               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 98-10265
                         Summary Calendar


UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

ANTHONY WAYNE ELROD,

                                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:97-CV-903-G
                            & 3:93-CR-377-1-G
                      --------------------

                         January 14, 2000

Before KING, Chief Judge, and SMITH and EMILIO M. GARZA, Circuit
Judges.

PER CURIAM:*

     Anthony Wayne Elrod, federal prisoner # 24994-077, appeals

the district court’s denial of his 28 U.S.C. § 2255 motion.     He

argues that (1) he was coerced into entering a guilty plea by

threats, made in bad faith and without probable cause, to indict

his then-spouse; and (2) that the district court abused its

discretion by not holding an evidentiary hearing with respect to

this issue.

     A district court may deny a § 2255 motion without conducting

     *
        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that this opinion should not be published and is not precedent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. 98-10265
                                  -2-



a 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).

This court reviews a district court's denial of an evidentiary

hearing for abuse of discretion.    Id.

     We conclude, based upon our review of the parties’ briefs

and the record, that the record does not conclusively show that

the Government had probable cause to indict Elrod’s then-wife.

United States v. Nuckols, 606 F.2d 566, 569-70 (5th Cir. 1979);

United States v. Diaz, 733 F.2d 371, 375 (5th Cir. 1984).     The

district court’s judgment is therefore VACATED, and this case is

REMANDED to the district court for an evidentiary hearing to

develop the facts relating to Elrod’s claim that he was coerced

into entering a guilty plea by threats, made in bad faith and

without probable cause, to indict his then-spouse.   If the

district court finds that the government’s threat to indict

Elrod’s spouse was made in bad faith and without probable cause,

it may still determine that this threat was not the motivating

factor in Elrod’s decision to plead guilty.

     VACATED AND REMANDED.
