UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7917
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICHARD HARRY ROBERTSON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-02-19; CA-04-121)
Submitted: February 7, 2007 Decided: March 5, 2007
Before MICHAEL, KING, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Richard Harry Robertson, Jr., Appellant Pro Se. Thomas Richard
Ascik, Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Harry Robertson, Jr., appealed the district
court’s order dismissing his 28 U.S.C. § 2255 (2000) motion, and we
granted a certificate of appealability on Robertson’s claim that
his counsel was ineffective by failing to appeal his conviction
despite Robertson’s request that he do so.* For the reasons that
follow, we vacate the district court’s order as to Robertson’s
ineffective assistance of counsel claim and remand for further
proceedings.
Unless the motion, files, and records of the case
conclusively show that the prisoner is entitled to no relief, the
district court shall hold a prompt hearing to determine the issues
and make findings of fact and conclusions of law as to the movant’s
claims. 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); 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 Robertson’s appeal with respect to his remaining
claim that his sentence violated United States v. Booker, 543 U.S.
220 (2005).
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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 resolving
the dispute was in error.” We agree. Accordingly, we vacate the
district court’s order as to Robertson’s ineffective assistance of
counsel claim and remand that claim for further proceedings. We
grant Robertson leave to proceed in forma pauperis on appeal. 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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