United States v. Joyce Berry , 5 F.3d 541 ( 1993 )

5 F.3d 541
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Joyce BERRY, Defendant-Appellant.

No. 92-10731.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 10, 1993.
Decided Aug. 18, 1993.

Appeal from the United States District Court for the District of Nevada; No. CR-90-00262-PMP(LRL), Philip M. Pro, District Judge, Presiding.

D.Nev.

REMANDED.

1

Before: REINHARDT and LEAVY, Circuit Judges, and MERHIGE, Senior District Judge*.

2

MEMORANDUM**

3

Joyce Berry appeals from the district court's denial of her motion to vacate, set aside, or correct sentence under 28 U.S.C. Sec. 2255, arguing that the district court erred by not finding that her trial counsel's representation had been ineffective as a matter of law and, in the alternative, by failing to conduct an evidentiary hearing on the quality of that representation. We review de novo the denial of the 2255 motion, see United States v. Johnson, 988 F.2d 941, 943 (9th Cir.1993), while examining for an abuse of discretion the decision not to conduct an evidentiary hearing. See United States v. Rogers, 984 F.2d 314, 316 (9th Cir.1993).

4

While we reject Berry's contention that the district court erred as a matter of law by failing to grant relief under 28 U.S.C. Sec. 2255, we cannot hold on the strength of this record and in the absence of an evidentiary hearing that it has been conclusively established that Berry's section 2255 motion is without merit. See Grady v. United States, 929 F.2d 468, 471 (9th Cir.1991). Accordingly, we must remand for an evidentiary hearing. See id.

5

REMANDED for further proceedings.

*

The Honorable Robert R. Merhige, Jr., Senior District Judge for the Eastern District of Virginia, sitting by designation

**

This disposition is not suitable for publication and may not be cited to or by the courts of this Circuit except as provided by 9th Cir.R. 36-3