United States v. Rodriguez ( 1997 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20584
USDC No. CA-H-94-1990
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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April 11, 1997
Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.
BY THE COURT:
Jose Luis Rodriguez, federal prisoner # 0058242, seeks
permission to appeal the district court’s decision after remand
of his 28 U.S.C. § 2255 motion for further findings of fact and
conclusions of law. Rodriguez argues that the district court
erred in denying his § 2255 motion without conducting an
evidentiary hearing. He maintains that his counsel was
ineffective for failing to investigate potential defense
witnesses. The Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA) amended 28
U.S.C. § 2253 to require that an applicant obtain a certificate
of appealability (COA) to appeal a final order in a § 2255
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proceeding. The COA requirement applies to § 2255 motions that
were filed prior to the effective date of the AEDPA but were
denied after that date. See United States v. Orozco, 103 F.2d
389, 392 (5th Cir. 1996). A COA may be issued only if the
applicant makes a substantial showing of the denial of a
constitutional right. § 2253(c)(2); Drinkard v. Johnson, 97 F.3d
751, 756 (5th Cir. 1996)(§ 2254 case), cert. denied, 1997 WL
10415 (U.S. March 3, 1997).
Rodriguez has made a substantial showing of the denial of a
constitutional right as to whether his counsel was ineffective.
The district court erred in finding that the record was
sufficient to decide Rodriguez’s ineffectiveness claim. This
court has previously stated that the affidavits filed by
Rodriguez prevented the court “from concluding that the record
conclusively establishes that the petitioner is entitled to no
relief.” On remand, the district court based its decision solely
on the same affidavits filed with Rodriguez’s original motion.
The district court’s decision is based in part on speculation
that the potential witnesses’ “credibility would not survive
cross examination.” The district court assumed Rodriguez’s
counsel made a decision not to call these witnesses based on
trial strategy. In section 2255 cases, contested issues of fact
may not be decided on the basis of affidavits alone unless the
affidavits are supported by other evidence in the record. United
States v. Hughes, 635 F.2d 449, 451 (5th Cir. 1981); Owens v.
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No. 96-20584
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United States, 551 F.2d 1053, 1054 (5th Cir. 1977). The district
court at a minimum should have directed the respondent to file a
response to Rodriguez’s motion and obtained an affidavit from
Rodriguez’s counsel concerning what actions if any he took to
investigate and/or interview these potential witnesses and
whether he made a strategic decision not to call these witnesses.
If counsel’s affidavit had been supported by other evidence in
the record, then a full evidentiary hearing may not have been
required. Accordingly, we GRANT COA, vacate the district court’s
decision, and remand the case for development of the record and
further findings of fact on the issue whether Rodriguez’s counsel
was ineffective for failing to investigate and interview the
potential witnesses identified by Rodriguez.