     Case: 17-20740      Document: 00515014777         Page: 1    Date Filed: 06/28/2019




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

                                                                                FILED
                                    No. 17-20740                            June 28, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EDWARD GRAHAM,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-2129


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       In this 28 U.S.C. § 2255 proceeding, Edward Graham raises a claim of
ineffective assistance of counsel under the Sixth Amendment based on his trial
counsel’s alleged failure to advise him about the consequences of proceeding to
trial rather than pleading guilty. Without holding an evidentiary hearing, the
district court denied the claim. Because there is a material fact dispute as to
the advice, if any, provided to Graham by his trial counsel, the record does not


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-20740    Document: 00515014777     Page: 2   Date Filed: 06/28/2019


                                 No. 17-20740

“conclusively show that [Graham] is entitled to no relief.” 28 U.S.C. § 2255(b).
Consequently, the district court abused its discretion in denying Graham’s
§ 2255 motion without an evidentiary hearing. Id. (“Unless the motion and the
files and records of the case conclusively show that the prisoner is entitled to
no relief, the court shall . . . grant a prompt hearing thereon, determine the
issues and make findings of fact and conclusions of law with respect thereto.”).
      We VACATE the district court’s order denying this particular claim of
ineffective assistance of counsel and REMAND the case for further
proceedings, including an appropriate hearing to resolve all material factual
disputes related to Graham’s claim. We express no view on the merits of
Graham’s claim.
      VACATED AND REMANDED.




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