United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 28, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-40733
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROLAND CASTRO,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(C-01-CV-495)
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
We granted Roland Castro, federal prisoner No. 592532, a
certificate of appealability on the issue whether the district
court abused its discretion by failing to hold an evidentiary
hearing to resolve conflicting affidavits concerning Castro’s claim
that his trial attorney was ineffective for failing to call
*
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should not be published and is not precedent except under the limited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.
eyewitnesses Jesse Ortiz and Roque Resendez to testify at Castro’s
trial for being a felon in possession of a firearm.
Castro alleged that Ortiz and Resendez would have testified
that Castro did not possess a firearm, and he supported his 28
U.S.C. § 2255 motion with the affidavits of Ortiz and Resendez. In
response, the Government submitted the affidavit of Castro’s trial
attorney, Assistant Federal Public Defender Robert Carlin,
explaining why he did not call Ortiz and Resendez to testify at
trial. Under the facts sworn to by counsel, the decision not to
call Ortiz and Resendez was clearly a reasonable trial strategy.
The district court denied § 2255 relief without holding an
evidentiary hearing to resolve the conflicts in the affidavit
evidence because it concluded that Castro could not demonstrate
that he was prejudiced by counsel’s decision not to call Ortiz and
Resendez to testify.
When facts are at issue in a § 2255 proceeding, a hearing is
required if 1) the record, as supplemented by the trial judge’s
personal knowledge or recollection, does not conclusively negate
the facts alleged in support of the claim for § 2255 relief; and 2)
the movant would be entitled to post-conviction relief as a legal
matter if his factual allegations are true.1 In this case, the
record alone does not support the district court’s finding of no
prejudice.
1
Friedman v. United States, 588 F.2d 1010, 1015 (5th Cir. 1979); see
United States v. Briggs, 939 F.2d 222, 228 (5th Cir. 1991).
2
In light of the conflicting affidavit evidence, the district
court abused its discretion by denying Castro’s motion without
either holding an evidentiary hearing or citing the court’s
personal knowledge or recollection of the trial to support its
determination that Castro could not demonstrate that he was
prejudiced by counsel’s failure to call Resendez and Ortiz to
testify.2 Accordingly, the denial of § 2255 relief is vacated and
the case is remanded to the district court for proceedings
consistent with this opinion.
VACATED AND REMANDED.
2
Friedman, 588 F.2d at 1015; see United States v. McCord, 618 F.2d 389,
393-95 (5th Cir. 1980).
3