If the petitioner's claims are not procedurally barred, the Court must hold an evidentiary hearing to consider the claims “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C.A. § 2255(b); see also Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994). A petitioner is entitled to an evidentiary hearing “when the facts alleged, if true, would entitle [the petitioner] to relief.”

The Court must hold an evidentiary hearing to consider claims in a 28 U.S.C. § 2255 motion "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994) (citing 28 U.S.C. § 2255). Thus, a petitioner is entitled to an evidentiary hearing "when the facts alleged, if true, would entitle [the petitioner] to relief."

After his appeal was initially denied as premature and later reinstated, the Eighth Circuit vacated the District Court's Judgment and remanded the case for further proceedings consistent with its opinion. Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994) (Shaw III). On remand, the Eighth Circuit directed that the District Court allow discovery to be completed, hold an evidentiary hearing and ascertain at such a hearing the reasons for the limited offer by trial counsel, Stanley E. Whiting (hereafter Whiting), of the testimony of several young boys who claimed they had sexual intercourse with the victim, S.A. Id.

See id. If the petitioner's claims are not procedurally barred, the Court must hold an evidentiary hearing to consider the claims “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994). A petitioner is entitled to an evidentiary hearing “when the facts alleged, if true, would entitle [the petitioner] to relief.”

If procedural rules do not bar the petitioner's claims, the Court must hold an evidentiary hearing to consider the claims “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994). A petitioner must receive an evidentiary hearing “when the facts alleged, if true, would entitle [him] to relief.”

The Court must hold an evidentiary hearing to consider claims in a § 2255 motion "unless the motion, files and records of the case conclusively show that the prisoner is entitled to no relief." Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994)(citing 28 U.S.C. § 2255). Thus, a "[movant] is entitled to an evidentiary hearing 'when the facts alleged, if true, would entitle [movant] to relief.'" Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996)(quoting Wade v. Armontrout, 798 F.2d 304, 306 (8th Cir. 1986)).

The Court must hold an evidentiary hearing to consider claims in a § 2255 motion, "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994) (quoting 28 U.S.C. § 2255(b)). Therefore, a "petitioner is entitled to an evidentiary hearing 'when the facts alleged, if true, would entitle him to relief.'"

A subsequent affidavit from counsel will not suffice to establish a trial strategy, nor absolve the district court from the requirement of holding an evidentiary hearing.United States v. Holder, 410 F.3d 651; 2005 U.S. App. LEXIS 10380 (10th Cir. 2005) (remanding for evidentiary hearing where no explanation in record for counsel's complained of failure); United States v. McCoy, 410 F.3d 124; 2005 U.S. App. LEXIS 10372 (3rd Cir. 2005) (same); United States v. Burrows, 872 F.2d 915, 918-919 (9th Cir. 1989) and United States v. Briggs, 939 F.2d 222, 228 (5th Cir. 1991); United States v. Estrada, 849 F.2d 1304, 1306-1307 (1st Cir. 1988); Virgin Islands v. Weatherwax, 20 F.3d 572, 573 (3rd Cir. 1994); Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994) (petitioner entitled to evidentiary hearing on claim of ineffective assistance of counsel unless claim inadequate on its face or if records conclusively refute factual assertions of claim); United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (evidentiary hearing required unless Section 2255 motion, files, and trial record "conclusively show" petitioner entitled to no relief); Nichols v. United States, 75 F.3d 1137 (7th Cir. 1996) (same); United States v. Witherspoon, 231 F.3d 923; 2000 U.S. App. LEXIS 27778 (4th Cir. 11-6-00) (petitioner entitled to evidentiary hearing when motion presented colorable claim and unclear whether counter affidavit disputed defendant's allegations).Smith v. McCormick, 914 F.2d 1153, 1170 (9th Cir. 1990); United States v. Giardino, 797 F.2d 30, 32 (1st Cir. 1986); Lindhorst v. United States, 585 F.2d 361, 365 (8th Cir. 1978).

A. RIGHT TO EVIDENTIARY HEARING The Court must hold an evidentiary hearing to consider claims in a § 2255 motion "`[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994) (alteration in original) (quoting 28 U.S.C. § 2255). Thus, a movant is entitled to an evidentiary hearing "`when the facts alleged, if true, would entitle [the movant] to relief.'" Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996) (quoting Wade v. Armontrout, 798 F.2d 304, 306 (8th Cir. 1986)).

If a movant is not procedurally barred from making a § 2255 motion, the Court must hold an evidentiary hearing to consider the claims made therein "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994). Thus, a movant is entitled to an evidentiary hearing so long as "the facts alleged, if true, would entitle [the movant] to relief."