FILED
United States Court of Appeals
Tenth Circuit
June 22, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-7110
(Case Nos. 08-CV-00238-RAW and
PAMELA RAYE HOWELL, 04-CR-00091-RAW-1)
(E.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and LUCERO, Circuit Judges.
On April 16, 2010, we granted Appellant’s request for a certificate of
appealability to appeal the district court’s denial of her request for an evidentiary
hearing, and we ordered briefing from the parties on this issue. We now consider
the merits of this issue, “review[ing] the district court’s refusal to hold an
evidentiary hearing for an abuse of discretion.” United States v. Harms, 371 F.3d
1208, 1210 (10th Cir. 2004). “Because an error of law is, by definition, an abuse
of discretion, any error of law in dismissing [the] motion for an evidentiary
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
hearing would constitute an abuse of discretion.” United States v. Duran-Salazar,
307 F. App’x 209, 211 (10th Cir. 2009) (quoting Almonacid v. United States, 476
F.3d 518, 520-21 (7th Cir. 2007)) (alteration in original).
After reviewing the record and the parties’ briefs, we conclude the
allegations in Appellant’s habeas petition and the sworn affidavits she attached in
support were sufficient to entitle her to an evidentiary hearing on her ineffective
assistance claims. Most of the claims Appellant raised appear sufficient, if true,
to satisfy the first prong of Strickland, see Strickland v. Washington, 466 U.S.
668, 687 (1984), 1 and they are not conclusively refuted by the record, see 28
U.S.C. § 2255(b). In light of the closeness of the case 2 and the substantiality of
Appellant’s sworn allegations, we conclude it was an abuse of discretion for the
district court to deny Appellant’s request for an evidentiary hearing. See United
States v. Barboa, 777 F.2d 1420, 1422-23 (10th Cir. 1985); Duran-Salazar, 307 F.
App’x at 211. We therefore REVERSE and REMAND for an evidentiary
1
We agree with the district court that counsel did not provide ineffective
assistance by failing to seek suppression of evidence discovered in an allegedly
pretextual traffic stop. See Whren v. United States, 517 U.S. 806, 813-14 (1996).
2
We note in particular that two of the counts on which Appellant was
convicted were based on strong evidence someone had possessed firearms and
attempted to manufacture meth at a particular location, but only tenuous evidence
linking Appellant to this location. Indeed, the trial court noted it was “troubled
about how close it is on” these counts, although the court ultimately
concluded—“though not without some discomfiture”—there was sufficient
evidence to withstand Appellant’s Rule 29 motion for a judgment of acquittal.
(Supplemental R. at 434.)
-2-
hearing on Appellant’s claims of ineffective assistance.
Entered for the Court
Monroe G. McKay
Circuit Judge
-3-