Summary Calendar UNITED STATES OF AMERICA v. Benjamin Arreaga Perez

* Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
May 4, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
04-21012
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BENJAMIN ARREAGA PEREZ,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Texas, Houston
4:02-CR-572-14 / 4:04-CV-1402
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Pursuant to a written plea agreement, Benjamin Arreaga Perez
pleaded guilty to one count of possession with intent to distribute
500 grams or more of cocaine. He was sentenced to a prison term of
64 months. He filed a pro se motion for modification of his
sentence under 18 U.S.C. § 3582(c)(2), arguing that his defense
attorney induced his guilty plea by promising him a sentence of no

-- 1 of 7 --

2
more than 24 months. The court denied that motion for lack of
jurisdiction. Perez then filed a timely § 2255 motion to vacate
his sentence based on several claims of ineffective assistance. He
also requested an evidentiary hearing. The court denied the
request for a hearing, denied the motion, and denied Perez’s
subsequent request for a Certificate of Appealability (COA). We
then granted the COA as to Perez’s claims that his plea was invalid
and that he was entitled to an evidentiary hearing in the district
court. United States v. Perez, No. 04-21012 (5th Cir. Jan. 9,
2006) (unpublished order). We now find that Perez is entitled to
an evidentiary hearing and REMAND his case to the district court.
I. FACTS AND STANDARD OF REVIEW
Benjamin Arreaga Perez wished to plead guilty to one count of
possession with intent to distribute cocaine. At his arraignment,
when the court asked him if anyone had made any promises to him to
persuade him to plead guilty, he said “yes.” The court hesitated,
and then repeated the question, at which time Perez changed his
answer to “no.” The court accepted his plea and sentenced him to
64 months of imprisonment. Perez eventually filed a timely § 2255
motion in which he contended that his lawyer, Kenneth Smith,
induced him to plead guilty by promising that he would receive a
sentence of 24 months. He requested an evidentiary hearing on the
motion.
To support his contention that Smith made him such a promise,

-- 2 of 7 --

1Both affiants make several other allegations about
misrepresentations by Smith that are not relevant to the narrow
question before us today. They may prove relevant on remand, in
which case the district court should consider them, but we need not
enumerate them all here.
3
he submitted a declaration under penalty of perjury and two sworn,
notarized affidavits, one each from his wife and his wife’s sister-
in-law. In his own declaration, Perez states that Smith repeatedly
told him his sentence would be 24 months, and that Smith told him
to deny in court that anyone had promised him anything in return
for his guilty plea. Perez’s wife, Juana Perez, states in her
affidavit that she personally visited with Smith about ten times in
his office, and that during those conversations Smith repeatedly
assured her that her husband would receive a sentence of 24 months.
He added that the sentence would include one year in jail, followed
by one year of probation. Irene Rodriguez, the sister-in-law of
Ms. Perez, states in her affidavit that she was in the courtroom
for sentencing, and that she witnessed Mr. Smith tell another
attorney that Perez would surely receive a sentence of 24 months.1
The district court dismissed Perez’s § 2255 motion without an
evidentiary hearing and without receiving any evidence from Smith.
The court did so on the grounds that Perez’s affidavit failed to
provide the identity of an eyewitness to the promise of a 24-month
sentence, as required by our precedent. See United States v.
Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998) (citing Harmason v.
Smith, 888 F.2d 1527, 1529 (5th Cir. 1989)). Perez appealed both

-- 3 of 7 --

2Perez also argues on appeal that the government’s reply brief
should be stricken as untimely. However, the government obtained
an extension for filing its brief and successfully satisfied that
deadline.
4
the dismissal of his § 2255 motion and the denial of his request
for a hearing.2
For the reasons that follow, we find it necessary to consider
only the denial of an evidentiary hearing. Partly because no such
hearing was held, there is not enough evidence in the record for us
to consider the merits of Perez’s ineffective assistance claim. We
review the district court’s denial of the hearing for abuse of
discretion. Id. (citing United States v. Bartholomew, 974 F.2d 39,
41 (5th Cir. 1992) (per curiam)).
II. THE DENIAL OF AN EVIDENTIARY HEARING
It is settled law that “a guilty plea may be invalid if
induced by defense counsel’s unkept promises.” Id. (citation
omitted). To obtain relief on an ineffective assistance theory,
Perez ultimately must demonstrate that Smith’s performance was
deficient and that there is a reasonable probability that, but for
Smith’s deficient performance, he would not have entered a guilty
plea and would have insisted on a trial. See Hill v. Lockhart, 474
U.S. 52, 59 (1985); Strickland v. Washington, 466 U.S. 668, 687
(1984). We are not now deciding the merits of the ineffective
assistance claim, however, but rather the preliminary question of
whether Perez was entitled to an evidentiary hearing on the matter.

-- 4 of 7 --

5
When the district judge asked Perez at sentencing if anyone
had made him promises to induce his plea, he first said “yes,” but
then changed his answer to “no.” While this equivocation may prove
significant on remand, at this point the latter answer constitutes
testimony under oath, and “a defendant ordinarily will not be heard
to refute [his] testimony given at a plea hearing while under
oath.” Cervantes, 132 F.3d at 1110 (citing United States v.
Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985)). “‘Solemn
declarations in open court carry a strong presumption of verity,’
forming a ‘formidable barrier in any subsequent collateral
proceedings.’” Id. (quoting Blackledge v. Allison, 431 U.S. 63,
73–74 (1977)). “Nevertheless, a defendant may seek habeas relief
on the basis of alleged promises, though inconsistent with
representations [he] made in open court when entering [his] guilty
plea, by proving (1) the exact terms of the alleged promise, (2)
exactly when, where, and by whom the promise was made, and (3) the
precise identity of an eyewitness to the promise.” Id. (citation
omitted). “If the defendant produces independent indicia of the
likely merit of [his] allegations, typically in the form of one or
more affidavits from reliable third parties, [he] is entitled to an
evidentiary hearing on the issue.” Id. (citation omitted).
On the record before us, we believe Perez did present
sufficient indicia of the likely merit of his allegations to
warrant an evidentiary hearing, and that it was an abuse of

-- 5 of 7 --

6
discretion for the district court to deny that request. The
district court apparently discounted the affidavits that Perez
offered on the grounds that they failed to establish an eyewitness
to the promise of a 24-month sentence. However, the eyewitness
requirement is somewhat flexible. In Hayes v. Maggio, 699 F.2d
198, 202 (5th Cir. 1983), the defendant relied on a witness who
testified that on the day of trial, he witnessed the district
attorney make a promise to the client’s defense attorney. Although
there was no testimony that the witness saw any promise made
directly to the defendant, we held that the witness’s testimony
satisfied the Blackledge requirements. Id. at 202–04. Similarly,
in this case, neither affiant claims to have witnessed a promise
between Smith and Perez, but both claim to have seen Smith state
unequivocally that he was going to get his client a sentence of 24
months. Juana Perez states that this promise was made directly to
her, while Irene Rodriguez affirms that she witnessed Smith say the
same thing to another attorney in the courtroom. Both witnesses
were able to identify the time and place of these promises with
adequate specificity.
In ruling that the affidavits, even if true, could not satisfy
the Blackledge requirements, the district court plainly misapplied
our precedent. Perez was entitled to an evidentiary hearing at
which he could try to demonstrate the validity of his own
declaration and the two affidavits. Of course, the government is

-- 6 of 7 --

3We need not consider the substance of the government’s
evidence at this time, as that is best left for the district court
in the first instance. However, we must note that the government
spends much of its brief arguing that the affidavits of Juana Perez
and Irene Rodriguez are “deficient” because they are unsworn. We
are at a complete loss to understand the government’s point on this
issue. Juana Perez’s affidavit begins: “I[,] Juana Marisela Perez,
sworn [sic] under oath that the following is true and correct to
the best of my knowledge.” Irene Rodriguez’s affidavit begins
similarly: “I, Irene Rodriguez, solemnly swear[,] depose and says
[sic] that I am the sister-in-law of Benjamin Arreaga Perez’s wife,
and make this affidavit under personal acknowledge [sic] in support
of my Sister-in-law husband’s [sic] motion for reduction of
sentence.” Both affidavits are signed and notarized.
Despite our best efforts, we can think of no reason why
counsel for the government would characterize these affidavits as
unsworn. They seem plainly sufficient to us, and we are troubled
that the government would make such a serious allegation, and at
some length, without providing more support for it. Perhaps the
government has noticed some flaw that escapes us, but if so it has
failed to articulate it clearly. Perhaps the argument was included
in the brief by mistake. Whatever the reason, counsel for the
government is admonished to take more care when making such
assertions.
7
entitled to present its evidence to the contrary.3 It was an abuse
of discretion for the district court to rule otherwise.
III. CONCLUSION
The case is REMANDED to the district court with instructions
to conduct an evidentiary hearing on Perez’s § 2255 claim in a
manner consistent with this opinion. We pass no judgment on the
weight of the evidence put forth by Perez or the government at
this time, except to say that there is a factual dispute
sufficient to warrant a hearing.

-- 7 of 7 --