IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________

No. 96-50549 ______________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JOHN THOMAS MCCUSKER, Defendant-Appellant

_________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (A-89-CR-173-01 & A-95-CA-853) _________________________________________________________________ March 2, 1998 Before DEMOSS and DENNIS, Circuit Judges, and LEE,1 District Judge.

PER CURIAM:2

John Thomas McCusker, federal prisoner #49205-080, filed a

motion under

to vacate, set aside or correct

sentence by a person in federal custody.

1 Chief Judge of the Southern District of Mississippi, sitting by designation. 2 Local Rule 47.5 provides: “The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession.” Pursuant to that Rule, the court has determined that this opinion should not be published. Because the motions, files and records of this case do not

conclusively show that McCusker was entitled to no relief as to

Count III of the indictment, we reverse the district court’s

decision only insofar as it rejected, without an evidentiary

hearing, both McCusker’s claim that his trial counsel was

ineffective for failing to interview and/or call alibi witnesses

and his claim that he was denied his right to testify on his own

behalf as to the events of June 4, 1987, and remand these claims

for an evidentiary hearing. See United States v. Bartholomew,

(5th Cir. 1992).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

2