On Direct Appeal, Denial of Evidentiary Hearing Regarding Ineffective Assistance Claim is Reviewed for Abuse of Discretion

United States v. Demik, No. 05-11215 (5th Cir. June 14, 2007) (per curiam) (Smith, Benavides, Dennis)

After being convicted at trial, Demik fired his attorney and filed a motion for new trial in which he alleged that his attorney was ineffective at trial. The court appointed the Federal Public Defender to represent Demik, and the FPD filed both a supplemental motion for new trial that went into greater detail on the ineffective assistance claim, as well as a motion for an evidentiary hearing on the matter. The district court denied the supplemental motion for new trial as untimely. It also denied Demik's original motion for new trial on the ground that it contained nothing but conclusory allegations, and refused to grant the requested evidentiary hearing.

On appeal, Demik challenged the distict court's denial of the evidentiary hearing. The court of appeals rejected Demik's arguments, in a two-part holding. First, the court said,

We have not previously articulated what standard of review to use, on direct appeal, to evaluate the denial of an evidentiary hearing regarding a claim of ineffective assistance of counsel. In cases involving petitions for writs of habeas corpus under 28 U.S.C. § 2255, we review the denial of an evidentiary hearing for abuse of discretion. We now apply that standard on direct appeal.

Second, the court declined to take a position on Demik's contention "that a district court must hold an evidentiary hearing on a claim of ineffective assistance of counsel unless the record conclusively shows the defendant is entitled to no relief." The court held that it "need not decide whether that standard applies here in a case on direct appeal, because conclusional allegations are insufficient to require an evidentiary hearing." The court pointed to the failures in the various motions filed (conclusory allegations, no explanation of what trial counsel should have done or how it would have affected the trial, no allegation of harm from trial counsel's omissions), and refused to consider the apparently more thorough allegations in the supplemental motion for new trial because it was untimely "and the district court was within its discretion not to consider it."