     Case: 13-50770      Document: 00512551914         Page: 1    Date Filed: 03/06/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                      No. 13-50770                              FILED
                                                                            March 6, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

JOHN HENRY SPIVEY, JR.,

                                                 Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                                 No. 5:13-CV-478




Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *


       John Spivey, Jr., federal prisoner # 10158-002, moves for a certificate of
appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2255 motion that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-50770     Document: 00512551914      Page: 2   Date Filed: 03/06/2014


                                  No. 13-50770

challenged his jury-trial conviction of attempted possession with intent to dis-
tribute five kilograms or more of cocaine. Spivey contends that counsel was
ineffective for failing to disclose, until the day of trial, that the government
intended to introduce evidence of Spivey’s telephone records. Spivey avers
that, in view of the conflicting affidavits provided by him and his counsel, the
district court erred in denying relief on this claim without an evidentiary
hearing. Spivey also claims that counsel was ineffective for failing to object to
the admission into evidence of a note on the grounds of authenticity. Lastly,
he asserts that the district court erred in not addressing his claim that the trial
court erred when it did not allow him to plead to the government’s eight-year
offer after the belated disclosure of the telephone records.
      Additionally, Spivey moves for authorization to proceed in forma
pauperis (“IFP”) on appeal. That motion is GRANTED.
      To obtain a COA, Spivey must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537
U.S. 322, 336 (2003). Where a district court has rejected a constitutional claim
on the merits, a COA will be granted only if the petitioner “demonstrate[s] that
reasonable jurists would find the district court’s assessment of the constitu-
tional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
A district court may deny a § 2255 motion without an evidentiary hearing “only
if the motion, files, and records of the case conclusively show that the prisoner
is entitled to no relief.” United States v. Bartholomew, 974 F.2d 39, 41 (5th
Cir. 1992). Where the record does not conclusively negate a prisoner’s entitle-
ment to relief, contested fact issues may not be decided on affidavits alone
unless the affidavits are supported by other evidence in the record. United
States v. Hughes, 635 F.2d 449, 451 (5th Cir. Unit B Jan. 1981).
      Spivey has made a sufficient showing to obtain a COA on his claim



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                                 No. 13-50770

regarding the need for an evidentiary hearing on the issue that counsel pro-
vided ineffective assistance by failing to disclose the telephone records before
trial. See 28 U.S.C. § 2253(c)(2); United States v. Rivas-Lopez, 678 F.3d 353,
356-57 (5th Cir. 2012). The record does not conclusively indicate whether coun-
sel advised Spivey of the nature of the records and the government’s intention
to introduce them, making an evidentiary hearing on that issue necessary. See
Bartholomew, 974 F.2d at 41.
      Further, Spivey has shown that the district court did not address his
claim that the trial court erred when it did not allow him to plead to the eight-
year offer after the belated disclosure of the telephone records. See United
States v. Edwards, 711 F.2d 633, 633-34 (5th Cir. 1983). A COA is thus granted
on these issues. The judgment is VACATED in part and REMANDED. We
offer no opinion on the merits of these claims.
      Spivey has failed to make a substantial showing of the denial of a consti-
tutional right on his remaining claim concerning counsel’s alleged failure to
object to the authenticity of the note. See Miller-El, 537 U.S. at 327. Conse-
quently, a COA is DENIED as to this claim. See id.




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