UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6592
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES MICHAEL COON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen,
District Judge. (CR-03-148; CA-05-121-3)
Submitted: August 30, 2006 Decided: November 14, 2006
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Charles Michael Coon, Jr., Appellant Pro Se. Amy Elizabeth Ray,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Charles Michael Coon, Jr., appeals the district court’s
order summarily dismissing a 28 U.S.C. § 2255 (2000) motion to
vacate his 2003 convictions on various drug offenses. We
previously granted a certificate of appealability on Coon’s claim
that his attorney failed to appeal these criminal convictions
despite Coon’s request that he do so.* For the reasons that
follow, we vacate the district court’s order summarily denying
relief on this claim, and remand for further proceedings.
“Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief, the
court shall cause notice thereof to be served upon the United
States attorney, 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. A hearing is required when a
movant presents a colorable Sixth Amendment claim showing disputed
material facts and a credibility determination is necessary to
resolve the issue. See United States v. Witherspoon, 231 F.3d 923,
925-27 (4th Cir. 2000); Roe v. Flores-Ortega, 528 U.S. 470, 476-77
(2000); United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993).
In its informal brief to this court, the Government
concedes that “the record before the district court raised a
*
In the same order, we denied a certificate of appealability
and dismissed Coon’s appeal with respect to his other claim of
ineffective assistance of counsel.
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genuine issue of material fact as to whether trial counsel’s
performance was per se ineffective under Peak. Accordingly, the
district court’s summary dismissal of this claim without seeking an
affidavit from trial counsel or resolving the dispute was in
error.” We agree. In light of Coon’s claim, under penalty of
perjury, that counsel failed to file an appeal after being
requested to do so, we find that the district court erred in
summarily dismissing this claim of ineffective assistance of
counsel. Accordingly, we grant the Government’s motion for leave
to file its brief out of time, vacate the decision of the district
court, and remand the case 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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