                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                  F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                        May 3, 2007

                                                               Charles R. Fulbruge III
                                                                       Clerk
                              No. 06-30475
                            Summary Calendar


UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee,

versus

KERRY NATION, also known as K-Mac,

                                        Defendant-Appellant.

                         --------------------
           Appeal from the United States District Court
               for the Western District of Louisiana
                        USDC No. 3:05-CV-2199
                      USDC No. 3:02-CR-30043-5
                         --------------------

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Kerry A. Nation, federal prisoner # 21378-077, pleaded guilty

to one count of conspiracy to possess with intent to distribute

five grams or more of cocaine base.     Nation now seeks a certificate

of appealability (COA) to appeal the district court’s denial of his

28 U.S.C. § 2255 motion.     Nation raises two interrelated grounds:

(1) that he should have been allowed to withdraw his guilty plea

because   his   counsel   erroneously   advised   him   that   the    career

offender enhancement set forth in U.S.S.G. § 4B1.1 did not apply to


     *
       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this opinion should not be published and is not precedent except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. 06-30475
                                 -2-

him; and (2) that his counsel’s erroneous advice constituted

ineffective assistance, and therefore, his plea was not knowing and

voluntary.

     To obtain a COA, Nation must make “a substantial showing of

the denial of a constitutional right.”     28 U.S.C. § 2253(c)(2). To

meet that standard, the movant must demonstrate that “reasonable

jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that

the issues presented were adequate to deserve encouragement to

proceed further.”    Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)

(internal quotation marks and citation omitted).        We conduct a

threshold inquiry that does not require a showing of success on

appeal.   See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

     With respect to Nation’s first claim, we previously affirmed

the district court’s denial of Nation’s motion to withdraw his

guilty plea.    Thus, Nation may not relitigate that issue on

collateral review.   See United States v. Webster, 392 F.3d 787, 791

n.5 (5th Cir. 2004).

     With respect to Nation’s claim of ineffective assistance, the

district court denied it without conducting an evidentiary hearing.

However, “[u]nless the motion and the files and records of the case

conclusively show that the petitioner is entitled to no relief,” a

district court must hold a hearing to resolve factual and legal

issues.   See § 2255; see also United States v. Briggs, 939 F.2d

222, 228-29 & n.19 (5th Cir. 1991).
                                  No. 06-30475
                                       -3-

      The record does not conclusively show that Nation is not

entitled to relief. To prevail on an ineffective assistance claim,

a movant must show “that counsel’s performance was deficient” and

“that   the        deficient    performance      prejudiced      the     defense.”

Strickland v. Washington, 466 U.S. 668, 687 (1984).                    Nation has

made a strong showing that counsel’s performance was deficient.

Research would have revealed that § 4B1.1 applied to Nation’s prior

conviction under 21 U.S.C. § 843(b). See U.S.S.G. § 4B1.2, comment

(n.1)   (2003).           Counsel’s   failure    to   conduct    such    research

constitutes deficient performance.              See United States v. Conley,

349 F.3d 837, 841 (5th Cir. 2003).

      With respect to prejudice, Nation must show a reasonable

probability that, but for his counsel’s erroneous advice regarding

the applicability of U.S.S.G. § 4B1.1, he would not have pleaded

guilty but would have insisted on going to trial.                         Hill v.

Lockhart, 474 U.S. 52, 59 (1985). Nation has shown that reasonable

jurists would debate the resolution of this question.                    Nation’s

counsel stated during the hearing on the motion to withdraw and in

a   letter    to    the    magistrate   judge    that   the     career   offender

enhancement was the sticking point in the plea negotiations, and

that Nation refused to plead guilty if he was going to be subject

to the enhancement.         It was only after counsel assured Nation that

§ 4B1.1 was inapplicable that Nation changed his mind and decided

to plead guilty.          Counsel’s assurance to Nation was, according to

counsel, supported by the opinion of the Assistant United States
                                No. 06-30475
                                     -4-

Attorney.      Underscoring     this   assurance    was   the     Government’s

agreement not to seek a statutory career offender enhancement.

Although Nation’s claims may be inconsistent with some of his

statements    at   the   plea   hearing,   that    inconsistency     does   not

necessarily preclude relief. See United States v. Cervantes, 132

F.3d 1106, 1110 (5th Cir. 1998).

      We offer no opinion regarding the merits of Nation’s claim.

We   simply   conclude   that   reasonable     jurists    could    debate   the

district court’s resolution of this matter, and that Nation is

entitled to an evidentiary hearing.

      For the foregoing reasons, we GRANT Nation’s motion for a COA

on his ineffective assistance claim, we VACATE the judgment of the

district court, and we REMAND for an evidentiary hearing on the

ineffective assistance claim.          We DENY a COA as to all other

issues.
