1 Local Rule 47.5 provides: "The publication of opinions that have no

precedential value and merely decide particular cases on the basis of well-settled

principles of law imposes needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined that this opinion

should not be published. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 95-20338

___________________________

LARRY JEDKINS,

Petitioner-Appellant,

VERSUS

WAYNE SCOTT, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

___________________________________________________

Appeal from the United States District Court

For the Southern District of Texas

(CA-H-94-2634)

____________________________________________________ December 8, 1995

Before POLITZ, Chief Judge, DAVIS, and BENAVIDES, Circuit Judges.

PER CURIAM: 1

Larry Wayne Jedkins appeals the district court's denial of his

application for Writ of Habeas Corpus. For the reasons outlined

below, we remand the petition to the district court for further

consideration.

Petitioner Larr y Jedkins pled n olo contendere in the 221st

District Court of Montgomery County, Texas to two counts of

aggravated robbery. On November 8, 1991, the trial court found him

guilty on both counts. It also determined that one prior2

conviction alleged for purposes of enhancement was true. The court

sentenced him to two 25-year prison term s, to run concurrently.

After his state application for writ of habeas corpus was denied

without written order or hearing, he filed this pro se application

in the Southern District of Texas pursuant to 28 U.S.C. § 2254.

The district court granted summary judgment for the State of Texas

without holding a hearing. Petitioner appeals.

Petitioner's first claim is that hi s plea was not knowingly

and voluntarily entered because he received ineffective assistance

of counsel. In his notarized federal petition, he contends he

pleaded nolo contendere only beca use his defense counsel advised

him that, with good time served, he would be eligible for parole in

three years. He has since discovered that he must serve at least

six years of his sentence. The d istrict court granted summary

judgment for the State without addressing the merits of this

allegation. It reasoned that Jedkins' only claim was a selfserving statement unsupported by any evidence in the record.

This court and the Supreme Court have declined to decide

whether misinformation regarding parole eligibility can constitute

ineffective a ssistance of counsel that may render a plea

involuntary. However, Jedkins' sworn allegations in his complaint,

which were not cont radicted by the State's summary judgment

evidence, are suf ficient to raise an issue of fact. S ee King v.

Dogan

, 31 F.3d 344, 346 (5th Cir. 1995). Keeping in mind the

policy that courts should avoid constitutional issues wherever

possible, we decline to decide this legal issue on the record as it

exists. S ee West v. Atkins

, 487 U.S. 42, 49 n.8 (1988). We remand3

this case to the district court for reconsideration of this claim

and direct it to consider whether Petitioner has demonstrated

ineffective assistance of counsel. The district court should

determine whether Jedkins' counsel provided him with misinformation

regarding parole eligibility. If so, it should consider whether

the attorney's actions fell bel ow an objective standard of

reasonableness and whether, but for his attorney's advice,

Petitioner would have gone to trial rather than plead n ol o

contendere

. S ee James v. Cain , 56 F.3d 662, 668-69 (5th Cir.

1995).

Petitioner asserts three other claims. He alleges that his

plea was not knowingly an d voluntarily entered because he was

mentally incompetent and on psychiatric drugs at the time it was

given and because he was not admonished by the trial court

regarding the effects of his plea until after it had been received.

He also asserts ineffective assistance of counsel on grounds that

his attorney failed to investigate and object to a prior conviction

alleged in an e nhancement paragraph of the indictment. After

careful consideration of these claims, we affirm the district

court's rejection of relief for essentially the reasons announced

by the district court.

Accordi ngly we affirm the district court's judgment except

with respect to i ts disposition of Jedkins' claim of ineffective

assistance of counsel based on misinformation regarding parole4

eligibility. We reverse the dismissal of that claim and remand it

for further consideration consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.