UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7498
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HASSAAN HAAKIM RASHAAD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Lacy H. Thornburg,
District Judge. (3:01-cr-00195-1; 3:04-cv-00500)
Submitted: October 19, 2007 Decided: November 5, 2007
Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Hassaan Haakim Rashaad, 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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hassaan Haakim Rashaad appeals from the district court’s
order denying relief on his motion filed under 28 U.S.C. § 2255
(2000). We previously granted a certificate of appealability as to
Rashaad’s claim that his attorney provided ineffective assistance,
resulting in Rashaad being denied the right to testify in his
defense.1 After receiving additional briefing on this issue, we
now vacate the district court’s order and remand for further
proceedings.
A criminal defendant has a fundamental constitutional
right to testify on his or her own behalf at trial. United States
v. Midgett, 342 F.3d 321, 325 (4th Cir. 2003). This right, derived
from various constitutional provisions, “reaches beyond the
criminal trial.” Rock v. Arkansas, 483 U.S. 44, 51 n.9 (1987);
Reinert v. Larkins, 379 F.3d 76, 95 (3d Cir. 2004) (considering
habeas petitioner’s ineffective assistance of counsel claim based
on his contention that his counsel violated his constitutional
right to testify at a pre-trial suppression hearing). A
defendant’s waiver of this right, like that of any other
constitutional right, is “personal” and must be made voluntarily
and knowingly. Sexton v. French, 163 F.3d 874, 881 (4th Cir.
1998); Brown v. Artuz, 124 F.3d 73, 77-78 (2d Cir. 1997).
1
We denied a certificate of appealability and dismissed
Rashaad’s appeal as to his remaining claims.
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In his § 2255 motion and the accompanying sworn
affidavit, Rashaad claimed counsel was ineffective when he failed
to advise Rashaad of his right to testify at the pre-trial hearing
on his motion to dismiss the indictment, which was predicated on
the immunity agreement into which Rashaad had entered with the
Government. In his affidavit, Rashaad asserted that, had he
properly been advised and allowed to testify, he would have
provided testimony refuting the Government’s evidence establishing
Rashaad’s breach of the immunity agreement. The Government did not
file a response to Rashaad’s motion. The district court summarily
dismissed the claim, finding Rashaad had not established his
attorney had failed to advise him of his right to testify at trial.
The court, however, did not address Rashaad’s claim that he had not
been advised regarding his right to testify at the pre-trial
hearing.
Unless it is clear from the pleadings, files, and records
that the prisoner is not entitled to relief, § 2255 makes an
evidentiary hearing mandatory. 28 U.S.C. § 2255; Raines v. United
States, 423 F.2d 526, 529 (4th Cir. 1970). The district court may
expand the record to include letters, documents, and affidavits.
Raines, 423 F.2d at 529-30. A district court’s decision as to
whether a hearing is mandatory under § 2255 and whether
petitioner’s presence is required at the hearing is reviewed for
abuse of discretion. Id. at 530 (citing Machibroda v. United
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States, 368 U.S. 487 (1962)). Notwithstanding the court’s ability
to expand the record and its wide discretion in the matter,
“[t]here will remain, however, a category of petitions, usually
involving credibility, that will require an evidentiary hearing in
open court.” Id.
Under Strickland v. Washington, 466 U.S. 668, 694 (1984),
in order to prove ineffective assistance of counsel based on his
claim that his attorney prevented him from exercising his right to
testify at the pre-trial hearing, Rashaad must show both that his
attorney violated his right to testify and that his testimony had
a “reasonable probability” of changing the outcome. In denying
§ 2255 relief on this issue, the district court construed Rashaad’s
claim as asserting Rashaad had been denied his right to testify at
trial — not at the pre-trial hearing. This overly narrow
construction of Rashaad’s claim, coupled with the fact that
Rashaad’s affidavit stands unrefuted on the record,2 leads us to
conclude the district court’s order as to this issue must be
vacated.
2
Although far from clear, it appears plausible that, had
Rashaad been permitted to testify at the pre-trial hearing on the
motion to dismiss and had he testified in conformity with the facts
averred in his affidavit, the result of the hearing might have been
different. However, as the district court has yet to consider this
issue, our present disposition should not be construed as an
indication that we have formulated any view regarding the
appropriate outcome of the proceedings on remand.
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We vacate the district court’s order denying relief on
Rashaad’s claim that counsel was ineffective because he prevented
Rashaad from testifying at the pre-trial hearing, and remand for
further proceedings consistent with this opinion. We deny
Rashaad’s motion for default judgment. 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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