Criminal Law: Postconviction Relief – Effectiveness Of Counsel – Evidentiary Hearing

Where a defendant in a  drug case argued that his attorney failed to file a requested notice of appeal, and the attorney and the defendant submitted conflicting affidavits, the district court abused its discretion by making a factual determination based on credibility without holding an evidentiary hearing.

Judgment is reversed and remanded.

Franco v. U.S. (MLW No. 66773/Case No. 13-2607 – 6 pages) (U.S. Court of Appeals, 8^th Circuit, Smith, J.) Appealed from U.S. District Court, District of Nebraska, Bataillon, J. (Terrance Waite, North Platte, Nebraska, argued for appellant) (David M Wear, Omaha, Nebraska, for appellee).

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