Evidentiary Hearing Ordered on Petitioner's Claim He Wasn't Allowed to Testify

US v. Duran-Salazar, 2009 WL 74476 (10th Cir. 1/13/2009) unpublished: A divided panel remands the habeas petitioner's case for an evidentiary hearing in the district court on his 2255 claim that he was denied effective assistance of counsel at his trial. The Tenth concludes that the district court abused its discretion when it denied a hearing on his claim, supported by sworn statements, that he was denied effective assistance when his counsel refused to allow him to testify on his own behalf at this trial. At his trial on drug conspiracy (backpacker case) charges, he wanted to testify that he did not have an agreement with the codefendants. His counsel told the jury in opening statements that Mr. Salazar would testify, but then rested without calling Mr. Salazar. The jury had a hard time reaching an agreement. The allegations, coupled with the jury's difficulty in reaching a decision, entitled Mr. Salazar to an evidentiary hearing. The dissent (Judge O'Brien) would have affirmed on the basis that Mr. Salazar's claim of no agreement was "wholly incredible" based on the record.