UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7204
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BINH DUY PHAM,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CR-02-275; CA-04-655-1)
Submitted: April 26, 2006 Decided: May 25, 2006
Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Binh Duy Pham, Appellant Pro Se. LeDora Knight, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Binh Duy Pham appealed from the district court’s order
denying relief on his 28 U.S.C. § 2255 (2000) motion, in which Pham
asserted claims of ineffective assistance of counsel and challenged
his sentence on Sixth Amendment grounds. This court granted a
certificate of appealability on the issue of whether counsel was
ineffective for allegedly insisting that Pham testify at trial,
failing to advise him of his right not to testify, and failing to
warn him that his testimony could result in an obstruction of
justice enhancement. The court denied a certificate of
appealability and dismissed the appeal with regard to all other
issues. For the reasons that follow, we now vacate the district
court’s order as to the issue on which we granted a certificate of
appealability and remand with instructions for the court to conduct
further proceedings.
A grand jury indicted Pham on one count of distribution
of ecstasy, in violation of 21 U.S.C. § 841(a) (2000), and one
count of conspiracy to distribute ecstasy, in violation of 21
U.S.C. § 846 (2000). After two days of trial during which Pham
testified in his own defense, the jury convicted Pham on both
counts of the indictment. The district court sentenced Pham to
seventy-eight months in prison, a sentence that reflected an
enhancement for obstruction of justice based on the court’s
conclusion that Pham had given false testimony. Pham’s direct
appeal was unsuccessful.
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In the only issue remaining in this appeal from the
denial of § 2255 relief, Pham claims that counsel was ineffective
because counsel insisted that Pham testify at trial and failed to
advise him that he had the right not to testify and that he could
face an obstruction of justice enhancement in his sentence if he
testified. To succeed on his claim of ineffective assistance of
counsel, Pham must show that: (1) counsel’s performance fell below
an objective standard of reasonableness; and (2) counsel’s
deficient performance was prejudicial. Strickland v. Washington,
466 U.S. 668, 687-88 (1984).
In § 2255 proceedings, “[u]nless the motion and the files
and records of the case conclusively show that the prisoner is
entitled to no relief, the 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 facts
beyond the record and a credibility determination is necessary in
order to resolve the issue. United States v. Witherspoon, 231 F.3d
923, 925-27 (4th Cir. 2000); Raines v. United States, 423 F.2d 526,
530 (4th Cir. 1970). A district court’s decision concerning
whether a hearing is mandatory under § 2255 is reviewed for abuse
of discretion. Raines, 423 F.2d at 530.
To counter Pham’s claim, the government submitted the
affidavit of Pham’s trial counsel. In the affidavit, counsel
stated that
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[a]lthough I did not force Mr. Pham to testify, I do have
a specific recollection of telling him that for him to
have any chance of persuading a jury that his theory of
the case was true it would require him to testify, [sic]
I further have a specific recollection of advising him
that the potential sentencing risk in trying his case was
that . . . if he went to trial and testified falsely . .
. he would likely be assessed a 2 point enhancement in
his sentencing guidelines for obstruction of justice.
The district court relied on counsel’s affidavit in concluding that
Pham did not receive ineffective assistance of counsel, thus
crediting counsel’s statement that he did not compel Pham to
testify and that he warned Pham about the risk of an obstruction of
justice enhancement. However, Pham submitted his claim under
penalty of perjury and included three affidavits from relatives and
a friend who all asserted that they were present during all
meetings between Pham and his attorney and that counsel insisted
that Pham testify and never advised Pham that he did not have to
testify or warned him that his testimony could result in an
obstruction of justice enhancement.
In light of the dispute in fact regarding Pham’s
ineffective assistance of counsel claim, we find that a credibility
determination is necessary in order to resolve the issue.
Accordingly, we vacate the portion of the district court’s order
denying relief on Pham’s claim that counsel was ineffective for
insisting that he testify, failing to advise him of his right not
to testify, and failing to warn him that his testimony could result
in an obstruction of justice enhancement, and remand for further
proceedings. We dispense with oral argument because the facts and
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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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