* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-30767

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN BOE,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 95-CA-1017

- - - - - - - - - -

May 26, 1997

Before DAVIS, EMILIA M. GARZA and STEWART, Circuit Judges.

PER CURIAM:*

John Boe appeals the district court’s order denying his

postconviction motion under 28 U.S.C. § 2255. Boe contends that

the district court should not have denied his motion without

holding an evidentiary hearing and that his attorney was

ineffective in failing to file a notice of appeal. A district

court may dispose of a defendant’s § 2255 motion without an

evidentiary hearing if “the motion and the files and records of

the case conclusively show that the prisoner is entitled to no
No. 95-30767

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relief.” United States v. Drummond, 910 F.2d 284, 285 (5th Cir.

1990) (internal quotations omitted). Boe filed his own affidavit

in support of his motion in which he stated that he had asked his

attorney whether he could appeal his sentence, that his attorney

had stated that he had “never heard of such a process.” The

Government attached to its answer the affidavit of Boe’s trial

counsel, in which counsel stated that he advised Boe of his

appellate rights and that Boe had not instructed him to file an

appeal. In rejecting this issue, the district court credited the

attorney’s affidavit and determined that the motion could be

resolved without an evidentiary hearing. The district court

erred.

Contested issues of fact may not be decided on the basis of

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); Owens v. United States, 551 F.2d 1053, 1054

(5th Cir. 1977). “This Court’s policy has been strongly in favor

of the position that a waiver will not be assumed unless the

facts clearly support such an assumption.” See Chapman v. United

States, 469 F.2d 634, 637 (5th Cir. 1972). Neither the plea

agreement, the sentencing transcript, nor the transcript of the

rearraignment, mention Boe’s right to appeal his sentence. The

record does not corroborate counsel’s affidavit and the district

court should have held a hearing. Accordingly, this portion of

the district court’s order is VACATED and the case is REMANDED
No. 95-30767

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for further proceedings consistent with this opinion. 

Boe has failed to demonstrate that his attorney rendered

ineffective assistance in connection with the entry of the guilty

plea and at sentencing. Boe has also failed to raise a

cognizable issue with respect to the district court’s application

of the sentencing guidelines. See United States v. Faubion, 19

F.3d 226, 233 n.36 (5th Cir. 1994). Those portions of the

district court’s order are AFFIRMED. 

AFFIRMED IN PART; VACATED AND REMANDED IN PART.