Lott v. United States

32 F. App'x 424

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 20, 2002
• Docket: No. 00-35979; D.C. Nos. CV-00-00009-BJR, CR-95-00777-BJR
• Status: Published

Opinion

MEMORANDUM

**

Kevin Odell Lott appeals pro se the district court’s denial of his 28 U.S.C. § 2255 motion challenging his 240-month sentence following a jury trial for possession with intent to distribute, and distribution, of cocaine base, in violation of 21 U.S.C. § 841(a)(1)(A), and conspiracy, in violation of 21 U.S.C. § 846. We have jurisdiction pursuant to 28 U.S.C. § 2255, and we reverse.

Lott contends that he was denied his Sixth Amendment right to effective assistance of counsel because his trial attorney’s loyalties to another client prevented Lott from accepting a 120-month plea offer, which would have required him to implicate the other client. Lott argues that the district court erred in denying his motion without an evidentiary hearing.

We review de novo a district court’s denial of a § 2255 motion based on ineffective assistance of counsel, while we review the denial of an evidentiary hearing for abuse of discretion. United States v. Chacon-Palomares, 208 F.3d 1157, 1158-59 (9th Cir.2000).

Our review of the record — in particular, the parties’ declarations in this habeas proceeding and Lott’s sentencing proceedings on July 17 and 19, 1996 — reveals that there is a dispute of fact warranting an evidentiary hearing. See United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984) (internal citations omitted) (requiring an evidentiary hearing on a § 2255 motion if “the movant has made specific factual allegations that, if true, state a claim on which relief could be granted”).

We express no opinion on the merits, but reverse and remand for further proceedings.

REVERSED AND REMANDED.

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