IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50126
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBY EUGENE STEWART,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-95-CV-277
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May 27, 1997
Before KING, JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Bobby Eugene Stewart’s motion for leave to proceed in forma
pauperis on appeal is granted. Because no further briefing is
required, the merits of Stewart’s appeal have been reviewed.
Stewart argues that he received ineffective assistance of
counsel and that he was entitled to an evidentiary hearing on the
ineffective-assistance issue because counsel failed to require
the Government to prove the type of methamphetamine possessed by
*
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that this opinion should not be published and is not precedent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. 96-50126
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Stewart. The district court’s denial of Stewart’s motion to
vacate, set aside, or correct sentence filed pursuant to 28
U.S.C. § 2255 is vacated and the case remanded for an evidentiary
hearing. Under United States v. Acklen, 47 F.3d 739, 742 (5th
Cir. 1995), Stewart is entitled to an evidentiary hearing because
his assertions that the substance he produced was l-
methamphetamine are supported by verified evidence and,
therefore, are sufficient to place the contention in issue to
warrant such a hearing. Id. at 745-46.
The district court’s elimination of Stewart’s evidentiary
support of his argument was also improper. The district court
concluded that Stewart attempted to submit laboratory reports
performed in another case to support his argument. However, the
laboratory reports submitted by Stewart clearly show that they
were performed by the Texas Department of Public Safety and that
they were performed in Stewart’s case. Stewart is entitled to an
evidentiary hearing to allow him the opportunity to produce
evidentiary support that the substance he produced was l-
methamphetamine. Whether Stewart can make such a showing
determines the outcome of his ineffective-assistance-of-counsel
allegation. See Acklen, 47 F.3d at at 745-46.