*

 This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

June 22, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

PAMELA RAYE HOWELL,

Defendant-Appellant.

No. 09-7110

(Case Nos. 08-CV-00238-RAW and

04-CR-00091-RAW-1)

(E.D. Okla.)

 

ORDER AND JUDGMENT*

Before KELLY, McKAY, and LUCERO, Circuit Judges.

On April 16, 2010, we granted Appellant’s request for a certificate of

appealability to appeal the district court’s denial of her request for an evidentiary

hearing, and we ordered briefing from the parties on this issue. We now consider

the merits of this issue, “review[ing] the district court’s refusal to hold an

evidentiary hearing for an abuse of discretion.” United States v. Harms, 371 F.3d

1208, 1210 (10th Cir. 2004). “Because an error of law is, by definition, an abuse

of discretion, any error of law in dismissing [the] motion for an evidentiary

Appellate Case: 09-7110 Document: 01018444990 Date Filed: 06/22/2010 Page: 1
1

 We agree with the district court that counsel did not provide ineffective

assistance by failing to seek suppression of evidence discovered in an allegedly

pretextual traffic stop. See Whren v. United States, 517 U.S. 806, 813-14 (1996).

2

 We note in particular that two of the counts on which Appellant was

convicted were based on strong evidence someone had possessed firearms and

attempted to manufacture meth at a particular location, but only tenuous evidence

linking Appellant to this location. Indeed, the trial court noted it was “troubled

about how close it is on” these counts, although the court ultimately

concluded—“though not without some discomfiture”—there was sufficient

evidence to withstand Appellant’s Rule 29 motion for a judgment of acquittal. 

(Supplemental R. at 434.) 

-2-

hearing would constitute an abuse of discretion.” United States v. Duran-Salazar,

307 F. App’x 209, 211 (10th Cir. 2009) (quoting Almonacid v. United States, 476

F.3d 518, 520-21 (7th Cir. 2007)) (alteration in original).

After reviewing the record and the parties’ briefs, we conclude the

allegations in Appellant’s habeas petition and the sworn affidavits she attached in

support were sufficient to entitle her to an evidentiary hearing on her ineffective

assistance claims. Most of the claims Appellant raised appear sufficient, if true,

to satisfy the first prong of Strickland, see Strickland v. Washington, 466 U.S.

668, 687 (1984),1 and they are not conclusively refuted by the record, see 28

U.S.C. § 2255(b). In light of the closeness of the case2

 and the substantiality of

Appellant’s sworn allegations, we conclude it was an abuse of discretion for the

district court to deny Appellant’s request for an evidentiary hearing. See United

States v. Barboa, 777 F.2d 1420, 1422-23 (10th Cir. 1985); Duran-Salazar, 307 F.

App’x at 211. We therefore REVERSE and REMAND for an evidentiary

Appellate Case: 09-7110 Document: 01018444990 Date Filed: 06/22/2010 Page: 2
-3-

hearing on Appellant’s claims of ineffective assistance. 

Entered for the Court

Monroe G. McKay

Circuit Judge

Appellate Case: 09-7110 Document: 01018444990 Date Filed: 06/22/2010 Page: 3