### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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., f e d e ral prisoner # 15457-055, appeals the d e n i a l o f his motion under 28 U.S.C. § 2255 challenging his bench trial conviction of one count of transporting and shipping child pornogr a p h y and of four counts of possession o f c h i l d pornography. In the § 2255 motion, Havens claimed, among other things, that his trial counsel provided consti tutionally ineffective assistance by failing t o i n form him of the Government’s plea offers U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 16, 20 11 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 10-40877 Document: 00511667350 Page: 1 Date Filed: 11/16/2011No. 10-40877

and by failing to advise him regardi n g the benefits of pleading guilty. We granted a c e rtif

icate 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 d e n i a l 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. 1 998). To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) that his c o u n s e l ’ s performance was deficient in that it fell below an objective standard of reasonableness; and (2) that the deficient pe r f o r m a n ce 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 S i x t h A m endment.” 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 fili n gs establish his contention that his counsel failed to inform him of the Governm e nt’s plea offers and that counsel did not advise him of the b e n e fits of pleading guilty, such as credit for acceptance of responsibility. Although he admitted that wished to preserve for appellate review the di s t r ict court’s denial of his motion to suppress, Havens averred in the district court that he would have pleaded gu i l t y h a d 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 e nt er a plea of guilty.” United States v. Grammas , 376 F.3d 433, 436 (5th Cir. 200 4)

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(internal quotation marks and citation omitted). We have held that “failing to inform the defendant of a pl e a o f fer 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 awa r e o f the relevant circumstances and likely consequences so that he can make an intelligent choice.” Id. at 1170. I n d e nyin g r eli e f o n Havens’s ineffective assistance claim, the di s tric t c o urt credited an affidavit prepared by Havens’s trial couns e l , w h o averred that he had discussed with Havens the application of the sentencing guidelines an d that Havens had rejected the Government’s plea offers. “[C]ontested fact issues [in

a § 2255 case] ordinarily may not be decided on affidavits a l one, unless the affidavits are supported b y o t h e r evidence in the record.” United States v. Hughes , 635 F.2d 449, 451 (5th Cir. 1981). In view of the existence of contested f ac tu al i s sues material to Havens’s ineffective assistance claim, we conclu d e th at 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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