                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-2667
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Arkansas.
Danny Lockett,                           *
                                         * [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: October 20, 2008
                                 Filed: December 17, 2008
                                  ___________

Before MURPHY, BYE, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

      Federal prisoner Danny Lockett appeals the district court’s order denying his
28 U.S.C. § 2255 motion. For the reasons discussed below we vacate the district
court’s order and remand the case with instructions.

      At a June 2007 evidentiary hearing, the district court noted that the “dispositive
issue” was whether or not Lockett’s trial counsel had timely communicated the
government’s August 2005 plea offer to Lockett, and that Lockett and his trial counsel
had each testified “with some conviction and credibility” in providing directly
contradictory versions of the relevant events. The court did not make a factual
determination as to whether counsel timely informed Lockett of the August 2005 plea
offer, but denied Lockett’s section 2255 motion, reasoning that--because the evidence
was “equally divided”--Lockett had failed to meet his burden of proof. In July 2007,
the court granted Lockett a certificate of appealability on his ineffective-assistance-of-
counsel claim.

      Claims of ineffective assistance of counsel are mixed questions of law and fact,
and we review the district court’s legal determinations de novo and its underlying
findings of fact for clear error. See United States v. Robinson, 301 F.3d 923, 925 (8th
Cir. 2002). Because Lockett’s testimony and counsel’s testimony were directly
contradictory, and the district court merely ruled against the party with the burden of
proof without making an essential factual determination, we conclude that the court
committed a procedural error. See Collier v. Turpin, 177 F.3d 1184, 1193-94 & n.14
(11th Cir. 1999) (where district court was presented with direct, not circumstantial,
evidence, and fact finding required choosing between two contradictory versions of
events, court’s conclusion that both versions were credible and evidence was in
equipoise amounted to no factual determination at all and was entitled to no deference
on appeal; noting that ordinarily appellate court would remand to district court to
make credibility choice and resolve dispute, but foregoing remand because only one
credibility choice was reasonable given record presented).

      We further conclude that Lockett’s remaining claims on appeal are without
merit. Accordingly, we vacate the court’s order and remand the case for further
proceedings consistent with this opinion.
                      ______________________________




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