               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                        ______________________

                              No. 96-50549
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UNITED STATES OF AMERICA,
                                   Plaintiff-Appellee,


v.


JOHN THOMAS MCCUSKER,
                                   Defendant-Appellant

_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
                   (A-89-CR-173-01 & A-95-CA-853)
_________________________________________________________________
                            March 2, 1998
Before DEMOSS and DENNIS, Circuit Judges, and LEE,1 District
Judge.


PER CURIAM:2

     John Thomas McCusker, federal prisoner #49205-080, filed a

motion under 28 U.S.C. § 2255 to vacate, set aside or correct

sentence by a person in federal custody.


     1
          Chief Judge of the Southern District of Mississippi,
sitting by designation.
     2
          Local Rule 47.5 provides: “The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession.” Pursuant to that Rule, the court has determined
that this opinion should not be published.
     Because the motions, files and records of this case do not

conclusively show that McCusker was entitled to no relief as to

Count III of the indictment, we reverse the district court’s

decision only insofar as it rejected, without an evidentiary

hearing, both McCusker’s claim that his trial counsel was

ineffective for failing to interview and/or call alibi witnesses

and his claim that he was denied his right to testify on his own

behalf as to the events of June 4, 1987, and remand these claims

for an evidentiary hearing.   See United States v. Bartholomew,

974 F.2d 39, 41 (5th Cir. 1992).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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