IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10498
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN GURRUSQUIETA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:99-CV-993-P
(3:97-CR-158-19-P)
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March 16, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
This court granted a certificate of appealability on the
issue whether the district court erred by failing to consider the
reply filed by Juan Gurrusquieta, federal inmate #30750-077, as a
liberally construed amendment to his 28 U.S.C. § 2255 motion. A
district court’s denial of a motion to amend is reviewed for an
abuse of discretion. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d
594, 597 (5th Cir. 1981). Moreover, courts are required to
*
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that this opinion should not be published and is not precedent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.
No. 00-10498
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construe liberally the filings of pro se litigants. See United
States v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996).
Gurrusquieta’s reply provided further details on his
ineffective-assistance claim concerning the advice and
information counsel gave Gurrusquieta after sentencing. It is
unclear from the record whether the district court considered
Gurrusquieta’s reply at all.
The Government requests a remand in order for the district
court to resolve factual issues that may be dispositive of
Gurrusquieta’s claim that counsel rendered ineffective assistance
in his advice and information to Gurrusquieta concerning his
right to appellate counsel for the direct appeal. Our review of
the record, including the court’s admonishment to Gurrusquieta at
sentencing, fails to reveal whether Gurrusquieta was informed of
his right to seek appointed counsel for appeal if he could not
afford to retain counsel. Whether counsel’s assistance amounted
to deficient performance depends on the information Belt gave
Gurrusquieta after sentencing about acquiring retained appellate
counsel or about seeking appointed counsel if Gurrusquieta could
not afford retained counsel. See Roe v. Flores-Ortega, 120 S.
Ct. 1029, 1036-37 (2000). Presently, the record fails to provide
findings of fact concerning what counsel told Gurrusquieta, and
Gurrusquieta’s constitutional right to appellate counsel is
arguably implicated.
For the district court to deny 28 U.S.C. § 2255 relief
without holding an evidentiary hearing, the record must
conclusively demonstrate that Gurrusquieta is not entitled to
No. 00-10498
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relief. United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir.
1992). In light of the absence of factual findings on what
counsel advised Gurrusquieta and in light of the Government’s
request for a remand, we VACATE the district court’s denial of 28
U.S.C. § 2255 relief and REMAND for further proceedings,
including an evidentiary hearing.
VACATED and REMANDED.