IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-20584 

USDC No. CA-H-94-1990

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS RODRIGUEZ,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Texas

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April 11, 1997

Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.

BY THE COURT:

Jose Luis Rodriguez, federal prisoner # 0058242, seeks

permission to appeal the district court’s decision after remand

of his 28 U.S.C. § 2255 motion for further findings of fact and

conclusions of law. Rodriguez argues that the district court

erred in denying his § 2255 motion without conducting an

evidentiary hearing. He maintains that his counsel was

ineffective for failing to investigate potential defense

witnesses. The Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA) amended 28

U.S.C. § 2253 to require that an applicant obtain a certificate

of appealability (COA) to appeal a final order in a § 2255
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proceeding. The COA requirement applies to § 2255 motions that

were filed prior to the effective date of the AEDPA but were

denied after that date. See United States v. Orozco, 103 F.2d

389, 392 (5th Cir. 1996). A COA may be issued only if the

applicant makes a substantial showing of the denial of a

constitutional right. § 2253(c)(2); Drinkard v. Johnson, 97 F.3d

751, 756 (5th Cir. 1996)(§ 2254 case), cert. denied, 1997 WL

10415 (U.S. March 3, 1997).

Rodriguez has made a substantial showing of the denial of a

constitutional right as to whether his counsel was ineffective. 

The district court erred in finding that the record was

sufficient to decide Rodriguez’s ineffectiveness claim. This

court has previously stated that the affidavits filed by

Rodriguez prevented the court “from concluding that the record

conclusively establishes that the petitioner is entitled to no

relief.” On remand, the district court based its decision solely

on the same affidavits filed with Rodriguez’s original motion. 

The district court’s decision is based in part on speculation

that the potential witnesses’ “credibility would not survive

cross examination.” The district court assumed Rodriguez’s

counsel made a decision not to call these witnesses based on

trial strategy. In section 2255 cases, 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.
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United States, 551 F.2d 1053, 1054 (5th Cir. 1977). The district

court at a minimum should have directed the respondent to file a

response to Rodriguez’s motion and obtained an affidavit from

Rodriguez’s counsel concerning what actions if any he took to

investigate and/or interview these potential witnesses and

whether he made a strategic decision not to call these witnesses. 

If counsel’s affidavit had been supported by other evidence in

the record, then a full evidentiary hearing may not have been

required. Accordingly, we GRANT COA, vacate the district court’s

decision, and remand the case for development of the record and

further findings of fact on the issue whether Rodriguez’s counsel

was ineffective for failing to investigate and interview the

potential witnesses identified by Rodriguez.