IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40877

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

HARRISON JACK HAVENS, JR.,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:10-CV-115

USDC No. 6:07-CR-36

Before JOLLY, DAVIS, and DeMOSS, Circuit Judges. 

PER CURIAM:*

Harrison Jack Havens, Jr., federal prisoner # 15457-055, appeals the

denial of his motion under 28 U.S.C. § 2255 challenging his bench trial

conviction of one count of transporting and shipping child pornography and of

four counts of possession of child pornography. In the § 2255 motion, Havens

claimed, among other things, that his trial counsel provided constitutionally

ineffective assistance by failing to inform him of the Government’s plea offers

United States Court of Appeals

Fifth Circuit

F I L E D

November 16, 2011

Lyle W. Cayce

Clerk

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.

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No. 10-40877

and by failing to advise him regarding the benefits of pleading guilty. We

granted a certificate of appealability on the issue whether the district court erred

in denying relief on the ineffective assistance claim without conducting an

evidentiary hearing.

A district court may deny a § 2255 motion without holding an evidentiary

hearing “only if the motion, files, and records of the case conclusively show that

the prisoner is entitled to no relief.” United States v. Bartholomew, 974 F.2d 39,

41 (5th Cir. 1992). We review the district court’s denial of a § 2255 motion

without holding an evidentiary hearing for an abuse of discretion. United States

v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998).

To prevail on a claim of ineffective assistance of counsel, a defendant must

show (1) that his counsel’s performance was deficient in that it fell below an

objective standard of reasonableness; and (2) that the deficient performance

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 689-94 (1984). 

The deficiency must be “so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. To

show prejudice, the petitioner must show “that there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would

have been different.” Id. at 694.

Havens’s district court filings establish his contention that his counsel 

failed to inform him of the Government’s plea offers and that counsel did not

advise him of the benefits of pleading guilty, such as credit for acceptance of

responsibility. Although he admitted that wished to preserve for appellate

review the district court’s denial of his motion to suppress, Havens averred in

the district court that he would have pleaded guilty had he been properly

advised by his trial counsel.

“[O]ne of the most precious applications of the Sixth Amendment may well

be in affording counsel to advise a defendant concerning whether he should enter

a plea of guilty.” United States v. Grammas, 376 F.3d 433, 436 (5th Cir. 2004)

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(internal quotation marks and citation omitted). We have held that “failing to

inform the defendant of a plea offer could amount to ineffective assistance of

counsel.” Teague v. Scott, 60 F.3d 1167, 1171 (5th Cir. 1995). “In determining

whether or not to plead guilty, the defendant should be made aware of the

relevant circumstances and likely consequences so that he can make an

intelligent choice.” Id. at 1170.

In denying relief on Havens’s ineffective assistance claim, the district court

credited an affidavit prepared by Havens’s trial counsel, who averred that he

had discussed with Havens the application of the sentencing guidelines and that

Havens had rejected the Government’s plea offers. “[C]ontested fact issues [in

a § 2255 case] ordinarily may not be decided on 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). In view of the existence of contested

factualissues material to Havens’s ineffective assistance claim, we conclude that

the district court abused its discretion in denying relief without conducting an

evidentiary hearing. See Cervantes, 132 F.3d at 110. Accordingly, we VACATE

the denial of § 2255 relief and REMAND the matter to the district court.

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