UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6300
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID WAYNE STOUT,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-02-202; CA-04-374-1)
Submitted: February 3, 2006 Decided: March 6, 2006
Before TRAXLER, KING, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
David Wayne Stout, Appellant Pro Se. Randall Stuart Galyon,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David Wayne Stout appeals from the district court’s order
adopting the report and recommendation of the magistrate judge and
denying Stout’s 28 U.S.C. § 2255 (2000) motion. We previously
granted a certificate of appealability on Stout’s claim that he
received ineffective assistance of counsel when his attorney failed
to advise him regarding the admissibility of certain audiotapes.
The parties have now filed additional briefs.* We vacate and
remand to the district court for further proceedings.
In his sworn statements in district court, Stout, who was
convicted after a jury trial of conspiracy to possess with intent
to distribute marijuana, asserted that he accompanied his attorney
to the Government’s office to listen to the audiotapes in question
prior to trial. The audiotapes contained conversations between
Stout and his co-conspirators. Stout was of the opinion that the
audiotapes were not admissible because there was no court order and
he did not consent to the recording. He informed his attorney
about his analysis, and his attorney did not correct his
conclusions. Based on his belief that the tapes were inadmissible,
*
In his filings following our grant of a certificate of
appealability, Stout attempts to expand the issue on appeal to add
claims that his attorney actively tried to engineer a guilty plea
by failing to investigate the tapes and that the Government
improperly edited the tapes at trial. Because no certificate of
appealability has been granted with regard to these issues, we are
without jurisdiction to consider them. See 28 U.S.C. § 2253
(2000).
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Stout decided to reject the Government’s plea offer and go to
trial. He then fired his attorney and obtained new counsel. The
tapes, which were allegedly clearly admissible, were admitted at
trial without objection. Stout asserted that, had his attorney
properly advised him regarding the admissibility of the tapes, he
would have pled guilty, because he “would have been insane to
proceed to trial knowing this evidence could have been used against
him.”
The Government filed a response in district court and
attached an affidavit from Stout’s trial counsel. Counsel asserted
that he advised Stout about the admissibility of the tapes. The
magistrate judge issued a report, recommending denying Stout’s
§ 2255 motion. Specifically, the magistrate judge found that, even
assuming that counsel unreasonably failed to advise Stout regarding
the admissibility of the tapes, Stout did not show why he did not
plead guilty once he discovered that the tapes were admissible.
Stout objected, asserting that his attorney never
answered his question as to the admissibility of the tape
recordings, and that, after he replaced his attorney and discovered
that the audiotapes were admissible, the plea offer was removed
from the table. The district court adopted the report and
recommendation without discussion.
“Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief, the
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court shall . . . grant a prompt hearing thereon, determine the
issues and make findings of fact and conclusions of law with
respect thereto.” 28 U.S.C. § 2255. An evidentiary hearing in
open court is required when a movant presents a colorable Sixth
Amendment claim showing disputed material facts and a credibility
determination is necessary in order to resolve the issue. See
United States v. Witherspoon, 231 F.3d 923, 925-27 (4th Cir. 2000);
see also Gray v. Spillman, 925 F.2d 90, 95 (4th Cir. 1991) (holding
that summary judgment may not be granted when there is opposing
sworn testimony, even when one side’s story is “hard to believe.”).
In order to succeed on a claim of ineffective assistance,
a defendant must show that his counsel’s performance fell below an
objective standard of reasonableness and that counsel’s deficient
performance was prejudicial. Strickland v. Washington, 466 U.S.
668, 687 (1984). Under the first prong of Strickland, there is a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. Id. at 689. To
satisfy the second prong, the defendant must show that his
attorney’s errors altered the outcome of the proceeding. Id. at
694.
We find that Stout’s assertions, if believed, state a
colorable claim that he was denied effective assistance of counsel.
The Government disputes the factual truth of Stout’s story. Thus,
the district court erred in resolving the factual disputes and
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deciding the case without a hearing. Accordingly, we vacate this
portion of the district court’s order and remand for further
proceedings. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
VACATED AND REMANDED
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