Unpublished Disposition, 884 F.2d 1396 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 884 F.2d 1396 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Percy James PEARCE, Defendant-Appellant.

No. 87-2848.

United States Court of Appeals, Ninth Circuit.

Submitted July 13, 1989.* Decided Sept. 1, 1989.

Before TANG, NELSON and REINHARDT, Circuit Judges.


Percy James Pearce, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion. Pearce contends that the district court erred in denying his motion because his attorney failed to file an appeal of his conviction, failed to advise him of favorable evidence, and his attorney on his previous section 2255 motion failed to appeal its denial. The judgment is reversed and the case remanded for further proceedings.

The district court's order, denying this petition on the ground that Pearce pled guilty to his offense and was therefore ineligible to appeal his conviction, is erroneous as a matter of law. See e.g., United States v. Tuohey, 867 F.2d 534 (9th Cir. 1989); United States v. Signori, 844 F.2d 635 (9th Cir. 1988). Because it is unclear from the record what, if any, merit there may be to Pearce's claims, the district court is in the best position to review the record and supplement it, if necessary, with its own recollections of the events in question, or order an evidentiary hearing if matters outside the record are to be considered.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4


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