Franco v. United States, No. 13-2607 (8th Cir. 2014)
Annotate this CasePetitioner, convicted of conspiracy to distribute 50 grams or more of methamphetamine, appealed the district court's denial of his motion to vacate his sentence under 28 U.S.C. 2255(b). Petitioner alleged that his attorney failed to file a requested notice of appeal. The court concluded that the district court abused its discretion by making a factual determination based on the relative credibility of counsel and petitioner without the benefit of an evidentiary hearing. Therefore, the court vacated and remanded for an evidentiary hearing on whether petitioner requested that counsel file an appeal.
Court Description: Habeas Case - motion to vacate. District court's denial of claim of ineffective assistance of counsel without a hearing is reversed. Neither defendant's nor his counsel's affidavit relating to whether defendant asked counsel to file a notice of appeal is more credible than the other. Making a factual determination without the benefit of an evidentiary hearing is an abuse of discretion.
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