Steven W. Kurkowski v. United States ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
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No. 99-3176
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*
Steven Wayne Kurkowski, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
United States of America, * [UNPUBLISHED]
*
Appellee. *
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Submitted: June 26, 2000
Filed: July 3, 2000
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Before McMILLIAN, FAGG, and HANSEN, Circuit Judges.
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PER CURIAM.
In the 28 U.S.C. § 2255 proceedings below, appellant and defense counsel filed
conflicting sworn statements on whether appellant had instructed counsel to file a
notice of appeal in his criminal case. The district court dismissed the § 2255 motion
without a hearing because it did not believe appellant could raise any meritorious
issues on appeal. An evidentiary hearing is required if the motion, files, and records
are inconclusive regarding whether a movant has instructed counsel to file an appeal.
See Holloway v. United States, 960 F.2d 1348, 1357 (8th Cir. 1992). We do not
require a showing of prejudice or the likelihood of success on appeal when the issue
is whether counsel deprived the movant of his right to a direct appeal. See Hollis v.
United States, 687 F.2d 257, 259 (8th Cir. 1982). Accordingly, we reverse the district
court’s decision and remand for an evidentiary hearing on whether appellant
instructed counsel to file an appeal.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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