FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   April 15, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,
               Plaintiff-Appellee,                       No. 09-7110
          v.                                    (D.C. No. 08-CV-00238-RAW)
 PAMELA RAYE HOWELL, a/k/a/                               (E.D. Okla.)
 Pamela Raye Morgan,
               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, McKAY, and LUCERO, Circuit Judges.


      Defendant, a pro se federal prisoner, seeks a certificate of appealability to

appeal the district court’s denial of her § 2255 habeas petition, which raised

various grounds of ineffective assistance of counsel. In her application for a

certificate of appealability, Defendant argues that she made a sufficient showing

of ineffective assistance and prejudice to at least receive an evidentiary hearing

on her claims.

      After thoroughly reviewing the record and Defendant’s filings on appeal,

we conclude that reasonable jurists would debate whether the district court erred


      *
        This order and judgment is not binding precedent, except under the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.
in denying the habeas petition without first holding an evidentiary hearing. See

Slack v. McDaniel, 

, 484 (2000). We therefore grant Defendant a

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

an evidentiary hearing. See 

so, we “review the district court’s

refusal to hold an evidentiary hearing for an abuse of discretion.” United States

v. Harms, 

, 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 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, 

, 520-21 (7th Cir. 2007)) (alteration in original).

      Following a jury trial, Defendant was convicted on three drug counts and a

related firearm count, while she was acquitted on a second firearm count. The

acquitted count and two of the counts of conviction—the firearm count and a

charge of attempting to manufacture methamphetamine—stemmed from police

officers’ discovery of several firearms and numerous items associated with the

manufacture of meth in a mobile home and adjacent travel trailer. While there

was strong evidence that someone had possessed firearms and attempted to

manufacture meth at that location, the evidence linking Defendant to the location

was somewhat tenuous. 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”—that there was sufficient evidence to withstand

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Defendant’s Rule 29 motion for a judgment of acquittal. (Supplemental R. at

434.)

        After reviewing the record, we conclude the allegations in Defendant’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 Defendant raised appear sufficient, if true, to satisfy the first prong of

Strickland, see Strickland v. Washington, 

, 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 case and the substantiality of Defendant’s sworn allegations, we

conclude it was an abuse of discretion for the district court to deny Defendant’s

request for an evidentiary hearing. See United States v. Barboa, 

,

1422-23 (10th Cir. 1985); Duran-Salazar, 307 F. App’x at 211. We note the

district court applied an incorrect legal standard in denying Defendant’s request

for an evidentiary hearing as to one of her allegations, reasoning that “[n]othing

in the trial record . . . supports [Defendant’s] assertion that counsel prevented her

from testifying” (Order at 6), rather than correctly considering whether anything

in the record conclusively refuted this assertion. See 28 U.S.C. § 2255(b)

(providing that a district court shall grant an evidentiary hearing “[u]nless the



        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, 

, 813-14 (1996).

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motion and the files and records of the case conclusively show that the prisoner is

entitled to no relief”); Machibroda v. United States, 

, 494-95 (1962)

(indicating a district court is not free to disregard a material allegation upon

which the record can cast no light). As for the other alleged grounds of

ineffective assistance, the district court denied relief based on its conclusion that

Defendant had not sufficiently demonstrated prejudice due to counsel’s alleged

ineffectiveness. Given the closeness of the case, however, we conclude the

question of prejudice as to these claims is better left for consideration following

an evidentiary hearing. See Duran-Salazar, 307 F. App’x at 211.

      We therefore GRANT Defendant’s request for a certificate of appealability

and REVERSE and REMAND for an evidentiary hearing on Defendant’s claims

of ineffective assistance.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




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