Case: 17-30243 Document: 00515739152 Page: 1 Date Filed: 02/09/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 9, 2021
No. 17-30243
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Gregory M. Ward,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:16-CV-9527
USDC No. 2:13-CR-138
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Gregory M. Ward, federal prisoner # 27350-034, pleaded guilty
without a plea agreement to possessing with intent to distribute 100 grams or
more of heroin, for which he was sentenced to 236 months in prison. He filed
*
Pursuant to 5th Circuit 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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
Case: 17-30243 Document: 00515739152 Page: 2 Date Filed: 02/09/2021
No. 17-30243
a motion seeking postconviction relief under 28 U.S.C. § 2255 on the ground
that his counsel was ineffective for erroneously informing him that he could
appeal the denial of his suppression motion even if he entered an
unconditional guilty plea, among other claims. The district court denied the
motion, concluding as to this claim that Ward failed to show either deficient
performance or prejudice under Strickland v. Washington, 466 U.S. 668
(1984). This court denied Ward a certificate of appealability (COA). The
Supreme Court remanded this matter for further consideration. See Ward v.
United States, 139 S. Ct. 2775 (2019). Subsequently, this court granted a
COA on Ward’s claim that counsel had been ineffective for advising him that
he could appeal the suppression ruling even after entering an unconditional
guilty plea.
The Government concedes that the district court erred in denying this
ineffective-assistance claim without an evidentiary hearing. Although that
concession is not binding on us, see United States v. Vargas-Garcia, 434 F.3d
345, 348 (5th Cir. 2005), we agree. Based on our independent review of the
briefs and the record, which included Ward’s declaration and supporting
affidavit regarding his reliance on counsel’s allegedly erroneous advice as
well as consistent contemporaneous records, we conclude that the record did
not conclusively show that he was entitled to no relief on this claim. See Lee
v. United States, 137 S. Ct. 1958, 1965-67 (2017); United States v. Reed, 719
F.3d 369, 374 (5th Cir. 2013); United States v. Bartholomew, 974 F.2d 39, 41
(5th Cir. 1992). The district court therefore erred in denying this claim
without an evidentiary hearing. See Bartholomew, 974 F.2d at 41. We do not
consider Ward’s other arguments that are beyond the scope of the COA. See
United States v. Daniels, 588 F.3d 835, 836 n.1 (5th Cir. 2009).
Accordingly, we VACATE the denial of Ward’s § 2255 motion in
part and REMAND the case to the district court for an evidentiary hearing
as to this claim. We express no view on the merits of the claim. Ward’s
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Case: 17-30243 Document: 00515739152 Page: 3 Date Filed: 02/09/2021
No. 17-30243
motion for appointment of counsel is DENIED as moot, and his motion for
leave to file a supplemental brief is DENIED as unnecessary.
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