                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                      F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                      March 28, 2003

                          FOR THE FIFTH CIRCUIT                  Charles R. Fulbruge III
                                                                         Clerk


                                No. 02-40733

                             Summary Calendar


UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

                               versus

ROLAND CASTRO,

                                           Defendant-Appellant.



            Appeal from the United States District Court
                 For the Southern District of Texas
                            (C-01-CV-495)



Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

      We granted Roland Castro, federal prisoner No. 592532, a

certificate of appealability on the issue whether the district

court abused its discretion by failing to hold an evidentiary

hearing to resolve conflicting affidavits concerning Castro’s claim

that his    trial   attorney    was     ineffective   for   failing   to   call




      *
       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should not be published and is not precedent except under the limited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.
eyewitnesses Jesse Ortiz and Roque Resendez to testify at Castro’s

trial for being a felon in possession of a firearm.

      Castro alleged that Ortiz and Resendez would have testified

that Castro did not possess a firearm, and he supported his 28

U.S.C. § 2255 motion with the affidavits of Ortiz and Resendez.             In

response, the Government submitted the affidavit of Castro’s trial

attorney,    Assistant    Federal     Public     Defender   Robert   Carlin,

explaining why he did not call Ortiz and Resendez to testify at

trial.   Under the facts sworn to by counsel, the decision not to

call Ortiz and Resendez was clearly a reasonable trial strategy.

The   district   court   denied   §   2255     relief   without   holding   an

evidentiary hearing to resolve the conflicts in the affidavit

evidence because it concluded that Castro could not demonstrate

that he was prejudiced by counsel’s decision not to call Ortiz and

Resendez to testify.

      When facts are at issue in a § 2255 proceeding, a hearing is

required if 1) the record, as supplemented by the trial judge’s

personal knowledge or recollection, does not conclusively negate

the facts alleged in support of the claim for § 2255 relief; and 2)

the movant would be entitled to post-conviction relief as a legal

matter if his factual allegations are true.1             In this case, the

record alone does not support the district court’s finding of no

prejudice.


      1
        Friedman v. United States, 588 F.2d 1010, 1015 (5th Cir. 1979); see
United States v. Briggs, 939 F.2d 222, 228 (5th Cir. 1991).

                                      2
      In light of the conflicting affidavit evidence, the district

court abused its discretion by denying Castro’s motion without

either   holding    an    evidentiary    hearing    or   citing    the    court’s

personal knowledge or recollection of the trial to support its

determination      that   Castro   could     not   demonstrate     that   he   was

prejudiced by counsel’s failure to call Resendez and Ortiz to

testify.2    Accordingly, the denial of § 2255 relief is vacated and

the   case   is   remanded   to    the   district    court   for    proceedings

consistent with this opinion.

      VACATED AND REMANDED.




      2
        Friedman, 588 F.2d at 1015; see United States v. McCord, 618 F.2d 389,
393-95 (5th Cir. 1980).

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