to advise the defendant of the options available.” Finch, 67 F.3d at 916
(alteration in original; internal quotation marks omitted). “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
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Amendment.” Id. (alteration in original; internal quotation marks omitted).
Ramirez is entitled to an evidentiary hearing on her ineffective assistance
claim if she alleges facts which, if proven, would entitle her to relief. Smith v.
Singletary, 170 F.3d 1051, 1053 (11th Cir. 1999); see also 28 U.S.C. § 2255
(providing that a movant is entitled to an evidentiary hearing where the records
and files of the case do not conclusively show that she is not entitled to relief). A
district court, however, need not conduct an evidentiary hearing if it can be
conclusively determined from the record that there was no denial of effective
assistance of counsel. Singletary, 170 F.3d at 1054.
At the time counsel advised Ramirez that she faced, at most, a ten-year
maximum for manslaughter if the motion for judgment of acquittal was denied,
their defense strategy had three possible outcomes: (1) the district court could
agree with their statute of limitations argument and grant their motion; (2) the
district court could agree with their reading of the indictment, but reject that the
indictment was untimely; or (3) the district court could reject the statute of
limitations argument and their reading of the indictment. The result of these
outcomes would be, respectively: (1) an acquittal; (2) a possible conviction that
had at most a ten-year statutory maximum; or (3) a possible conviction with a
mandatory sentence of life imprisonment.
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Here, where the district court had already ruled that the indictment charged
a capital offense with no statute of limitations, counsel should have known that the
third result (a life sentence) was a possibility, however unlikely they considered it
to be. Consequently, if it is true that counsel advised, at the time Ramirez was
considering plea offers of five- and ten-year terms, that Ramirez only faced a
maximum punishment of ten years when in actuality she faced a possible life
sentence, such performance was constitutionally deficient. See United States v.
Herrera, 412 F.3d 577, 581 (5th Cir. 2005) (“An attorney who underestimates his
client’s sentencing exposure by 27 months performs deficiently because he does
not provide his client with the information needed to make an informed decision
about accepting a plea offer or going to trial.”).
Thus, the district court’s decision to forego an evidentiary hearing on the
basis that it was conclusive from the record that counsel did not perform
deficiently was in error. Because the district court did not address whether
counsels’ performance prejudiced Ramirez, we do not reach it. On remand, if the
district court finds that Ramirez adequately alleged prejudice, Ramirez is entitled
to an evidentiary hearing. 28 U.S.C. § 2255; Singletary, 170 F.3d at 1053. We
accordingly vacate and remand.
VACATED AND REMANDED.
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