UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-6098
DANA LEONARD FISHER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(CR-98-67, CA-01-130)
Submitted: July 25, 2002
Decided: August 28, 2002
Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Dana Leonard Fisher, Appellant Pro Se. Laura Marie Everhart, Assis-
tant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. FISHER
OPINION
PER CURIAM:
Dana Leonard Fisher seeks to appeal the district court’s order
denying his motion filed under 28 U.S.C. § 2255 (2000).* Fisher lim-
its his appeal to his claim that counsel rendered ineffective assistance
by failing to pursue guilty plea negotiations with the Government,
failing to explain the impact of the United States Sentencing Guide-
lines prior to the trial, and improperly advising him regarding the pos-
sible term of imprisonment he faced.
The Government and Fisher presented conflicting affidavits regard-
ing whether counsel entered into plea negotiations, presented the
Government’s plea offer to Fisher, explained the impact of the Guide-
lines, or accurately estimated Fisher’s sentencing exposure. Fisher’s
affidavits created a genuine issue of material fact with respect to
counsel’s advice regarding the contested matters. See Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). Accordingly, a hearing
was required to resolve the credibility disputes created by the parties’
conflicting affidavits. Rule 8, Rules Governing Section 2255 Proceed-
ings; Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979); Raines
v. United States, 423 F.2d 526, 529 (4th Cir. 1970). The district court
did not conduct such a hearing.
Accordingly, we grant a certificate of appealability and vacate the
district court’s order dismissing Fisher’s claim relating to the suffi-
ciency of counsel’s advice regarding a guilty plea, the application of
the Guidelines, and Fisher’s sentencing exposure. We remand for fur-
ther proceedings consistent with this opinion. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
VACATED AND REMANDED
*The district court’s order denying the § 2255 motion was entered on
the docket on September 7, 2001. The court never entered its judgment
on a separate document, contrary to the requirements of Fed. R. Civ. P.
58. As a result, the time limit for noting an appeal never began to run.
See Bankers Trust Co. v. Mallis, 435 U.S. 381, 384-85 (1978). We
accordingly deem the appeal timely.