Petition for Writ of Certiorari — Ramon Enrique Acosta, Petitioner v. United States

Supreme Court briefMay 28, 2020

Ask Donna

What actually matters in this document.

Text

NO:

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2019

RAMON ACOSTA,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

MICHAEL CARUSO

Federal Public Defender

JANICE L. BERGMANN*

Assistant Federal Public Defender

One E. Broward Blvd., Suite 1100

Fort Lauderdale, Florida 33301-1100

Telephone No. (954) 356-7436

Janice_Bergmann@fd.org

Counsel for Petitioner

*Counsel of Record

QUESTION PRESENTED FOR REVIEW

Whether reasonable jurists could debate the district court’s determination

that trial counsel was not constitutionally ineffective with respect to the

government’s plea offer.

INTERESTED PARTIES

There are no parties to the proceeding other than those named in the caption

of the case.

RELATED PROCEEDINGS

United States District Court (S.D. Fla.):

Ramon Acosta v. United States, No. 18-20053-Civ-Moore

(March 31, 2019)

United States v. Ramon Enrique Acosta, No. 12-20157-Crim-Moore

(October 17, 2014)

United States Court of Appeals (11th Cir.):

Ramon Acosta v. United States, No. 19-12057-F

(January 3, 2020)

United States v. Ramon Enrique Acosta, No. 14-14928

(August 23, 2016)

United States Supreme Court

Ramon Enrique Acosta v. United States, No. 16–7149

(January 9, 2017)

iii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .................................................................... i

INTERESTED PARTIES .............................................................................................. ii

RELATED PROCEEDINGS......................................................................................... iii

TABLE OF AUTHORITIES .......................................................................................... v

PETITION ...................................................................................................................... 1

OPINIONS BELOW ...................................................................................................... 2

STATEMENT OF JURISDICTION .............................................................................. 2

STATUTORY AND OTHER PROVISIONS INVOLVED ............................................ 3

STATEMENT OF THE CASE....................................................................................... 4

Trial and Direct Appeal ........................................................................................... 4

II. District Court Proceedings on 28 U.S.C. § 2255 Motion ......................................... 5

REASON FOR GRANTING THE WRIT .................................................................... 11

Reasonable jurists could debate the district court’s determination that

trial counsel was not constitutionally ineffective with respect to the

government’s plea offer ......................................................................................... 11

CONCLUSION............................................................................................................. 21

TABLE OF AUTHORITIES

CASES:

Cullen v. United States,

194 F.3d 401 (2d Cir. 1999) ................................................................................ 17

Griffin v. United States,

330 F.3d 733 (6th Cir. 2003) ............................................................................... 17

Hill v. Lockhart,

877 F.2d 698 (8th Cir. 1989) .......................................................................... 11-12

Miller-El v. Cockrell,

537 U.S. 322 (2003) ............................................................................................. 20

Moore v. Bryant,

348 F.3d 238 (7th Cir. 2003) ............................................................................... 11

Reed v. United States,

354 F.2d 227 (5th Cir. 1965) ............................................................................... 11

Riggs v. Fairman,

399 F.3d 1179 (9th Cir. 2005) ............................................................. 15-16, 18-19

Slack v. McDaniel,

529 U.S. 473 (2000) ............................................................................................. 20

Strickland v. Washington,

466 U.S. 668 (1984) ....................................................................... 11-12, 14, 16-19

United States v. Day,

969 F.2d 39 (3d Cir. 1992) ....................................................................... 12, 14-15

United States v. Gordon,

156 F.3d 376 (2d Cir. 1998) ..................................................................... 14-16, 19

United States v. Grammas,

376 F.3d 433 (5th Cir. 2004) ......................................................................... 12, 14

STATUTORY AND OTHER AUTHORITY:

Sup.Ct.R. 13.1 ................................................................................................................ 2

Part III of the Rules of the Supreme Court of the United States ................................ 2

18 U.S.C. § 1952 ............................................................................................................. 7

28 U.S.C. § 1254(1) ........................................................................................................ 2

28 U.S.C. § 2255 ...................................................................................................... 1-2, 5

28 U.S.C. § 2253(c)(2) .................................................................................................... 3

U.S.S.G. § 2D1.1(b)(3)(A) ............................................................................................. 14

U.S.S.G. § 3C1.1........................................................................................................... 14

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2019

No:

RAMON ACOSTA,

Petitioner

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Ramon Acosta respectfully petitions the Supreme Court of the United States

for a writ of certiorari to review the judgment of the United States Court of Appeals

for the Eleventh Circuit, rendered and entered in case number 19-12057-F in that

court on January 3, 2020, denying Petitioner a certificate of appealability to appeal

the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or

correct sentence.

OPINIONS BELOW

The

Eleventh

Circuit’s

unpublished

order

denying

certificate

appealability is included in the Appendix at A-1.

The District Court’s unpublished order denying a certificate of appealability is

included in the Appendix at A-2.

The district court’s unpublished order adopting

the magistrate judge’s report and denying Petitioner’s 28 U.S.C. § 2255 motion is

included in the Appendix at A-3.

The magistrate judge’s unpublished report

recommending denial of Petitioner’s § 2255 motion is included in the Appendix

at A-4.

The Eleventh Circuit’s unpublished opinion affirming Petitioner’s conviction

and sentence on direct appeal is reported at 660 F. App’x. 749 (11th Cir 2016), and

included in the Appendix at A-5.

STATEMENT OF JURISDICTION

Jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1) and PART III of

the Rules of the Supreme Court of the United States.

The decision of the court of

appeals denying a certificate of appealability to appeal the district court’s denial of

Petitioner’s 28 U.S.C. § 2255 motion was entered on January 3, 2020.

is timely filed pursuant to SUP. CT. R. 13.1.

This petition

STATUTORY AND OTHER PROVISIONS INVOLVED

Petitioner intends to rely on the following constitutional and statutory

provisions:

The Sixth Amendment provides:

“In all criminal prosecutions, the accused

shall enjoy the right . . . to have the Assistance of Counsel for his defence.”

Title 28, U.S.C. § 2253(c)(2) provides:

“A certificate of appealability may

issue . . . only if the applicant has made a substantial showing of the denial of a

constitutional right.”

STATEMENT OF THE CASE

Trial and Direct Appeal.

On March 8, 2012, a grand jury in the Southern District of Florida charged

Mr. Acosta and seven other individuals in a twelve-count indictment.

The lead

defendant, Paul Cordoba, was an experienced airplane pilot who headed a drug

trafficking operation that smuggled drugs from Venezuela to Florida aboard his

planes.

Mr. Acosta was a Federal Aviation Administration-certified airplane

mechanic who performed general maintenance and repair work on private aircraft.

The indictment charged that Mr. Acosta conspired with Cordoba and others in

Cordoba’s operation to import and possess with intent to distribute large quantities

of cocaine into the United States.

Of the seven individuals indicted with Mr. Acosta, four were declared

fugitives, two pled guilty, and the government dismissed the charges against one, so

Mr. Acosta was tried alone.

Following a three-day trial at which Mr. Acosta

testified, the jury convicted him on all counts.

Mr. Acosta’s principle defense was

that he was unaware of and uninvolved in any of Paul Cordoba’s criminal ventures,

and that the government witnesses who testified regarding his involvement in the

conspiracy were former co-defendants or participants in the conspiracy who were

admitted liars.

Although the then-51-year old Mr. Acosta had never before been arrested, due

primarily to the large quantity of drugs involved, his initial post-trial advisory

guideline range was calculated to be 360 months to life imprisonment.

Upon

learning that he faced such significant time in prison, Mr. Acosta fired his trial

counsel and new counsel to represent him at sentencing.

Arguments made by new

sentencing counsel, unusual intervention by the government with the Probation

Office, and various adjustments allowed by the District Court ultimately resulted in

a revised advisory guideline range of 135 to 168 months.

The district court

sentenced Mr. Acosta to the low end of the advisory range – 135 months.

The

Eleventh Circuit affirmed Mr. Acosta’s conviction and sentence, describing the

government’s evidence against Mr. Acosta as “ample.” United States v. Acosta, 660

F. App’x 749, 755 (11th Cir. 2016); see App. A-5.

review.

II.

This Court denied certiorari

Acosta v. United States, 137 S. Ct. 706 (2017).

District Court Proceedings on 28 U.S.C. § 2255 Motion.

Thereafter, Mr. Acosta filed a pro se 28 U.S.C. § 2255 motion to vacate, set

aside or correct sentence alleging that trial counsel rendered ineffective assistance

when he failed to advise Mr. Acosta of the extent of the evidence against him and the

potential sentencing range he faced under the United States Sentencing Guidelines,

causing Mr. Acosta to be unable to make an informed decision regarding whether to

plead guilty or proceed to trial.

An evidentiary hearing was held at which Mr. Acosta, trial counsel, and

sentencing counsel testified.

Critically, sentencing counsel testified that when he

first met with Mr. Acosta, it was clear that Mr. Acosta had no understanding of the

Sentencing Guidelines, or the implications of the Guidelines for his sentence, until

sentencing counsel explained them.

App. A-4 at 24.

Sentencing counsel testified

that “it was apparent to him during his meeting with Movant that he was ‘clueless,’

‘was totally lost,’ and ‘didn’t seem to know much about the guidelines or safety valve

of really much about anything.’”

Id.

Sentencing counsel testified further that Mr.

Acosta was “‘surprised’” that he was looking at a 30-year sentence, id., and that Mr.

Acosta “did not understand” that “just because you don’t do certain acts and you

don’t purchase drugs and you don’t sell drugs doesn’t mean you cannot be convicted

as being part of a drug conspiracy,” DE51:18-19.

Finally, sentencing counsel

testified that Mr. Acosta “said, ‘if I would have understood all of this I would never

have gone to trial.’”

Id.

Mr. Acosta testified he had never before been arrested before the charges in

this case.

Id. at 28. He was released on bond and never held in custody before

trial, and prior to trial never spoke with another attorney about his case.

Id. at 29.

He was very trusting of trial counsel, and all of the information Mr. Acosta knew

about the criminal justice system and his case at the time was what he was told by

trial counsel.

Mr. Acosta testified that before trial, he and trial counsel met with the trial

prosecutor and two agents at the United States Attorney’s office.

Id. at 33.

At the

meeting, the prosecutor went through the government’s evidence against Paul

Cordoba, told Mr. Acosta that the government had enough evidence to convict him,

and advised that Mr. Acosta that he was looking at 20 years in prison if he were

convicted at trial.

Id. at 31.

The prosecutor further told Mr. Acosta that if he

helped the government, he might get a much shorter sentence, maybe two to five

years.

Id.

The government’s offer would have allowed Mr. Acosta to plead guilty

to an offense under the Travel Act, 18 U.S.C. § 1952, with a 5-year statutory

maximum.

App. A-4 at 6.

Guidelines with Mr. Acosta.

The prosecutor did not discuss the Sentencing

DE 51:31-32.

Mr. Acosta testified that after he and trial counsel discussed the plea offer, he

decided to reject it.

Id. at 36.

Mr. Acosta testified that before he made his

decision, trial counsel never explained to him the pros and cons of going to trial

versus pleading guilty.

Id. at 35.

The fact that Mr. Acosta was not a citizen did

not affect his decision:

he has a large family in Venezuela, and as an airplane

mechanic, could easily get a job there.

Id. at 36.

According to Mr. Acosta, trial

counsel didn’t explain to him that most people who are charged with federal crimes

plead guilty, how very hard it is to win a case against the federal government, nor

that because he was charged in a conspiracy, all of the evidence against his

co-defendants could be used to convict him at trial.

Id. at 39-40.

Mr. Acosta testified further that trial counsel also didn’t explain the

Sentencing Guidelines to him.

Id. at 37. According to Mr. Acosta, it wasn’t until

after trial that he first saw the chart that tells you how long your sentence will be

under the Sentencing Guidelines, when sentencing counsel showed it to him.

Id. at

38-39.

He testified that trial counsel never explained to him that, under the

Guidelines, his sentence could be increased based on the drug quantity found, the

use of an airplane in the offense, his “special skill” as an airplane mechanic, and if he

went to trial.

Id. Mr. Acosta was shocked when his Probation Officer said that his

sentencing range under the Guidelines was 30 years to life.

Id.

Mr. Acosta

testified that if trial counsel had explained to him about how the system works and

the evidence against him, and that he was looking at a possible life sentence, he

would have helped the government and pled guilty.

But, Mr. Acosta testified, he

never thought about pleading guilty because trial counsel never explained these

things to him, and trial counsel was so confident he could show at trial that the

government witnesses were liars.

Mr. Acosta testified that he decided to hire sentencing counsel to handle his

sentencing rather than continuing to have trial counsel continue to represent him.

DE 51:30, 42.

Mr. Acosta testified that sentencing counsel really opened his eyes,

telling him things that he had never heard from trial counsel in the two years that

trial counsel represented him.

Id. at 43. Sentencing counsel explained conspiracy

law, and told him that the government had a strong case against him.

Id.

Sentencing counsel also explained to Mr. Acosta how the Sentencing Guidelines

helped him if he pled guilty and cooperated with the government, and how they hurt

him if he went to trial.

Mr. Acosta testified that had trial counsel explained the

system and the Sentencing Guidelines in the same way, he would have worked with

the government and pled guilty to the Travel Act offense rather than going to trial.

Id. at 43-46.

The government presented only trial counsel’s testimony.

Trial counsel

testified that he did not advise Mr. Acosta of his exposure under the Sentencing

Guidelines because he did not know the quantity of drugs that could be attributed to

Mr. Acosta’s conduct.

Instead, he told Mr. Acosta that his statutory sentencing

range was ten years to life.

Id. at 73-74, 89.

In addition, trial counsel testified

that the government conducted a “reverse proffer” where it explained its theory of

the case and urged Mr. Acosta to take a plea offer and cooperate.

Id. at 77-78.

Trial counsel testified that Mr. Acosta “went berserk” when he learned that he was

facing a sentence of 30 years to life.

App. A-4 at 24.

Finally, trial counsel testified

that Mr. Acosta stressed his innocence throughout the proceedings, was concerned

about being deported were he to plead guilty, and told him many times that he would

rather spend the rest of his life in an American prison than free in Venezuela.

DE 51:69-70.

The district court first determined that trial counsel’s performance was not

deficient even though there “may have been a ‘wide discrepancy’ between the initial

sentencing range suggested within the PSI (360 months to life) and counsel’s initial

hypothetical range (ten years to life),” because “Petitioner’s final Sentencing

Guidelines range was 151 to 188 months, and Petitioner’s actual sentence, 135

months, was ultimately closer to counsel’s hypothetical range than the range within

the PSI.”

App. A-3 at 4.

Thus, the district court determined, because trial counsel

“explicitly communicated to his client that his sentencing exposure without a plea

agreement was ten years to life,” and “Petitioner’s actual sentence – 135 months –

fell towards the very bottom of this range,” counsel’s performance was not deficient.

Id.

Next, the district court held that Mr. Acosta was not prejudiced by counsel’s

actions, determining that “Petitioner’s claims of innocence and fear of deportation

supported a finding that Petitioner would have nonetheless rejected the plea and

gambled on a favorable verdict at trial” even if counsel had fully explained Mr.

Acosta’s sentencing exposure to him.

Id. at 3.

The district court denied a certificate of appealability by separate order.

App. A-2.

Mr. Acosta then moved the United States Court of Appeals for the

Eleventh Circuit for a certificate of appealability, but a certificate was summarily

denied.

App. A-1.

REASON FOR GRANTING THE WRIT

Reasonable jurists could debate the district court’s determination

that trial counsel was not constitutionally ineffective with respect to the

government’s plea offer.

“One of the most precious applications of the Sixth Amendment may well be in

affording counsel to advise the defendant concerning whether he should enter a plea

of guilty.”

Reed v. United States, 354 F.2d 227, 229 (5th Cir. 1965).

A critical

aspect of counsel’s advice with respect to a plea offer is a comparison of the potential

term of imprisonment the defendant would serve pursuant to the offer, versus the

possible sentence that would be imposed following a guilty verdict at trial.

“The

basic minimum amount of time that a defendant will have to serve is an integral

factor in the plea negotiation; it is a direct, not a collateral consequence of the

sentence.”

Hill v. Lockhart, 877 F.2d 698, 703 (8th Cir. 1989). For this reason, the

law is clear that “counsel owes a duty to provide accurate information about his

client’s earliest release date.”

Id.

“A reasonably competent counsel will attempt to

learn all the facts of the case, make an estimate of a likely sentence, and

communicate the results of that analysis” to the client.

Moore v. Bryant, 348 F.3d

238, 241 (7th Cir. 2003).

For this reason, if an attorney fails to advise a defendant regarding the

sentencing ramifications of going to trial or pleading guilty, his performance falls

below the objective standard required by Strickland v. Washington, 466 U.S. 668

(1984).

See Hill v. Lockhart, 474 U.S. 52, 57 (1985); United States v. Grammas, 376

F.3d 433, 436 (5th Cir. 2004); United States v. Day, 969 F.2d 39, 42-43 (3d Cir. 1992).

“When a defendant lacks a full understanding of the risks of going to trial, he is

unable to make an intelligent choice of whether to accept a plea or take his chances

in court.”

Grammas, 376 F.3d at 436 (internal quotation marks omitted).

In evaluating counsel’s performance under Strickland, a court must “evaluate

the conduct from counsel’s perspective at the time.”

Strickland, 466 U.S. at 689.

“A fair assessment of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight.”

Id.

“Thus, a court deciding an actual

ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct

on the facts of the particular case, viewed as of the time of counsel’s conduct.”

Id. at

690.

Here, trial counsel did not even undertake to estimate Mr. Acosta’s sentencing

exposure under the Sentencing Guidelines were he to go to trial. The district court

found that counsel “explained it is nearly impossible to predict sentencing prior to

trial given all of the variables but was certain he explained to Movant that the

‘range’ was ‘ten years to life.’”

the statutory sentencing range.

App. A-4 at 21-22.

But “ten years to life” was only

Counsel utterly failed to provide Mr. Acosta with

any information regarding what sentence he might actually receive within this

statutory range.

Sentencing counsel, whom Mr. Acosta hired prior to sentencing,

testified that when he first met with Mr. Acosta and reviewed the PSI with him, Mr.

Acosta was not at all familiar with the Sentencing Guidelines or their implications

for his sentence.

Id, at 26.

Indeed, sentencing counsel testified that when he took

over Mr. Acosta’s case, Mr. Acosta “was ‘clueless,’ ‘was totally lost,’ and ‘didn’t seem

to know much about the guidelines or safety valve or really much about anything’

about his case.

Id.

But trial counsel not only failed to provide Mr. Acosta with any information

regarding Mr. Acosta’s potential Guidelines sentence himself. He fully abdicated

his role as advisor to Mr. Acosta when he allowed the prosecutor to tell Mr. Acosta

during the government’s reverse proffer that his rejection of the plea offer would

result in a 20-year sentence.

App. A-4 at 20-21.

Without any additional guidance

from trial counsel, it is not surprising that Mr. Acosta viewed this sentencing advice

from the prosecutor to be a “threat” that overestimated his potential sentencing

exposure in order to convince him to plead rather than a number based in reality.

Id. at 20.

Ironically, however, even the prosecutor’s 20-year “threat” grossly

underestimated Mr. Acosta’s potential sentencing exposure under the Guidelines,

given the Probation Officer’s initial calculation of the advisory Guidelines range to

be 360 months to life.

But because trial counsel never discussed the Sentencing Guidelines with Mr.

Acosta, Mr. Acosta was unaware of their implications for his sentence.

Because

trial counsel refused to estimate the drug quantity for which Mr. Acosta could be

held accountable, he never explained where in the statutory range of 10 years to life

Mr. Acosta’s sentence might fall.

Trial counsel also failed to explain

clearly-applicable Guidelines enhancements to Mr. Acosta, such as the two-point

increase for use of an airplane under U.S.S.G. § 2D1.1(b)(3)(A), and the two-point

enhancement for obstruction of justice under U.S.S.G. § 3C1.1 due to Mr. Acosta’s

testimony at trial. Given the lack of information that trial counsel provided, it is

not surprising that, according to counsel, Mr. Acosta “went berserk” when he learned

that he was facing a sentence of 30 years to life.

App. A-4 at 24.

Mr. Acosta’s

reactions demonstrate the utter lack of guidance trial counsel provided him

regarding his sentencing exposure following trial.

In light of trial counsel’s failure

to provide Mr. Acosta with a “full understanding of the risks of going to trial,”

Grammas, 376 F.3d at 436, reasonable jurists could debate whether his performance

was deficient under Strickland.

“By grossly underestimating [the defendant’s] sentencing exposure . . . ,

[counsel] breache[s] his duty as a defense lawyer in a criminal case to advise his

client fully on whether a particular plea to a charge appears desirable.”

United

States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998) (internal quotation marks

omitted).

See Grammas, 376 F.3d at 436. This is so because such information is

critical:

a criminal defendant’s “[k]nowledge of the comparative sentencing

exposure between standing trial and accepting a plea offer will often be crucial to the

decision whether to plead guilty.” United States v. Day, 969 F.2d 39, 43 (3d Cir.

1992).

In Gordon, the defendant rejected a pretrial plea offer of 84 months in part

because counsel informed him that he faced only 120 months were he to go to trial.

156 F.3d at 377. In fact, the defendant’s sentencing range was 262-327 months.

Id.

Similarly, in Day, the defendant rejected a plea offer of 5 years because counsel

informed him that he faced an 11-year sentence if he went to trial.

969 F.2d at 42.

In fact, because the defendant was classified as a career offender, his sentencing

range was 262-327 months.

Id. at 41. Finally, in Riggs v. Fairman, 399 F.3d

1179, 1183 (9th Cir. 2005), counsel mistakenly advised the defendant that his

maximum exposure following trial was only 9 years and, as a result, the defendant

rejected the State’s plea offer of five years.

exposure was 25 years-to-life.

Id.

However, the defendant’s actual

In each of these cases, the courts held that

counsel’s underestimation of the defendant’s sentencing exposure following trial fell

below the prevailing professional norms for advising the client during plea

negotiations.

See id. at 1183; Gordon, 156 F.3d at 380; Day, 969 F.2d at 42-43.

Even worse than counsel in Gordon, Day, and Riggs, trial counsel never

advised Mr. Acosta regarding his potential advisory Sentencing Guidelines range

were he to go to trial. Therefore, the only information Mr. Acosta had regarding the

sentence he was facing following trial was from the government – an estimate of 20

years – when the original PSI returned an advisory Guidelines range of 30 years to

life.

Reasonable jurists could debate whether this total lack of information, like the

gross underestimation of the defendants’ sentencing exposure in Gordon, Day and

Riggs “‘fell below the prevailing professional norms’ for advising a client during plea

negotiations.”

Gordon, 156 F.3d at 380.

The district court concluded that trial counsel’s performance was not deficient

under Strickland because counsel “explicitly communicated to his client that his

sentencing exposure without a plea agreement was ten years to life” and

“Petitioner’s actual sentence – 135 months – fell towards the very bottom of this

range.”

App. A-3 at 4.

Reasonable jurists could debate whether, by so concluding,

the district court engaged in the very type of backward-looking analysis Strickland

prohibits.

Strickland requires a court to “eliminate the distorting effects of hindsight, . . .

and to evaluate the conduct from counsel’s perspective at the time.”

Strickland,

466 U.S. at 689. Trial counsel had no idea that Mr. Acosta would end up with a

135-month sentence.

Indeed, it was only due to a series of fortunate events –

including a highly unusual intervention by the government on Mr. Acosta’s behalf

with the probation officer prior to sentencing – that Mr. Acosta’s offense level

dropped, thereby reducing his advisory Guidelines range to a range of 135 to 168

months from the original PSI’s range of 360 months to life.

Because the district

court relied on the very “distorting effects of hindsight” when it reconstructed

counsel’s conduct rather than viewing that conduct from trial counsel’s perspective

at the time, reasonable jurists could debate whether the district court erred in

relying on Mr. Acosta’s ultimate sentence to conclude that trial counsel’s

performance was not deficient.

Reasonable jurists could also debate whether the district court erred in

determining that Mr. Acosta could not demonstrate Strickland prejudice.

It found

that “even if [trial counsel] advised Petitioner of every potential sentencing

enhancement or reduction applicable under the Sentencing Guidelines, Petitioner’s

claims of innocence and fear of deportation supported a finding that Petitioner would

have nonetheless rejected the plea and gambled on a favorable verdict at trial.”

App. A-3 at 4.

First, reasonable jurists could debate whether a protestation of innocence is

dispositive of whether Mr. Acosta would have accepted the Government’s plea offer.

“[R]epeated declarations of innocence do not prove . . . that [defendant] would not

have accepted a guilty plea.”

2003) (emphasis added).

Griffin v. United States, 330 F.3d 733, 738 (6th Cir.

“Though [a defendant’s] insistence on his innocence is a

factor relevant to any conclusion as to whether he has shown a reasonable

probability that he would have pled guilty, it is not dispositive[;] . . . if he had been

properly informed . . . [defendant] might well have abandoned his claim of

innocence.”

Cullen v. United States, 194 F.3d 401, 407 (2d Cir. 1999) (emphasis

added).

Moreover, a “significant” discrepancy between the sentence offered by the

Government as part of a plea offer and that faced by the defendant after trial, when

combined with a “strong” prosecution case against the defendant, provides objective

evidence that the defendant would have accepted the plea offer had counsel’s advice

been constitutionally adequate.

Riggs, 399 F.3d at 1183.