* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 97-20721

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOSÉ VIRGILIO REYES,

a/k/a José Rafael Garcia,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-97-CV-2593)

_________________________

December 2, 1998

Before KING, JONES, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

José Reyes appeals the denial of his motion to vacate, set

aside, or correct a sentence under 28 U.S.C. § 2255. We vacate and

remand for a hearing, and we instruct the court to make factual

determinations and conclusions of law with respect to Reyes's claim

that he was denied effective assistance of counsel.
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I.

Authorities arrested Reyes and charged him with state firearms

and drug offenses. The following day, Reyes was charged in a

federal criminal complaint with (1) using and carrying a firearm

during and in relation to a drug-trafficking crime; (2) delivering

a package containing firearms to a common carrier for

transportation or shipment in interstate commerce without giving

written notice to the carrier; and (3) possessing firearms from

which the manufacturer's serial numbers had been removed. State

authorities incarcerated Reyes from his arrest on September 24,

1992, until his state sentencing on January 5, 1993, at which time

he received an eight-year term of imprisonment. He served eight

months and was released on parole in September 1993. At no point

during this period did the government file a federal indictment for

the conduct for which he had been arrested.

On January 12, 1994, the government filed a motion under FED.

R. CRIM. P. 48(a) to dismiss the federal criminal complaint without

prejudice, and the court granted the motion. The government did

not notify Reyes of the motion, see United States v. Reyes,

102 F.3d 1361, 1366 n.6 (5th Cir. 1996), so he did not object to

the motion at that time. On July 20, 1994, he was charged by

federal indictment with the same three crimes listed in the

original federal criminal complaint and with conspiracy to possess
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marihuana with intent to distribute. He did not object to his

indictment before trial. 

At the close of all the evidence, Reyes moved for a judgment

of acquittal, arguing that the motion to dismiss the first federal

complaint without prejudice had been filed in bad faith solely to

avoid the time constraints of the Speedy Trial Act, which requires

that a defendant be indicted within thirty days of arrest. See

18 U.S.C. § 3161(b). The court denied this motion, and the jury

found Reyes guilty on all counts.

Reyes appealed, arguing (1) that he should be excused for not

objecting to the motion to dismiss the first complaint without

prejudice, because he did not have notice of the motion, and

(2) that the government had dismissed the complaint solely to avoid

the requirements of the Speedy Trial ActSSa bad faith motivation

that precludes dismissal without prejudice. We concluded that the

government's failure to provide Reyes with notice of the filing of

its rule 48(a) motion excused his failure to contest the motion

before the court granted it. See Reyes, 102 F.3d at 1367. We also

held, however, that by failing to object at the time he was

reindicted, Reyes had waived his right to complain that the

prosecution had requested the dismissal in bad faith. See id.

at 1367-68.

Reyes then filed the instant motion to vacate, set aside, or

correct his sentence under § 2255, claiming he was denied effective
4

assistance of counsel because his attorney, among other things,

failed to seek a dismissal of the indictment based on the fact that

the government acted in bad faith in seeking dismissal of the

original criminal complaint. The court summarily dismissed the

motion and denied a certificate of appealability (“COA”). We

granted a COA on the issues of whether counsel was ineffective for

failing to object to the indictment following the government's

allegedly bad faith dismissal of the original complaint and whether

the district court erred in denying this claim without providing

findings and conclusions of law in support of the denial and

without conducting an evidentiary hearing. 

II.

To prevail on a claim of ineffective assistance, a movant

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 his defense. Strickland v.

Washington, 466 U.S. 668, 689-94 (1984). Reyes has met the first

prong. Indeed, the government admits that “the deficiency in

Reyes' counsel's performance leaps from the record.”

It is not evident from the record, however, whether counsel's

deficient performance prejudiced Reyes's defense. To show

prejudice under Washington, a movant must demonstrate that

counsel's errors were so serious as to “render[] the result of the
1 See United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992) (holding

that the standard of review for denial of evidentiary hearing is abuse of

discretion).

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trial unreliable or the proceeding fundamentally unfair.” Lockhart

v. Fretwell, 506 U.S. 364, 369 (1993). The Washington Court

explained that “[t]he defendant must show that there is a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different.”

Washington, 466 U.S. at 694. Because the district court did not

sufficiently develop the record, we are unable to determine whether

Reyes’s counsel’s failure to object to Reyes’s reindictment

prejudiced his defense. 

III.

Section § 2255 provides that

[u]nless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no

relief, the court shall cause notice thereof to be served

upon the United States attorney, grant a prompt hearing

thereon, determine the issues and make findings of fact

and conclusions of law with respect thereto.

We cannot conclude that the files and records of the case

“conclusively show” that Reyes received effective assistance and

thus was entitled to no relief. The district court therefore

should have held a hearing, or otherwise developed the factual

record, and made factual findings and legal determinations on

Reyes's ineffective assistance claim.1

The government argues that this is a clear-cut case in which
6

there is no need for either a hearing or factual and legal

determinations. It analogizes to United States v. Flores, 135 F.3d

1000 (5th Cir. 1998), in which we concluded that a hearing and

written findings of fact and conclusions of law were not necessary.

We found there that “Flores' motion did not raise any legal or

factual issues that should long have detained a district court.”

Id. at 1007 n.23.

Reyes, by contrast, does raise factual issues concerning the

effectiveness of his counsel and prejudice to his defense arising

from failure to raise a Speedy Trial Act timely. Consequently, we

remand with instructions to hold a hearing, or otherwise develop

the factual record, and to make findings of fact and conclusions of

law as § 2255 requires. VACATED and REMANDED.