Unpublished Disposition, 852 F.2d 572 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 572 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Fidel Carrillo CARDENAS, Defendant-Appellant.

No. 86-6542.

United States Court of Appeals, Ninth Circuit.

Submitted May 17, 1988.Decided June 29, 1988.* 

Before KOELSCH, KILKENNY, and FARRIS, Circuit Judges.


MEMORANDUM** 

Fidel Carrillo Cardenas alleges that he participated in the criminal activity which resulted in his conviction because threats were made against his person and that of his young son. His allegation, if true, provides a basis to support his allegation of a well-founded fear that the threat would be carried out. He recognizes that evidence of duress was not presented at trial but argues that his lawyer was fully informed of the facts, failed to investigate them and therefore afforded ineffective assistance of counsel since duress, if proved, would have been a defense to the action.

The district court, without holding an evidentiary hearing, denied Carrillo Cardenas' motion to vacate his sentence pursuant to Title 28 U.S.C. § 2255.

The petitioner set forth allegations which, if true, would provide a basis for relief. Even so the district court could refuse to conduct an evidentiary hearing if the motion, files, and record conclusively showed that the petitioner was not entitled to relief. United States v. Espinoza, 841 F.2d 326, 327 (9th Cir. 1988). Here, however, the court did not give any reason for its ruling.

We therefore remand for clarification of the order denying a hearing. The court should set forth the reasons for its conclusion that no hearing was necessary to resolve the matter. Any panel of the court may thereafter determine, based on the adequacy of the court's order, whether an evidentiary hearing is required.

REMANDED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3