Appeal from the United States District Court for the District of Nevada. D.C. No. CR-S-88-245-03(LDG). Lloyd D. George, District Judge, Presiding
Before: Browning and Canby, Circuit Judges, and Kelleher,*fn* District Judge.
Roy Lee James, a federal prisoner, appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.
In June 1989, a jury found James guilty of one count of conspiracy to distribute Phencyclidine (PCP), in violation of 21 U.S.C. §§ 841(a)(1) and 846, and six counts of distribution of PCP, in violation of 21 U.S.C. § 841(a)(1). The district court sentenced James to concurrent 120-month sentences on each count. On direct appeal, we affirmed the convictions and sentence. United States v. James, No. 89-10488, unpublished Disposition (9th Cir. Oct. 24, 1990).
On June 28, 1991, James filed a section 2255 motion asserting claims that he was denied his right to effective assistance of counsel and deprived of his right to testify on his own behalf. James based his ineffective assistance claim on allegations his trial attorney, James E. Guesman: 1) failed to confer adequately with him before trial; 2) failed to hold plea bargain negotiations with the prosecutor and refused to allow him to plead guilty to some of the charges; 3) refused to allow him to testify on his own behalf at trial; and 4) slept through important portions of the trial.
In support of these allegations, James submitted a sworn affidavit detailing Guesman's conduct prior to and during trial. As added support for his allegation that Guesman rendered ineffective assistance by failing either to discuss with him or to pursue plea bargain negotiations, James attached to his affidavit a copy of a letter from Assistant United States Attorney Joseph M. Angelo, Jr. to Guesman outlining a proposed "off-the-record" offer to resolve the case.
In its response, filed on July 29, 1991, the government reported it had contacted Guesman and attributed to him statements contradicting James's allegations of ineffective assistance. The government did not provide a sworn affidavit from Guesman.
On December 3, 1991, without obtaining a sworn affidavit from Guesman or otherwise supplementing the record, the district court denied James's section 2255 motion. This timely appeal followed.
We affirm the district court's rejection of James's claim he was deprived of his right to testify on his own behalf. Because we find the record insufficiently developed, however, we reverse the district court's denial of James's ineffective assistance claim and remand for an evidentiary hearing on that claim.
We review de novo the district court's denial of James's section 2255 motion. United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990).
I. Ineffective Assistance of Counsel
James contends that the district court erred by denying, without an evidentiary hearing, his claim that he received ineffective assistance of counsel. To demonstrate ineffective assistance, a defendant must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
In ruling on a section 2255 motion, "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing . . ., determine the issues and make findings of fact and Conclusions of law." 28 U.S.C. § 2255 (1982). Thus, "whenever the record does not affirmatively manifest the factual or legal invalidity of the petitioner's ...