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, 8th 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).