Bobby Hart v. United States, No. 17-3451 (8th Cir. 2019)
Annotate this CaseCourt Description: Per Curiam - Before Gruender, Bowman and Kelly, Circuit Judges] Prisoner case - Habeas. An evidentiary hearing was warranted on Hart's claim that his sentencing counsel failed to file a notice of appeal as directed, and the district court's judgment is vacated only as to this claim; remanded for further proceedings.
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 17-3451 ___________________________ Bobby Altwon Hart lllllllllllllllllllllPetitioner - Appellant v. United States of America lllllllllllllllllllllRespondent - Appellee ____________ Appeal from United States District Court for the Eastern District of Arkansas - Little Rock ____________ Submitted: January 18, 2019 Filed: February 4, 2019 [Unpublished] ____________ Before GRUENDER, BOWMAN, and KELLY, Circuit Judges. ____________ PER CURIAM. In 2015, Bobby Hart pleaded guilty to a drug offense. He subsequently filed a 28 U.S.C. § 2255 motion, and the district court, without an evidentiary hearing, denied the motion. This court granted Hart a certificate of appealability as to his claim that sentencing counsel failed to file a notice of appeal as directed.1 Upon careful review, we conclude that an evidentiary hearing was warranted as to Hart’s claim. See Witthar v. United States, 793 F.3d 920, 922-24 (8th Cir. 2015) (per curiam) (concluding that, when the district court receives conflicting statements from the § 2255 movant and former counsel, the court cannot make factual determinations based on the relative credibility of the individuals without an evidentiary hearing and observing that, if neither statement is facially incredible and both contain similar specificity, counsel’s contrary statement is insufficient to support a finding that the movant’s allegations cannot be accepted as true); cf. Roundtree v. United States, 751 F.3d 923, 925-27 (8th Cir. 2014) (holding that a § 2255 movant is entitled to an evidentiary hearing unless the motion, the files, and the record conclusively show that he is not entitled to relief and observing that the district court is required to accept the movant’s assertions as true unless they are contradicted by the record, inherently incredible, merely conclusions, or would not entitle him to relief). Accordingly, we vacate the district court’s judgment only as to Hart’s claim that sentencing counsel failed to file a notice of appeal as directed and remand the case to the district court for further proceedings. We also deny the Government’s motion to dismiss this appeal in part. ______________________________ 1 A certificate of appealability was also granted as to Hart’s claim that counsel failed to consult about an appeal. But Hart has abandoned that claim. See Geach v. Chertoff, 444 F.3d 940, 946 n.8 (8th Cir. 2006) (concluding that arguments not raised in the opening brief were abandoned). -2-
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