     Case: 10-40877     Document: 00511667350         Page: 1     Date Filed: 11/16/2011




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

                                                                            FILED
                                                                        November 16, 2011
                                     No. 10-40877
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

HARRISON JACK HAVENS, JR.,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:10-CV-115
                              USDC No. 6:07-CR-36


Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
        Harrison Jack Havens, Jr., federal prisoner # 15457-055, appeals the
denial of his motion under 28 U.S.C. § 2255 challenging his bench trial
conviction of one count of transporting and shipping child pornography and of
four counts of possession of child pornography. In the § 2255 motion, Havens
claimed, among other things, that his trial counsel provided constitutionally
ineffective assistance by failing to inform him of the Government’s plea offers


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-40877    Document: 00511667350      Page: 2    Date Filed: 11/16/2011

                                    No. 10-40877

and by failing to advise him regarding the benefits of pleading guilty. We
granted a certificate of appealability on the issue whether the district court erred
in denying relief on the ineffective assistance claim without conducting an
evidentiary hearing.
      A district court may deny a § 2255 motion without holding 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). We review the district court’s denial of a § 2255 motion
without holding an evidentiary hearing for an abuse of discretion. United States
v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998).
      To prevail on a claim of ineffective assistance of counsel, a defendant must
show (1) that his counsel’s performance was deficient in that it fell below an
objective standard of reasonableness; and (2) that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 689-94 (1984).
The deficiency must be “so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. To
show prejudice, the petitioner must show “that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different.” Id. at 694.
      Havens’s district court filings establish his contention that his counsel
failed to inform him of the Government’s plea offers and that counsel did not
advise him of the benefits of pleading guilty, such as credit for acceptance of
responsibility. Although he admitted that wished to preserve for appellate
review the district court’s denial of his motion to suppress, Havens averred in
the district court that he would have pleaded guilty had he been properly
advised by his trial counsel.
      “[O]ne of the most precious applications of the Sixth Amendment may well
be in affording counsel to advise a defendant concerning whether he should enter
a plea of guilty.” United States v. Grammas, 376 F.3d 433, 436 (5th Cir. 2004)

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                                    No. 10-40877

(internal quotation marks and citation omitted). We have held that “failing to
inform the defendant of a plea offer could amount to ineffective assistance of
counsel.” Teague v. Scott, 60 F.3d 1167, 1171 (5th Cir. 1995). “In determining
whether or not to plead guilty, the defendant should be made aware of the
relevant circumstances and likely consequences so that he can make an
intelligent choice.” Id. at 1170.
      In denying relief on Havens’s ineffective assistance claim, the district court
credited an affidavit prepared by Havens’s trial counsel, who averred that he
had discussed with Havens the application of the sentencing guidelines and that
Havens had rejected the Government’s plea offers. “[C]ontested fact issues [in
a § 2255 case] ordinarily 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. 1981). In view of the existence of contested
factual issues material to Havens’s ineffective assistance claim, we conclude that
the district court abused its discretion in denying relief without conducting an
evidentiary hearing. See Cervantes, 132 F.3d at 110. Accordingly, we VACATE
the denial of § 2255 relief and REMAND the matter to the district court.




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