UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7468
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARMOND RASHAWN WRIGHT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:04-cr-00618-PMD-1; 2:11-cv-70092-PMD)
Submitted: July 25, 2013 Decided: August 12, 2013
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Armond Rashawn Wright, Appellant Pro Se. Sean Kittrell,
Assistant United States Attorney, Charleston, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Armond Rashawn Wright appeals the denial of his 28
U.S.C.A. § 2255 (West Supp. 2013) motion. We previously granted
a certificate of appealability on Wright’s claim that counsel
was ineffective in failing to note an appeal as directed. After
additional briefing, we vacate the district court’s order and
remand for further proceedings.
In his § 2255 motion, Wright claimed that he
explicitly requested that counsel file a notice of appeal.
Wright presented an affidavit to this effect, as well as an
affidavit from his grandmother attesting that Wright, in her
presence, requested the filing of a notice of appeal. The
Government presented an affidavit from counsel attesting that
Wright never requested that a notice of appeal be filed.
In United States v. Peak, 992 F.2d 39, 41-42 (4th Cir.
1993), this court held that counsel’s failure to file a notice
of appeal as directed constitutes per se ineffective assistance.
Under 28 U.S.C.A. § 2255(b), unless the pleadings, files, and
records conclusively show that the prisoner is not entitled to
relief, the district court shall hold an evidentiary hearing.
United States v. Witherspoon, 231 F.3d 923, 925-27 (4th Cir.
2000). While whether an evidentiary hearing is necessary is
generally left to the sound discretion of the district judge, we
long ago recognized that there remained “a category of
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petitions, usually involving credibility, that will require an
evidentiary hearing in open court.” Raines v. United States,
423 F.2d 526, 530 (4th Cir. 1970).
Wright’s claim that counsel failed to file a notice of
appeal when requested, if believed, states a colorable claim of
ineffective assistance. Peak, 992 F.2d at 41-42. However, the
district court denied Wright’s motion after determining that his
claim lacked credibility. In light of the parties’ conflicting
affidavits, the record did not conclusively show that Wright was
not entitled to relief. 28 U.S.C.A. § 2255(b); Raines, 423 F.2d
at 530 (“When the issue is one of credibility, resolution on the
basis of affidavits can rarely be conclusive.”). The district
court therefore abused its discretion in concluding, without an
evidentiary hearing, that Wright did not direct counsel to file
a notice of appeal.
Accordingly, we vacate the district court’s order and
remand for an evidentiary hearing. We deny Wright’s motion for
an extension of time to reply as moot, and deny his motions to
appoint counsel and for a transcript at Government expense. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
VACATED AND REMANDED
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