IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-20721
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSÉ VIRGILIO REYES,
a/k/a José Rafael Garcia,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-97-CV-2593)
_________________________
December 2, 1998
Before KING, JONES, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
José Reyes appeals the denial of his motion to vacate, set
aside, or correct a sentence under 28 U.S.C. § 2255. We vacate and
remand for a hearing, and we instruct the court to make factual
determinations and conclusions of law with respect to Reyes's claim
that he was denied effective assistance of counsel.
*
Pursuant to 5TH CIR. R. 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should not be published and is not precedent except under the limited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 5TH CIR. R. 47.5.4.
I.
Authorities arrested Reyes and charged him with state firearms
and drug offenses. The following day, Reyes was charged in a
federal criminal complaint with (1) using and carrying a firearm
during and in relation to a drug-trafficking crime; (2) delivering
a package containing firearms to a common carrier for
transportation or shipment in interstate commerce without giving
written notice to the carrier; and (3) possessing firearms from
which the manufacturer's serial numbers had been removed. State
authorities incarcerated Reyes from his arrest on September 24,
1992, until his state sentencing on January 5, 1993, at which time
he received an eight-year term of imprisonment. He served eight
months and was released on parole in September 1993. At no point
during this period did the government file a federal indictment for
the conduct for which he had been arrested.
On January 12, 1994, the government filed a motion under FED.
R. CRIM. P. 48(a) to dismiss the federal criminal complaint without
prejudice, and the court granted the motion. The government did
not notify Reyes of the motion, see United States v. Reyes,
102 F.3d 1361, 1366 n.6 (5th Cir. 1996), so he did not object to
the motion at that time. On July 20, 1994, he was charged by
federal indictment with the same three crimes listed in the
original federal criminal complaint and with conspiracy to possess
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marihuana with intent to distribute. He did not object to his
indictment before trial.
At the close of all the evidence, Reyes moved for a judgment
of acquittal, arguing that the motion to dismiss the first federal
complaint without prejudice had been filed in bad faith solely to
avoid the time constraints of the Speedy Trial Act, which requires
that a defendant be indicted within thirty days of arrest. See
18 U.S.C. § 3161(b). The court denied this motion, and the jury
found Reyes guilty on all counts.
Reyes appealed, arguing (1) that he should be excused for not
objecting to the motion to dismiss the first complaint without
prejudice, because he did not have notice of the motion, and
(2) that the government had dismissed the complaint solely to avoid
the requirements of the Speedy Trial ActSSa bad faith motivation
that precludes dismissal without prejudice. We concluded that the
government's failure to provide Reyes with notice of the filing of
its rule 48(a) motion excused his failure to contest the motion
before the court granted it. See Reyes, 102 F.3d at 1367. We also
held, however, that by failing to object at the time he was
reindicted, Reyes had waived his right to complain that the
prosecution had requested the dismissal in bad faith. See id.
at 1367-68.
Reyes then filed the instant motion to vacate, set aside, or
correct his sentence under § 2255, claiming he was denied effective
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assistance of counsel because his attorney, among other things,
failed to seek a dismissal of the indictment based on the fact that
the government acted in bad faith in seeking dismissal of the
original criminal complaint. The court summarily dismissed the
motion and denied a certificate of appealability (“COA”). We
granted a COA on the issues of whether counsel was ineffective for
failing to object to the indictment following the government's
allegedly bad faith dismissal of the original complaint and whether
the district court erred in denying this claim without providing
findings and conclusions of law in support of the denial and
without conducting an evidentiary hearing.
II.
To prevail on a claim of ineffective assistance, a movant
must show (1) that his counsel's performance was deficient in that
it fell below an objective standard of reasonableness and (2) that
the deficient performance prejudiced his defense. Strickland v.
Washington, 466 U.S. 668, 689-94 (1984). Reyes has met the first
prong. Indeed, the government admits that “the deficiency in
Reyes' counsel's performance leaps from the record.”
It is not evident from the record, however, whether counsel's
deficient performance prejudiced Reyes's defense. To show
prejudice under Washington, a movant must demonstrate that
counsel's errors were so serious as to “render[] the result of the
4
trial unreliable or the proceeding fundamentally unfair.” Lockhart
v. Fretwell, 506 U.S. 364, 369 (1993). The Washington Court
explained that “[t]he defendant must show that there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.”
Washington, 466 U.S. at 694. Because the district court did not
sufficiently develop the record, we are unable to determine whether
Reyes’s counsel’s failure to object to Reyes’s reindictment
prejudiced his defense.
III.
Section § 2255 provides that
[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no
relief, the court shall cause notice thereof to be served
upon the United States attorney, grant a prompt hearing
thereon, determine the issues and make findings of fact
and conclusions of law with respect thereto.
We cannot conclude that the files and records of the case
“conclusively show” that Reyes received effective assistance and
thus was entitled to no relief. The district court therefore
should have held a hearing, or otherwise developed the factual
record, and made factual findings and legal determinations on
Reyes's ineffective assistance claim.1
The government argues that this is a clear-cut case in which
1
See United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992) (holding
that the standard of review for denial of evidentiary hearing is abuse of
discretion).
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there is no need for either a hearing or factual and legal
determinations. It analogizes to United States v. Flores, 135 F.3d
1000 (5th Cir. 1998), in which we concluded that a hearing and
written findings of fact and conclusions of law were not necessary.
We found there that “Flores' motion did not raise any legal or
factual issues that should long have detained a district court.”
Id. at 1007 n.23.
Reyes, by contrast, does raise factual issues concerning the
effectiveness of his counsel and prejudice to his defense arising
from failure to raise a Speedy Trial Act timely. Consequently, we
remand with instructions to hold a hearing, or otherwise develop
the factual record, and to make findings of fact and conclusions of
law as § 2255 requires. VACATED and REMANDED.
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