Thrasher

MEMORANDUM *

Federal prisoner Thrasher appeals from an order denying his 28 U.S.C. § 2255 petition. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 , 2253, and 2255. We affirm in part and vacate and remand in part.

*877 We conclude that an evidentiary hearing was required on the ineffective assistance of counsel claim. We must remand for a hearing to resolve a critical disputed fact: whether Scarlett told Storkel that she was going to testify unfavorably to Thrasher. Storkel says that Scarlett did state she would do so and that he specifically told Thrasher what Scarlett had said. Thrasher does not specifically deny being told this, but he does assert that Scarlett told him that when she arrived at the courthouse, Storkel “simply told her to leave,” and that Scarlett did not tell Thrasher that she would have provided harmful testimony about Thrasher.

This factual dispute is central to the reasonableness of Storkel’s decision not to call Scarlett, which Thrasher challenges as constitutionally deficient and prejudicial because 1) Scarlett potentially could have bolstered Thrasher’s explanation for the gun’s presence in the briefcase; 2) Storkel had told the jury that she would…