# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 17

- 30243 Summary Calendar

**United States of America,**

Plaintiff

— Appellee **,**

versus

**Gregory M. Ward,**

Defendant

— Appellant

**.**

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:16

- CV

- 9527 USDC No. 2:13

- CR

- 138

Before **Jolly, Elrod,** and **Graves,** Circuit Judges

**. Per Curiam**  **:** *
Gregory M. Ward , federal prisoner # 27350

- 034, pleaded guilty without a plea agreement to possessing with intent to distribute 100 grams or more of heroin, for which he was sentenced to 236 months in prison. He filed

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED February 9, 2021

Lyle W. Ca yce Clerk Case: 17-30243 Document: 00515739152 Page: 1 Date Filed: 02/09/2021No. 17

- 30243

2 a motion seeking postconviction relief under 28 U.S.C. § 2255 on the ground that his counsel was ineffective for erroneously informing him that he could appeal the denial of his suppression motion even if he entered an unconditional guilty plea , among other claims

. The district court denied the motion, conclu ding as to this claim that Ward failed to show either deficient performance or prejudice under Strickland v. Washington , 466 U.S. 668 (1984). This court denied Ward a certificate of appealability (COA). T he Supreme Court remanded this matter for further consideration. See Ward v.
United States , 139 S. Ct. 2775 (2019) . Subsequently , this court granted a

COA on Ward’s claim that counsel had been ineffective for advising him that he could appeal the suppression ruling even after entering an unconditional guilty plea

. The Government concedes that the district court erred in denying this
ineffective

- assistance claim without an evi dentiary hearing. Although that concession is not binding on us, see United States v. Vargas

- Garcia , 434 F.3d 345, 348 (5th Cir. 2005), we agree. Based on our independent review of the
briefs and the record , which included Ward’s declaration and supporti ng affidavit regarding his reliance on counsel’s allegedly erroneous advice as well as consistent contemporaneous records, we conclude that the record did not conclusively show that he was entitled to no relief on this claim. See Lee
v. United States , 137 S. Ct. 1958, 1965

- 67 (2017); United States v. Reed , 719 F.3d 369, 374 (5th Cir. 2013); United States v. Bartholomew , 974 F.2d 39, 41 (5th Cir. 1992)

. The district court therefore erred in denying this claim without an evidentiary hearing. See Bartholome w , 974 F.2d at 41. We do not consider Ward’s other argument s that are beyond the scope of the COA

. See
United States v. Daniels , 588 F.3d 835, 836 n.1 (5th Cir. 2009).
Accordingly, we **VACATE** the denial of Ward’s § 2255 motion in
part and **REMAND** the case to the district court for an evidentiary hearing
as to this claim

. We express no view on the merits of the claim. Ward’s Case: 17-30243 Document: 00515739152 Page: 2 Date Filed: 02/09/2021No. 17

- 30243

3 motion for appointment of counsel is **DENIED** as moot, and his motion for leave to file a supplemental brief is **DENIED** as unn ecessary. Case: 17-30243 Document: 00515739152 Page: 3 Date Filed: 02/09/2021