                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 10, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-60618
                         Summary Calendar



JESSIE CLIFTON SMITH,

                                    Petitioner-Appellant,

versus

MISSISSIPPI DEPARTMENT OF CORRECTIONS,

                                    Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                    USDC No. 3:02-CV-1539-WSU
                       --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     This court previously granted Jessie Clifton Smith,

Mississippi prisoner # 08031, a certificate of appealability on

the issues whether the district court abused its discretion by

failing to hold an evidentiary hearing to resolve conflicting

affidavits concerning Smith’s claims that (1) he was deprived of

his right to an impartial jury and (2) counsel was ineffective

for failing to strike jurors Monzella Tickles, La Shunda Bonds,

and Shirley Wells.


     *
       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this opinion should not be published and is not precedent except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.
                            No. 04-60618
                                 -2-

     Prior to the enactment of the AEDPA, this court held that

while a habeas petition may be decided on the basis of affidavit

testimony, “contested facts ordinarily may not be decided on

affidavits alone unless there is other evidence in the record

supporting them.”    Jordan v. Estelle, 594 F.2d 144, 144-45 (5th

Cir. 1979) (internal citations omitted).    Jordan held that where

there is nothing in the record to support the affidavit

testimony, it is error to deny habeas relief without an

evidentiary hearing where the petitioner’s allegations, if true,

would entitle him to habeas relief.    See id. at 146.   Moreover, a

petitioner who presents a facially adequate claim of ineffective

assistance of counsel is entitled to some form of evidentiary

hearing in order to fully and fairly adjudicate his claims.     See

Brown v. Johnson, 224 F.3d 461, 466-67 (5th Cir. 2000).

     However, this court recognized in McDonald v. Johnson, 139

F.3d 1056, 1060 (5th Cir. 2000), that although a petitioner may

not be precluded from obtaining a federal evidentiary hearing to

resolve conflicting affidavit testimony, he is not necessarily

entitled to one.    This court held that if a district court has

sufficient facts before it to make an informed decision such that

an evidentiary hearing would not further develop material facts

relevant to the constitutional claim, a petitioner is not

entitled to a hearing.    See id.

     In the instant case, there is an absence of evidentiary

support for either Smith’s or counsel’s affidavit testimony.
                             No. 04-60618
                                  -3-

Given the absence of any indication that the district court’s

credibility determination was supported by evidence in the record

either corroborating counsel’s affidavit testimony or refuting

Smith’s, the district court improperly relied on the conflicting

affidavit testimony alone to resolve the constitutional issues .

See Jordan, 594 F.2d at 144-45.

     Based on the foregoing, we VACATE the district court’s

dismissal and REMAND the case for further findings of fact

relevant to (1) whether Smith was deprived of his right to an

impartial jury and (2) whether counsel was ineffective for

failing to strike jurors Tickles, Bonds, and Wells.

     VACATED AND REMANDED.
