     Case: 11-40378     Document: 00511915259         Page: 1     Date Filed: 07/10/2012




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

                                                                            FILED
                                                                           July 10, 2012

                                     No. 11-40378                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee
v.

JULIA MAY DAWES,

                                                  Defendant–Appellant



                    Appeal from the United States District Court
                          for the Eastern District of Texas
                               USDC No. 4:04-CR-92-2


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
            Defendant–Appellant Julia May Dawes, federal prisoner # 11455-078,
filed a 28 U.S.C. § 2255 motion in which she alleged that she received ineffective
assistance of counsel in a drug conspiracy prosecution. In support of her § 2255
motion, Dawes filed an affidavit in which she explained that her attorney,
Michael Mosher, advised her to decline a plea offer of 37 to 46 months’
imprisonment because he believed that she would face a sentence of only 51 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 11-40378

63 months if she went to trial and was convicted. She further contends that
Mosher advised her that she would not be held responsible for drugs possessed
or distributed by her co-conspirators. Dawes declined the plea offer, was
convicted after a jury trial, and was sentenced to 151 months of imprisonment.
In her § 2255 affidavit, Dawes contends that she would have accepted the plea
offer if she had received proper legal advice.
      The government answered and thereafter filed an affidavit from Mosher,
in which he explained that Dawes declined the plea offer because she was not
guilty and because she did not want to “lie and implicate innocent people,”
including her brother. Mosher also maintained that he properly advised Dawes
of her sentencing exposure under the Sentencing Guidelines, although he could
not recall the precise advice that he provided.
      Despite these conflicting affidavits, the magistrate judge concluded that
Dawes was not entitled to § 2255 relief because she “provided only her
conclusory claim” in her motion. Dawes objected and requested an evidentiary
hearing, but after a de novo review, the district court adopted the magistrate
judge’s recommendations, denied the § 2255 motion, and denied Dawes a
certificate of appealability (“COA”). Upon Dawes’s motion, this court granted a
COA with respect to whether the district court erred in denying Dawes’s
ineffective assistance claim and in refusing to conduct an evidentiary hearing to
resolve disputed issues of fact.
      After this court granted a COA, the Supreme Court decided Lafler v.
Cooper, 132 S. Ct. 1376 (2012). In Cooper, the Court considered how the
prejudice test of Strickland v. Washington, 466 U.S. 668 (1984), should be
applied where “ineffective assistance [of counsel] results in a rejection of [a] plea
offer and the defendant is convicted at the ensuing trial.” 132 S. Ct. at 1384. To
demonstrate prejudice in such circumstances, the Court explained, a defendant
must show:

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                                  No. 11-40378

      that but for the ineffective advice of counsel there is a reasonable
      probability that the plea offer would have been presented to the
      court (i.e., that the defendant would have accepted the plea and the
      prosecution would not have withdrawn it in light of intervening
      circumstances), that the court would have accepted its terms, and
      that the conviction or sentence, or both, under the offer’s terms
      would have been less severe than under the judgment and sentence
      that in fact were imposed.
Id. at 1385.
      The government now moves to remand this action so that the district court
may conduct an evidentiary hearing to resolve contested factual issues created
by the competing affidavits submitted by Dawes and Mosher. In light of the
foregoing, we GRANT the government’s unopposed motion to remand, VACATE
the district court’s order denying Dawes’s § 2255 motion, and REMAND this case
to the district court for further proceedings. Upon remand, the district court
must conduct an evidentiary hearing to determine whether Dawes’s attorney
rendered ineffective assistance in light of Cooper, 132 S. Ct. 1376. If the district
court finds that Dawes’s attorney rendered ineffective assistance, it must also
determine an appropriate remedy for this constitutional violation. See id. at
1388-91.




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