     Case: 12-20084     Document: 00511947984         Page: 1     Date Filed: 08/07/2012




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

                                                                            FILED
                                                                           August 7, 2012
                                     No. 12-20084
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GLADYS NELL BISHOP,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-2944
                             USDC No. 4:07-CR-92-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Gladys Nell Bishop, federal prisoner # 98868-179, moves for a certificate
of appealability (COA) to challenge the denial on the merits of her 28 U.S.C.
§ 2255 motion. Bishop was convicted of three counts of making a false statement
in a tax return in violation of 26 U.S.C. § 7206(1) and was sentenced to 36
months of imprisonment and one year of supervised release on each count to run
concurrently. She contends that trial counsel was ineffective for either failing


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20084         Document: 00511947984     Page: 2   Date Filed: 08/07/2012

                                     No. 12-20084

to secure a plea agreement due to counsel’s incorrect belief that the
Government’s plea offer had been withdrawn or for telling her that the plea offer
had been withdrawn when it had not. She also contends that the district court
abused its discretion by denying her claim without holding an evidentiary
hearing.
      A COA may be issued “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Bishop
must show “that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,
484 (2000).
      The denial of a request for an evidentiary hearing is reviewed for abuse of
discretion. United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006). The
district court should conduct an evidentiary hearing only if the defendant
produces “independent indicia of the likely merit of [her] allegations.” Id. “Once
such independent evidence is presented, ‘[a] motion brought under . . . § 2255
can be denied without 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.
Cavitt, 550 F.3d 430, 442 (5th Cir. 2008) (quoting United States v. Bartholomew,
974 F.2d 39, 41 (5th Cir. 1992)); see § 2255(b).
      To establish ineffective assistance of counsel, Bishop must show that
counsel performed deficiently and that she was prejudiced by counsel’s
performance. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To
establish     deficient     performance,   Bishop    must     show   that   “counsel’s
representation fell below an objective standard of reasonableness.” Id. at 688.
With respect to prejudice, Bishop must show “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694; see also Missouri v. Frye, 132 S. Ct. 1399, 1409 (2012);
Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012).



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                                  No. 12-20084

      The plea offer and trial counsel’s and Bishop’s affidavits, if credited,
provide independent indicia of the likely merit of her claim of ineffective
assistance: the Government made a plea offer that was acceptable to her and
would have permitted her to plead guilty to lesser charges, she thought that she
had accepted the offer, but the plea agreement was not finalized due to trial
counsel’s belief that the plea offer had been withdrawn. There is, however,
insufficient information in the record regarding the circumstances that led trial
counsel to believe that the plea offer had been withdrawn to determine whether
counsel’s performance fell below an objective standard of reasonableness.
Because the record in this case does not show conclusively that Bishop is not
entitled to any relief on her claim of ineffective assistance of trial counsel, the
district court abused its discretion by denying Bishop’s claim without holding an
evidentiary hearing. See § 2255(b); Cavitt, 550 F.3d at 442; Edwards, 442 F.3d
at 264.
      Bishop also moves for release on bail. Release should be granted pending
postconviction review “only when the petitioner has raised substantial
constitutional claims upon which [s]he has a high probability of success, and also
when extraordinary or exceptional circumstances exist which make the grant of
bail necessary to make the habeas remedy effective.” Calley v. Callaway, 496
F.2d 701, 702 (5th Cir. 1974).
      Bishop cannot demonstrate that she has a high probability of success on
her constitutional claim. We cannot assess the probability of success of her
claim of ineffective assistance of counsel until the district court holds an
evidentiary hearing on remand. Accordingly, we need not determine whether
her deteriorating health constitutes an exceptional circumstance.
      Bishop’s motion for a COA is GRANTED, the judgment of the district court
is VACATED, and the case is REMANDED for an evidentiary hearing. We offer
no opinion on the merits of Bishop’s claim. Bishop’s bail motion is DENIED.



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