United States v. McBrayer

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 30, 2004

Charles R. Fulbruge III
Clerk
No. 04-60156
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RUBY L. MCBRAYER, also known as Ruby Posey McBrayer, also
known as Ruby L. Posey,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC Nos. 3:03-CV-1165
3:00-CR-171-2-BS
--------------------

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

Ruby L. McBrayer, federal prisoner # 05985-043, moves in

this court for a certificate of appealability (“COA”) to appeal

the district court’s denial of her 28 U.S.C. § 2255 motion to

vacate, set aside, or correct her sentence. McBrayer argues, in

pertinent part, that her trial attorneys were ineffective for

failing to timely disclose and designate accountant Jan Miller as

an expert witness. She argues that, as a result, she was

*
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that this opinion should not be published and is not precedent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.
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prejudiced because the trial court excluded the testimony of

Miller, whose testimony in state court resulted in a directed

verdict in McBrayer’s favor, and whose testimony in federal court

would have led to a different result. McBrayer argues that the

district court’s failure to hold an evidentiary hearing on this

issue was error.

A COA motion may be granted only if the movant makes a

substantial showing of the denial of a constitutional right. See

28 U.S.C. § 2253(c)(2). This requires the movant to demonstrate

“that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

The district court, without conducting an evidentiary

hearing, found that the attorneys’ failure to timely designate

Miller as an expert was McBrayer’s fault because she did not

timely provide to Miller the documents necessary to prepare her

report. The court focused on McBrayer’s statement that she had

some difficulty obtaining those documents. The court thus

concluded that McBrayer’s attorneys were not negligent in failing

to timely designate Miller as an expert witness.

“[C]ontested fact issues [in a 28 U.S.C. § 2255 case]

ordinarily may not be decided on affidavits alone, unless the

affidavits are supported by other evidence in the record.”

United States v. Hughes, 635 F.2d 449, 451 (5th Cir. Unit B

1981). The record does not conclusively show that McBrayer is
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entitled to no relief. See United States v. Bartholomew, 974

F.2d 39, 41 (5th Cir. 1992). The affidavits presented by

McBrayer, those presented by her attorneys, and the record as a

whole show that there are contested facts regarding whether

McBrayer timely provided the necessary information to Miller, and

despite any delays by McBrayer, whether the attorneys received

Miller’s report and supporting documents in time to comply with

the trial court’s discovery order.

McBrayer has stated a facially valid claim of the denial of

a constitutional right regarding her contention that her

attorneys were ineffective for failing to timely disclose and

designate accountant Jan Miller as an expert witness. See

Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, we

GRANT McBrayer a COA on this issue, VACATE the district court’s

denial of 28 U.S.C. § 2255 relief, and REMAND to the district

court for an evidentiary hearing regarding this issue. See

Dickinson v. Wainwright, 626 F.2d 1184, 1186 (5th Cir. 1980).

This order is in no way intended to express any intimation as to

the ultimate outcome of this issue.

McBrayer does not argue, and thus has waived, her claims

raised in the district court that these attorneys were

ineffective because there was a conflict of interest in their

representing both her and her husband and because they failed to

designate Kenneth Parker as an expert witness and to prepare
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adequately for trial. See Hughes v. Johnson, 191 F.3d 607, 613

(5th Cir. 1999).

COA GRANTED; VACATED AND REMANDED.