IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-30767
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN BOE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 95-CA-1017
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May 26, 1997
Before DAVIS, EMILIA M. GARZA and STEWART, Circuit Judges.
PER CURIAM:*
John Boe appeals the district court’s order denying his
postconviction motion under 28 U.S.C. § 2255. Boe contends that
the district court should not have denied his motion without
holding an evidentiary hearing and that his attorney was
ineffective in failing to file a notice of appeal. A district
court may dispose of a defendant’s § 2255 motion without an
evidentiary hearing if “the motion and the files and records of
the case conclusively show that the prisoner is entitled to no
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
No. 95-30767
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relief.” United States v. Drummond, 910 F.2d 284, 285 (5th Cir.
1990) (internal quotations omitted). Boe filed his own affidavit
in support of his motion in which he stated that he had asked his
attorney whether he could appeal his sentence, that his attorney
had stated that he had “never heard of such a process.” The
Government attached to its answer the affidavit of Boe’s trial
counsel, in which counsel stated that he advised Boe of his
appellate rights and that Boe had not instructed him to file an
appeal. In rejecting this issue, the district court credited the
attorney’s affidavit and determined that the motion could be
resolved without an evidentiary hearing. The district court
erred.
Contested issues of fact may not be decided on the basis of
affidavits alone unless the affidavits are supported by other
evidence in the record. United States v. Hughes, 635 F.2d 449,
451 (5th Cir. 1981); Owens v. United States, 551 F.2d 1053, 1054
(5th Cir. 1977). “This Court’s policy has been strongly in favor
of the position that a waiver will not be assumed unless the
facts clearly support such an assumption.” See Chapman v. United
States, 469 F.2d 634, 637 (5th Cir. 1972). Neither the plea
agreement, the sentencing transcript, nor the transcript of the
rearraignment, mention Boe’s right to appeal his sentence. The
record does not corroborate counsel’s affidavit and the district
court should have held a hearing. Accordingly, this portion of
the district court’s order is VACATED and the case is REMANDED
No. 95-30767
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for further proceedings consistent with this opinion.
Boe has failed to demonstrate that his attorney rendered
ineffective assistance in connection with the entry of the guilty
plea and at sentencing. Boe has also failed to raise a
cognizable issue with respect to the district court’s application
of the sentencing guidelines. See United States v. Faubion, 19
F.3d 226, 233 n.36 (5th Cir. 1994). Those portions of the
district court’s order are AFFIRMED.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.